UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: R. MOORE


98-3145a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: Robert Moore, a federal prisoner,  asks this
court to certify to the district court a "second or  successive"
habeas corpus petition under 28 U.S.C. s 2255.  Because we conclude
that Moore has not yet filed a first  petition, however, he does not
need such an order from this  court; he may file a s 2255 petition
directly with the sentenc- ing court. Accordingly, we dismiss Moore's
request for certi- fication.


I. Background


In February 1993 Robert Moore pleaded guilty to posses- sion with
intent to distribute five grams or more of cocaine  base in violation
of 21 U.S.C. ss 841(a)(1) & (b)(1)(B)(iii).  The presentence report
recommended that he be sentenced  as a career offender, see U.S.S.G.
ss 4B1.1 & 4B1.2, based  upon two convictions dating from 1984:
attempted robbery in  Washington, D.C., and housebreaking in Prince
George's  County, Maryland. In accordance with the recommendation  in
the presentence report, the district court increased  Moore's criminal
history category to level VI from level V.  This increased the
applicable sentencing range for his offense  to between 188 and 235
months from a range of between 168  and 210 months. The district court
sentenced Moore in April  1993 to serve the minimum 188 months in


In May 1993 Moore's counsel filed with the district court a  pleading
styled "Motion to Reconsider Sentence." In it he  argued that under
United States v. Spencer, 817 F. Supp. 176  (D.D.C. 1993), remanded
for resentencing, 25 F.3d 1105 (D.C.  Cir. 1994), which had been
issued shortly after Moore was  convicted, sentencing Moore as a
career offender violated the  Fifth and Eighth Amendments to the
Constitution of the  United States. The Government opposed the Motion
to  Reconsider on its merits, arguing both that the district court 
properly applied the career offender guidelines to Moore and  that
Spencer was improperly decided. The district court 


summarily denied the Motion to Reconsider "without preju- dice,"* and
Moore did not appeal.


In December 1994 Moore, acting pro se, filed a motion  under 28 U.S.C.
s 2255 asking the district court to vacate his  sentence for the
federal drug conviction. Moore argued that  his counsel had been
ineffective in that he had failed to  challenge the applicability of
the career offender guidelines.  Specifically, Moore contended that
the court had erred in  treating his conviction for attempted robbery
as a predicate  for sentencing him as a career offender because he had
been  under the influence of illegal narcotics when he pleaded guilty 
to that charge. The district court denied this motion in an  order
stating that "the defendant has previously submitted a  motion to
vacate, set aside or modify sentence, and ... the  Court 'is not
required to entertain a second or successive  motion for similar
relief on behalf of the same prisoner.' "  Though the district court
thus concluded that the 1994 motion  was Moore's second under s 2255,
the court did not specifi- cally refer to the 1993 Motion to
Reconsider or provide any  other basis for its conclusion that Moore


After pursuing a collateral attack upon his attempted rob- bery
conviction in D.C. Superior Court, Moore asked this  court to certify
to the district court a second or successive  petition under s 2255.
He again argues that his counsel in  the federal drug case was
constitutionally ineffective for  failing to contest the applicability
of the career offender  guidelines, but he offers two new legal bases
upon which he  says his counsel should have challenged the
enhancement:  First, the D.C. conviction can not properly serve as a
predi- cate offense under the career offender guidelines because 
attempted robbery is an inchoate crime. See United States v.  Seals,
130 F.3d 451 (D.C. Cir. 1997); United States v. Price,  990 F.2d 1367
(D.C. Cir. 1993). Second, even if attempted 




__________

n * The district court's order reads in full, "Upon consideration of 
the 'Motion to Reconsider Sentence' of Robert Moore, and the 
opposition thereto, it is this 21st day of May, 1993 ORDERED, that 
the motion is denied without prejudice."


robbery can be a predicate offense, it does not necessarily  involve
violence; and it can not serve as a predicate offense  unless the
Government proves that the defendant's attempted  robbery did involve
violence. See United States v. Hill, 131  F.3d 1056 (D.C. Cir. 1997);
United States v. Mathis, 963 F.2d  399 (D.C. Cir. 1992).


II. Analysis


A federal prisoner seeking relief from his sentence must  file a
petition, subject to limitations not relevant here, in "the  court
which sentenced him." 28 U.S.C. s 2255. Under the  Antiterrorism and
Effective Death Penalty Act of 1996,  Pub.L. No. 104-32, 110 Stat.
1214 (AEDPA), however, a  federal prisoner may not file a "second or
successive" such  petition unless he first obtains an order from the
appropriate  court of appeals authorizing the district court to
consider the  petition. Specifically, s 2255 mandates that a "second
or  successive motion must be certified as provided in section  2244,"
which in turn provides:


(b)(3)(A) Before a second or successive application ... is  filed in
the district court, the applicant shall move in the  appropriate court
of appeals for an order authorizing the  district court to consider
the application.


* * *


(C) The court of appeals may authorize the filing of a  second or
successive application only if it determines that  the application
makes a prima facie showing that the  application satisfies the
requirements of this subsection.


If the petition Moore wants to file with the district court is  not "a
second or successive motion," then the court of appeals  has no role
to play at this point in the process; he may and  he must seek relief
directly from the sentencing court. The  Government, however,
maintains that Moore has previously  filed at least one s 2255
motion--his 1993 Motion to Recon- sider--and therefore does need an
order from this court  certifying his petition to the district


The Government's position is wholly without merit. The  Supreme Court
has clearly held that when a motion is  dismissed "for technical
procedural reasons" and "the habeas  petitioner does not receive an
adjudication of his claim," a  subsequent petition is not "a second or
successive motion"  under the AEDPA. Stewart v. Martinez-Villareal,
523 U.S.  637, 645 (1998). Here the district court denied the Motion
to  Reconsider "without prejudice." Though the court did not  explain
its disposition, there is no indication that the court  denied the
petition on the merits.


The Government argues nonetheless that although the  district court
denied the Motion to Reconsider "without preju- dice" it actually
ruled upon the merits of the motion. In  support of this position, the
Government makes three points  none of which need detain us long.
First, the district court  order recites that before denying the
motion the court consid- ered the Government's "opposition
thereto"--in which it con- tested the motion on its merits. The
district court's mere  mention of all the pleadings before it cannot
bear the weight  the Government seeks to place upon it; that
boilerplate  recitation would be the same regardless whether the court
 were resolving the motion on the merits or on a procedural  defect.
Second, the same judge who entered the order  denying the 1993 motion
later denied the 1994 motion as  "second or successive." The
Government urges us to infer  therefrom that the court intended the
1993 order to deny the  Motion to Reconsider on its merits, although
there is no  indication of that in the order itself, and it would then
have  been a mistake to specify that the order was "without preju-
dice." The district court might just as well have erred in  1994 as in
1993, either by misreading its earlier order or in  thinking that
Moore had previously filed a s 2255 motion in  addition to the Motion
to Reconsider. Furthermore, if the  Government were correct on this
point, then the district  court's denial "without prejudice" would
have become, without  notice and after the time for direct appeal had
passed, a  denial "with prejudice." We cannot countenance an argu-


Finally, the Government points to cases in which courts  have
understood a disposition to be on the merits though the  order
indicated it was "without prejudice." The only case  potentially
helpful to the Government is Dorsey v. United  States, 372 F.2d 928
(D.C. Cir. 1967). The defendant there  was convicted of possessing
heroin. At the pre-trial suppres- sion hearing he sought to explore
the sequence of events  surrounding the arresting officers'
approaching him and seiz- ing the drugs, but one of the officers was
unavailable for  questioning at the time. The court denied the motion
to  suppress without prejudice. In his post-conviction appeal the 
defendant argued that his counsel should have been given  another
opportunity to inquire into the circumstances sur- rounding the
officers' initial approach in part because the  judge's denial of his
motion to suppress without prejudice  showed that the judge
"contemplated additional proceedings."  Id. at 931 n.4. After holding
that the search was valid  regardless of the circumstances surrounding


[A]lthough the use of the phrase "without prejudice" in  this context
seems to us undesirably ambiguous in view  of the purposes of Rule
41(e), Fed.R.Crim.P., there is  nothing about its use in this case to
suggest that the  hearing judge did not intend to deny the motion to 
suppress on its merits.


Id.


Dorsey does not govern this case. One purpose of a  suppression hearing
held pursuant to Fed.R.Crim.P. 41(e) is  to determine whether evidence
will be admissible at the  upcoming trial. The sentencing court in
this case faced no  analogous time pressure, nor does the Government
suggest  any other reason sensibly to think the district court
intended  to resolve finally what it purported to resolve without
preju- dice to a later petition. We therefore conclude that the order 
denying the 1993 Motion to Reconsider was not a first  adjudication of
Moore's s 2255 claim.


We turn next to the question whether Moore's claim was  adjudicated
when the court denied his 1994 motion; if so, 


then the present petition is his second and we must decide  whether to
certify it to the district court. Recall that the  district court
dismissed the 1994 motion as successive.  Whether in doing so the
district court considered the 1993  motion to be Moore's first s 2255
petition, or mistakenly  thought Moore had at some other point filed a
s 2255 motion  is unclear from the record. In either event, it is
clear that  the district court dismissed the 1994 motion for a
procedural  reason and did not resolve it on the merits. The 1994
motion,  therefore, does not present a barrier to Moore's now filing a
 motion under s 2255. See Stewart, 523 U.S. at 645.


III. Conclusion


For the foregoing reasons we have no occasion either to  grant or to
deny Moore authorization to proceed in district  court as provided in
s 2244. Because Moore's claim has not  been resolved before, he may
proceed under s 2255 in the  district court as of right. Accordingly,
Moore's request for  certification is


Dismissed.