Friday, October 04, 2013

Habeas Fun for the Whole Family

Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).

Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).

Drugs, aiding and abetting kidnapping, couple 924(c)s. . . .  646-month sentence.  2255 granted in part and denied in part by dist ct.  Dist ct entered amended judgment and new sentence without a resentencing hrg.  Petitioner did not seek a certificate of appealability (COA).  Petitioner appealed, arguing he was entitled to a resentencing hrg. 

Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.

Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed. 
* Petitioner was essentially appealing a new sentence and did not need a COA.  Defendants entitled to direct review of sentences for non-constitutional errors.   
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief.  So sentence vacated and case remanded.  (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months.  The dist ct essentially excised the unlawful sentence, but reinstated the others.)  Issue was: did the dist ct fully appreciate its discretion? 
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence.  Dist cts have the authority to resentence after reversal of a 924(c).

This opinion is pretty interesting in terms of 2255 and resentencings.  The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs.  On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand