### 1997 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

9-22-1997



# U nit ed S t a t es v

. S k a ndie r

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t

97-3129



### F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. S k a nd ie r " (1997). 1997 D e cisio n s

. P a pe r 227.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/227Filed September 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97

- 3129

UNITED STATES OF AMERICA

v.

JOHN P. SKANDIER,

APPELLANT

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Crim. No. 93

- cr

- 00045E)

Submitted by the Clerk for a certificate of

appealability pursuant to 28 U.S.C. S2253

July 24, 1997

Before: BECKER, ALITO, and McKEE, Circuit Judges.

(MOTIONS PANEL A)

(Filed September 22, 1997)

JOHN PET ER SKANDIER

#14458

- 038

Loretto FCI

P.O. Box 1000

Loretto, PA 15940

Appellant Pro se

BONNIE R. SCHLEUTER, ESQUIRE

Assistant United States Attorney

Office of the United States Attorn ey

633 United States Post Office &

Courthouse

Pittsburgh, PA 15219

Attorney for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

Title 28 U.S.C. S 2253, which was enacted as Part of the

Antiterrorism and Effe ctive Death Penalty Act of 1996("AEDPA"), in relevant part provides:

. . .

(c)(1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken

to the court of appeals from

--

. . .

(B) the final order in a proceeding underS 2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right.

Prior to AEDPA, a 28 U.S.C. S 2255 petitioner could pursue

an appeal from denial of a S 2255 petition without first

obtaining a certificate of appealability ("CAPP"). The motion

presently before us raises the question whether, in the

wake o f the Supreme Court's recent decision in Lindh v.

Murphy, ___ U.S. ___, 117 S.Ct. 2059 (1997), the CAPP

provisions apply to an appeal taken after the effective date

of the AEDPA1 from an order denying a motion under 28

U.S.C. S 2255 that was filed befo re that date. We hold that

they do not.

_________________________________________________________________

1. Pub. L. 104

- 132, 110 Stat. 1214.

2

I

In February 1996, John Peter Skandier moved in the

District Court for the Western District of Pennsylvania to

vacate, set aside, or correct his sentence pursuant to 28

U.S.C. S 2255. In February 1997, after the district court

denied his motion, Skandier filed a timely notice of appeal.

This court advised Skand ier that, pursuant to 28 U.S.C.

S 2253(c)(1), he would have to obtain a CAPP from the court

before his appeal would be entertained. Skandier then filed

a CAPP request in which he claimed, inter alia, that

S 2253(c) should not apply to him because his S 2255

motion was filed in the District Court before April 24, 1996,

the effective date of AEDPA. By order dated May 27, 1997,

a panel of this Court declined Skandier's CAPP request,

reasoning that Skandier had failed to make the substantial

showing of a denial of a constitutional right that is required

by 28 U.S.C. S 2253(c)(2). Skandier then filed a petition for

rehearing en banc, which was denied.Before us now is Skandier's "motion for reconsideration

and reinstatement," which we shall constru e as a motion to

recall the mandate and for reconsideration. Skandier

repeats his contention that S 2253(c) does not apply to his

appeal, this time citing Lindh.

II

In Lindh, the Court was presented with the question

whether a portion of AEDPA de aling with state habeas

corpus petitions in noncapital cases applies to petitions

pending when AEDPA was passed. The Court held that it

does not. The crux of the Court's analysis reaching this

conclusion was a distinction between AEDPA's amendments

to chapter 153 of Title 28 and the newly enacted chapter

154. According to the Court's reading of the legislative

history of the Act, Congress intended to apply the

amendments to chapter 153 (of which S 2253 is a part)

"only to such cases as were filed a fter the statute's

enactment (except where chapter 154 otherwise makes

select provisions of chapter 153 applicable to pending

cases)." Lindh, 117 S.Ct. at 2063. The amendments to

chapter 153 include those amendments bearing onS 2255

3

motions. AEDPA created chapter 154 of Title 28 to deal

especially with habeas corpus proceedings against a state

in capital cases. See Lindh, 117 S.Ct. at 2063.

The basis for the Court's distinction between chapters

153 and 1 54 is its reading of S 107(c) of the Act, 110 Stat.

1226, which provides that the new chapter 154 "shall apply

to cases pending on or after the date of enactment of this

Act." The Court holds that since Congress "was reasonably

concerned" about ensurin g the retroactive application of

chapter 154, it would have been "just as concerned" about

the retroactive application of the chapter 153 amendments

if it had desired the same result. 117 S.Ct. at 2064. In

other words, by negative implication the prese nce of

S 107(c) indicates that Congress did not intend for those

amendments to chapter 153 not expressly made applicable

to pending cases elsewhere in the text of AEDPA to be

applied to such cases. The Court concludes: "We hold that

the negative impli cation of S 107(c) is that the new

provisions of chapter 153 generally apply only to cases filed

after the Act became effective." Id. at 2068.

As additional support for its conclusion, the Court also

discusses the newly enacted 28 U.S.C. S 2264(b). I n brief,

S 2264(b) (which is part of chapter 154) provides for theapplication of S 2254(d) and (e) (which are part of chapter

153) to pending cases. The Court concludes that there

would have been no need for Congress to provide expressly

for the retr oactive application of 2254(d) and (e) if it had

intended for chapter 153 to apply generally to all cases

pending when the Act took effect. See id. at 2066

- 68.

Although there is some disagreement over the meaning of

the "generally apply" wording, see Tiedeman v. Benson, ___

F.3d. ___, 1997 WL 437181 (8th Cir. 1997), discussed infra

at p. 6

- 8, we believe that the most plausible reading of the

Court's language is that the amendments to chapter 153

should not be given retroactive effect unless expres sly

provided for elsewhere in the text of the Act. We believe that

this reading is most consistent with the tenor and analysis

of the Court's opinion in Lindh. Thus, sinceS 2253(c) is

part of chapter 153, we find that that section should not

apply to a S 2255 motion that was filed before AEDPA's

4

effective date. This conclusion is in accord with the clear

weight of authority.

Consistent with our understanding, the Court of Appeals

for the Fifth Circuit ha s interpreted Lindh as entailing that

the certificate of appealability provisions of S 2253 may not

be applied to appeals from denials of both S 2254 habeas

petitions and S 2255 motions that were filed before AEDPA's

effective date. Green v. Johnson, 1 16 F.3d 1115, 1120 (5th

Cir. 1997); United States v. Carter, 117 F.3d 262, 1997 WL

374754 at *1

- *2 and n.1 (5th Cir. July 8, 1997); United

States v. Roberts, __ F.3d __, 1997 WL 420166 (5th Cir.

July 24, 1997). The Court of Appeals for the Sixth Circui t

has reached the same conclusion. Arrendondo v. United

States, __ F.3d __ , 1997 WL 459716 at *1 (6th Cir. August

13, 1997)(citing Carter). Additionally, in the wake of Lindh,

the First Circuit has issued an amended practice order

providing that its Interim Local Rules 22.1 and 22.2

(pertaining to the processing of certificates of appealability)

apply only "to the processing of non

- capitalS 2254 and

S 2255 petitions . . . which were filed on or after April 24,

1996." Amended Practice Order (1st Ci r. July 22, 1997).

See also Martin v. Bissonette, ___ F.3d ___, 1997 WL

374793 at *3 (1st Cir. July 11, 1997) (in Lindh the Supreme

Court held that "AEDPA does not apply to habeas petitions

which were pending at the time the new law took effect").

W e also note that unpublished opinions in two other

circuits reach the same result: United States v. Gonzales,

1997 WL 415334 at *1 n.1 (9th Cir. July 24, 1997)

("Because Gonzales filed his S 2255 motion prior to theeffective date of the [AEDPA], no ce rtificate of appealability

is required"); United States v. Turner, 1997 WL 431824 at

*1 (10th Cir. August 1, 1997) (same, characterizing Lindh as

"holding that 1996 amendments requiring a certificate of

appealability in S 2255 cases do not apply to cas es filed

before the effective date of the amendments" even though

section 2255 was not specifically addressed in Lindh).

Although we would not ordinarily rely on unpublished

opinions, which normally are not precedential, we view

those opinions as the functional equivalent of the First

Circuit's practice order, establishing the internal practice to

be followed in the respective circuits with respect to the

appeals from denials of S 2255 petitions.

5

Broad lan guage in recent cases from other of our sister

circuits involving various provisions of chapter 153

suggests that most courts agree with our interpretation of

the scope of Lindh. Johnson v. Washington, ___ F.3d ___,

1997 WL 381206 at *11 n.5 (7th Cir. July 9, 1997) ("We are

aware that the United States Supreme Court has recently

decided that the new provisions of Chapter 153 of the

[AEDPA] . . . are not applied retroactively to pending

cases."); Reddick v. Haws, ___ F.3d ___, 1997 WL 409422 at

*4 n .1 (7th Cir. July 22, 1997) ("Reddick's petition was filed

before the [AEDPA] became law. The provisions of that act

therefore do not govern our review of his claims."); Amaya

Ruiz v. Stewart, ___ F.3d ___, 1997 WL 426215 at *1 n.1

(9th Cir. July 31, 1997) ("Amaya

- Ruiz filed his petition prior

to the passage of the [AEDPA]. The new provisions of

Chapter 153, therefore, do not govern our resolution of this

appeal."); Contreras v. Schiltgen, __ F.3d __, 1997 WL

426213 at *1 (9th Cir. July 31, 1997) ( "Because Contreras'

petition was filed prior to April 24, 1996, this appeal is

unaffected by the [AEDPA].").2

In contrast, in Tiedeman v. Benson, supra, the Court of

Appeals for the Eighth Circuit addressed the similar

question whether a certificat e of appealability is required in

an appeal from the denial of a S 2254 petition where the

petition was filed before April 24, 1996, and the appeal was

filed after that date. The court reached the opposite

conclusion from that reached in the cases cite d above,

reasoning:

Whatever changes the AEDPA has made with respect to

appeals by habeas corpus petitioners are procedural

only. The notice of appeal, together with Tiedeman's

application for a certificate of appealabili ty, was filed

after the enactment of the AEDPA. We recognize that

the Supreme Court in Lindh . . . has held that theamendments made by AEDPA to Chapter 153 . . .,

_________________________________________________________________

2. Indeed, before Lindh was decided this Court had reached the same

conclusion concerning certain changes made by AEDPA with regard to

second or successive petitions. Burkett v. Love , 89 F.3d 135, 138 n.2 (3d

Cir. 1996) ("The present petition had bee n filed before that amendment

to S 2254 was enacted, and consequently, it does not apply here.").

6

generally speaking, are prospective only. The particular

provision of the law at issue in Lindh, h owever, had to

do with the substantive standards for review of state

court judgments by habeas courts. In stating its

holding at the end of its opinion, the Court said that

"the new provisions of Chapter 153 generally apply

only to cases filed after the Act became effective" . . .

(emphasis ours). The parties to this case agree that the

new provisions with respect to certificates of

appealability made no substantive change in the

standa rds by which applications for such certificates

are governed. Moreover, we can think of no reason why

a new provision exclusively directed towards appeal

procedures would depend for its effective date on the

filing of a case in a trial court, instead of on the filing

of a notice of appeal or similar document.

Id. at *2.

The Eighth Circuit's analysis turns on the penultimate

sentence of Lindh: "the new provisions of chapter 153

generally apply only to cases fil ed after the Act became

effective." 117 S.Ct. at 2068 (emphasis added). From this

use of "generally" the Tiedeman court determines that the

Supreme Court meant to say that not all provisions of

Chapter 153 apply only prospectively, and, we infer, that

typical rules of statutory construction (e.g. distinguishing

between substantive and procedural amendments) should

apply to reach the conclusion that S 2253(c) should have

retroactive application. See, e.g., Landgraf v. USI Film

Products, 511 U.S. 244 (1994)(setting forth default rules of

construction with regard to retroactive application).

We disagree. The essential message of Lindh, we believe,

is that we need not resort to a Landgraf analysis with its

default rules of retroactive/prospective application when

the intent of Congress is clear and no Constitutional

violation would be worked by applying the statute as

Congress intended. The Tiedeman court's reading of the

"generally apply" language as permitting application of

some arguably pr ocedural sections to pending cases isundermined by the Supreme Court's analysis of S 107(c)

and S 2264(b). The Court could not assert that none of the

chapter 153 amendments have retroactive effect when

7

S 226 4(b) expressly allows for an exception. We conclude

that the most plausible reading of the Court's language is

that the amendments to chapter 153 should not be given

retroactive effect unless expressly provided for elsewhere in

the text of the Act, and that that reading is most consistent

with the tenor and analysis of the Lindh.

Thus, since S 2253(c) is part of chapter 153, we hold that

that section should not apply to a S 2255 motion that was

filed before AEDPA's effective date. Because we dispo se of

this case on the grounds of Congressional intent, as the

Supreme Court itself has found it, we need not address the

matters that would be predicate to determining applicability

of the default rules.

Nor are we persuaded that the filing of a no tice of appeal

after AEDPA's effective date institutes a new proceeding

such that we could find that Skandier's case was not

pending on April 24, 1996, and thus that the new S 2253(c)

should apply. Rather, we believe that the better view for

present p urposes is that there is but one case, which

commences with the filing of the petition or motion and

continues through the appellate process. Thus, so long as

the S 2255 motion was filed before April 24, 1996, there

was a case pending on that date even if the notice of appeal

was filed after that date. At all events, we are controlled by

Lindh, and our decision here is compelled by the Court's

reasoning in that case.

We conclude, then, that because Skandier's S 2255

motion was filed before April 24, 1996, S 2253(c) as

amended by AEDPA does not apply to his appeal from the

denial of that motion, and that he should not have been

required to obtain a certificate of appealability before his

appeal proceeded to consideration on the merits.

III

In the present case, we address this issue not in the

context of a request for a certificate of appealability but,

after such a request and a subsequent petition for

rehearing had been denied, in the context of a motion to

recall the mandate and for rehearing. We must also decide,

8therefore, whether this is a situation in which the mandate

should be recalled.

In American Iron & Steel Institute v. E.P.A., 560 F.2d 589,

594 (3d Cir. 1977), cert. denied, 4 35 U.S. 914 (1978), we

joined other courts of appeals and held that we have the

authority to recall a mandate. We concluded that while a

decision to recall a mandate is discretionary, it is an

extraordinary remedy to be used only in unusual

circumstan ces to prevent injustice or otherwise for good

cause. Id. We also noted that courts have listed five types

of situation which would justify recalling a mandate, one of

which is where a subsequent Supreme Court decision has

shown that the original judgm ent was wrong. Id.

We believe that the circumstances of the present case

warrant the recall of the mandate. The AEDPA is not a

model of the legislative drafter's art. Rather, as the

Supreme Court has noted, "in a world of silk purses and

pigs' ears, the Act is not a silk purse of the art of statutory

drafting." Lindh, 117 S.Ct. at 2068. One result has been the

uncertainty concerning the applicability of the AEDPA to

habeas petitions filed before April 24, 1996. For the reasons

given above, we bel ieve that Lindh has clarified the matter,

discerning a Congressional intent not to allow the

application of the chapter 153 amendments to pending

cases unless specifically provided for elsewhere in the Act.

To that extent, this case falls within the cr iterion listed

above. Accordingly, Skandier's motion must be granted.

IV

For the foregoing reasons, the mandate will be recalled

and this Court's order dated May 27, 1997, denying

Skandier's request for a certificate of appealability will be

vaca ted.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

9