Opinion
Crim. File No. 99-79 (PAM/JGL).
September 11, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion for Reconsideration of this Court's July 24, 2001, Order (Clerk Doc. No. 94) denying Defendant's request to vacate, set aside or modify his sentence. For the following reasons, Defendant's Motion is denied.
BACKGROUND
On March 24, 1999, Lemon was indicted by a United States Grand Jury for the District of Minnesota on two counts: (1) possession with intent to distribute 203 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1); and (2) felon in possession of ammunition, in violation of 18 U.S.C. § 922(b). On September 13, 1999, a jury found Lemon guilty on both counts. Lemon was subsequently sentenced by this Court, on February 8, 2000, to twenty years' imprisonment on Count 1 and ten years' imprisonment on Count 2, to be served concurrently. Lemon appealed to the Eighth Circuit Court of Appeals, which affirmed his conviction and sentence. See United States v. Lemon, 239 F.3d 968 (8th Cir. 2001).
Lemon then filed a pro se "Petition for Right of Review Pursuant to Title 5, United States Code, Section 702." Because Lemon sought to vacate, set aside, or modify his sentence, his submission was treated by this Court as a Petition pursuant to 28 U.S.C. § 2255 and was denied. Lemon now requests that this Court rescind its previous Order and allow him to withdraw his "Petition for Right of Review Pursuant to Title 5, United States Code, Section 702."
Section 702 provides a right of review for "[a] person suffering legal wrong because of agency action." 5 U.S.C. § 702. Because the definition of "agency" for the purposes of this Section explicitly excludes the Congress and Courts of the United States, See 5 U.S.C. § 701(b)(1)(A) and 701(b)(1)(B), Lemon's original Petition was facially meritless.
Lemon justifies his request by pointing to the substantial restrictions placed upon a prisoner's second or successive petition for a writ of habeas corpus by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C.). Claiming that he wishes to raise issues of constitutional significance, Lemon cities a recent Second Circuit case, Adams v. United States, 155 F.3d 582 (2d Cir. 1998), that he argues limits a district court's capacity to recharacterize a pro se prisoner's motion as a petition for habeas corpus.
DISCUSSION
Historically, federal courts have been solicitous of the rights of pro se litigants in general and pro se prisoners in particular. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that "allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence");White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976) (finding that a pro se petition should be "interpreted liberally and . . . should be construed to encompass any allegation stating federal relief"); Zlich v. Lucht, 981 F.2d 694, 694 (3d Cir. 1992) (stating that "[w]hen . . . plaintiff is a pro se litigant, we have a special obligation to construe his complaint liberally"). This solicitude has lead numerous courts to recharacterize "inartfully drawn pleadings to assist pro se prisoners who mistakenly relied on inappropriate rules or statutes." Raineri v. United States, 233 F.3d 96, 96 (1st Cir. 2000). See also Adams, 155 F.3d at 583 (noting that district courts have "routinely converted post conviction motions of prisoners who unsuccessfully sought relief under some other provision of law into motions made under 28 U.S.C. § 2255 and proceeded to determine whether the prisoner was entitled to relief under that statute"). This practice developed so that courts could consider the merits of pro se motions, while avoiding the wasted time and expense of forcing pro se litigants to redraft their motions. United States v. Miller, 197 F.3d 644, 649 (1999). The enactment of the AEDPA, however, has "altered the dynamics of this entrenched practice." Raineri, 233 F.3d at 96.
The AEDPA's amendment of section 2255 bars second or successive habeas petitions absent exceptional circumstances and certification by the appropriate court of appeals. See 28 U.S.C. § 2255. Accordingly, a district court practice that evolved to assist pro se prisoners through the labyrinthine maze of legal technicalities could conceivably result in depriving pro se prisoners of their chance to have legitimate grievances heard. This iniquitous possibility has lead several circuit courts to hold that before a district court can recharacterize a pro se prisoner's post-conviction motion as a habeas petition, it must take prophylactic measures to warn the prisoner of the consequences of the conversion and give him or her the opportunity to withdraw the pleading. See, e.g., Adams, 155 F.3d at 584; Miller, 197 F.3d at 652; United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000) (adopting the holdings of the courts in Adams and Miller); United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (same). The Fifth Circuit, however, in a decision predating those mentioned above, took the opposite approach. In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (affirming a district court's recharacterization of a petitioner's pro se motion as a section 2255 motion and holding that any successive Section 2255 motions that prisoner filed needed to be certified by a court of appeals).
Perhaps attempting to chart a middle path, the First and Seventh Circuits have held that when a district court, acting sua sponte and without any advance notice, recharacterizes a petitioner's motion as a section 2255 habeas petition, such a motion cannot be treated as a "first" habeas petition for AEDPA purposes. See Raineri, 233 F.3d at 100-01; Henderson v. United States, ___ F.3d ___, No. 01-2989, 2001 WL 985767, at *2 (7th Cir. Aug. 29, 2001). The court in Raineri concluded that the prophylactic measures required by the Second and Third Circuits "sweep more broadly than the exigencies of this situation require."Raineri, 233 F.3d at 100. The decisions of these circuits "not only ameliorate the problem but also burden the district courts with a new protocol." Id.
In reaching this conclusion, the First Circuit noted that the phrase "second or successive petition" is a term of art designed to avoid abuse of the motion. Id. (quoting Slack v. McDaniel, 529 U.S. 473, 486 (2000)). Abuse is ordinarily not present when a pro se motion which is not denominated as a habeas petition is recharacterized as one. Accordingly, such a recharacterized pro se motion generally cannot "function as a proper predicate for purposes of the `second or successive' regime." Raineri, 233 F.3d at 100. Along similar analytical lines, the Seventh Circuit noted that "[n]othing in the AEDPA says that a motion not labeled as a section 2255 motion shall nevertheless be deemed one if it could have been so labeled accurately." Henderson, 2001 WL 985767, at *2.
The Eighth Circuit has not yet squarely addressed this issue. See United States v. Wolff, 241 F.3d 1055 (8th Cir. 2001) (holding that the court not need "consider whether Adams should be followed"). This Court, therefore, finds the reasoning of the First and Seventh Circuits persuasive. Notwithstanding the AEDPA, recharacterization may benefit a pro se litigant, serve the interests of justice, or otherwise be plainly warranted. The approach taken in Raineri and Henderson strikes a balance between the need for timely and cost-effective adjudication and the protection of pro se litigants' rights.
Accordingly, the Court denies Defendant's Request for Reconsideration. Although this Court's decision today does not necessarily preclude Defendant from filing a "first" petition captioned as a motion for habeas corpus pursuant to section 2255, this Court urges Defendant to consider carefully the merits of his Constitutional challenge. The Court is convinced that any challenge to Defendant's sentence premised upon Congress' power under the Commerce Clause to enact 21 U.S.C. § 841(a)(1) will fail.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Reconsideration of this Court's July 24, 2001, Order (Clerk Doc. No. 94) is DENIED.