* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this 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 case is therefore

ordered submitted without oral argument.
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In federal district court, defendant John Brett Allen sought habeas relief

pursuant to 28 U.S.C. § 2255 and return of his forfeited property pursuant to

Fed. R. Crim. P. 41(e). The court denied the § 2255 motion and deferred ruling

on the Rule 41(e) motion pending additional briefing. 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 the 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 completed 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 not considered final unless the

district court expressly determines there is no just 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, habeas relief is available to

provide a prompt and efficacious remedy for intolerable government restraint. 

See Wingo v. Wedding, 418 U.S. 461, 468 (1974). The “government must always

be accountable to the judiciary for a man’s imprisonment: if the imprisonment

cannot be shown to conform with the fundamental requirements 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 imperative 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, but reserved 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) certification was necessary because

“[t]o delay an appeal from an order granting or denying [habeas] relief pending

disposition of another [unrelated] claim, . . . conflicts 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 the 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 detention”). We conclude that,
1 Mr. Allen filed his motion prior to the passage of the Antiterrorism and

Effective Death Penalty Act and, therefore, does not 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.

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despite the pending Rule 41(e) motion, the district court’s order denying § 2255

relief was a final decision over which we have appellate jurisdiction.1

Mr. Allen pled guilty to one count of operating a continuing 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. His convictions were affirmed

on appeal.

In his § 2255 motion, Mr. Allen asserted that his convictions for

obstruction of justice violated his First Amendment right to free speech and that

the conviction used to enhance his sentence was invalid.2

 The district court,

while noting that Mr. Allen had waived his issues by not raising them on direct

appeal, chose to address the merits of the motion rather 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 afford 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 grand 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] is 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 defendant used the spoken

word to encourage and counsel others to commit crimes); 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 enhance his sentence was

unconstitutional. Mr. Allen has challenged the enhancement 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 for the District

of Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby

Circuit Judge