Thomas D. Abrams v. USA (11th Cir. 2006)

§ 2255 motion to vacate, set aside, or correct his sentence. On appeal, Abrams a rg u e s that (1) the district court failed to afford him the required 10 days to object to the magistrate's report and recommendation ("R & R"), (2) this Court should ex p an d his certificate of appealability ("COA") to include issues I, II, and IV-XI fro m his motion for a COA, and (3) his counsel was ineffective for failing to o b ject, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L .E d .2 d 435 (2000), to the district court's use of facts not alleged in his indictment to increase his sentence. In response, the government maintains that we do not h av e jurisdiction to consider issues outside of the COA, and, further, that Abrams's in effectiv e assistance of counsel issue is outside of the COA. We will address the arg u m en ts in turn.

I. S co p e of the COA W e are "obligated to raise questions concerning our subject matter ju risd ictio n sua sponte in all cases." Boone v. Sec'y, Dep't of Corr., 377 F.3d 1 3 1 5 , 1316 (11th Cir. 2004). We review our subject-matter jurisdiction de novo.

Resendiz-Alcaraz v. U.S. Att'y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004).

As an initial matter, Abrams appealed the denial of his § 2255 motion after A p ril 24, 1996 and, thus, his appeal is governed by the COA requirements of the A n titerro rism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 1 0 4 -3 2 , 110 Stat. 1214 (1996). Under the AEDPA, appellate review is limited to th e issues specified in the COA. 28U.S.C. § 2253; Murray v. United States, 145 F .3 d 1249, 1250-51 (11th Cir. 1998). In Jones v. United States, 224 F.3d 1251, 1 2 5 5 -5 6 (11th Cir. 2000), we noted that, when a district court grants a COA on s o m e , but not all, issues raised in a § 2255 motion, a movant may seek a broader C O A by "explicit[ly] request[ing]" that we consider an uncertified issue. Prior to J o n e s , we had stated that a movant's request to expand the COA "must be filed p r o m p tly , well before the opening brief is done," and that arguments in the brief ad d ressin g issues outside the COA "simply will not be reviewed." Tompkins v. M o o r e, 193 F.3d 1327, 1332 (11th Cir. 1999). In Jones, however, we explained th at Tompkins involved pre-AEDPA law, and, thus, its statements regarding A E D P A procedure were dicta. Jones, 224 F.3d at 1256. Even so, we declined to reso lv e the issue because the movant in Jones "had satisfied the more stringent stan d ard by presenting this court with an explicit request to broaden his COA." Id.

Thus, the issue of when a movant is required to file his "explicit request" to expand th e COA order is an open question in this Circuit. Nevertheless, Tompkins still p ro v id es the best instruction available, as Jones did not decide the issue.

A. P ro ced u ra l Due Process Error O n appeal, Abrams argues that the district court erred in adopting the m a g is tr ate 's R & R "within 24 hours of the time it was issued" because the court d id not consider Abrams's objections to the R & R. (Blue Brief at 15).1 In a habeas proceeding, we review questions of law de novo. Jones v. C am p b ell, 436 F.3d 1285, 1292 (11th Cir. 2006).

The Due Process Clause of the Fifth Amendment provides that "[n]o person sh all . . . be deprived of life, liberty, or property, without due process of law." U.S.

C o n s t. amend. V. "[T]his clause . . . provides two different kinds of constitutional p ro tectio n : procedural due process and substantive due process." Rivera v. Allin, 1 4 4 F.3d 719, 726 (11th Cir. 1998) (quotation omitted) (alteration in original).

Section 636 of Title 28 of the United States Code sets forth the jurisdiction an d powers of magistrate judges. According to that section, a magistrate judge m ay conduct hearings and submit to a district court judge its findings of fact and reco m m en d atio n s for the disposition of applications for posttrial relief made by crim in al defendants. 28U.S.C. § 636(b)(1)(B). The magistrate must also submit its findings and recommendations to the parties involved and, "[w]ithin ten days after being served with a copy, any party may serve and file written objections to su ch proposed findings and recommendations." 28U.S.C. § 636. "A judge of the co u rt shall make a de novo determination of those portions of the report or sp ecified proposed findings or recommendations to which objection is made." Id.

B efo re reaching the merits of Abrams's due process argument, we must d eterm in e whether we may even consider the merits because, on its face, the COA d o es not include the issue. In McCoy v. United States, 266 F.3d 1245, 1248 n.2 (1 1 th Cir. 2001), we noted that, where the district court does not address p r o c e d u r a l issues that we must resolve before reaching the merits of a COA issue, w e will read the COA to encompass the procedural issues. In Abrams's case, we m u st first resolve the issue of whether the procedural due process violation req u ires either (1) remand to the district court, or (2) analysis as harmless error.

Thus, under McCoy, this issue is a procedural issue of the type that the COA en co m p asses, and, as such, we may properly consider it here.

It is clear that the district court did not provide Abrams a ten-day o p p o r tu n ity within which to file his objections to the R & R, as the district court ad o p ted the magistrate's R & R on January 9, 2006, five days prior to the ex p iratio n of the ten-day objection period. Thus, the district court violated 28 U .S .C . § 636 and thereby deprived Abrams of due process of law. Nonetheless, we fin d that the error was harmless because Abrams did not raise any new arguments in his objections to the magistrate's R & R that the district court had not considered in reviewing Abrams's motion for a COA. See Marshall v. City of Cape Coral, F la., 797 F.2d 1555, 1562-63 (11th Cir. 1986) (holding that the district court's failu re to comply with the 10-day notice requirement set forth in Fed.R.Civ.P.

5 6 (c) was harmless error). Moreover, Abrams could have cured the violation by filin g a motion for reconsideration of the district court's order or by moving this C o u rt, prior to filing his appellate brief, to consider his objections and expand his COA.

B. Issu es I, II, and IV-XI of Abrams's Motion for a COA A b ram s argues that issues I, II, and IV through XI, as presented in his m o tio n for a COA, were "debatable among jurists of reason and constitute[d] a su b stan tial showing of the denial of a [c]onstitutional right." Abrams contends th at, because the magistrate did not grant a COA on those issues, and because the d is tr ic t court did not consider his objections to the magistrate's findings, this Court sh o u ld grant a COA on those issues. Abrams lists all the issues, but provides no fu rth er argument explaining why the issues merit the grant of a COA.

Abrams has not filed an explicit request to expand the COA, nor does he ex p lain why the merits underlying the claims at issue warrant an expanded COA.

Thus, to the extent that Abrams raises issues beyond the one issue for which the d istrict court granted a COA, such issues are not properly before this Court, and we w ill not review them. See Jones, 224 F.3d at 1255-56; Tompkins, 193 F.3d at 1 3 3 2 ; Murray, 145 F.3d at 1250-51.

C. Issu e III of Abrams's Motion for a COA A b ram s argues that the district court misconstrued the arguments in his § 2255 motion. Abrams maintains that he argued in his § 2255 motion that his c o u n s el was ineffective for failing to object to his sentencing enhancements based o n Ring and Apprendi. Abrams contends that he had never argued, contrary to the d istrict court's conclusion, that his counsel was ineffective for failing to anticipate th e change in the law advanced by Blakely and Booker.

Because the text of the COA is unclear on its face, and because it u n eq u iv o cally references Abrams's Issue III from his motion for a COA, we find th at the COA includes Abrams's argument that his counsel was ineffective for failin g to object on Apprendi grounds. See Murray, 145 F.3d at 1251 ("Although w e will not decide any issue not specified in the COA, we will construe the issue sp ecificatio n in light of the pleadings and other parts of the record").

II. I n e ff ec tiv e Assistance of Counsel A b ram s argues on appeal that, at sentencing, the district court enhanced his b a s e offense level based on facts to which Abrams did not plead guilty and were n o t found beyond a reasonable doubt. Abrams contends that the district court's f ac t- fin d in g violated his Sixth Amendment rights and that his counsel was in effectiv e for failing to object to the court's error under Apprendi. Abrams asserts th at his counsel's ineffective assistance severely prejudiced him by allowing "the im p o sitio n of a 50-fold increase in [his] sentence based solely on judge made f ac tu a l findings." Abrams further argues that the rule set forth in Apprendi had b e e n clearly established prior to his sentencing hearing, and, thus, his counsel was fu lly apprised of the state of the law and should have properly objected.

"On appeal, we review a district court's findings of fact in a 28U.S.C.

§ 2255 proceeding for clear error, and its legal conclusions de novo." Garcia v. U n ited States, 278 F.3d 1210, 1212 (11th Cir. 2002).

In Apprendi, the Supreme Court held that, "[o]ther than the fact of a prior c o n v ic tio n , any fact that increases the penalty for a crime beyond the prescribed statu to ry maximum must be submitted to a jury, and proved beyond a reasonable d o u b t." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. We have clarified, h o w e v e r, that "[t]he rule in Apprendi only applies where a defendant is sentenced ab o v e the statutory maximum sentence for an offense." United States v. Davis, 3 2 9 F.3d 1250, 1254 (11th Cir. 2003). "Apprendi does not prohibit a sentencing c o u r t from imposing consecutive sentences on multiple counts of conviction as lo n g as each is within the applicable statutory maximum." Id. H ere, the district court did not violate the rule set forth in Apprendi because A b ram s's total sentence was less than the aggregate statutory maximum for all of h is convictions. See United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (h o ld in g that there is no Apprendi error where "the ultimate sentence does not ex ceed the aggregate statutory maximum for the multiple convictions"). Thus, A b ram s's counsel was not ineffective for failing to object on Apprendi grounds b e c au s e there was no Apprendi error.

U p o n review of the record, and consideration of the parties' briefs, we d iscern no reversible error. Accordingly, we affirm the district court's denial of A b ram s's § 2255 motion.

A F F IR M E D .

1 Abrams further argues that, because the district court failed to consider his objections to the R & R, we should now consider whether a COA may be granted with respect to those objections. That argument is addressed in section I(B).

Thomas D. Abrams v. USA (11th Cir. 2006)

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