United States v. Floyd Clark

U
 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 18, 2020         Decided October 16, 2020

                       No. 19-3040

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                      FLOYD CLARK,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:10-cr-00133-1)


       Steven R. Kiersh, appointed by the court, argued the
cause and filed the brief for appellant.

       Daniel G. Randolph, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Elizabeth
Trosman, John P. Mannarino, and James Sweeney, Assistant
U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney,
entered an appearance.

      Before: HENDERSON and WALKER, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

      Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
                               2
        SILBERMAN, Senior Circuit Judge: In this habeas case,
both Parties contend that we have appellate jurisdiction—albeit
for different reasons. But we think neither Party’s arguments
are persuasive, so we dismiss the appeal for lack of subject-
matter jurisdiction.

                               I.

         We begin with a brief review of the underlying facts:
On May 6, 2009, two men abducted Michael Walker at
gunpoint in Washington, D.C. They robbed Walker, beat him
with their weapon, threatened his family, and demanded
$150,000. After leading his kidnappers to a Maryland storage
facility where he claimed to keep his money, a bloodied Walker
escaped and called the police.

        At first, Walker claimed not to know his assailants; but
later, he identified Petitioner Floyd Clark as one of the two
men. For over a year prior to the attack, Clark had introduced
Walker to street-level narcotics dealers in exchange for a cut of
the drug proceeds. According to Walker, he initially refrained
from naming Clark because he planned to have Clark killed.
But Walker ultimately decided that killing Clark wasn’t “worth
it,” and he turned Clark’s name over to a D.C. Metro Police
detective. J.A. 503. The second abductor was never identified.

       On May 15, 2009, a grand jury returned a nine-count
indictment against the Petitioner, charging him with
kidnapping, 18 U.S.C. § 1201(a)(1), armed carjacking, D.C.
Code §§ 22-2803, -4502, brandishing a firearm in a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii), and various related
offenses. The following year, Clark was convicted on all
counts in federal court1—a verdict based principally on


       1
          Although the jury convicted Clark of two counts under §
924(c), the district court subsequently granted the government’s
motion to vacate one of those convictions. On direct appeal, we
                                 3
Walker’s testimony. The district judge sentenced Clark to 260
months imprisonment, including a mandatory 60 months
pursuant to § 924(c)(1).

       Four years later, Walker recanted. In a signed affidavit,
Walker claimed that he actually did not know who carjacked,
kidnapped, and robbed him; and that he only accused Clark
because he thought Clark was having an affair with his wife.
He also claimed that the police induced him to make up “a
story” so that they could “make a case” against Clark. J.A.
1006–07.

        In April 2015, Clark moved pro se for habeas relief
under 28 U.S.C. § 2255, which authorizes a post-conviction
action to set aside a federal sentence imposed in violation of the
Constitution or laws of the United States. Clark’s pro se habeas
application rested on three grounds: (1) Walker’s recantation,
(2) Ineffective assistance of trial counsel, and (3) Ineffective
assistance of appellate counsel. The district court sua sponte
appointed counsel for Clark. See 18 U.S.C. § 3006A. Then
with the assistance of counsel, Clark supplemented his initial §
2255 motion, claiming that 18 U.S.C. § 924 (c)(1)(A)—which
carries a five-year mandatory minimum for brandishing a
firearm in any crime of violence—is unconstitutionally vague
after the Supreme Court’s decision in Johnson v. United States,
576 U.S. 591 (2015). See also United States v. Davis, 139 S.
Ct. 2319, 2324 (2019). Counsel also grounded Clark’s
recantation claim in the Fifth Amendment’s due process clause.

        On April 22, 2019, the district court denied Clark’s first
three claims, but—here is the rub—it reserved the Petitioner’s
§ 924(c) claim for later resolution because, at that time, Davis


affirmed Clark’s convictions, but we vacated his initial (84-month) §
924(c) sentence and remanded for resentencing. See United States v.
Clark, 565 F. App’x 4, 5 (D.C. Cir. 2014) (unpublished) (discussing
Alleyne v. United States, 570 U.S. 99, 103 (2013)).
                               4
had not been decided. The judge explained that his opinion
“resolves three of Mr. Clark’s claims but leaves the [§ 2255]
motion open until the Court is able to resolve his fourth claim.”
J.A. 1270.

        For a petitioner to appeal the final order in a § 2255
habeas case, § 2253(c)(1) requires him to obtain a certificate of
appealability. Accordingly, the week after the district court
issued its order, Clark moved for the certificate. The district
judge granted the certificate solely on Clark’s recantation claim
without commenting on the finality of the underlying order—
which, of course, left one claim pending.

                               II.

        This case raises an obvious question about our appellate
jurisdiction. Can the district judge’s order, partially resolving
Clark’s petition, be considered “final” under § 2253(a)?
Petitioner says yes, asserting a right to appeal from a
“practically” final order. The government agrees that we have
jurisdiction, but reaches that position by urging us to construe
Petitioner’s habeas motion—despite its specific designation—
as a Federal Rule of Criminal Procedure 33 motion for a new
trial. A Rule 33 motion, the government asserts, is a separate
and independent procedural vehicle from any § 2255 claims,
which are civil in character. Then, on the government’s theory,
the rejection of a Rule 33 motion is its own final order without
regard to Clark’s pending § 924(c) claim. That leads to the
government’s kicker—because Rule 33 motions must be
brought within three years of a verdict, we should reject
Petitioner’s “Rule 33” motion as time barred.

        Questions of finality typically arise under 28 U.S.C. §
1291, a general statutory grant of appellate jurisdiction. That
section provides that “[t]he courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts.” (emphasis added). Although § 2253 controls our
jurisdiction in habeas cases, see Gonzalez v. Thaler, 565 U.S.
                                5
134, 140 (2012), it also limits our authority to reviewing only
final orders. And the requirement of finality in habeas cases is
“no less exacting” than in other contexts. Andrews v. United
States, 373 U.S. 334, 340 (1963). Of course, as a jurisdictional
prerequisite, we are obliged to consider finality in habeas
appeals even if not raised by either party.

         Because it leaves Clark’s § 924(c) claim pending, the
district court’s order appears nonfinal on its face. A judgment
is typically final only when the whole case is complete. See
Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 586
(2020). We consider an order “final” if it “terminates” the case
and leaves nothing for the court “but [to] execute the
judgment.” Id. This final-judgment rule—derived from the
common law and codified since the First Congress—has long
promoted efficient judicial administration by avoiding the
delay and expense of piecemeal appeals. See, e.g., Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009); McLish v.
Roff, 141 U.S. 661, 665–66 (1891).

        Notwithstanding this well-established doctrine,
Petitioner relies on an old Supreme Court case, Gillespie v.
United States Steel Corp., 379 U.S. 148 (1964), which, he
claims, “opens the door a little bit” and allows ostensibly
nonfinal orders to be regarded as “practically” final. To be
sure, Gillespie is a rather confusing case. There, the Supreme
Court confronted an important national question: Whether the
Jones Act, a federal maritime law governing liability for a
seaman’s injury or death, preempted state and common law
remedies. Id. at 150. The district court, ruling that the Jones
Act supplied the exclusive remedy for those cases falling within
its purview, struck all parts of the complaint that related to
recovery on other theories. Id. at 150–51. But it left the merits
of the plaintiff’s Jones Act claim for further litigation. Id. The
Supreme Court characterized the finality issues as “obviously
marginal” (for reasons not particularly apparent). Id. at 154.
And it noted that in “marginal cases,” courts should weigh the
inconvenience of piecemeal review as well as the dangers of
                                  6
delay. Id. at 152–53. The Court then plowed ahead to decide
the merits.

        Petitioner relies on the Supreme Court’s comment in
Gillespie where the court called for a “practical rather than
technical” construction of finality, id. at 152, language that we
have described as dictum, Everett v. US Airways Grp., Inc., 132
F.3d 770, 774 (D.C. Cir. 1998). But, nearly 15 years later, the
Court closed the door on Petitioner’s expansive reading of
Gillespie. In Coopers & Lybrand v. Livesay, the Court
“explained” Gillespie was based, in part, on the Parties’ failure
to raise the finality issue until argument on the merits and the
“unsettled issue of national significance” presented by the case.
437 U.S. 463, 477 n.30 (1978).2 To use a labor-relations term,
the court “red circled” Gillespie, limiting that case to its unique
facts. See id. In Everett, we followed the Supreme Court’s
admonition and rejected a Gillespie exception to the final-
judgment rule. 132 F.3d at 774.3



        2
            Occasionally the Supreme Court gives procedural
objections—and sometimes even jurisdictional questions—short
shrift when it regards the merits as compelling. See, e.g., Buck v.
Davis, 137 S. Ct. 759, 774–75 (2017) (proceeding to the merits of a
petitioner’s habeas claims where only a certificate of appealability
was at issue); Carrie Leonetti, Smoking Guns: The Supreme Court’s
Willingness to Lower Procedural Barriers to Merits Review in Cases
Involving Egregious Racial Bias in the Criminal Justice System, 101
MARQ. L. REV. 205, 216–30 (2017).
        3
           We recognize, of course, that the collateral order doctrine
is a practical construction of the finality requirement. See Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). That limited
doctrine accommodates a small class of rulings that conclusively
determine a disputed question, resolve an issue completely separate
from the merits of the action, and are effectively unreviewable on
appeal from a traditional final judgment. Clark makes no attempt to
justify this appeal based on the collateral order doctrine. Nor could
                                   7
        Even if we were to read Gillespie as providing some
“flexibility” in the application of finality, Petitioner’s claims,
while creative, are fallacious. Petitioner asks us to give
significance to the fact that his pending § 924(c) claim was a
late addition to his initial, pro se, § 2255 motion. He would
have us treat his dismissed claims as totally separate from his §
924(c) claim simply because the latter supplemented his
petition. But this distinction does not differentiate Clark’s
appeal from any other nonfinal order in which a district court
has dismissed one potentially dispositive claim or granted
partial summary judgment. See, e.g., Liberty Mut. Ins. Co. v.
Wetzel, 424 U.S. 737, 742 (1976).

        Finality does not depend on when one’s claims are
filed—it depends on whether the entire case has been decided.
Indeed, in the general civil context, the final-judgment rule is
not satisfied if “the plaintiff is free to amend his pleading and
continue the litigation”—even where his complaint has already
been dismissed by the district court. Ciralsky v. C.I.A., 355
F.3d 661, 666 (D.C. Cir. 2004); see Murray v. Gilmore, 406
F.3d 708, 712–13 (D.C. Cir. 2005). So too in habeas
proceedings. If a decision is not final so long as a plaintiff may
file additional claims (or amend existing ones), then, a fortiori,
the district court’s failure to decide supplemental claims
already filed cannot make final an otherwise interlocutory
order. It should also be recognized that endorsing Clark’s
argument would defeat the policy against piecemeal appeals.



he, as the denial of his recantation claim will be reviewable upon the
final disposition of his entire habeas application. See Citizens for
Responsibility & Ethics in Washington v. U.S. Dep’t of Homeland
Sec., 532 F.3d 860, 864 (D.C. Cir. 2008).

         Clark also asserts that an unpublished opinion of ours, Earle
v. Sec. & Exch. Comm’n, No. 20-5013, 2020 WL 4332907, (D.C. Cir.
May 1, 2020), “reiterated the vitality of Gillespie.” Suffice it to say,
it did not.
                                 8
On his theory, whenever a habeas petitioner files his claims in
succession, he may subsequently appeal the denial of those
claims bit by bit rather than at the end of the litigation. But that
would encourage manipulative filings and “vitiate the final
judgment rule altogether.” Green v. Dep’t of Commerce, 618
F.2d 836, 841 (D.C. Cir. 1980).

        Petitioner’s last argument is quite thin. He claims that
the district court’s certificate of appealability suffices to
establish finality. That contention flies in the face of § 2253,
which requires both a final order and a certificate of
appealability. See § 2253(a), (c)(1).4 We acknowledge that
Federal Rule of Civil Procedure 54(b) permits a district court
to enter a final judgment as to one or more (but fewer than all)
claims when there “is no just reason for delay”—a
determination that we would review for an abuse of discretion.
See Attias v. CareFirst, Inc., 969 F.3d 412, 417 (D.C. Cir.
2020). But “without the express determination and direction
required by Rule 54(b), the [district court’s] judgment cannot
be considered final ‘as to any of the claims.’” Everett, 132 F.3d
at 773. Here, the district court did not make the required
determination. And we cannot say whether the relevant
equities would have permitted the court to do so. Thus, Rule
54(b) does not facilitate jurisdiction here.

         We turn to the government’s position. The government
sought to interpret Clark’s petition, a civil motion, as a de facto
continuation of a criminal proceeding under Rule 33. If so,
Clark’s “Rule 33 motion for a new trial” would be too late, as
it was filed beyond that rule’s three-year limitations period. See
Fed. R. Crim. P. 33(b)(1).



        4
          One is reminded of Frank Sinatra’s song: As with “love
and marriage,” the requirements of § 2253 “go together like a horse
and carriage. . . . You can’t have one without the other.” Frank
Sinatra, Love & Marriage (Capitol Studios 1955).
                                9
        This is really an extraordinary argument. The courts of
appeals have generally adhered to the maxim that “substance
trumps form” in habeas proceedings. Trenkler v. United States,
536 F.3d 85, 97 (1st Cir. 2008). And so, no matter what label
a Petitioner gives to an action, “‘any motion filed in the district
court that imposed the sentence, and substantively within the
scope of § 2255 [], is a motion under § 2255.’” Id. (quoting
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004))
(emphasis in original). There is no question that Clark meets
those requirements here.5

        On occasion, we note that courts will treat a pro se
litigant’s tardy motion for a new trial as a § 2255 petition, thus
giving him the benefit of the doubt. See generally United States
v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir. 2002), as amended
(Sept. 17, 2002). Yet the government’s position would flip this
practice on its head—asking us to construe a perfectly clear §
2255 motion as a Rule 33 motion for the very purpose of
dismissing Petitioner’s claim as time barred. We reject that
rather peculiar position summarily.

        Accordingly, the appeal is dismissed.

        So ordered.




        5
         In fact, the government concedes that the Supreme Court
has not squarely precluded a “due process” habeas claim based on
newly discovered evidence probative of actual innocence—
notwithstanding the extraordinary showing any such claim may
require. Appellee Br. 21–22 n.4; see Herrera v. Collins, 506 U.S.
390, 416–17 (1993).

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