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. e du/thir dc ir c uit_1997/108Filed 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 AppellantOPINION OF THE COURT

GREENBERG, Circuit Judge

.

I. INTRODUCTION

Appellant, Robert G. Eyer, appeals from an order en tered on April 11, 1996, denying his motion filed pursuan t to 28 U.S.C. § 2255 ("section 2255"). On February 13, 199 0, 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, a nd was convicted at a bench trial on May 21, 1990. On Augu st 10, 1990, the district court sentenced Eyer to a five-y ear custodial term followed by a three-year term of sup ervised release to be served consecutively to any sentence he then was serving.

On February 28, 1996, Eyer, through an attorney,fil ed a motion under section 2255 to vacate, set aside, or correct
his sentence. The motion included a brief contendin g that in Bailey v. United States , 116 S.Ct. 501 (1995), the Supreme Court held that a defendant cannot be convi cted of a violation of section 924(c)(1) unless he "acti vely employs the firearm in connection with the drug tra fficking
offense." The brief further asserted that "active employment" includes "brandishing, displaying, bart ering, striking with, firing, attempting to fire, or refer encing the firearm" but does not "include possession of a fire arm at or near the site of a drug crime, storing a weapon nea r drug proceeds, or concealing a firearm nearby to be read y for
imminent confrontation."

The brief quoted the presentence report which expla ined that a person cooperating with a drug task force pl aced an order with Eyer for an ounce of cocaine to be deliv ered to the purchaser's apartment. When Eyer arrived with t he
cocaine the officers arrested him and seized the au tomobile in which he was making the delivery. The officers t hen obtained a search warrant and searched the vehicle, finding

2a fully loaded Colt .380 caliber semi-automatic han d gun

with a live round in its chamber located in the con sole 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] a ctively 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 convic tion and

sentence.

After the parties filed further pleadings, the dist rict court, without holding a hearing, ruled on the section 225 5 motion in a memorandum accompanying the order of Ap ril 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 dr ug trafficking crime. The court then held that Eyer wa s carrying the gun because he was transporting it by vehicle. The court cited several cases in support of this ho lding 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 conclus ions,
the district court denied the motion.

Eyer then appealed to this court and sought a certi ficate of appealability from both the district court and t his court. On July 1, 1996, the district court granted a certi ficate 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) ("secti on 2253(c)(3)") requires a certificate of appealabilit y under 28 U.S.C. § 2253(c)(1) ("section 2253(c)(1)") to indic ate the issues justifying its issuance. This court has not acted on Eyer's application to it for the certificate of app ealability. The parties have briefed the case both on the proce dural issues and on the merits and have argued orally. We exercise plenary review.

3II. DISCUSSION

a. Procedural issues

The first issue is whether the district court prope rly issued the certificate of appealability. The govern ment
contends that the district court could not do so be cause 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 Effect ive Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 10 4-132, 110 Stat. 1214 (1996), effective April 24, 1996, a petitioner in federal custody who was denied relief by a distr ict 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 arisin g out of process issued by a state court could not appeal "u nless the justice or judge who rendered the order or a ci rcuit justice or judge issue[d] a certificate of probable cause." 28 U.S.C. § 2253 ("section 2253"). The AEDPA changed t hese procedures; in particular the Act replaced certific ates of probable cause with certificates of appealability a nd required prisoners in federal custody to obtain a c ertificate of appealability to appeal from the denial of relie f under
section 2255.

Unfortunately, the AEDPA created an ambiguity with respect to the designation of the judges who can is sue certificates of appealability. It amended section 2 253 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 pro cess issued by a State court; or

(B) the final order in a proceeding under section
2255.

4When Congress enacted the AEDPA it deleted from sec tion

2253 the provision that the "judge who rendered the order" could issue a certificate of probable cause, and th us 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 certificat e 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 thu s it would not have been necessary to read "judge" in "c ircuit justice or judge" to include district judges in ord er to authorize a judge denying the order to issue a cert ificate of probable cause. Accordingly, the government reasona bly argues that the district court did not have the aut hority 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" appl ies to "judge" then only a court of appeals judge or circu it justice can issue a certificate of appealability. We might reject this application of "circuit" to "judge" on the ground t hat "circuit" as applied to "justice" refers to the all ocation of the Supreme Court justices to the various circuits purs uant 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" shoul d 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 ap peals.

In the final analysis, however, we conclude on a di fferent 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 certif icate of appealability is followed by the two subparagraphs, which we quoted above: subparagraph A, relating to custod y arising out of process by a state court, and subpar agraph

5B, relating to proceedings involving federal prison ers under

section 2255. These paragraphs appear in section 2253(c)(1) in the disjunctive. This configuration m akes it difficult, if not impossible, to construe section 2 253(c)(1) so that "circuit justice or judge" has a different mea ning 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 subparagra ph A.

This conclusion cannot be avoided because the AEDPA amended Fed. R. App. P. 22(b) to read in part as fo llows:

Certificate of Appealability. - In a habeas corpus proceeding in which the detention complained of ari ses out of process issued by a State court, an appeal b y 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 appeal ability or state the reasons why such a certificate should not
issue.

Thus, at the very time that Congress amended sectio n 2253 to remove the language providing that the "judge wh o rendered the order" could issue a certificate of pr obable cause, now a certificate of appealability, it provi ded in Rule 22(b) that a district judge in general, and the jud ge who rendered the judgment in particular, ordinarily, of course, a district judge, could issue a certificate of appe alability. Furthermore, the AEDPA amendment to Rule 22(b) refe rred to section 2253(c) even though prior to the amendme nt Rule 22(b) did not mention section 2253 which at th at time
did not even have subsections. We also note that th e amendment to Rule 22(b) appears conspicuously in Ti tle I of the AEDPA, a short title dealing with habeas cor pus reform.

In these circumstances, we must conclude that Congr ess deliberately amended Rule 22(b); we consequently ho ld that section 2253(c)(1) authorizes a district judge to i ssue a certificate of appealability in cases under subpara graph A

6and 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 provis ions are inconsistent. Moreover, it would be strange to read section 2253(c)(1) to authorize district judges to issue ce rtificates of appealability in state but not in federal cases inv olving custody of prisoners. If anything, one might expect that Congress, for reasons of comity, would be more rest rictive in vesting the power to issue a certificate of appe alability 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, tho ugh 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 CO As, at least in section 2254 cases."); United States v. As rar , 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 po wer to grant a certificate of appealability, we face addit ional 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 issuan ce as required by section 2253(c)(3). In an appropriate c ase, such
an omission could lead us to remand the case for th e

___________________________________________________ ______________

1. We agree with the Sixth Circuit that interpretin g "circuit" as modifying only "justice" and not "judge" is a somewhat "tortu red 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 p rovides the only plausible means of harmonizing section 2253(c)(1) a nd 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).

7district court to specify the issues. But we will n ot do so

here for two reasons. First, because there was only one issue before the district court, the issue it deter mined
warranted the issuance of the certificate is obviou s. 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 merit s without remanding the case to the district court.

The second procedural obstacle we face prior to rea ching 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 h as made a substantial showing of the denial of a constitution al right." Yet Eyer raises questions under Bailey involving issues of statutory construction. Therefore, it is possible t hat 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 th e 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 c ourts to issue certificates of appealability, we should dism iss the appeal on the ground that Eyer does not raise an is sue involving a constitutional right. Rather, at oral a rgument the government took the position that if the distri ct court is empowered to issue certificates of appealability un der section 2253(c)(1), we should decide this case on t he 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 reach ing the merits of an appeal, and we recognize the possibili ty that the procedural problems we have identified could be considered jurisdictional. Instead, we are applying the settled principle "that an appellate court, confron ted by a difficult jurisdictional or quasi-jurisdictional qu estion, may forego its resolution if the merits of the appeal a re, as here, straightforward and easily resolved in favor of the party or parties to whose benefit the objection to jurisdict ion would
redound." In re DN Assocs. , 3 F.3d 512, 515 (1st Cir. 1993).

8See 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-sett led 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 construc tion of section 2253(c)(2), difficult and far-reaching proc edural questions potentially are presented. Nevertheless, as will be seen, we can affirm on the merits so that we will r esolve the appeal in favor of the government, the party "to wh ose benefit [any] objection to jurisdiction would redou nd." 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 indi cated that "[a]lthough we deem it wise not to decide most of the jurisdictional issues posed by this case, we are ob liged to consider the threshold question whether we have app ellate jurisdiction to review the propriety, under Federal Rule of Civil Procedure 23, of the district court's class c ertification." But Georgine is distinguishable because there we held that the class certification was improper. Thus, we vaca ted the district court order certifying the class, and rema nded 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 decidi ng the case in favor of the parties to whose benefit the o bjection to jurisdiction would redound.

Of course, we add that this opinion should not be t aken as an indication that in the future we will depart regularly from our usual practice of determining whether we h ave jurisdiction before reaching the merits of an appea l. To the contrary, ordinarily we will adhere to that practic e. See
Norton v. Mathews , 427 U.S. 524, 532-33, 96 S.Ct. 2771, 2775-76 (1976). Here, we decide the appeal on the m erits because, unlike resolution of the difficult questio ns relating to the construction of section 2253(c)(2), consider ation of

9this appeal on the merits yields an obvious result.

Moreover, we can conceive of no procedural complica tions
that will flow from an affirmance in this case as o ur order will terminate the section 2255 proceedings. Finall y, and perhaps most significantly, the order from which th e appeal has been taken is undoubtedly final and thus ordina rily would be appealable. Only the provisions relating t o certificates of appealability cast doubt on our jur isdiction. Accordingly, we regard this appeal as presenting a special situation justifying our determination of the appea l on the merits even if questions relating to our jurisdicti on are unsettled.

There is a final group of issues we must address be fore reaching the merits of the appeal. Eyer contends th at 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 unconstitut ionally restricts the writ of habeas corpus and is void for vagueness. At oral argument we pointed out that notwithstanding these contentions, the district cou rt 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 ce rtificate. 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 t he merits. We will make that determination and, accordingly, w e need not consider his constitutional challenges to the A EDPA.

b. The merits of the appeal

Eyer argues that he is entitled to relief on the me rits 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 p ossible use during the drug transaction." Br. at 10. Eyer conte nds 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 sec tion 924(c)(1).

10The 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 t hat a "number of courts of appeals have held that possess ing a firearm in an automobile during and in relation to a drug trafficking crime constitutes `carrying' under" sec tion 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. Freising er , 937 F.2d at 387-88, both of which the district cour t cited.

We are not concerned with what disposition we would have made if this case had been tried to a jury bec ause 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 carr ying the firearm. As we explained above, the handgun was loa ded and was in a console between the two front seats, a nd was conveyed with the cocaine to the purchaser's apartm ent. Eyer's easy access to the handgun and its transport ation convinces us that he was carrying it. Accordingly, we have no occasion to address the broad question of whethe r it always can be said that a defendant is carrying a f irearm 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 ce rtificate of appealability as moot.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

11