Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:04-CR-00180-WJM-1).
Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.
Beth L. Krulewitch, Aspen, Colorado, for Defendant-Appellee.
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Gwen Bergman thought she had hired a hit man to kill her ex-husband. She searched the Internet, found a name, negotiated a deal, even tapped her mother's retirement account to pay the man $30,000. But it turned out he was an undercover officer. Or at least that's the story the government presented and the court credited at Ms. Bergman's trial. Yet as strange as all this may be, it's not the end of it. After trial it emerged that Ms. Bergman's lawyer was not a lawyer at all: he was a con man. And a pretty good one at that. For years he'd made a comfortable living duping clients and courts alike. See United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012); United States v. Bergman, 599 F.3d 1142 (10th Cir. 2010); United States v. Bergman, 191 F.Appx. 762 (10th Cir. 2006).
It is this discovery that takes us to the current dispute. When Ms. Bergman (unsurprisingly) pursued a habeas motion under 28 U.S.C. § 2255 alleging a violation of her Sixth Amendment right to effective assistance of counsel at trial, the district court agreed, vacated her conviction, and discharged her from supervised release (she had already finished her prison term). Assuming the court's decision to vacate the conviction it won at Ms. Bergman's first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. But the district court refused, stating that its discharge order " implicitly" forbade any effort to secure a valid conviction at a second trial. It is this ruling the government now asks us to review and reverse.
Before getting to that business, though, we must attend to another. Do we have jurisdiction to hear this appeal? There's no question we may hear an appeal by the government from any " decision, judgment, or order of a district court dismissing an indictment." 18 U.S.C. § 3731; see also United States v. Wilson, 420 U.S. 332, 345, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Serfass v. United States, 420 U.S. 377, 392-94, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). But do we have that here? The government filed a motion to set a new trial date in Ms. Bergman's criminal case. The district court replied by treating that motion as a request to reopen Ms. Bergman's § 2255 proceeding, a proceeding the court had docketed separately as a civil case. The district court then proceeded to deny the government's new trial request and enter an order saying so in both the civil habeas and the underlying criminal case. And that poses us this question: do the district court's actions denying a new trial date in the separate civil and criminal actions amount to an appealable " order . . . dismissing an indictment" ?
No doubt this appeal's curious procedural posture owes at least something to § 2255's enigmatic character. Some suggest that § 2255 proceedings should be understood as motions in the preexisting criminal prosecution. Of course, § 2255 petitioners don't always enjoy the full panoply of rights the Constitution affords criminal defendants (like the right to be present or the right to be assisted by counsel). Of course, § 2255 proceedings are often docketed as separate civil cases. But on this account they remain part of the underlying criminal prosecution all the same. See, e.g., Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 1 advisory committee note. Others are less sure about this
much, given that habeas petitions at common law were traditionally understood as collateral civil proceedings; given that § 2255 expressly aims to provide a remedy commensurate with the common law habeas writ; given that few of the rights defendants enjoy in criminal proceedings attach in § 2255 proceedings; and given that the contrary understanding of § 2255 seems to be based in some significant measure on a single paragraph from the statute's 1948 legislative history. See, e.g., 3 Charles Alan Wright & Sarah N. Welling, Federal Practice and Procedure § 622 (4th ed. 2011); Wall v. Kholi, 131 S.Ct. 1278, 1289 n.7, 179 L.Ed.2d 252 (2011) (noting " confusion" ); cf. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (suggesting § 2255 proceedings are collateral civil actions).
But whatever the confusion surrounding § 2255 in general or the procedural status of this case in particular, none of that can obscure the fact that the district court order before us qualifies as an " order . . . dismissing an indictment" for purposes of § 3731. To be sure, the order purports only to deny a trial date, not to dismiss the indictment. And, to be sure, one might worry that this leaves the indictment still alive, if perhaps lingering in a catatonic state never to be tested at trial but never to be formally dismissed either. Worries along these lines, however, seem to us to take too much account of form and too little account of substance. The district court has refused any trial on the indictment. Both the criminal and civil matters, it has declared, " shall remain closed." No new trial can be had, not now, not ever, so long as the district court's order remains in place. As a practical matter, that result is tantamount to a dismissal of the indictment even if it's not labeled that way. And it can't be the case that a district court may deny a party its statutory right to appeal by the simple expedient of refusing to enter an order explicitly labeled a " dismissal." See generally United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (a district court's characterization of its own action " cannot control" the question whether it amounts to an appealable order). Indeed, in many other arenas we grant appellate review if the proceedings in the district court appear firmly resolved, whether or not the district court has entered a document entitled " final judgment." See, e.g., Yost v. Stout, 607 F.3d 1239, 1243 (10th Cir. 2010). Seeing no reason to justify a different path here, we join ...