2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2003

In Re: Olabode

Precedential or Non-Precedential: Precedential

Docket 02-2226

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Olabode " (2003). 2003 Decisions. Paper 594.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/594
PRECEDENTIAL

Filed April 10, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2226

IN RE: ILORI BABAJIDE OLABODE,

Petitioner

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 98-cr-00297-3)

District Judge: Hon. Marvin Katz

Argued: January 28, 2003

Before: SLOVITER, RENDELL, Circuit Judges,

and DEBEVOISE, District Judge*

(Filed April 10, 2003)

Peter A. Levin (Argued)

1927 Hamilton Street

Philadelphia, PA 19130

Attorney for Petitioner

* Honorable Dickinson R. Debevoise, Senior Judge, United States District

Court for the District of New Jersey, sitting by designation. 
Patrick L. Meehan

United States Attorney

Laurie Magid

Deputy United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Christopher R. Hall (Argued)

Assistant United States Attorney

Office of United States Attorney

Philadelphia, PA 19106

Attorneys for Respondent

Maureen Kearney Rowley

Chief Federal Defender

David L. McColgin (Argued)

Assistant Federal Defender

Supervising Appellate Attorney

Defender Association of Philadelphia

Federal Court Division

Philadelphia, PA 19106

Attorneys for Amici Curiae,

Community Defender Organization

for the Eastern District of

Pennsylvania; Federal Court

Division of the Defender

Association of Philadelphia;

Federal Defender Offices of the

Middle District of Pennsylvania,

Western District of Pennsylvania,

New Jersey, Delaware, and the

Virgin Islands; and National

Association of Federal Defenders

OPINION OF THE COURT

SLOVITER, Circuit Judge:

The issue before us is whether Petitioner’s motion to

vacate his sentence pursuant to 28 U.S.C. § 2255 is

“second or successive” under the Antiterrorism and

2
Effective Death Penalty Act of 1996 (“AEDPA”) where the

District Court had previously granted Petitioner’s § 2255

motion restoring his right to file a direct appeal. After

Petitioner was unsuccessful on his direct appeal, he filed

the § 2255 motion which is the subject of the appeal before

us. This court has not previously addressed this issue. Six

other courts of appeals have considered the issue and are

divided, with the majority concluding that such a motion is

not second or successive for purposes of AEDPA. We turn

to the facts of the case before considering the legal issue. 

I.

BACKGROUND

In 1998, a federal grand jury charged Ilori Olabode with

one count of conspiracy in violation of 18 U.S.C. § 371, one

count of bank fraud in violation of 18 U.S.C. § 1344,

forfeiture pursuant to 18 U.S.C. § 982(a)(2)(A) and aiding

and abetting in violation of 18 U.S.C. § 2. Using false

names, Olabode and his co-conspirators obtained licenses

to operate fictitious businesses, opened commercial

accounts at various banks, deposited counterfeit checks

and made cash withdrawals. Olabode made deposits

totaling $166,662.58 and withdrew $36,000 in cash before

the banks discovered the scheme. 

Olabode pled guilty to the conspiracy charge on

November 30, 1998 pursuant to a written plea agreement.

The District Court dismissed the remaining counts of the

indictment and granted the Government’s motion for a

downward departure based upon Olabode’s substantial

assistance in the investigation of another person. On June

25, 1999, the District Court sentenced Olabode to six

months imprisonment and three years supervised release,

and ordered him to pay restitution in the amount of

$36,000 and a $100 special assessment. Olabode’s prison

term expired on December 22, 1999 and he is being

detained at an INS detention facility.1

1. This case is not moot, because Olabode may suffer the collateral

consequence of deportation as a result of his conviction. 

3
On May 9, 2000, Olabode, proceeding pro se, filed a

motion to vacate his sentence pursuant to 28 U.S.C.

§ 2255, alleging that his counsel failed to file a direct appeal

as he requested. Pursuant to this court’s decision in United

States v. Miller, 197 F.3d 644 (3d Cir. 1999), the District

Court notified Olabode that under AEDPA, he must include

all of his potential claims in his § 2255 motion, and gave

him 30 days to inform the court whether he wished to

supplement his motion. Olabode did not respond. However,

the Government conceded that there was merit to his claim

that counsel failed to file a direct appeal. 

On July 26, 2000, the District Court granted Olabode’s

§ 2255 motion and stated that it would resentence him to

allow the filing of a notice of appeal. It appointed the

Defender Association of Philadelphia, Federal Court

Division to represent Olabode. Defense counsel

subsequently informed the District Court by letter that he

had reviewed the record, that he found “no additional

grounds for habeas relief ” and that he was ready to

proceed with the resentencing. Supp. App. at 13. On

January 11, 2001, the District Court reimposed the original

sentence. Olabode filed a notice of appeal on January 12,

2001. 

On direct appeal, Olabode claimed that the District Court

had improperly delegated the setting of the restitution

schedule to the probation office. The Government agreed

that a remand was warranted. This court remanded the

case to the District Court to impose a restitution schedule.

On February 15, 2002, the District Court ordered a

schedule of payments fixed at $1.00 per year while Olabode

was confined at the INS detention center. 

On March 15, 2002, Olabode filed another pro se motion

to vacate his sentence pursuant to § 2255, alleging that

trial counsel misrepresented the terms of the plea

agreement and that the evidence was insufficient to support

his guilty plea. The District Court transferred the motion to

this court as an application for authorization to file a

second or successive § 2255 motion to the extent Olabode

claimed counsel was ineffective during the guilty plea

colloquy and sentencing, and denied the motion on the

merits to the extent Olabode claimed counsel rendered

4
ineffective assistance on appeal. Olabode has not appealed

the latter ruling. This court appointed counsel to represent

Olabode and directed the parties to address whether a

subsequent § 2255 motion is second or successive when a

prior § 2255 motion was limited to an effort to reinstate the

right to file a direct appeal. An amicus brief was filed on

behalf of the Community Defender Organization for the

Eastern District of Pennsylvania, the Federal Court Division

of the Defender Association of Philadelphia, the Federal

Defender Office for the Middle District of Pennsylvania, the

Federal Defender Office for the Western District of

Pennsylvania, the Federal Defender Office of New Jersey,

the Federal Defender Office of Delaware, the Federal

Defender Office for the Virgin Islands, and the National

Association of Federal Defenders. Amici argue that

Olabode’s § 2255 motion is not second or successive.

II.

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction over a motion for

authorization to file a second or successive motion to vacate

sentence pursuant to 28 U.S.C. §§ 2244, 2255. We review

issues of statutory interpretation de novo. Kapral v. United

States, 166 F.3d 565, 567 (3d Cir. 1999). 

III.

DISCUSSION

The passage of AEDPA effected many changes in the law

regarding applications for collateral relief in the federal

courts. Significant among those changes was the new

limitation of a prisoner’s ability to file more than one

collateral challenge. Previously, the courts could dismiss a

second or subsequent collateral attack on a conviction if

the court believed it constituted an “abuse of the writ.”

McCleskey v. Zant, 499 U.S. 467, 494 (1991). AEDPA,

however, has imposed a much more stringent rule. Once

the defendant has completed a direct appeal, the prisoner

5
may file one collateral challenge as a matter of course

provided it is timely. See 28 U.S.C. § 2255. 

Thereafter, a prisoner’s ability to file a second or

successive application for collateral relief is limited. Before

a second or successive § 2255 motion may be filed in the

district court, the applicant must move in the appropriate

court of appeals for an order authorizing the district court

to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255.

Authorization may be granted only if the motion contains

“(1) newly discovered evidence that, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of

the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” Id. § 2255.

Notwithstanding the specificity of many of the provisions of

AEDPA, it does not define what constitutes a “second or

successive” motion, the necessary predicate for application

of these provisions. 

Olabode argues that the § 2255 motion that he filed after

his resentencing is not second or successive because he

filed his first § 2255 motion to reinstate his right to a direct

appeal after his counsel failed to file a notice of appeal. He

notes that a defendant whose counsel filed a timely direct

appeal would be able to file a § 2255 motion thereafter. He

maintains that it would be unjust to require him to use his

one § 2255 motion to reinstate a right that he would have

had if counsel filed an appeal as he requested. 

Olabode’s argument is supported by the amici curiae who

contend that, as a matter of statutory construction,

because a § 2255 motion seeks “to vacate, set aside or

correct the sentence,” 28 U.S.C. § 2255 (emphasis added),

a second or successive motion would have to be second or

successive to another § 2255 motion challenging the same

order imposing sentence. Olabode’s § 2255 motion at issue

challenges a different order than did the first motion;

correspondingly, the notice of appeal was taken from the

latter sentencing order dated January 11, 2001, and not

the first sentencing order dated June 25, 1999. 

6
The amici curiae also argue that as a matter of policy the

direct appeal should occur before a collateral attack is

made because only issues not raised or raisable on direct

appeal can be addressed in a § 2255 motion. They state

that a direct appeal gives the defendant an opportunity to

evaluate with counsel the claims that may be raised in a

§ 2255 motion. Like Olabode, amici curiae argue that this

approach places the defendant in the position he would

have been in had the notice of appeal been timely filed. 

The Government argues that the better view is that such

a motion is second or successive except with respect to

claims which relate to the direct appeal. It contends that

the statute does not provide for the exception that Olabode

seeks, and emphasizes that the District Court in this case

notified Olabode that he was required to present all of his

claims in his first motion. See Miller, 197 F.3d 644. In

response to the argument that the § 2255 motion at issue

corresponds to the new sentencing order, the Government

contends that the entry of the new sentence was a

ministerial act, that the original sentence was not changed

in any way and that Olabode’s claims relate to events

predating that sentence. 

The Government argues in response to the amici curiae’s

policy arguments that requiring a defendant to present all

of his claims in his § 2255 motion seeking to reinstate his

appeal is not unfair because he has no right to collateral

review and the grounds for collateral relief are limited. It

contends that the rule urged by Olabode and the amici

curiae will treat some petitioners differently because those

petitioners whose motions to reinstate their appeals are

denied will not be able to file a second § 2255 motion

without seeking authorization from the court of appeals. 

This issue was most recently considered by the Court of

Appeals for the Eleventh Circuit in McIver v. United States,

307 F.3d 1327 (11th Cir. 2002). McIver filed a motion

pursuant to § 2255 alleging that trial counsel was

ineffective for failing to file a notice of appeal and seeking

the right to file a direct appeal. The district court granted

the motion and entered a new judgment of sentence,

thereby allowing the defendant to file a timely notice of

appeal. McIver’s conviction and sentence were affirmed on

7
direct appeal and he then filed a § 2255 motion challenging

his conviction and sentence. The district court dismissed

the motion as a second or successive application for postconviction relief that could not be filed without the

permission of the court of appeals. 

The court of appeals reversed. It ruled that the motion

was not second or successive, explaining that the

defendant’s motion does not attack the judgment at issue

in his earlier § 2255 motion but attacks the new judgment

that was entered to permit his direct appeal. Id. at 1330. It

stated that the first motion sought only the opportunity to

prosecute a direct appeal and did not seek to have the

conviction overturned or sentence vacated. Id. The court

noted that some collateral challenges do not render

subsequent motions second or successive, such as those

that follow dismissal of a first motion for failure to exhaust

state remedies, those that are unripe or those dismissed

because the defendant failed to pay the required filing fee.

Id. at 1330-31. Finally, the court explained that this

approach restores the defendant to the position he would

be in had his lawyer filed a timely notice of appeal. Id. at

1331. 

The same approach was taken by the court of appeals in

In re Goddard, 170 F.3d 435 (4th Cir. 1999). There, the

district court had granted the defendant’s § 2255 motion

based on the defendant’s claim that counsel failed to file a

direct appeal despite his request to do so. After the

defendant’s subsequent direct appeal was denied, the

defendant filed another § 2255 motion alleging ineffective

assistance of counsel at sentencing. The district court

dismissed the motion, concluding this § 2255 motion was

“second or successive” and that the defendant needed the

prior authorization of the court of appeals. 

In deciding that the defendant did not need its

authorization to file the § 2255 motion in the district court,

the majority opinion of the Court of Appeals for the Fourth

Circuit reasoned that the defendant would not be fully

restored to the position that he would have been in had his

lawyer filed a timely appeal if his subsequent § 2255 motion

is considered to be second or successive. Id. at 437. The

court stated that a prisoner who uses his one § 2255

8
motion to regain his constitutional right to a direct appeal

will not have a full and fair opportunity to wage a collateral

attack, and that requiring the defendant to raise all of his

claims in his first § 2255 motion forces him, without

counsel, to make the objections to his conviction that his

lawyer would have made for him on direct appeal and

subjects these claims to a more stringent standard of

review. Id.2

The Courts of Appeals for the Seventh and Tenth Circuits

also have concluded that a § 2255 motion filed after the

reinstatement of the right to a direct appeal is not second

or successive. See Shepeck v. United States, 150 F.3d 800,

801 (7th Cir. 1998) (per curiam) (concluding that an order

granting a § 2255 motion and reimposing sentence because

counsel failed to file a direct appeal “resets to zero the

counter of collateral attacks pursued”); United States v.

Scott, 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam)

(“[B]ecause of the unique situation presented when the

granting of the prior [§ 2255] motion merely reinstated the

right to a direct appeal, the first subsequent motion is not

a second or successive motion under AEDPA.”); see also

Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 2003) (holding

habeas petition was not second or successive where first

petition did not attack conviction but alleged due process

violation due to delay in adjudication of direct appeal in

state court). 

The opposite conclusion has been reached by two courts

of appeals. In United States v. Orozco-Ramirez, 211 F.3d

862 (5th Cir. 2000), the court agreed with the district court

that its grant of the defendant’s § 2255 motion enabling

him to file a direct appeal which his attorney had failed to

protect should be counted as a first § 2255 motion.

Therefore, the defendant who filed another § 2255 motion

seeking to vacate his conviction and sentence after his

sentence was affirmed on direct appeal sought a second or

2. The dissenting judge was of the position that requiring a defendant to

raise all collateral claims in the first motion is not unfair because he has

no right to counsel or a more favorable standard of review in a § 2255

proceeding. Id. at 441. This is essentially the position of the Government

in this appeal. 

9
successive § 2255 motion which required court of appeals

authorization. In affirming, the court of appeals

distinguished the decision in Stewart v. Martinez-Villareal,

523 U.S. 637 (1998), where the Supreme Court held that a

§ 2255 motion was not second or successive where it

presented a claim that had been dismissed as premature

when it was raised in a prior § 2255 motion. The OrozcoRamirez court noted that in Stewart the defendant could

not have raised the claim in his first motion but OrozcoRamirez could have included his claims when he filed his

initial § 2255 motion seeking reinstatement of his right to

appeal. 211 F.3d at 869. The court applied principles of res

judicata to conclude that the second motion was second or

successive under AEDPA. Id. at 871. The court did allow

the defendant to pursue claims arising out of the direct

appeal, id., as did the District Court in this case. 

A similar approach was taken by the Court of Appeals for

the First Circuit in Pratt v. United States, 129 F.3d 54 (1st

Cir. 1997). It concluded that the defendant was required to

present all of his available claims in his initial § 2255

motion seeking reinstatement of his right to a direct appeal.

Id. at 61. The court rejected the defendant’s arguments that

presenting all of his claims would have been premature

because he had yet to pursue a direct appeal and that the

second motion attacked a different judgment than his

initial motion. Id. at 61-62. It explained that the defendant

had an incentive to include all of his claims in his initial

motion because he could not predict whether the district

court would grant it based upon the claim that counsel

failed to file a timely appeal. Id. at 61. Because the

defendant had the incentive and ability to raise his other

claims in his first motion, the court held that the standard

practice of entering a new judgment when an appeal is

reinstated did not support that the second motion was not

“second or successive.” Id. at 62. 

The position taken by the minority of the courts of

appeals to have considered the issue is not unreasonable

but ultimately unpersuasive. The purpose of Olabode’s

resentencing was to put him back into the position that he

would have been in had his attorney filed a notice of

appeal. It was not until Olabode filed his subsequent

10
§ 2255 motion that he sought to vacate, set aside or correct

his sentence. Allowing Olabode to pursue his direct appeal

and then raise any remaining collateral claims in a § 2255

motion ensures the orderly administration of direct and

collateral proceedings. See Kapral, 166 F.3d at 572 (noting

defendants should conclude direct review before

commencing § 2255 proceedings). 

This result is consistent with the Supreme Court’s

decision in Stewart, 523 U.S. 637. The defendant in that

case filed several habeas petitions that were dismissed for

failure to exhaust state remedies. After exhausting state

remedies, he filed a habeas petition raising various claims,

including a claim that he was incompetent to be executed.

The district court addressed the claims on the merits with

the exception of the incompetency claim which it dismissed

as premature. After the state obtained a warrant for the

defendant’s execution, the defendant moved to reopen his

incompetency claim. The district court ruled that it lacked

jurisdiction over the motion and the defendant moved in

the court of appeals for permission to file a successive

habeas petition. The court of appeals held that

authorization was not required. Id. at 641. 

The Supreme Court agreed, holding that the petition was

not second or successive because the claim was not ripe at

the time of the first petition. Id. at 643. It compared the

claim to one that has been dismissed for failure to exhaust

state remedies and explained that a dismissal for technical

procedural reasons does not bar the defendant from

obtaining habeas review. Id. at 645. Although Olabode’s

initial motion was not dismissed on technical procedural

grounds, it was granted so that he could pursue a direct

appeal, a step that should be taken prior to collaterally

attacking a sentence. Like the situation where a habeas

petition has been dismissed for failure to exhaust state

remedies, when Olabode filed his subsequent motion the

District Court had yet to adjudicate any claims challenging

his conviction or sentence.3 Accordingly, we agree with the

3. Our conclusion also comports with Solis v. United States, 252 F.3d

289 (3d Cir. 2001), holding that where a defendant claims in a § 2255

motion that his attorney failed to file a direct appeal, the defendant is

11
majority of the other courts of appeals that have addressed

this issue and hold that Olabode’s § 2255 motion is not

second or successive under AEDPA as Olabode’s first

§ 2255 motion merely sought reinstatement of his right to

a direct appeal. 

In Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), we

held that when the prisoner’s prior petition was dismissed

for failure to exhaust state remedies, it did not count as a

first petition. We reasoned that “[t]he problems that the

abuse of the writ doctrine seeks to avoid are not implicated

when a petition is filed after a prior petition is dismissed for

lack of exhaustion.” Id. at 208. Similarly here, when the

first petition merely sought the right to file a direct appeal,

there was no abuse of the writ.4

entitled to an evidentiary hearing on the matter unless the claim is

conclusively contradicted by the record or patently frivolous. The court

remanded the case for a hearing and denied without prejudice the other

claims raised in the § 2255 motion. The court further stated that “[i]n the

event the Petitioner presents another § 2255 petition, it shall be deemed

his first filed petition.” Id. at 295. 

4. The Government has submitted a letter pursuant to Federal Rule of

Appellate Procedure 28(j) calling to our attention this court’s recent

decision in United States v. Barnes, 2003 WL 1467580 (3d Cir. March

24, 2003). It states that this decision is consistent with its view that a

§ 2255 petitioner must raise all claims in an initial petition. A review of

the procedural posture of Barnes shows that it is not precedential

authority for the Government’s position here. 

Barnes, who filed a § 2255 claiming trial counsel was ineffective in

failing to file a timely appeal, was advised by the district court to raise

all his claims for relief in one § 2255. Barnes withdrew his earlier § 2255

and refiled it raising other claims in his § 2255 motion in addition to the

claim that counsel failed to file a direct appeal. The district court in

Barnes granted the § 2255 motion on the claim that counsel failed to file

an appeal and took Barnes’ other claims under advisement. It entered a

new judgment of conviction and sentence. When Barnes then filed his

direct appeal and an appeal from an order denying bail, we sua sponte

questioned whether the district court’s order was final because it had

reserved the § 2255 claims. In holding that we had jurisdiction over the

direct appeal, we commented that although ordinarily a § 2255 motion is

filed after the completion of a direct appeal, the district court, by holding

Barnes’ § 2255 claims under advisement and allowing an appeal from

12
IV.

CONCLUSION

For the reasons discussed above, we will vacate the order

of the District Court transferring Olabode’s § 2255 motion

to this court for authorization to file it pursuant to § 2244

and remand for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

the judgment of conviction, replicated that procedure as far as possible.

Although the Government correctly notes that we further stated that

Barnes “was constrained to raise all of his section § 2255 issues in his

first motion,” the issues of whether a defendant must raise all of his

claims in a § 2255 motion seeking reinstatement of the right to a direct

appeal and whether a subsequent § 2255 motion would be “second or

successive” were not squarely before the court and the court’s comment

was, at most, dictum. Barnes, 2003 WL 1467580, at *2. The issue we

raised in that case was our jurisdiction. We do not regard the court’s

passing statement as binding precedent in a case where the issue is not

squarely raised. 

13