Castro, Hernan O'Ryan v. U.S. (12/15/2003)

Questions presented: 1. When a U.S. District Court re-characterizes a pro-se federal prisoner's first post conviction motion as a habeas petition under 28 U.S.C. $2255, does such re-characterization make the prisoner's subsequent attempt to file a ?2255 petition a "second or successive petition" within the purview of the Antiterrorism and Effective Death Penalty Act (AEDPA)? 2. Does the Supreme Court have jurisdiction to review the 11th Circuit's decision affirming the dismissal of a ?2255 petition for writ of habeas corpus as second or successive?

BY: DARRAN A. SIMON, MEDILL NEWS SERVICE

On July 14, 1992, Hernan ORyan Castro was convicted in federal court in Georgia on cocaine and drug trafficking charges. Castro was sentenced to 20 years in prison.

Two years later after an 11th Circuit Court of Appeals panel in Atlanta affirmed Castros conviction, he sought a new trial. Castro filed a post-conviction Rule 33 motion for a new trial pro-se (or without a lawyer).

Castro alleged that he discovered new evidence of the governments knowledge that a key witness testified falsely. The witness and the government entered into an immunity agreement in exchange for assistance in drug crime investigations, Castro said. Castro said he learned about the immunity agreement after his conviction during a trial of a co-conspirator. The governments failure to disclose the immunity agreement violated doctrines in two U.S. Supreme Court cases, Brady v. Maryland and Giglio v. U.S., according to Castro.

Federal prosecutors said Castros allegations under Brady/Giglio were more identifiable as a 28 U.S.C. 2255 writ of habeas corpus petition. A writ of habeas corpus petition asks a court to decide whether a prisoner was unlawfully imprisoned and should be released. Prosecutors said they did not object to the court treating Castros motion as both a Rule 33 and 2255 petition. After the governments urging, a district court in Georgia denied Castros Rule 33 motion. The court re-characterized it both as a motion for a new trial and a writ of habeas corpus.

Prisoners who file post-conviction motions without an attorney typically have little legal expertise. So district courts usually lend them a helping hand by re-characterizing improperly filed motions under the correct provisions.

But Castros motion was correct and shouldnt have been re-characterized, said Paul Mogin of the D.C.-based firm of Williams & Connolly.

"It was done over Castros objection," said Mogin, who filed a friend of the court brief supporting Castro for the National Association of Criminal Defense Lawyers.

Castro's attorneys said the re-characterization did him more harm than relief after the passage of the Antiterrorism Effective Death Penalty Act of 1996 (AEDPA). The act keeps federal and state prisoners from filing more than one writ of habeas corpus petition, unless it contains compelling new evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable."

In enacting the AEDPA, Congress hoped to speed up death penalty cases, curb sentencing appeals and enhance the fight against terrorism.

One year later, Castro filed what he thought was his first writ of habeas corpus petition. Castro alleged that his ineffective counsel failed to suppress comments made after his arrest. Federal prosecutors filed a motion to dismiss Castro's petition, which he filed pro se, saying it was Castro's second. The district court agreed, denying Castro's 2255 petition in April 1998.

Re-characterization of a writ of habeas corpus petition should not negate a previously filed writ of habeas corpus petition "because sometimes a district courts re-characterizations are simply wrong," Castro's attorneys said.

In June 2000, an 11th Circuit panel ruled that the district court hadnt applied a 6th Amendment analysis in deciding whether Castro's counsel ineffectively tried to suppress his post-arrest statements. The appeals court vacated the district courts decision and ordered the district court to review Castro's ineffective counsel claims and decide if the petition was his second.

Once again the federal government disagreed with Castro and filed a motion claiming that Castro had filed his second 2255 petition.

Castros attorneys said when he filed his Rule 33 motion; he didnt know he would have later been barred from filing a 2255 petition.

"The district court never intended to harm Castro by re-characterizing his Rule 33 motion for new trial," Castro's attorneys said. "However, Castro was obviously harmed by this practice."

In January 2002, two years after the district court denied Castros writ of habeus corpus petition, the 11th Circuit had yet another crack at Castro's case, and this time ruled in his favor.

"A district courts re-characterization of a petitioners initial post-conviction motion will not be considered a first habeas petition for AEDPA purposes unless the petitioner is given notice of the consequences of such re-characterization," the court said.

But in a turn of events, the 11th Circuit four months later vacated its decision and ruled that Castro did file a second petition because it didnt meet the AEDPA restrictions. In a divided decisions, the appeals court majority also suggested that future district courts should warn petitioners of the repercussions of re-characterizing their motions as 2255 petitions.

"If we were to relieve an entire class of petitioners from any restriction at all on the filing of a second motion simply because their first motions have been re-characterized, we might undermine the congressional purpose behind the AEDPA," the majority wrote.

Citing a 1st Circuit Court of Appeals opinion in Raineri v. U.S., Judge Paul Roney dissented. The Raineri decision said that re-characterization of a motion to a 2255 petition should not count as a first petition of for a writ of habeas corpus.

"The decision here is in direct conflict with Raineri," Roney said.

Several circuits including the 1st, 2nd, 3rd, 4th, 6th and 7th adhere to the belief that it is unfair to re-characterize post conviction motions without the approval of the prisoner and later deny a 2255 writ of habeas petition as the second, according to Castro's attorneys.

Castro's attorneys are asking that the U.S. Supreme Court establish a protocol for district courts to follow before re-characterizing post-conviction motions. District courts should inform inmates that they can decide to have the motion ruled on as filed, have it re-characterized as a 2255 petition, but forfeit a chance to file a second 2255 petition without approval by appeals courts or withdraw the motion and file an all-encompassing 2255 petition within a one-year statutory period, Castro's attorneys said.

On Jan. 27, 2003, the Court accepted the case, and directed the parties to argue the second of the two questions raised by Castro. That question is whether the Court has jurisdiction to review the 11th Circuit's decision affirming the dismissal of a 2255 petition for writ of habeas corpus as second or successive.

"There are other prisoners, pro-se, or not, who could potentially be impacted by the decision of the Supreme Court of the United States," said Michael G. Frick, who will argue Castro's case before the Supreme Court.

On Dec. 15, 2003, the Court sided 9-0 with Castro, concluding that the lack of warning to Castro, a pro se litigant, prevented him from making an informed judgment on how to characterize his motion.

Justice Stephen Breyer wrote the Court's lead opinion; Justice Antonin Scalia penned a concurrence.