1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1997

United States v. Eyer

Precedential or Non-Precedential:

Docket 96-7310

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Recommended Citation

"United States v. Eyer" (1997). 1997 Decisions. Paper 108.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/108
Filed May 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7310 

UNITED STATES OF AMERICA 

v. 

ROBERT G. EYER, 

Appellant

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Crim. No. 90-00039) 

Argued: April 17, 1997 

BEFORE: GREENBERG, ALITO, and ROSENN, 

Circuit Judges

(Filed: May 14, 1997) 

David M. Barasch 

United States Attorney 

Theodore B. Smith, III (argued) 

Assistant U.S. Attorney 

228 Walnut Street 

Harrisburg, PA 17108 

 Attorneys for Appellee

Cheryl J. Sturm (argued) 

P.O. Box 210 

Westtown, PA 19395 

 Attorney for Appellant
OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Appellant, Robert G. Eyer, appeals from an order entered 

on April 11, 1996, denying his motion filed pursuant to 28 

U.S.C. § 2255 ("section 2255"). On February 13, 1990, a 

grand jury returned a one-count indictment charging Eyer 

with using and carrying a firearm in relation to a drug 

trafficking crime in violation of 18 U.S.C. § 924(c)(1) 

("section 924(c)(1)"). Eyer waived trial by jury, and was 

convicted at a bench trial on May 21, 1990. On August 10, 

1990, the district court sentenced Eyer to a five-year 

custodial term followed by a three-year term of supervised 

release to be served consecutively to any sentence he then 

was serving. 

On February 28, 1996, Eyer, through an attorney,filed a 

motion under section 2255 to vacate, set aside, or correct 

his sentence. The motion included a brief contending that 

in Bailey v. United States, 116 S.Ct. 501 (1995), the 

Supreme Court held that a defendant cannot be convicted 

of a violation of section 924(c)(1) unless he "actively 

employs the firearm in connection with the drug trafficking 

offense." The brief further asserted that "active 

employment" includes "brandishing, displaying, bartering, 

striking with, firing, attempting to fire, or referencing the 

firearm" but does not "include possession of a firearm at or 

near the site of a drug crime, storing a weapon near drug 

proceeds, or concealing a firearm nearby to be ready for 

imminent confrontation." 

The brief quoted the presentence report which explained 

that a person cooperating with a drug task force placed an 

order with Eyer for an ounce of cocaine to be delivered to 

the purchaser's apartment. When Eyer arrived with the 

cocaine the officers arrested him and seized the automobile 

in which he was making the delivery. The officers then 

obtained a search warrant and searched the vehicle, finding 

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a fully loaded Colt .380 caliber semi-automatic hand gun 

with a live round in its chamber located in the console 

between its front seats along with some cocaine. 

Notwithstanding the location of the firearm, in his motion 

Eyer claimed that there was "no evidence that[he] actively 

employed the handgun." Thus, in his view, the 

government's proof could not support the conviction under 

section 924(c)(1) as construed in Bailey. Accordingly, Eyer 

requested that the district court vacate his conviction and 

sentence. 

After the parties filed further pleadings, the district court, 

without holding a hearing, ruled on the section 2255 

motion in a memorandum accompanying the order of April 

11, 1996. The court pointed out that Bailey applied only to 

the "using" prong of section 924(c)(1) which speaks of a 

defendant who, in the disjunctive, "uses or carries a 

firearm" in relation to any crime of violence or drug 

trafficking crime. The court then held that Eyer was 

carrying the gun because he was transporting it by vehicle. 

The court cited several cases in support of this holding 

including United States v. Pineda-Ortuno, 952 F.2d 98, 103- 

04 (5th Cir. 1992), and United States v. Freisinger, 937 F.2d 

383, 387-88 (8th Cir. 1991). Based on these conclusions, 

the district court denied the motion. 

Eyer then appealed to this court and sought a certificate 

of appealability from both the district court and this court. 

On July 1, 1996, the district court granted a certificate of 

appealability. Its order, however, does not specify the issue 

or issues warranting granting the certificate 

notwithstanding that 28 U.S.C. § 2253(c)(3) ("section 

2253(c)(3)") requires a certificate of appealability under 28 

U.S.C. § 2253(c)(1) ("section 2253(c)(1)") to indicate the 

issues justifying its issuance. This court has not acted on 

Eyer's application to it for the certificate of appealability. 

The parties have briefed the case both on the procedural 

issues and on the merits and have argued orally. We

exercise plenary review. 

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II. DISCUSSION 

a. Procedural issues

The first issue is whether the district court properly 

issued the certificate of appealability. The government 

contends that the district court could not do so because 

only a circuit justice or a circuit judge can issue a 

certificate of appealability. Thus, the government argues 

that unless we issue a certificate of appealability, we cannot 

decide this case on the merits. 

Until the enactment of the Antiterrorism and Effective 

Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 

110 Stat. 1214 (1996), effective April 24, 1996, a petitioner 

in federal custody who was denied relief by a district court 

on a section 2255 motion could appeal to a court of appeals 

without obtaining a certificate of probable cause. By 

contrast, a petitioner challenging detention arising out of 

process issued by a state court could not appeal "unless 

the justice or judge who rendered the order or a circuit 

justice or judge issue[d] a certificate of probable cause." 28 

U.S.C. § 2253 ("section 2253"). The AEDPA changed these 

procedures; in particular the Act replaced certificates of 

probable cause with certificates of appealability and 

required prisoners in federal custody to obtain a certificate 

of appealability to appeal from the denial of relief under 

section 2255. 

Unfortunately, the AEDPA created an ambiguity with 

respect to the designation of the judges who can issue 

certificates of appealability. It amended section 2253 in 

pertinent part to read as follows: 

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

certificate of appealability, an appeal may not be taken 

from -- 

 (A) the final order in a habeas corpus proceeding in 

which the detention complained of arises out of process 

issued by a State court; or 

 (B) the final order in a proceeding under section 

2255. 

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When Congress enacted the AEDPA it deleted from section 

2253 the provision that the "judge who rendered the order" 

could issue a certificate of probable cause, and thus there 

is no provision in section 2253, as amended by the AEDPA, 

providing that the judge who rendered the order may issue 

a certificate of appealability. This deletion casts doubt on 

the power of a district judge to issue a certificate of 

appealability, especially inasmuch as the reference in 

section 2253 prior to its amendment by the AEDPA to

"circuit justice or judge" arguably meant "circuit justice" or 

"circuit judge." After all, the "judge who entered the order" 

ordinarily would have been a district judge and thus it 

would not have been necessary to read "judge" in "circuit 

justice or judge" to include district judges in order to 

authorize a judge denying the order to issue a certificate of 

probable cause. Accordingly, the government reasonably 

argues that the district court did not have the authority to 

issue the certificate of appealability to Eyer. 

We reject the government's argument. Certainly the term 

"circuit justice or judge" is ambiguous as "circuit" might 

modify only the word "justice" or might modify both

"justice" and "judge." Obviously, if "circuit" applies to 

"judge" then only a court of appeals judge or circuit justice 

can issue a certificate of appealability. We might reject this 

application of "circuit" to "judge" on the ground that 

"circuit" as applied to "justice" refers to the allocation of the 

Supreme Court justices to the various circuits pursuant to 

an order of the Supreme Court as authorized in 28 U.S.C. 

§ 42. Under this reasoning, "circuit" as applied to "justice" 

refers to a judicial assignment and "circuit" should not be 

read to modify the word "judge" and thus be given a

different meaning and refer to judges on the basis of their 

appointment, which in this case is to a court of appeals. 

In the final analysis, however, we conclude on a different 

basis that a district judge can issue a certificate of 

appealability. In section 2253(c)(1), as amended by the 

AEDPA, the language that an appeal may not be taken

unless a "circuit justice or judge" issues a certificate of 

appealability is followed by the two subparagraphs, which 

we quoted above: subparagraph A, relating to custody 

arising out of process by a state court, and subparagraph 

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B, relating to proceedings involving federal prisoners under 

section 2255. These paragraphs appear in section 

2253(c)(1) in the disjunctive. This configuration makes it 

difficult, if not impossible, to construe section 2253(c)(1) so 

that "circuit justice or judge" has a different meaning in the 

two subparagraphs. Yet we know that, unless we are willing 

to hold that Congress made an extraordinary mistake in 

drafting, a district judge must be able to issue a certificate 

of appealability in a case arising under subparagraph A. 

This conclusion cannot be avoided because the AEDPA

amended Fed. R. App. P. 22(b) to read in part as follows: 

Certificate of Appealability. - In a habeas corpus 

proceeding in which the detention complained of arises 

out of process issued by a State court, an appeal by 

the applicant for the writ may not proceed unless a

district or a circuit judge issues a certificate of

appealability pursuant to section 2253(c) of title 28, 

United States Code. If an appeal is taken by the 

applicant, the district judge who rendered the 

judgment shall either issue a certificate of appealability 

or state the reasons why such a certificate should not 

issue. 

Thus, at the very time that Congress amended section 2253 

to remove the language providing that the "judge who 

rendered the order" could issue a certificate of probable 

cause, now a certificate of appealability, it provided in Rule 

22(b) that a district judge in general, and the judge who 

rendered the judgment in particular, ordinarily, of course, 

a district judge, could issue a certificate of appealability. 

Furthermore, the AEDPA amendment to Rule 22(b) referred 

to section 2253(c) even though prior to the amendment 

Rule 22(b) did not mention section 2253 which at that time 

did not even have subsections. We also note that the 

amendment to Rule 22(b) appears conspicuously in Title I 

of the AEDPA, a short title dealing with habeas corpus 

reform. 

In these circumstances, we must conclude that Congress 

deliberately amended Rule 22(b); we consequently hold that 

section 2253(c)(1) authorizes a district judge to issue a 

certificate of appealability in cases under subparagraph A 

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and thus necessarily under subparagraph B as well. Our 

conclusion harmonizes Rule 22(b) and section 2253(c)(1), 

and thus we reject any suggestion that these provisions are 

inconsistent. Moreover, it would be strange to read section 

2253(c)(1) to authorize district judges to issue certificates of 

appealability in state but not in federal cases involving 

custody of prisoners. If anything, one might expect that 

Congress, for reasons of comity, would be more restrictive 

in vesting the power to issue a certificate of appealability in 

district judges in state rather than federal cases.1 

We have reached our determination through our own 

analysis. Nevertheless, we find it significant that other 

courts of appeals have reached the same result, though 

their reasoning may differ from ours. See Lozada v. United

States, 107 F.3d 1011, 1016 (2d Cir. 1997) ("We therefore

uphold the authority of district judges to issue COAs, at 

least in section 2254 cases."); United States v. Asrar, 108 

F.3d 217, 218 (9th Cir. 1997); Lyons v. Ohio Adult Parole

Auth., 105 F.3d 1063, 1066-73 (6th Cir. 1997), petition for

cert. filed, 65 U.S.L.W. 3648 (U.S. Mar. 14, 1997) (No. 96- 

1461); Hunter v. United States, 101 F.3d 1565, 1573-77 

(11th Cir. 1996) (en banc), petition for cert . filed, 65 

U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443). 

Although we hold that the district court had the power to 

grant a certificate of appealability, we face additional 

procedural obstacles prior to deciding this appeal on the 

merits. First, the certificate of appealability in this case 

does not specify the issues that warrant its issuance as 

required by section 2253(c)(3). In an appropriate case, such 

an omission could lead us to remand the case for the 

_________________________________________________________________ 

1. We agree with the Sixth Circuit that interpreting "circuit" as modifying 

only "justice" and not "judge" is a somewhat "tortured interpretation, but 

a possible one." Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1070 

(6th Cir. 1997), petition for cert. filed, 65 U.S.L.W. 3648 (U.S. Mar. 14, 

1997) (No. 96-1461). However, this interpretation provides the only 

plausible means of harmonizing section 2253(c)(1) and Fed. R. App. P. 

22(b). Harmonization seems particularly appropriate here, since it 

appears that the arguably inconsistent language of these two provisions 

was not adopted inadvertently. See Hunter v. United States, 101 F.3d 

1565, 1581-82 (11th Cir. 1996) (en banc), petition for cert. filed, 65 

U.S.L.W. 3648 (U.S. Mar. 10, 1997) (No. 96-1443). 

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district court to specify the issues. But we will not do so 

here for two reasons. First, because there was only one 

issue before the district court, the issue it determined 

warranted the issuance of the certificate is obvious. Second, 

at oral argument the government stated that if we 

concluded that the district court had the power to issue the 

certificate, we should decide the case on the merits without 

remanding the case to the district court. 

The second procedural obstacle we face prior to reaching 

the merits of the appeal is more serious. 28 U.S.C.

§ 2253(c)(2) ("section 2253(c)(2)") provides that a certificate 

of appealability can issue "only if the applicant has made a 

substantial showing of the denial of a constitutional right." 

Yet Eyer raises questions under Bailey involving issues of 

statutory construction. Therefore, it is possible that Eyer 

does not raise an issue involving a constitutional right. See

Hohn v. United States, 99 F.3d 892 (8th Cir. 1996). 

Here, too, we avoid the procedural point because the 

government, though contending that we should not issue a 

certificate of appealability, does not contend that if we 

construe section 2253(c)(1) to authorize district courts to 

issue certificates of appealability, we should dismiss the 

appeal on the ground that Eyer does not raise an issue 

involving a constitutional right. Rather, at oral argument 

the government took the position that if the district court is 

empowered to issue certificates of appealability under 

section 2253(c)(1), we should decide this case on the 

merits. Thus, the determination of the meaning of 

"constitutional right" in section 2253(c)(2) is not necessary 

to the disposition of this appeal. 

In reaching our result, we have not disregarded our

practice of examining our jurisdiction before reaching the 

merits of an appeal, and we recognize the possibility that 

the procedural problems we have identified could be

considered jurisdictional. Instead, we are applying the 

settled principle "that an appellate court, confronted by a 

difficult jurisdictional or quasi-jurisdictional question, may 

forego its resolution if the merits of the appeal are, as here, 

straightforward and easily resolved in favor of the party or 

parties to whose benefit the objection to jurisdiction would 

redound." In re DN Assocs., 3 F.3d 512, 515 (1st Cir. 1993). 

 8 
See also Switlik v. Hardwicke Co., 651 F.2d 852, 856 n.3 

(3d Cir. 1981) ("Because we conclude . . . that the district 

court's judgment should be affirmed under well-settled 

principles of res judicata and collateral estoppel, assuming 

without deciding that we have jurisdiction permits a proper 

and lawful resolution of the dispute without facing the 

damages lurking in the murky waters surrounding the state 

action question."). 

In this case, certainly at least as to the construction of 

section 2253(c)(2), difficult and far-reaching procedural 

questions potentially are presented. Nevertheless, as will be 

seen, we can affirm on the merits so that we will resolve the 

appeal in favor of the government, the party "to whose 

benefit [any] objection to jurisdiction would redound." In re

DN Assocs., 3 F.3d at 515. Thus, we will decide the appeal 

on the merits. 

Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623-24 (3d 

Cir. 1996), cert. granted, 117 S.Ct. 379 (1996), is not 

inconsistent with the action we take. There we indicated 

that "[a]lthough we deem it wise not to decide most of the 

jurisdictional issues posed by this case, we are obliged to 

consider the threshold question whether we have appellate 

jurisdiction to review the propriety, under Federal Rule of 

Civil Procedure 23, of the district court's class certification." 

But Georgine is distinguishable because there we held that 

the class certification was improper. Thus, we vacated the 

district court order certifying the class, and remanded the 

case to the district court to decertify the class. Georgine, 83 

F.3d at 635. Therefore, in Georgine we could not assume 

that we had jurisdiction because we were not deciding the 

case in favor of the parties to whose benefit the objection to 

jurisdiction would redound. 

Of course, we add that this opinion should not be taken 

as an indication that in the future we will depart regularly 

from our usual practice of determining whether we have 

jurisdiction before reaching the merits of an appeal. To the 

contrary, ordinarily we will adhere to that practice. See

Norton v. Mathews, 427 U.S. 524, 532-33, 96 S.Ct. 2771, 

2775-76 (1976). Here, we decide the appeal on the merits 

because, unlike resolution of the difficult questions relating 

to the construction of section 2253(c)(2), consideration of 

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this appeal on the merits yields an obvious result.

Moreover, we can conceive of no procedural complications 

that will flow from an affirmance in this case as our order 

will terminate the section 2255 proceedings. Finally, and 

perhaps most significantly, the order from which the appeal 

has been taken is undoubtedly final and thus ordinarily 

would be appealable. Only the provisions relating to 

certificates of appealability cast doubt on our jurisdiction. 

Accordingly, we regard this appeal as presenting a special 

situation justifying our determination of the appeal on the 

merits even if questions relating to our jurisdiction are 

unsettled. 

There is a final group of issues we must address before 

reaching the merits of the appeal. Eyer contends that the 

AEDPA is an ex post facto law when applied to crimes, such 

as his, committed before its effective date, April 24, 1996. 

In addition, he contends that the AEDPA unconstitutionally 

restricts the writ of habeas corpus and is void for

vagueness. At oral argument we pointed out that 

notwithstanding these contentions, the district court 

granted the certificate of appealability so that it appeared 

that Eyer's constitutional arguments would be moot if we 

held that the district court properly issued the certificate. 

Eyer agreed with this observation. In fact, even if we 

sustained Eyer's constitutional arguments, he would be 

entitled only to a determination of his appeal on the merits. 

We will make that determination and, accordingly, we need 

not consider his constitutional challenges to the AEDPA. 

b. The merits of the appeal

Eyer argues that he is entitled to relief on the merits 

because this case was tried "based on the expansive

definition of `use' set forth in United States v.

Theorodopoulos, 866 F.2d 587 (3d Cir. 1989) which held 

that a firearm was `used' if it was available for possible use 

during the drug transaction." Br. at 10. Eyer contends that 

in United States v. Price, 76 F.3d 526, 528 (3d Cir. 1996), 

we recognized that Theorodopoulos did not survive Bailey. 

He also contends that the facts in this case could not 

justify a conviction under the "carry" prong of section 

924(c)(1). 

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The government answers that the Supreme Court in 

Bailey, 116 S.Ct. at 509, recognized that its opinion did not 

affect the "carry" prong of section 924(c)(1) and that a 

"number of courts of appeals have held that possessing a 

firearm in an automobile during and in relation to a drug 

trafficking crime constitutes `carrying' under" section 

924(c)(1). Br. at 35. It cites a number of cases to support its 

conclusion on the point including United States v. PinedaOrtuno, 952 F.2d at 103-04, and United States v. Freisinger, 

937 F.2d at 387-88, both of which the district court cited. 

We are not concerned with what disposition we would

have made if this case had been tried to a jury because the 

district court clearly convicted Eyer for carrying the firearm. 

Accordingly, Bailey is not implicated here. Furthermore, the 

facts here compel the conclusion that Eyer was carrying the 

firearm. As we explained above, the handgun was loaded 

and was in a console between the two front seats, and was 

conveyed with the cocaine to the purchaser's apartment. 

Eyer's easy access to the handgun and its transportation 

convinces us that he was carrying it. Accordingly, we have 

no occasion to address the broad question of whether it 

always can be said that a defendant is carrying a firearm if 

he or she has the firearm in a car while committing a drug 

trafficking offense. 

III. CONCLUSION 

In view of the aforesaid, we will affirm the order of April 

11, 1996. We deny Eyer's application to us for a certificate 

of appealability as moot. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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