On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 98-cr-00297-3) District Judge: Hon. Marvin Katz
Before: Sloviter, Rendell, Circuit Judges,
and Debevoise, District Judge*fn1
The opinion of the court was delivered by: Sloviter, Circuit Judge
The issue before us is whether Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 is "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") where the District Court had previously granted Petitioner's § 2255 motion restoring his right to file a direct appeal. After Petitioner was unsuccessful on his direct appeal, he filed the § 2255 motion which is the subject of the appeal before us. This court has not previously addressed this issue. Six other courts of appeals have considered the issue and are divided, with the majority concluding that such a motion is not second or successive for purposes of AEDPA. We turn to the facts of the case before considering the legal issue.
In 1998, a federal grand jury charged Ilori Olabode with one count of conspiracy in violation of 18 U.S.C. § 371, one count of bank fraud in violation of 18 U.S.C. § 1344, forfeiture pursuant to 18 U.S.C. § 982(a)(2)(A) and aiding and abetting in violation of 18 U.S.C. § 2. Using false names, Olabode and his co-conspirators obtained licenses to operate fictitious businesses, opened commercial accounts at various banks, deposited counterfeit checks and made cash withdrawals. Olabode made deposits totaling $166,662.58 and withdrew $36,000 in cash before the banks discovered the scheme.
Olabode pled guilty to the conspiracy charge on November 30, 1998 pursuant to a written plea agreement. The District Court dismissed the remaining counts of the indictment and granted the Government's motion for a downward departure based upon Olabode's substantial assistance in the investigation of another person. On June 25, 1999, the District Court sentenced Olabode to six months imprisonment and three years supervised release, and ordered him to pay restitution in the amount of $36,000 and a $100 special assessment. Olabode's prison term expired on December 22, 1999 and he is being detained at an INS detention facility. *fn2
On May 9, 2000, Olabode, proceeding pro se, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging that his counsel failed to file a direct appeal as he requested. Pursuant to this court's decision in United States v. Miller, 197 F.3d 644 (3d Cir. 1999), the District Court notified Olabode that under AEDPA, he must include all of his potential claims in his § 2255 motion, and gave him 30 days to inform the court whether he wished to supplement his motion. Olabode did not respond. However, the Government conceded that there was merit to his claim that counsel failed to file a direct appeal.
On July 26, 2000, the District Court granted Olabode's § 2255 motion and stated that it would resentence him to allow the filing of a notice of appeal. It appointed the Defender Association of Philadelphia, Federal Court Division to represent Olabode. Defense counsel subsequently informed the District Court by letter that he had reviewed the record, that he found "no additional grounds for habeas relief " and that he was ready to proceed with the resentencing. Supp. App. at 13. On January 11, 2001, the District Court reimposed the original sentence. Olabode filed a notice of appeal on January 12, 2001.
On direct appeal, Olabode claimed that the District Court had improperly delegated the setting of the restitution schedule to the probation office. The Government agreed that a remand was warranted. This court remanded the case to the District Court to impose a restitution schedule. On February 15, 2002, the District Court ordered a schedule of payments fixed at $1.00 per year while Olabode was confined at the INS detention center.
On March 15, 2002, Olabode filed another pro se motion to vacate his sentence pursuant to § 2255, alleging that trial counsel misrepresented the terms of the plea agreement and that the evidence was insufficient to support his guilty plea. The District Court transferred the motion to this court as an application for authorization to file a second or successive § 2255 motion to the extent Olabode claimed counsel was ineffective during the guilty plea colloquy and sentencing, and denied the motion on the merits to the extent Olabode claimed counsel rendered ineffective assistance on appeal. Olabode has not appealed the latter ruling. This court appointed counsel to represent Olabode and directed the parties to address whether a subsequent § 2255 motion is second or successive when a prior § 2255 motion was limited to an effort to reinstate the right to file a direct appeal. An amicus brief was filed on behalf of the Community Defender Organization for the Eastern District of Pennsylvania, the Federal Court Division of the Defender Association of Philadelphia, the Federal Defender Office for the Middle District of Pennsylvania, the Federal Defender Office for ...