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Sixth Circuit: No Abuse of Discretion in U.S. District Courts Imposing Habeas Remedy Different Than That Required Under State Law

by Dale Chappell

The proper remedy in granting federal habeas corpus relief to a state prisoner is within the discretion of federal courts and not dependent on what is required by state law, the U.S. Court of Appeals for the Sixth Circuit held.

After the U.S. District Court for the Eastern District of Michigan granted habeas corpus relief under 28 U.S.C. § 2254 to four Michigan state prisoners, the State appealed, arguing that the same remedy the four separate district courts imposed as federal habeas relief was in error and that they should have ordered a more limited remedy in line with what the state courts might impose rather than full resentencing as ordered by the federal district courts.

The alleged error was the same in all four cases: That the trial court’s use of Michigan’s mandatory sentencing guidelines is unconstitutional. And the remedy was the same: A full resentencing under the now-advisory guidelines. But the State argued that each of the federal district courts should have restricted the remedy to what’s known in Michigan as a “Crosby hearing,” which would have required each of the state courts to conduct a new sentencing hearing only if it found it would have imposed a materially different sentence had the state guidelines been advisory and not mandatory. See United States v. Crosby, 397 F.3d 103 (6th Cir. 2005).

In People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), the Michigan Supreme Court held that the state’s sentencing guidelines violate defendants’ Sixth Amendment right to have a jury find the facts necessary for the imposition of an increase to the mandatory minimum sentence for an offense. Lockridge directly resulted from the U.S. Supreme Court’s decision holding the same with respect to the federal Sentencing Guidelines in Alleyne v. United States, 570 U.S. 99 (2013).

All four habeas petitioners in this consolidated appeal had exhausted their state remedies for relief but were denied because the state courts ruled that Lockridge didn’t apply retroactively. When they filed for habeas relief in the federal courts, the district courts found that the state courts had contradicted “clearly established federal law” to allow federal relief under § 2254(d). The “clearly established federal law” was the U.S. Supreme Court’s holding in Alleyne.

The Michigan Supreme Court, in Lockridge, instructed that a Crosby hearing is the appropriate remedy for someone sentenced under the old, unconstitutional mandatory guidelines. The State argued that the federal courts abused their discretion when they imposed a different kind of remedy than that instructed by the Michigan Supreme Court, which has already stated that a limited Crosby hearing is the appropriate remedy with respect to the current situation, not a full resentencing.

The Court noted that district courts have “broad discretion in conditioning a judgment granting habeas relief.” Hilton v. Braunskill, 481 U.S. 770 (1987). Section 2243 directs courts issuing a writ of habeas corpus to “dispose of the matter as law and justice require.” The U.S. Supreme Court has instructed: “The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286 (1969). The Sixth Circuit has instructed that the remedy should “cure the constitutional injury without unnecessarily infringing on competing interests of comity, federalism, and finality.” Ewing v. Horton, 914 F.3d 1027 (6th Cir. 2019).

A federal district court’s choice of habeas remedy is reviewed on appeal for an “abuse of discretion.” Ewing. A district court’s decision is afforded a high degree of deference, but even under this highly deferential standard, it abuses its discretion “if it bases its ruling on an erroneous view of the law,” the Court stated. Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012).

In the present case, the Court determined that the federal district courts didn’t abuse their discretion by imposing a particular habeas remedy. First, the U.S. Supreme Court has never said what the proper remedy would be for an unconstitutional sentence under an invalidated mandatory guidelines system. See Reign v. Gidley, 929 F.3d 777 (6th Cir. 2019); see also Nguyen v. Floyd, Nos. 20-2059/2073, 2021 U.S. App. LEXIS 8861 (6th Cir. Mar. 25, 2021) (“there is a circuit split concerning whether violations of the Sixth Amendment require a full resentencing or a Crosby hearing”).

Additionally, the Sixth Circuit has repeatedly allowed remedies other than a Crosby remand to address Sixth Amendment violations, the Court stated. See, e.g., Robinson v. Woods, 901 F.3d 710 (6th Cir. 2018). The Court explained that the Robinson line of cases “demonstrates that resentencing will often be an appropriate remedy for a Sixth Amendment sentencing violation.” It stated that “our precedent shows that federal courts have discretion when remedying Sixth Amendment violations” and rejected the State’s argument that federal habeas courts’ discretion should be transferred to state courts in order to allow them to choose their desired remedy, declaring “[w]e are not bound by the Michigan Supreme Court’s choice of remedy in Lockridge.” Thus, the Court held that the district courts didn’t abuse their discretion by remanding defendants’ cases for a full resentencing instead of a Crosby hearing.

Accordingly, the Court affirmed the district courts’ judgments. See: Morrell 20-1238 v. Wardens,12 F.4th 626 (6th Cir. 2021). 

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Related legal cases

Morrell 20-1238 v. Wardens

U.S. v. Crosby





Docket No. 03-1675

January 14, 2005, Argued

February 2, 2005, Decided

PRIOR HISTORY: [*1] Appeal from the October 23, 2003, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief District Judge), sentencing the Defendant-Appellant to ten years' imprisonment after he pled guilty to a firearms violation. The Appellant contends he should be resentenced in light of United States v. Booker, 125 S. Ct. 738 (2005).

DISPOSITION: Remanded for consideration of whether to resentence in light of United States v. Booker, 2005 U.S. LEXIS 628, 125 S. Ct. 738 (2005).

COUNSEL: John A. Cirando, Syracuse, N.Y. (Lisa M. Cirando, Susan R. Rider, Mickelle A. Olawoye, D.J. & J.A. Cirando, Esqs., Syracuse, N.Y., on the brief), for Defendant-Appellant.

Jerome Crosby, Pro se, Ray Brook Federal Correctional Institution, Ray Brook, N.Y., submitted a brief for Defendant-Appellant.

Elizabeth S. Riker, Dep. Appellate Chief, Office of the U.S. Atty., Syracuse, N.Y. (Glenn T. Suddaby, U.S. Atty., Richard R. Southwick, Asst. U.S. Atty., Syracuse, N.Y., on the brief), for Appellee.

JUDGES: Before: NEWMAN, KEARSE and CABRANES, Circuit Judges.

OPINION: JON O. NEWMAN, Circuit Judge.

This appeal of a sentence imposed in a federal criminal case requires us to begin the process of implementing the [*2] decision of the Supreme Court in United States v. Booker, 2005 U.S. LEXIS 628, 125 S. Ct. 738 (2005) ("Booker/Fanfan"). n1 Defendant-Appellant Jerome Crosby appeals from the October 23, 2003, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge), sentencing him to imprisonment for ten years after he pled guilty to a firearms violation. We conclude that the District Court should have the opportunity to consider whether to resentence, and we therefore remand for that purpose.

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n1 Prior to filing, this opinion has been circulated to all the judges of this Court.

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Crosby was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He entered a plea of guilty to the single count of the indictment. There was no plea agreement.

Utica police officers had arrested Crosby after responding to a "shots fired" complaint. Witnesses at the scene told them [*3] that Crosby had fired a shotgun in their direction from the window of his car. When Crosby saw the officers, he ran from the car, and, as one of the officers pursued him, turned and pointed a loaded shotgun at the officer. After a brief struggle, Crosby was subdued and arrested.

The Government based its contention that Crosby was a felon on his two Florida state court convictions, one for attempted murder in the second degree and one for battery on a law enforcement officer. The Defendant disputed that either of the Florida convictions was a felony, pointing out that his sentences had been withheld and that, in view of his age at the time of the offenses, he had been placed in Community Control for the attempted murder and placed on probation for the battery. He did not dispute that he was subsequently sentenced to twelve years' imprisonment after the revocation of his Community Control and probation. The District Court credited the Government's evidence, obtained from Florida officials, that Crosby's offenses were felonies under Florida law.

The District Court accepted the Defendant's guilty plea. During the plea colloquy, the Defendant did not dispute that on March 9, 2002, he [*4] possessed a firearm. In entering his guilty plea, the Defendant purported to reserve the right to appeal "the determination concerning his Florida convictions." n2

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n2 The Assistant United States Attorney rather obligingly responded, "So we have no agreements at all other than the defendant's going to plead guilty, including he's not giving up his right to appeal anything that he wants to appeal . . . ."

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The District Court then conducted an evidentiary hearing to resolve factual disputes concerning enhancements required by the federal Sentencing Guidelines ("Guidelines"). At sentencing, Chief Judge Scullin applied the 2002 Sentencing Guidelines Manual. The Judge started with a base offense level of 24, applicable to a defendant who has violated 18 U.S.C. § 922(g) after conviction of at least two felonies involving a crime of violence. See U.S.S.G. § 2K2.1(a)(2). The Judge then made three enhancements based on judicial fact-finding. First, the Judge added [*5] four levels for using the possessed firearm in connection with another felony. See id. § 2K2.1(b)(5). The Judge deemed pointing the loaded shotgun at the pursuing police officer to be the New York felony of first degree reckless endangerment. See N.Y. Penal L. § 120.25 (McKinney 2004). Next, the Judge added three levels for creating a substantial risk of injury to a law enforcement officer. See U.S.S.G. § 3A1.2(b)(1). Finally, the Judge added two levels for obstruction of justice, finding the Defendant's testimony at the pretrial hearing to have been materially false. See id. § 3C1.1. The resulting adjusted offense level of 33, in Criminal History Category IV, yielded a sentencing range of 188 to 235 months. See id. Ch. 5, pt. A (Sentencing Table).

Recognizing that the Guidelines required imposition of as much of the Guidelines sentence as the statutory maximum permitted, see id. § 5G1.1(a); 18 U.S.C. § 924(a)(2), the District Judge sentenced Crosby to imprisonment for ten years, followed by a three-year term of supervised release, and a special assessment of [*6] $ 100.

Crosby appealed his sentence, and we requested and have received supplemental papers after the oral argument.


The principal issue on appeal concerns the lawfulness of the sentence. n3 At oral argument just two days after the Supreme Court's decision in Booker/Fanfan, Crosby contended that the enhancements, which were based on the District Judge's fact-finding and which the District Judge felt compelled to add under the Guidelines, violated his Sixth Amendment right to trial by jury.

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n3 Although the only issue raised in the Appellant's brief is the lawfulness of the ten-year prison term, the brief includes one sentence contending that Crosby should not have been sentenced as a convicted felon. This sentence, not explained elsewhere in the brief, challenges the conviction. Yet Crosby pled guilty to the offense of possession of a firearm by a convicted felon. HN1An unconditional plea of guilty waives all contentions that are not jurisdictional, see, e.g., United States v. Sykes, 697 F.2d 87, 89 (2d Cir. 1983); United States v. Selby, 476 F.2d 965, 966-67 (2d Cir. 1973). Whether or not Crosby's purported reservation of appellate rights complied with the requirements for a "conditional plea," see Fed. R. Crim. P. 11(a)(2), his claim that he has not previously been convicted of two felonies is without merit, for the reasons fully explained by the District Court.

Equally without merit is the claim that the indictment was deficient in not identifying the prior conviction. See United States v. Gillies, 851 F.2d 492, 496 (1st Cir. 1988).

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In considering this issue, we are mindful that this will be the first sentencing appeal decided by our Court since the decision in Booker/Fanfan. As such, it will likely be of special interest to the district judges of this Circuit as they confront a host of new issues. It would be entirely inappropriate for us even to try to anticipate all of those issues, much less resolve them. Nevertheless, we believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal. We do so in the hope that our explanation will be helpful to bench and bar alike. In formulating our thoughts on these matters, the members of this panel have greatly benefitted from numerous suggestions and comments by other judges of this Court.

I. Federal Sentencing Law Before Booker/Fanfan

Since November 1, 1987, sentences in federal criminal cases have been determined pursuant to the Sentencing Reform Act of 1984 ("SRA"), Pub. L. 98-473, Title II, §§ 211-238, 98 Stat. 1987 (1984), and [*8] the Guidelines issued by the United States Sentencing Commission, see U.S.S.G. §§ 1A1.1-8F1.1. As it stood prior to the decision in Booker/Fanfan, the SRA specified several requirements for selecting an appropriate sentence. Especially pertinent to the pending appeal are sections 3553(a) and 3553(b), n4 set out in the margin. n5 Section 3553(a) specifies several factors that sentencing judges are required to consider in determining a sentence. Among these factors are the applicable provisions of the Guidelines. See Subsection 3553(a)(4). Subsection 3553(b)(1), with an exception not pertinent to this appeal, generally requires the sentencing judge to impose a sentence within the range resulting from application of the Guidelines to the specific facts of the defendant's offense conduct (not limited to the precise offense of conviction) and the defendant's criminal record. This subsection also permits the sentencing judge to select a sentence above or below the applicable Guidelines range, but only on the basis of circumstances "not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553 [*9] (b)(1); U.S.S.G. § 5K2.0, cmt. background. A sentence outside the applicable Guidelines range, selected in conformity with the statutory and Guidelines standards for varying from the applicable range, is known as a "departure."

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n4 All references in this opinion to provisions of the SRA will use the section numbers of Title 18.

n5 Section 3553(a) provides:

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsecti on. The court, in determining the particular sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines--

(I) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

Section 3583(g) cross-references nearly all the factors listed in section 3553(a), but omits subsections (2)(A) and (3).

Section 3553(b) provides, in pertinent part:

(b) Application of guidelines in imposing a sentence.--

(1) In general.--Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

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The SRA also provides for appeal of a sentence by the defendant or the Government under limited circumstances, see sections 3742(a), (b), and, pertinent to this appeal, specifies the grounds upon which an appellate court is permitted to review a sentence, see section 3742(e). These grounds include an incorrect application of the Guidelines and a departure from the applicable Guidelines range made without complying with the relevant statutory requirements.

II. The Booker/Fanfan Opinions

The Supreme Court's decision in Booker/Fanfan significantly altered the sentencing regime that has existed since the Guidelines became effective on November 1, 1987. The Court's two-part decision consists of an opinion by Justice Stevens adjudicating the merits of the Sixth Amendment issue ("Substantive Opinion"), and an opinion by Justice Breyer setting forth the remedy ("Remedy Opinion").

A. Substantive Opinion

Booker/Fanfan was the culmination of a series of decisions explicating the requirements of the Sixth Amendment in the context of sentencing. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); [*11] Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). In the Substantive Opinion, the Court ruled that HN2"[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Sub



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