* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOHN BRETT ALLEN,

Defendant-Appellant. No. 97-1189 (D.C. No. 95-N-887) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

In federal district court, defendant John Brett All en sought habeas relief pursuant to 28 U.S.C. § 2255 and return of his forf eited property pursuant to Fed. R. Crim. P. 41(e). The court denied the § 225 5 motion and deferred ruling on the Rule 41(e) motion pending additional briefin g. Mr. Allen appealed the district court’s order denying his § 2255 motion. The government has moved to dismiss the appeal on the basis that it is not from a final appealable order because the Rule 41(e) motion remains pending. We have jurisdiction only over final judgments of t he district courts. See 28 U.S.C. § 1291; see also 28 U.S.C. § 2253(a) (habeas). A judgment is final and appealable if litigation on the merits is compl eted and the court needs only to execute the judgment. See Coopers & Lybrand v. Livesay , 437 U.S. 463, 467 (1978). Orders that leave issues unresolved are no t considered final unless the district court expressly determines there is no jus t reason to delay the entry of final judgment pursuant to Fed. R. Civ. P. 54(b). Petitions seeking habeas corpus relief, however, warrant special consideration in some situations. Historically, ha beas relief is available to provide a prompt and efficacious remedy for intoler able government restraint. See Wingo v. Wedding , 418 U.S. 461, 468 (1974). The “government must a lways be accountable to the judiciary for a man’s impriso nment: if the imprisonment cannot be shown to conform with the fundamental req uirements of law, the-3-

individual is entitled to his immediate release.” Id. (quotation omitted); see also Johnson v. Rogers , 917 F.2d 1283, 1284 (10th Cir. 1990) (“[W]rits of habeas corpus are intended to afford a swift and imperativ e remedy in all cases of illegal restraint or confinement.” (quotations omitted)). In United States ex rel. Stachulak v. Coughlin , 520 F.2d 931 (7th Cir. 1975), the petitioner sought both habeas relief and relief under 42 U.S.C. § 1983. The district court granted the habeas petition, butreserved ruling on the § 1983 claim. The state appealed without seeking Rule 54( b) certification. See id. at 933-34. The court held that no Rule 54(b) certi fication was necessary because “[t]o delay an appeal from an order granting or denying [habeas] relief pending disposition of another [unrelated] claim, . . . con flicts with the emphasis on prompt decision.” Id. at 934; see also Miller v. Misfud , 762 F.2d 45, 46 (6th Cir. 1985) (following Stachulak ). We agree. The district court’s order here ended th e litigation as to Mr. Allen’s habeas claims and left nothing for the court to do. See Walker v. Wainwright , 390 U.S. 335, 336 (1968) (“great and central” purpose of habeas writ “is to test the legality of a prisoner’s current de tention”). We conclude that,1 Mr. Allen filed his motion prior to the passage of the Antiterrorism and

Effective Death Penalty Act and, therefore, does no t need a certificate of appealability to proceed on appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

2 Mr. Allen also raised a double jeopardy claim which he later conceded to be without merit in light of United States v. Ursery , 116 S. Ct. 2135 (1996). That claim was dismissed with prejudice. Mr. Allen does not challenge the dismissal. -4- despite the pending Rule 41(e) motion, the districtcourt’s order denying § 2255 relief was a final decision over which we have appe llate jurisdiction. 1 Mr. Allen pled guilty to one count of operating a c ontinuing criminal enterprise and two counts of obstruction of justice . See United States v. Allen , 24 F.3d 1180, 1181-82 (10th Cir. 1994). He was sentenced to 200 months’ imprisonment and five years’ supervised release. H is convictions were affirmed on appeal. In his § 2255 motion, Mr. Allen asserted that his c onvictions for obstruction of justice violated his First Amendmentright to free speech and that the conviction used to enhance his sentence was inv alid. 2 The district court, while noting that Mr. Allen had waived his issues b y not raising them on direct appeal, chose to address the merits of the motion r ather than affording Mr. Allen the opportunity to show cause and prejudice for his failure to raise them on direct appeal. See United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (court may raise procedural bar sua sponte, but must affor d movant opportunity to respond before making procedural bar determination)

.-5-

Mr. Allen argues that he has a First Amendment right to urge a defendant in a case related to his to jump bond and leave the United States and to urge a witness in his case to testify falsely to the gra nd jury investigating the case about the transfer of $240,000.00. See R. Vol. V., Amended Plea Agreement at 7-8. The First Amendment does not protect speech which “ is directed to inciting or producing imminent lawless actions and [which] i s likely to incite or produce such action.” Brandenburg v. Ohio , 395 U.S. 444, 447 (1969); see also United States v. Barnett , 667 F.2d 835, 842 (9th Cir. 1982) (First Amendment does not provide defense to criminal charge simply because d efendant used the spoken word to encourage and counsel others to commit crim es); cf. Rice v. Paladin
Enters. , 128 F.3d 233, 244 (4th Cir. 1997) (First Amendment does not bar liability for aiding and abetting a crime by means of the spoken or written word). Mr. Allen’s convictions for obstruction of justice were proper. Mr. Allen also alleged the conviction used to enhan ce his sentence was unconstitutional. Mr. Allen has challenged the enh ancement conviction on direct appeal, see United States v. Allen , 566 F.2d 1193 (3d Cir. 1977), and on collateral attack, see United States v. Allen , 613 F.2d 1248 (3d Cir. 1980). He may not try again in a successive petition.-6-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Wade Brorby Circuit Judge