United States Court of Appeals

For the First Circuit

No. 02-1645

FELIX MATEO,

a/k/a Manuel Lluberes, Johnny Rodriguez,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

James P. Bardsley and Law Office of Bardsley & Gray on Motion

Attacking the Sentence Imposed by this Court, Pursuant to Section

2255 of Title 28 of the United States Code for petitioner.

James P. Bardsley and Law Office of Bardsley & Gray on Motion

for the Issuance of a Certificate of Appealability Pursuant to

F.R.A.P. 22(b) and Loc. R. 22.1 for petitioner.

James P. Bardsley and Law Office of Bardsley & Gray on

Memorandum in Support of Motion for the Issuance of a Certificate

of Appealability Pursuant to F.R.A.P. 22(b) and Loc. R. 22.1 for

petitioner.

Michael J. Pelgro, Assistant United States Attorney, and

Michael J. Sullivan, United States Attorney, on Memorandum in

Opposition to Petitioner's Motion Under 28 U.S.C. § 2255 for the

United States.

November 7, 2002
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BOUDIN, Chief Judge. Mateo pled guilty, pursuant to a

written plea agreement, to various federal drug related offenses.

The district court found that Mateo's offenses occurred at a time

when he was the subject of an outstanding state warrant for

probation violation. Under the Sentencing Guidelines, this equates

to the commission of a federal crime while under sentence for

another crime and raised Mateo's criminal history score and (in all

likelihood) his ultimate federal sentence. See U.S.S.G. §§

4A1.1(d), 4A1.2(m). After being sentenced, Mateo filed a notice of

appeal and, while the appeal was pending, succeeded in obtaining a

state court termination of the probation warrant nunc pro tunc to

a time apparently before the alleged federal offenses.

On direct appeal, this court declined to consider the

state court order. United States v. Mateo, 271 F.3d 11 (1st Cir.

2001) ("Mateo I"). The court said that it was procedurally barred

from addressing the nunc pro tunc order because, as the order was

issued after the district court imposed its sentence, a proffer of

the order was not made below. Id. at 15. The opinion continued,

"[E]ven were we to consider the nunc pro tunc order, [Mateo] would

not be advantaged," because under federal law "the district court

takes the state-court record as it finds it." Id. at n.4.

Mateo then petitioned under 28 U.S.C. § 2255 (2000),

raising the same claim that was denied on direct appeal. The

section 2255 motion was denied by the district court, which felt
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itself foreclosed under Mateo I from considering a collateral

attack based on the vacated state warrant. Mateo now seeks a

certificate of appealability ("COA") from this court under 28

U.S.C. § 2253 (2000).

Under section 2253, Mateo must make a "substantial

showing of the denial of a constitutional right" before a COA can

be granted. Here his habeas petition was denied based on the

district court's interpretation of Mateo I's mandate, a nonconstitutional ground. Thus, section 2253 would appear on its face

to bar us from issuing a COA. However, the Supreme Court has held

that the statute permits a COA to be granted where a supposed

antecedent procedural bar prevented the district court from

reaching the constitutional claim--if (1) the soundness of the

procedural ruling is debatable, and (2) the constitutional claim is

also colorable. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

The first requirement is easily met. The district court

was right to be cautious; the mandate rule requires the district

court to respect the appellate mandate. United States v. Rowe, 268

F.3d 34, 41-42 (1st Cir. 2001). But here the main holding in

Mateo I does not apply because the state court order now is part of

the record. As for the further comment quoted above--that Mateo

would not be advantaged even had we considered the nunc pro tunc

order--we think this meant only that the district court had not

erred as the record before it stood; the court in Mateo I should
1On the contrary, it appears that Mateo's claim in state court

was that the warrant was defective under state law.

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not be taken to have decided in a brief comment a very difficult

set of substantive issues concerning the consequence of a postsentencing vacation of a state sentence that affected the federal

sentence.

Slack's second requirement--that there be a plausible

constitutional claim before a COA can be granted--is a more serious

problem for Mateo. Let us assume arguendo (we will return to this

issue) that the later vacation of the state order renders Mateo's

federal sentence vulnerable in a section 2255 proceeding, even

though the sentencing judge acted properly on the record before

her. Even so, it is hard to see why this raises a constitutional

question, especially as Mateo makes no claim to us that the state

court probation warrant was itself constitutionally defective.1

Why Congress chose to limit COAs to constitutional

defects is not entirely apparent. Cf. 28 U.S.C. § 2244(b)(2)

(2000) (limiting second habeas petitions to new law or newly

discovered evidence); Jamison v. United States, 244 F.3d 44, 47

(1st Cir. 2001). Any assumption that constitutional claims are

always critically important, and non-constitutional ones always

less so, would not wash; there are Fourth Amendment claims that

turn on whether an object sits in the glove compartment of a car or

in the trunk, see, e.g., New York v. Belton, 453 U.S. 454, 460 n.4

(1981), and some non-constitutional rulings (say, a misreading of
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a guideline) that could double the time spent in jail. Still, this

is the line that Congress has drawn.

Nevertheless, Mateo does assert that he has a

constitutional claim, and it may not have been properly developed

because the government invoked, and the district court accepted,

the mandate-bar argument. Under these circumstances, the Seventh

Circuit has adopted the view that, if the petitioner's

constitutional claim does not appear utterly without merit after a

"quick look," the COA can be granted and an incorrect procedural

barrier removed, the matter then being remanded to give the

district court first crack at the constitutional claim. Jefferson

v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000); accord Evicci v.

Commissioner of Corrections, 226 F.3d 26, 28 (1st Cir. 2000).

This is a variation on Slack and one not presented or

endorsed in that case. But the Seventh Circuit's approach reflects

the same impulse as Slack to protect nascent constitutional claims;

and it certainly does not bend the language of section 2253 any

more than Slack itself. Cases from our sister circuits look in the

same direction. Gibson v. Klinger, 232 F.3d 799, 802-03 (10th Cir.

2000); Lambright v. Stewart, 220 F.3d 1022, 1026-27 (9th Cir.

2000); cf. Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir.

2000); Roberts v. Sutton, 217 F.3d 1337, 1339-40 (11th Cir. 2000).

On remand, Mateo may attempt to develop his supposed

constitutional claim or offer only a non-constitutional claim or
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both. The prospect of a constitutional argument is needed to

permit the COA to be granted; but once back in district court Mateo

is free--on a first section 2255 motion--to proffer nonconstitutional claims. Section 2255, which governs federal habeas,

extends beyond constitutional claims. The critical language reads

as follows:

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

the sentence 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.

Admittedly, this language has been construed somewhat

less generously than the words alone might suggest. The reference

to "laws" and "otherwise subject to collateral attack" might at

first seem to encompass any non-constitutional legal error, but the

Supreme Court has limited claims of legal error--where neither a

constitutional nor a jurisdictional claim is presented--to alleged

errors that present "a fundamental defect which inherently results

in a complete miscarriage of justice" or "an omission inconsistent

with the rudimentary demands of fair procedure." Hill v. United

States, 368 U.S. 424, 428 (1962); accord David v. United States,

134 F.3d 470, 474 (1st Cir. 1998). We have ourselves held that "a

guideline violation alone is not automatically a basis for relief"
2There is Supreme Court caselaw on the choice of law issue,

interpreting the statute governing felon possession of firearms.

In drawing guidance from these cases, account must be taken of the

statutory amendment that occurred in 1986. Compare Dickerson v.

New Banner Institute, Inc., 460 U.S. 103, 112 (1983), superceded by

Firearms Owners' Protection Act, Pub. L. No. 99-308, § 101(5), 100

Stat. 449, 450 (1986) (codified at 18 U.S.C. § 921(a)(20) (2000));

with Caron v. United States, 524 U.S. 308, 312-17 (1998).

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in a section 2255 proceeding. Cofske v. United States, 290 F.3d

437, 441 (1st Cir. 2002); see also Knight v. United States, 37 F.3d

769, 772-73 (1st Cir. 1994).

On remand, the district court will be faced with

formidably interesting issues, assuming that no superceding

constitutional claim is developed. Quite likely federal law

controls the question whether the nunc pro tunc order of the

Massachusetts court is to be given any effect for the purpose of

the Sentencing Guidelines.2 Cf. Jamison, 244 F.3d at 48

(discussing the relevance of state vacations for federal

sentencing); Fierro v. Reno, 217 F.3d 1, 6 (1st Cir. 2000)

(applying federal law as to whether a state nunc pro tunc order is

relevant for the purpose of citizenship status). If it does, the

answer then may depend on the ground on which the Massachusetts

court acted. U.S.S.G. §§ 4A1.2(j), 4A1.3; id. § 4A1.2 nn. 6 & 10.

And, obviously, the government could argue--though we express no

view as to the merits of such an argument--that one who commits a

new offense while under sentence for an older one deserves a higher

sentence even if the former conviction is later set aside. Cf.

United States v. Snyder, 235 F.3d 42, 52-53 (1st Cir. 2000) (later
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vacation of predicate state conviction does not invalidate federal

felon possession conviction), cert. denied, 121 S. Ct. 2205 (2001).

If there was an error at all, a further sentencing

question is whether such "error" is cognizable in a section 2255

proceeding. In our circuit, our decision in United States v.

Pettiford, 101 F.3d 199, 201 (1st Cir. 1996), see also Brackett v.

United States, 270 F.3d 60, 64 n.1 (1st Cir. 2001), cert. denied

122 S. Ct. 1575 (2002), might be taken to have answered, helpfully

to Mateo, the question left open by the Supreme Court in Daniels

v. United States, 532 U.S. 374, 382-83 (2001) and Custis v. United

States, 511 U.S. 485, 491-92 (1994). However, the limitations

imposed by Hill and Knight arguably remain.

In short, this case is one of potential importance as

well as difficulty. We have mentioned the problems encountered in

a preliminary look to be sure that they are noticed by counsel; but

it is unwise for us to express any firm view, partly because they

have not yet been briefed and partly because any constitutional

claim Mateo may develop on remand could affect the equation. It is

enough for the present that accepting responsibility ourselves for

any confusion caused by Mateo I, we grant the COA, summarily vacate

the judgment of the district court dismissing the petition for

section 2255 relief, and remand for further proceedings consistent

with this opinion.

It is so ordered.