2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2013

USA v. Corbin Thomas

Precedential or Non-Precedential: Precedential

Docket No. 10-2866

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 10-2866

__________

UNITED STATES OF AMERICA

v.

CORBIN THOMAS

a/k/a

JACK

a/k/a

PATRICK

a/k/a

FRANCIS WALCOTT

 Corbin Thomas,

 Appellant

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Crim. No. 2-98-cr-00136-001)

District Judge: Honorable J. Curtis Joyner

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 24, 2012

___________

Before: McKEE, Chief Judge, JORDAN and VANASKIE, 

Circuit Judges

(Opinion Filed: April 10, 2013)
2

Patrick J. Connors, Esq.

11 West Third Street

Media, Pennsylvania 19063

Counsel for Appellant

Robert K. Reed, Esq.

Robert A. Zauzmer, Esq.

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

___________

OPINION

__________

McKEE, Chief Judge

Corbin Thomas appeals the District Court’s order 

denying his motion for an extension of time to file a motion 

for relief pursuant to 28 U.S.C. § 2255, and requests a 

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 

2253. For the reasons discussed below, we will grant 

Thomas’ request for a COA1

 1

 We assume, without deciding, that a COA is required to 

appeal from the District Court’s order denying Thomas’ 

motion for an extension of time. Cf. Miller-El v. Cockrell, 

537 U.S. 322, 336 (2003) (“unless a circuit justice or judge 

issues a certificate of appealability, an appeal may not be 

taken to the court of appeals . . .”) (quoting 28 U.S.C. § 

2253(c)(1)). Because we ultimately conclude that issues 

raised in this appeal warrant appellate review, we grant 

Thomas’ request for a COA. See Miller-El, 537 U.S. at 336 

(“Under the controlling standard, a petitioner must show . . . 

that the issues presented were adequate to deserve 

encouragement to proceed further.”) (internal quotation 

omitted). See also infra pp. 16-17 (addressing Thomas’ 

request to convert COA application into § 2255 motion for 

relief).

and affirm the District Court’s 

order denying his motion for an extension of time.
3

I.

From 1990 to 1995, Thomas was the director of a 

criminal enterprise that transported thousands of pounds of 

marijuana from California to Pennsylvania. Thomas’ wife 

was murdered in 1995, and later that year he fled from the 

United States to Jamaica. On March 25, 1998, a federal 

grand jury returned a 33-count indictment against Thomas 

based on his marijuana enterprise. In November 2001, 

Thomas was arrested in the United Kingdom pursuant to a 

provisional extradition warrant. He contested that warrant 

until 2005. During April of that year, he was finally brought 

before the District Court for prosecution on the charges 

contained in the 1998 indictment. He was subsequently

convicted of numerous offenses and sentenced to a total of 

420 months imprisonment. We affirmed on direct appeal, and 

on June 15, 2009 the United States Supreme Court denied 

Thomas’ petition for certiorari.

As a federal prisoner, Thomas could file a motion to 

vacate, set aside or correct his sentence in the District Court 

within one year from denial of certiorari. See 28 U.S.C. § 

2255(f). However, during that period, Thomas was 

temporarily transferred to state custody, convicted of his 

wife’s murder, and sentenced to life imprisonment. 

Specifically, Thomas was in state custody at the time his 

certiorari petition in this case was denied (June 15, 2009), he 

remained there until August 4, 2009 (a period of 

approximately 50-days), and was again in state custody from 

February 25, 2010 until May 6, 2010 (a period of 

approximately 80-days). On May 24, 2010, approximately 

three weeks before Thomas’ deadline for filing a motion for 

relief under § 2255, he filed a pro se motion for a 120-day 

extension of time. He argued that extra time was warranted

because he was in state custody without access to legal 

materials needed to prepare his § 2255 motion for over 120-

days during the one year limitations period.

On June 7, 2010, the District Court entered an order 

denying Thomas’ motion for an extension of time. In doing 

so, it explained, in a footnote, that Thomas “failed to 

demonstrate why the one (1) year period of limitation should 
4

not apply under 28 U.S.C. 2255(f).” See United States v. 

Thomas, No. 98-CR-00136-001 (E.D. Pa. June 7, 2010)

(order denying motion for an extension of time).

Thomas appealed that order, but he never filed an

actual motion for relief under § 2255. Instead, he submitted 

an application for a certificate of appealability (“COA”) to the 

District Court in an effort to again appeal its denial of his 

motion for an extension of time. Thomas’ COA application 

restated that he had been in state custody without access to 

legal materials, and also asserted “a Batson challenge[] to the 

jury selection; Prosecutorial Misconduct for knowingly 

withholding material evidence of Petitioner’s innocence, in 

violation of Brady v. Maryland; and Jury Misconduct.” App. 

at A33-34; 476 U.S. 79, 89 (1986); 373 U.S. 83, 87 (1963). 

The District Court did not rule on his COA application. 

Rather, it referred his COA application to us—apparently 

because Thomas’ appeal from the denial of his motion for 

extra time was pending. Accordingly, we now review the 

District Court’s denial of Thomas’ motion and decide 

whether he should be entitled to a COA.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

However, before evaluating the merits of Thomas’ appeal, we 

must determine whether the District Court had jurisdiction to 

enter its order denying Thomas’ motion for extra time. See 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 

(1998) (“The requirement that jurisdiction be established as a 

threshold matter springs ‘from the nature and limits of the 

judicial power of the United States and is inflexible and 

without exception.’”) (quoting Mansfield, C. & L. M. Ry. Co. 

v. Swan, 111 U.S. 379, 382 (1884)).

The judicial power of federal courts is limited to 

“cases and controversies.” See U.S. CONST. art. III, § 2, cl. 1; 

Already, LLC v. Nike, Inc., -- U.S. --, 133 S. Ct. 721, 726 

(2013). A judicial decision rendered in the absence of a case 

or controversy is advisory, and federal courts lack power to 

render advisory opinions. See U.S. Nat’l Bank of Or. v. 

Indep. Ins. Agents of Am., 508 U.S. 439, 446 (1993).
5

A.

This case arises under “[t]he Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”), [which]

enacted the present 28 U.S.C. § 2254” and § 2255. Lindh v. 

Murphy, 521 U.S. 320, 322 (1997). Section 2254 gives 

federal courts jurisdiction to grant habeas relief to prisoners

held in state custody, and § 2255 does the same for federal 

prisoners. It is well-settled that a § 2254 petition submitted 

by a state prisoner initiates a civil, rather than criminal, action

for relief. See Henderson v. Frank, 155 F.3d 159, 167 (3d 

Cir. 1998); Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 

257, 269 (1978); Ex parte Tom Tong, 108 U.S. 556, 559-60 

(1883) (“The prosecution against him is a criminal 

prosecution, but the writ of habeas corpus which he has 

obtained is not a proceeding in that prosecution. On the 

contrary, it is a new suit brought by him to enforce a civil 

right . . .”).2

 Therefore, no case or controversy generally 

exists before an actual § 2254 petition is filed. Cf. Barden v. 

Keohane, 921 F.2d 476, 477 n.1 (3d Cir. 1990) 

(“[J]urisdiction over a petition for a writ of habeas corpus is 

determined when the petition is filed.”) (citing Ross v. 

Mebane, 536 F.2d 1199 (7th Cir. 1976)). 

However, courts consider, among other things, judicial 

economy and the legal sophistication of pro se litigants when 

evaluating AEDPA matters. See, e.g., United States v. Miller, 

197 F.3d 644, 648 (3d Cir. 1999); Patton v. Mullin, 425 F.3d 

788, 810 (10th Cir. 2005) (“In the interest of judicial 

economy, however, we briefly consider the merits of 

[appellant’s] claim.”) (citing 28 U.S.C. § 2254(b)(2)). In 

light of such considerations, mislabeled motions, or those

preceding a formal request for substantive relief, are 

sometimes recharacterized as requests for relief under 

AEDPA. See Miller, 197 F.3d at 648 (“federal courts have 

long recognized that they have an obligation to look behind 

the label of a motion filed by a pro se inmate and determine 

 2

 Ex parte Tom Tong was decided before Congress’s 1948 

amendment to the judicial code that established separate 

procedural postures for habeas proceedings based on state and 

federal court judgments. See infra pp. 8-10; 108 U.S. 556.
6

whether the motion is, in effect, cognizable under a different 

remedial statutory framework) (referring to 28 U.S.C. § 

2255); Mason v. Myers, 208 F.3d 414, 418-19 (3d Cir. 2000) 

(applying Miller’s rule for recharacterizing AEDPA filings to 

§ 2254).

3

 Jurisdictional issues that may arise by exercising 

judicial power in the absence of a formal request for habeas

relief are thereby avoided. See id. This appeal is a matter of 

first impression in this Circuit, as it requires that we 

determine the necessity of such an approach under § 2255, as 

well as the more pressing question of whether a sentencing 

court has jurisdiction over § 2255 preliminary matters before 

a formal request for § 2255 relief is filed.

This latter issue arose in United States v. Leon, where 

the Court of Appeals for the Second Circuit evaluated

whether there was jurisdiction to rule on a motion for an 

extension of time to file a § 2255 motion before an actual § 

2255 motion was filed. 203 F.3d 162, 163 (2d Cir. 2000). 

There, the court held that a district court could not rule on 

such a motion because no case or controversy exists until a

formal request for § 2255 relief is made. See id. at 164 

(“because [appellant] has not yet filed an actual § 2255 

petition, there is no case or controversy to be heard, and any 

opinion . . . render[ed] on the timeliness issue would be 

merely advisory.”). In reaching this conclusion, the court 

implicitly viewed proceedings under §§ 2254 and 2255 as 

different sides of the same coin for purposes of subject matter 

jurisdiction. See id.; Green v. United States, 260 F.3d 78, 82-

83 (2d Cir. 2001). That is, it essentially viewed § 2255 

proceedings as civil actions separate from prisoners’ 

underlying criminal cases, which is how motions under § 

2254 have been viewed.

We disagree with the court’s holding in Leon because, 

 3

 Before recharacterizing a motion under AEDPA, a court 

should inform a prisoner that she can have her motion (1) 

ruled upon as filed, or (2) recharacterized as requesting 

habeas relief and heard as such but lose her ability to file a 

successive request absent authorization from this Court under 

28 U.S.C. § 2244(b)(3). See, e.g., Miller, 197 F.3d at 652; 

Adams v. United States, 155 F.3d 582, 583-84 (2d Cir. 1998).
7

although certain aspects of a § 2255 proceeding may be 

considered civil,4

a § 2255 proceeding is a continuation of a 

defendant’s federal criminal case. See infra pp. 7-14. As a 

result, under § 2255, a motion for an extension of time can be 

decided prior to a formal request for relief because the 

underlying prosecution satisfies Article III’s case or 

controversy requirement.

A review of the legislative history of § 2255 clarifies 

this jurisdictional nuance. See United States v. Williams, 675 

F.3d 275, 278 (3d Cir. 2012) (“Where the statutory language 

does not express Congress’ intent unequivocally, a court 

traditionally refers to the legislative history and the 

atmosphere in which the statute was enacted in attempt to 

determine the congressional purpose.”) (quoting United States 

v. Gregg, 226 F.3d 253, 275 (3d Cir. 2009)).

B.

The authority of federal courts to issue writs of habeas 

corpus originates in the Constitution and was first given effect

in the Judiciary Act of 1789. See U.S. CONST. art. I, § 9; 

Powell v. Rice, 428 U.S. 465, 474-75 (1976). Initially, the 

Act only applied to federal prisoners, and it empowered 

district courts in the jurisdiction where federal prisoners were

confined to adjudicate requests for habeas relief. See id. at 

475; Hayman, 342 U.S. 205, 211 (1952). In 1867, the Act 

was amended to extend the authority of district courts to state 

prisoners seeking habeas relief, but it continued to require 

that petitions be submitted to the district court where a 

prisoner was confined. See id. In 1942, the Judicial 

Conference of the United States charged a committee of 

federal judges with the duty of thoroughly examining habeas 

procedure in order to develop prudent reforms. See Hayman, 

342 U.S. 205 at 214. Statistics showed that the volume of 

habeas cases nearly tripled between 1936 and 1945, and that 

the burden of this increase was primarily born by a small 

number of district courts in jurisdictions where federal 

prisons were located. Id. at 212 n.13, 214.

5

 4

 See infra p. 14 n.11.

Courts in such 

5 “Of all habeas corpus applications filed by federal 

prisoners, 63% were filed in but five of the eighty-four 
8

areas were “required to handle an inordinate number of 

habeas corpus actions far from the scene of the facts, the 

homes of the witnesses and the records of the sentencing 

court solely because of the fortuitous concentration of federal 

prisoners within the district.” Id. at 214.

6

To rectify this problem, the Conference proposed 

“requiring prisoners convicted in federal courts to apply by 

motion in the sentencing court instead of making application 

for habeas corpus in the district in which they are confined.” 

Id. at 215 (internal citation omitted). In a 1948 revision of the 

Judicial Code, Congress adopted the Conference’s 

recommended approach by amending the Code through two 

bills: (1) a “procedural bill” which provided that state 

prisoners shall file petitions for habeas corpus in state courts, 

or in the federal district of incarceration if exceptional 

circumstances exist; and (2) a “jurisdictional bill” “requiring 

prisoners convicted in federal courts to apply by motion in the 

sentencing court instead of making application for habeas 

corpus in the district in which they are confined.” Id.; see 

also H.R. 4342 and S. 1452, 79th Cong., 1st Sess. (procedural

bill); H.R. 4233 and S.1451, 79th Cong. 1st Sess. 

(jurisdictional bill). In developing these reforms, the Senate 

Judiciary Committee of the 80th Congress issued a Report 

which stated that “[t]he legal and practical considerations for 

a different approach, in Federal court habeas proceedings, to 

sentences in State courts and to sentences in Federal courts is 

evident and has long been recognized by the Congress and the 

courts.” S. Rep. No. 1526, at 1 (1948) (Comm. Rep.). The 

Report explained that the “main advantages of such [a]

motion remedy over the present habeas corpus are as 

 

District Courts.” Hayman, 342 U.S. at 214 n.18; see also 

William H. Speck, STATISTICS ON FEDERAL HABEAS CORPUS, 

10 Ohio St. L.J. 337 (1949).

6

 Cf. Rule 7, Rules Governing § 2255 Proceedings in the 

United States District Courts, Advisory Committee Notes (“It 

is less likely that the court will feel the need to expand the 

record in a § 2255 proceeding than in a habeas corpus 

proceeding, because the trial (or sentencing) judge is the one 

hearing the motion (see Rule 4) and should already have a 

complete file on the case in his possession.”). 
9

follows:”

[H]abeas corpus is a separate 

civil action and not a further step 

in the criminal case in which 

petitioner is sentenced (Ex parte 

Tom Tong, 108 U.S. 556, 559 

(1883)). It is not a determination 

of guilt or innocence of the charge 

upon which petitioner was 

sentenced. Where a prisoner 

sustains a right to discharge in 

habeas corpus, it is usually 

because some right—such as a 

lack of counsel—has been denied 

which reflects no determination of 

his guilt or innocence but affects 

solely the fairness of his earlier 

criminal trial. Even under the 

broad power in the statute “to 

dispose of the party as law and 

justice require,” the court or judge 

is by no means in the same 

advantageous position in habeas 

corpus to do justice as would be 

so if the matter were determined 

in the criminal proceeding. For 

instance, the judge (by habeas 

corpus) cannot grant a new trial in 

the criminal case. Since the 

motion remedy is in the criminal 

proceeding, this section 2 affords 

the opportunity and expressly 

gives the broad powers to set 

aside the judgment and to 

discharge the prisoner or 

resentence him or grant a new 

trial or correct the sentence as 

may appear appropriate.

S. Rep. No. 1526, at 2 (emphasis added).

Thus, the motion to vacate a sentence, which was 
10

subsequently codified as § 2255,7 was viewed as a 

continuation of the criminal case in the sentencing court in 

order to alleviate practical difficulties associated with 

fragmentation, and to more evenly distribute caseloads 

amongst districts. By making § 2255 proceedings a 

continuation of the criminal case, Congress also gave federal 

courts broader procedural latitude than in § 22548 habeas 

actions. The latter were viewed as initiating federal civil suits

that were separate from prisoners’ prior state criminal cases.

C.

Congress’s intent regarding the procedural posture of 

§§ 2254 and 2255 is reflected in the titles Congress adopted 

in promulgating each section’s procedural rules; namely, the 

“Rules Governing Section 2254 Cases in the United States 

District Courts,” and the “Rules Governing Section 2255 

Proceedings in the United States District Courts.” (emphasis 

added). The Advisory Committee on the Rules Governing §§

2254 and 2255 repeatedly reinforces this distinction in its

commentary for the Rules. Specifically, under Rule 1 of § 

2255, titled “Scope,” the Advisory Committee explains that a 

 7 “A prisoner in custody under sentence of a court established 

by Act of Congress claiming the right to be released upon the 

ground 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 was 

in excess of the maximum authorized by law, or is otherwise 

subject to collateral attack, may move the court which 

imposed the sentence to vacate, set aside or correct the 

sentence.” 28 U.S.C. § 2255(a).

8

 “The Supreme Court, a Justice thereof, a circuit judge, or a 

district court shall entertain an application for a writ of habeas 

corpus in behalf of a person in custody pursuant to the 

judgment of a State court only on the ground that he is in 

custody in violation of the Constitution or laws or treaties of 

the United States.” 28 U.S.C. § 2254(a). In addition, though 

broader procedural latitude exists under § 2255, the Supreme 

Court has indicated that the scope of remedy under §§ 2254 

and 2255 is the same. See Reed v. Farley, 512 U.S. 339, 353 

(1994); Davis v. United States, 417 U.S. 333, 343-44 (1974).
11

habeas “motion under § 2255 is a further step in a movant’s 

criminal case and not a separate civil action” and, by contrast,

§ 2254 “habeas corpus is a separate civil action and not a 

further step in the criminal case in which a petitioner is 

sentenced.” Rule 1, Advis. Comm. Notes. Under Rule 3, the 

Committee explains that “as in other motions filed in a 

criminal action, there is no requirement of a filing fee. It is 

appropriate that the present situation of docketing a § 2255 

motion as a new action and charging a $15 fee be remedied . . 

.” Rule 3, Advis. Comm. Notes. Similarly, Rule 4’s 

commentary provides that “[s]ince the motion is part of the 

criminal action in which was entered the judgment to which it 

is directed, the files, records, transcripts, and correspondence 

relating to that judgment are automatically available to the 

judge in his consideration of the motion. He no longer need 

order them incorporated for that purpose.” Rule 4, Advis. 

Comm. Notes. The Committee also explains that Rule 6 

pertaining to § 2255 “differs from the corresponding 

discovery rule under the § 2254 rules in that it includes the 

processes of discovery available under the Federal Rules of 

Criminal Procedure as well as the civil. This is because of the 

nature of a § 2255 motion as a continuing part of the criminal 

proceeding . . .” Rule 6, Advis. Comm. Notes; see also 

United States v. Goodman, 590 F.2d 705, 712-13 (8th Cir. 

1979).

This interpretation of § 2255 is consistent with 

instances in which Congress and the Advisory Committee use 

the words “motion” and “petition” when referring to §§ 2255 

and 2254, respectively, in a manner that highlights each 

measures’ distinct procedural posture. Black’s Law 

Dictionary defines “motion” as “[a] written or oral 

application requesting a court to make a specified ruling or 

order.” Black’s Law Dictionary 1106 (9th ed. 2009). By 

contrast, “petition” is defined as “[a] formal written request 

presented to a court or other official body,” and “[i]n some 

cases, the first pleading in a lawsuit.” Id. at 1261-62 

(emphasis added). This difference parallels the common

understanding that “motion” often refers to a request 

submitted to a court during an action, while “petition” 

typically refers to the commencement of an action. Thus, the 
12

Senate Report discussed above,9 referring to §§ 2254 and 

2255 as Sections 1 and 2, respectively, provided that “a 

petition for habeas corpus may be filed before any circuit or 

district judge (within the circuit or district where the 

petitioner is confined)” and, by contrast, “[s]ection 2 . . . 

creates a statutory remedy consisting of a motion before the 

court where a movant was convicted.” S. Rep. No. 1526, at 

1-2 (emphasis added). Similarly, under Rule 2 of § 2255, the 

Advisory Committee emphasizes this distinction by 

explaining that “[u]nder these rules the application for relief 

is in the form of a motion rather than a petition . . . . 

[t]herefore, there is no requirement that the movant name a 

respondent.” Rules 2, Advis. Comm. Notes. Even more 

convincingly, under Rule 3, the Advisory Committee 

unequivocally states that “[c]alling a § 2255 request for relief 

a motion rather than a petition militates toward charging no 

new filing fee, not an increased one. In absence of 

convincing evidence to the contrary, there is no reason to 

suppose that Congress did not mean what it said in making a 

§ 2255 action a motion.” Rule 3, Advis. Comm. Notes

(emphasis added).

10

D.

Our analysis is consistent with that of the Court of 

Appeals for the Tenth Circuit in United States v. Cook, 997 

F.2d 1312, 1319-20 (10th Cir. 1993). There, the Tenth 

Circuit held that courts should treat motions pertaining to § 

2255 proceedings as part of a defendant’s underlying criminal 

case. See id. Specifically, under 28 U.S.C. § 1915, an 

 9

 See supra pp. 8-10.

10 While the words “motion” and “petition” are distinguished 

in this opinion to specifically highlight §§ 2254’s and 2255’s 

distinct procedural postures, in some instances, courts use 

these words interchangeably because, at bottom, §§ 2254 and 

2255 both provide a means of habeas relief under AEDPA. 

See, e.g., United States v. Cook, 997 F.2d 1312, 1318 (3d Cir. 

1993) (“The Supreme Court’s decision in Andrews makes 

plain that the district court’s order on a § 2255 petition is not 

final until the court resentences the petitioner.”) (citing 

Andrews v. United States, 373 U.S. 334, 339 (1963)).
13

indigent prisoner can proceed in forma pauperis without 

paying otherwise applicable filing fees. The Cook court

explained that, prior to the “enactment of the Rules 

Governing § 2255 Proceedings, . . . this circuit, following the 

lead of the Supreme Court, interpreted § 2255 to be a separate 

civil action which required either payment of a filing fee in 

the district court or leave to proceed in forma pauperis by the 

district court.” Id. at 1319 (emphasis added). However, it

recognized that Rule 3 of § 2255 includes an Advisory 

Committee Note which provides that “there is no filing fee 

required of a movant under these rules. This is a change from 

the practice of charging $15 and is done to recognize 

specifically the nature of a § 2255 motion as being a 

continuation of the criminal case whose judgment is under 

attack.” Rule 3, Advis. Comm. Notes; Cook, 997 F.2d at 

1319. Therefore, the court held that “§ 2255 proceedings 

were not separate civil actions, but were instead a 

continuation of the same criminal matter in which the filing 

fees or leave to proceed in forma pauperis were not required.” 

Cook, 997 F.2d at 1319 (citations omitted) (emphasis added).

Before the Rules took effect in 1977, we also viewed § 

2255 proceedings as civil actions separate from underlying 

criminal cases. In United States v. Somers, for example, we 

stated, in a footnote, that “[t]he order from which the 

government appealed was not entered in the criminal 

proceeding, but rather in a § 2255 proceeding. Such an action 

is not a proceeding in the original criminal prosecution, but is 

rather an independent civil suit.” 552 F.2d 108, 100 n.6 (3d 

Cir. 1977) (citing Helfin v. United States, 358 U.S. 415, 418 

n.7 (1959)); see also Neely v. United States, 546 F.2d 1059, 

1065-66 (3d Cir. 1976). Somers was argued December 2, 

1976, and the Rules became effective on February 1, 1977, 

less than a month before our decision was filed. The holding 

in Somers did not depend on that footnote, which was based 

on the Supreme Court’s jurisprudence before the Rules for §

2255 Proceedings were adopted. Prior to their enactment, the 

Supreme Court stated that “a motion under § 2255, like a 

petition for a writ of habeas corpus is not a proceeding in the 

original criminal prosecution but an independent civil suit.” 

Helfin, 358 U.S. at 418 n.7 (internal citation omitted). 

However, as noted in Cook, the Supreme Court’s 

“promulgation of the Rules Governing § 2255 Proceedings 
14

indicated the Court’s abandonment of its prior view that a § 

2255 motion was a separate civil action.” Cook, 997 F.2d at 

1319 (citing Williams v. United States, 984 F.2d 28, 30 (2d 

Cir. 1993)).

Accordingly, it is now clear that, while civil in some 

respects, a § 2255 proceeding is a continuation of the 

underlying criminal case.11 It necessarily follows that 

because a § 2255 motion is a continuation of a defendant’s 

criminal case, a motion for an extension of time to file a § 

2255 motion is also a continuation of the underlying criminal 

case. Thus, a district court has subject matter jurisdiction to 

rule on a § 2255 motion for an extension of time before the 

substantive motion for relief is actually filed. The underlying 

criminal case satisfies Article III’s case or controversy 

mandate.

III.

Having determined that the District Court had 

jurisdiction to rule on Thomas’ motion for an extension of 

time to file a § 2255 motion, we now review the propriety of 

the District Court’s denial. As noted above, § 2255(f) 

establishes a one-year limitations period for filing § 2255 

motions. See supra p. 3. Here, the one-year limitations 

period began to run when Thomas’ petition for certiorari was 

denied on June 15, 2009. See Gonzalez v. Thaler, -- U.S. --, 

 11 See Wall v. Kholi, -- U.S. --, 131 S. Ct. 1278, 1289 (2011) 

(“a motion under 28 U.S.C. § 2255 is entered on the docket of 

the original criminal case and is typically referred to the judge 

who originally presided over the challenged proceedings, see 

§ 2255 Rules 3(b), 4(a), but there is no dispute that § 2255 

proceedings are ‘collateral’”); United States v. Fiorelli, 337 

F.3d 282, 286 (3d Cir. 2003) (“[W]hile a § 2255 motion is 

deemed a further step in the movant’s criminal case, it is also 

considered a civil remedy for purposes of appellate 

jurisdiction.”). For example, Rule 11(b) pertaining to § 2255 

provides that "Federal Rule of Appellate Procedure 4(a)

[which concerns the time to appeal in civil cases] governs the 

time to appeal an order entered under these rules.” Thus, 

nothing we say here conflicts with our precedent of allowing 

60 days to file a notice of appeal from a § 2255 proceeding.
15

132 S. Ct. 641, 653 (2012). Thomas therefore had until June 

15, 2010 to file his request for relief under § 2255. He filed 

his motion for an extension of time approximately three 

weeks before his deadline. He requested additional time 

because he was transferred from federal to state custody for 

more than 120-days without access to legal materials.

Since we have not previously recognized that a district 

court has jurisdiction to rule on a motion for an extension of 

time to file a § 2255 motion before a substantive request for 

habeas relief is made, we have not had the opportunity to 

determine the appropriate standard of review for analyzing 

denials of such motions. However, we have held that the 

doctrine of equitable tolling permits untimely habeas filings

in “extraordinary situations.” See Miller v. N.J. State Dep’t of 

Corr., 145 F.3d 616, 618 (3d Cir. 1998) (holding that 

AEDPA’s one year limitation period may be equitably tolled).

There are no bright-line rules for determining when extra time 

should be permitted in a particular case. See Sistrunk v. 

Rozum, 674 F.3d 181, 190 (3d Cir. 2012). Rather, the unique 

circumstances of each defendant seeking § 2255 relief must 

be taken into account. See Pabon v. Mahanoy, 654 F.3d 385, 

399 (3d Cir. 2011). Courts should grant a motion for an 

extension of time to file a § 2255 motion sparingly, and 

should do so only when the “principles of equity would make 

the rigid application of a limitation period unfair.” Id.

(quoting Miller, 145 F.3d at 618). The Supreme Court has 

instructed that equity permits extending the statutory time 

limit when a defendant shows that (1) “he has been pursuing 

his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” 

Holland v. Florida, -- U.S. --, 130 S. Ct. 2549, 2532-63 

(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005)). Mere excusable neglect is insufficient. See 

Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002).

Here, Thomas failed to show that he diligently pursued 

his rights and that he was beleaguered by an extraordinary 

circumstance. Although temporarily transferred to state 

custody, Thomas was in federal custody with access to legal 

materials for approximately nine months, including almost 

seven weeks leading up to the expiration of his limitations 

period. Thomas provides no support for a finding that he was 
16

diligent, nor does he explain the necessity of the materials he 

claims he was deprived of. See Robinson v. Johnson, 313 

F.3d at 143 (“deprivation of legal material for a relatively 

brief time period is not sufficient to warrant tolling”). 

Although his transfer to state custody may have made it more 

difficult to file a timely § 2255 motion, increased difficulty 

does not, by itself, satisfy the required showing of 

extraordinary circumstances. Cf. Munchinski v. Wilson, 694 

F.3d 308, 329-30 (3d Cir. 2012); Pabon, 654 F.3d at 399-400 

(holding that “equitable tolling might be warranted when a 

non-English speaking petitioner could not comply with 

AEDPA’s statute of limitations because the prison did not 

provide access to AEDPA-related materials, translation, or 

legal assistance in his or her language.”); Valverde v. Stinson, 

224 F.3d 129 (2d Cir. 2000) (remanding case to district court 

for further factual development on extraordinary 

circumstances where defendant alleged that corrections 

officer intentionally confiscated his pro se habeas petition and 

related legal materials shortly before filing deadline). 

Accordingly, the District Court did not err in denying 

Thomas’ motion for an extension of time to file a § 2255 

motion.

IV.

Lastly, we note that Thomas’ COA request “comes to 

us following a protracted and convoluted series of motions.” 

United States v. Rinaldi, 447 F.3d 192, 192 (3d Cir. 2006). 

As mentioned above, Thomas never filed a § 2255 motion for 

relief after his motion for an extension of time was denied. 

Rather, he filed a notice of appeal challenging the District 

Court’s order denying extra time, and a COA application that 

was referred to us by the District Court. As a result, there is 

no order that formally grants or denies § 2255 relief. 

Nevertheless, as we have explained, Thomas failed to 

demonstrate, both before the District Court12

 12 See supra p. 3.

and on appeal, 

that extraordinary circumstances justify additional time based 

on equity. Thus, the District Court’s denial of Thomas’ 

motion for an extension of time, and Thomas’ decision not to 

subsequently submit a timely § 2255 motion, effectively 

concluded his case before the District Court.
17

Thomas asks us to remand this matter so that he may 

file a proper motion for § 2255 relief, and so that the District 

Court can again rule on whether the doctrine of equitable 

tolling should apply. See Brief for Appellant at 20 (“The 

Court should construe Mr. Thomas’ application for a 

Certificate of Appealability as a § 2255 petition and then 

remand the case so the District Court can determine whether 

he is entitled to equitable tolling of § 2255’s one-year 

limitations period.”). However, a perfunctory remand to 

afford Thomas the formality of filing a time-barred § 2255 

motion would be futile because that motion would clearly be 

denied as untimely. Cf. Miller-El v. Cockrell, 537 U.S. 322,

337 (2003) (granting “a COA does not require that the appeal 

will succeed.”). As we have explained, there is no showing 

that equitable tolling should apply.

Accordingly, based on our review of the arguments 

raised in this appeal, and in both Thomas’ COA application 

and initial motion for extra time, we will affirm the District 

Court’s order denying his motion for an extension of time.