2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-2006

USA v. Rinaldi

Precedential or Non-Precedential: Precedential

Docket No. 04-2260

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Recommended Citation

"USA v. Rinaldi" (2006). 2006 Decisions. Paper 1007.

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-2260

 

UNITED STATES OF AMERICA,

v.

MICHAEL RINALDI,

Appellant.

 

On Appeal From the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 98-cr-00294-2)

District Judge: Honorable Edwin M. Kosik

 

Argued: January 17, 2006

Before: ROTH, FUENTES, and BECKER, Circuit Judges.

(Filed: May 8, 2006)

Joseph A. O’Brien (Argued)

Oliver, Price & Rhodes

1212 South Abington Road

P.O. Box 240

Clarks Summit, PA 18411

Attorney for Appellant
2

Thomas A. Marino

 United States Attorney

John C. Gurganus, Jr. (Argued)

 Assistant United States Attorney

Office of the United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18501

Attorneys for Appellee

_______________________

OPINION OF THE COURT

_______________________

FUENTES, Circuit Judge.

This case comes to us following a protracted and convoluted

series of motions filed by Michael Rinaldi as part of his effort to

collaterally attack his federal criminal sentence. Rinaldi, currently

in federal custody, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying his

motion—filed pursuant to Rule 4(a)(6) of the Federal Rules of

Appellate Procedure—to reopen the time to file an appeal in his

federal habeas corpus proceeding under 28 U.S.C. § 2255. The

issue presented by this appeal is whether a certificate of

appealability (“COA”) is required to appeal the denial of a Rule

4(a)(6) motion in a § 2255 proceeding. For the reasons that follow,

we hold that a § 2255 movant must obtain a COA before appealing

an order denying such a motion. Furthermore, because Rinaldi has

failed to make the requisite showing to merit a COA, we will

dismiss his appeal. 

I. Background

Following a jury trial, Rinaldi was found guilty of four

counts relating to cocaine distribution and firearms possession:

conspiracy to distribute and possess with intent to distribute in

excess of five kilograms of cocaine, in violation of 21 U.S.C.

§ 846; distribution and possession with intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1); knowingly using and
1

Under Section 2255, a prisoner in federal custody under a

sentence of a court established by Congress, “may move the court

which imposed the sentence to vacate, set aside or correct the

sentence” on the grounds that “the sentence was imposed in

violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence, or that

the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. § 2255.

2

Rule 60(b) of the Federal Rules of Civil Procedure

provides, in relevant part: 

On motion and upon such terms as are just, the court

may relieve a party or a party’s legal representative

from a final judgment, order, or proceeding for the

3

carrying firearms during and in relation to drug trafficking crimes,

in violation of 18 U.S.C. § 924(c); and possession of firearms by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The

District Court sentenced Rinaldi to an aggregate sentence of over

20 years in prison. We affirmed on direct appeal, and the Supreme

Court denied Rinaldi’s petition for a writ of certiorari.

In 2001, Rinaldi filed a § 2255 habeas motion to vacate, set

aside, or correct his sentence.1

 Rinaldi made a number of claims

for relief, including that his trial counsel rendered constitutionally

ineffective assistance. The District Court appointed counsel for

Rinaldi’s § 2255 proceedings and held an evidentiary hearing at

which Rinaldi’s trial counsel testified. In June of 2002, the District

Court denied Rinaldi’s § 2255 motion on the merits, and

subsequently denied his motion for reconsideration. Thereafter,

Rinaldi filed a motion seeking the issuance of a COA, which we

denied on September 3, 2003. In our order denying the COA, we

noted that Rinaldi had not made “‘a substantial showing of the

denial of a constitutional right’ on any of the claims raised in the

§ 2255 proceeding.”

The following month, Rinaldi filed a motion in the District

Court for relief from the denial of his § 2255 motion pursuant to

Rule 60(b) of the Federal Rules of Civil Procedure.2

 Rinaldi
following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have

been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse

party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that

the judgment should have prospective application; or

(6) any other reason justifying relief from the

operation of the judgment. 

3

Rule 59(e) of the Federal Rules of Civil Procedure provides

that “[a]ny motion to alter or amend a judgment shall be filed no

later than 10 days after entry of the judgment.” 

4

attacked the integrity of his § 2255 proceeding on the ground that

the District Court should have permitted him—rather than his

court-appointed counsel—to cross-examine his trial counsel at the

evidentiary hearing. Rinaldi also challenged his conviction,

arguing that the District Court lacked jurisdiction over his criminal

prosecution and that his trial counsel was ineffective for not raising

this issue. The District Court denied Rinaldi’s Rule 60(b) motion

on November 5, 2003, noting our September 3, 2003 order denying

Rinaldi’s request for a COA.

Thereafter, Rinaldi filed a motion pursuant to Rule 59(e) of

the Federal Rules of Civil Procedure,3

 seeking reconsideration of

the District Court’s denial of his Rule 60(b) motion. Rinaldi

argued that the District Court improperly relied on this Court’s

denial of a COA with respect to the District Court’s denial of his

§ 2255 motion because the issues presented in his Rule 60(b)

motion were different from those in his § 2255 motion. The

District Court denied the motion to reconsider on December 3,

2003, two days after it was filed. 

Rinaldi’s time to appeal the denial of his Rule 59(e)
4

Rinaldi’s Rule 59(e) motion tolled the time to appeal from

the denial of his Rule 60(b) motion. He had sixty days from

December 3, 2003, or until February 2, 2004, to file a timely

appeal. 

5

Rule 4(a)(6) of the Federal Rules of Appellate Procedure

provides:

Reopening the Time to File an Appeal. The district

court may reopen the time to file an appeal for a

period of 14 days after the date when its order to

reopen is entered, but only if all the following

conditions are satisfied: 

(A) the motion is filed within 180 days after the

judgment or order is entered or within 7 days after

the moving party receives notice of the entry,

whichever is earlier; 

(B) the court finds that the moving party was entitled

to notice of the entry of the judgment or order sought

to be appealed but did not receive the notice from the

district court or any party within 21 days after entry;

and 

(C) the court finds that no party would be prejudiced.

Rule 4(a)(6) has since been altered by amendments that went into

effect on December 1, 2005. 

6

Although the Government argues that we should dismiss

this appeal as untimely, we decline to do so. The docket reflects

that Rinaldi’s notice of appeal was filed on May 4, 2004. The date

on his notice of appeal, however, is April 26, 2004, within sixty

days of the order appealed. We therefore deem his filing to be

5

motion—and, by extension, his Rule 60(b) motion—expired on

February 2, 2004.4

 On February 11, 2004, Rinaldi filed a motion

to reopen the time in which to file his appeal of the denial of his

Rule 59(e) and Rule 60(b) motions. Rinaldi based his motion upon

Rule 4(a)(6) of the Federal Rules of Appellate Procedure, which

allows a district court to reopen the time to file an appeal if certain

conditions are satisfied.5

 The District Court denied Rinaldi’s Rule

4(a)(6) motion on February 26, 2004. This appeal followed.6
timely. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding

that a filing by a prisoner be deemed timely as of the date it is

handed to prison officials for delivery).

6

II. Discussion

Under 28 U.S.C. § 2253(c)(1)(B), “[u]nless a circuit justice

or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from the final order in a proceeding

under section 2255.” This Court has not addressed whether a COA

is required to appeal an order denying a Rule 4(a)(6) motion in a

§ 2255 proceeding. 

Rinaldi argues that he does not need a COA to appeal the

District Court’s order denying his Rule 4(a)(6) motion because

such an order is not a “final order” under § 2253. He contends that,

if Congress intended to require a COA in appeals from any order

in a § 2255 proceeding, the statute would say so; instead, the

statutory language refers only to appeals from “the final order.”

Thus, according to Rinaldi, because the District Court’s order

denying his Rule 4(a)(6) motion is not “the final order,” he does

not need a COA to obtain appellate review of that order.

The Government disagrees, contending that the term “final

order” in § 2253(b)(1)(B) is not limited to the order denying the

§ 2255 motion. The Government notes that an appeal from the

denial of a Rule 60(b) motion in a § 2254 habeas proceeding

requires a COA, see Morris v. Horn, 187 F.3d 333, 339 (3d Cir.

1999), and that the COA requirement also applies to the dismissal

of a § 2254 habeas petition on procedural grounds, see Slack v.

McDaniel, 529 U.S. 473, 484 (2000). The Government further

argues that application of the COA requirement to appeals of Rule

4(a)(6) motions accords with congressional intent to limit habeas

litigation.

We agree with the Government’s view. As a general matter,

an order denying a Rule 4(a)(6) motion is a “final decision” for

purposes of appeal. 28 U.S.C. § 1291. Furthermore, we believe

that requiring a § 2255 movant to obtain a COA to appeal the
7

denial of a Rule 4(a)(6) motion comports with the language of

§ 2253 and is consistent with Congress’s intent to screen out

meritless appeals from denials of habeas relief. We therefore hold

that an order denying a Rule 4(a)(6) motion is a “final order” under

§ 2253, and that a COA is required to appeal such an order in a

§ 2255 proceeding. See Eltayib v. United States, 294 F.3d 397,

399 (2d Cir. 2002) (holding that a COA is necessary to obtain

appellate review of an order denying a Rule 4(a)(6) motion in a

habeas proceeding); cf. Greenawalt v. Stewart, 105 F.3d 1268,

1272 (9th Cir. 1997) (holding that a certificate of probable

cause—a precursor to the COA—is necessary to obtain appellate

review of an order denying a Rule 4(a)(6) motion in a habeas

proceeding), abrogated on other grounds recognized by Jackson v.

Roe, 425 F.3d 654, 658-61 (9th Cir. 2005).

We turn next to whether Rinaldi has made the requisite

showing to merit a COA. “A certificate of appealability may issue

. . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As the

Second Circuit pointed out in Eltayib, where the substance of the

appeal underlying a Rule 4(a)(6) motion is without merit, to grant

a COA with respect to the district court’s denial of the Rule 4(a)(6)

motion would be a waste of judicial resources. See Eltayib, 294

F.3d at 400 (“[B]y definition, a successful appeal of the denial of

the [Rule 4(a)(6) motion] would, at best, result in the ultimate

denial by this Court of a subsequent (and now timely) motion for

a certificate of appealability with respect to the original order

disposing of the motion pursuant to § 2255.”). In order to avoid

such an outcome, we will grant a COA to challenge the denial of

a Rule 4(a)(6) motion only if the § 2255 movant shows: (1) that

jurists of reason would find it debatable whether the district court

abused its discretion in denying the Rule 4(a)(6) motion; and (2)

that jurists of reason would find the district court’s assessment of

the constitutional claims in the underlying order debatable or

wrong. 

Rinaldi has failed to make the requisite showing. Even if he

were able to show that the District Court abused its discretion when

it denied his Rule 4(a)(6) motion, Rinaldi has not satisfied the

second prong of the two-part test. In his Rule 60(b) motion,

Rinaldi argued: first, that the District Court should have permitted
7

As Rinaldi’s current attorney conceded at oral argument,

Rinaldi has failed to state what questions he was precluded from

asking at his evidentiary hearing, or to explain how he was

prejudiced. The District Court also properly rejected Rinaldi’s

jurisdictional argument because it constitutes a second or

successive collateral attack on his underlying conviction, which we

have not authorized the District Court to consider. See 28 U.S.C.

§ 2244; Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). 

8

him—not his court-appointed counsel—to cross-examine his trial

counsel at the evidentiary hearing, and second, that the District

Court lacked jurisdiction over his criminal prosecution and that his

trial counsel was ineffective for not raising that issue. Based on

our review of the record, we conclude that Rinaldi has failed to

show that jurists of reason would find the District Court’s

assessment of the constitutional claims underlying his Rule 60(b)

motion debatable or wrong.7

 For this reason, we will not issue a

COA with respect to the District Court’s denial of Rinaldi’s Rule

4(a)(6) motion.

III. Conclusion

For the reasons stated above, we hold that a § 2255 movant

must obtain a certificate of appealability in order to appeal an order

denying a motion pursuant to Rule 4(a)(6) of the Federal Rules of

Appellate Procedure. Because Rinaldi has failed to make a

showing that reasonable jurists would find the District Court’s

assessment of the claims raised in his Rule 60(b) motion debatable

or wrong, we will not issue a COA and we will dismiss his appeal.