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Third Circuit Announces COA Required for Federal Prisoner Appealing District Court’s Choice of Remedy in § 2255 Proceeding

by Douglas Ankney

In a case of first impression in the Circuit, the U.S. Court of Appeals for the Third Circuit held that a federal prisoner appealing a District Court’s choice of remedy in a 28 U.S.C. § 2255 proceeding must obtain a certificate of appealability (“COA”).

In 1990, a federal jury convicted Kent Leroy Clark of several felonies, including kidnapping and the use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1) – the kidnapping being the predicate “crime of violence.” Clark was sentenced to life on the kidnapping and a mandatory five years on the § 924(c) conviction, running consecutively as required under the statute. Because he committed his crimes prior to the November 1, 1987, effective date of the U.S. Sentencing Guidelines, the Guidelines did not apply to his case. Clark’s judgment was affirmed on appeal.

After United States v. Davis, 139 S. Ct. 2319 (2019), held that a portion of § 924(c)’s definition of “crime of violence” is unconstitutionally vague, Clark was granted permission to file a successive § 2255 motion challenging his § 924(c) conviction. The U.S. District Court for the District of New Jersey agreed with Clark that, per Davis, kidnapping is no longer a crime of violence for purposes of § 924(c). The court granted Clark’s motion, in part, and vacated the consecutive five-year term.

But the court denied his request for a full resentencing. The District Court explained: “[Clark’s] § 924(c) conviction carried a mandatory minimum sentence of five years, to be served consecutively to the other sentences, which the sentencing court separately imposed. Other than speculation on the part of the Petitioner, nothing suggests the Court increased the sentences on the kidnapping or other charges due to the § 924(c) conviction. The sentencing took place prior to the imposition of the Sentencing Guidelines; as such, Clark’s § 924(c) conviction could not have increased his Guidelines or statutory penalties for the kidnapping conviction.”

Clark sought an appeal, and the Third Circuit directed him to file an Application for Certificate of Appealability. He characterized his appeal as “a direct appeal from a new criminal sentence” and argued that a COA was unnecessary. Alternatively, he argued that a COA should issue because reasonable jurists could debate whether the District Court abused its discretion in declining to conduct a full resentencing. Conversely, the Government argued that Clark was appealing the District Court’s “choice of remedy in a § 2255 matter,” and thus, the appeal was simply an appeal of a final order, requiring a COA.

The Court observed that § 2255 “provides a process through which persons in federal custody can collaterally attack their sentences.” It explained that the District Court first determines whether the judgment of sentence “was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” § 2255(b). If the answer is in the affirmative, the District Court then selects an appropriate remedy, i.e., it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.

The Court stated that “[a] defendant must obtain a COA to pursue an appeal ‘from … the final order in a proceeding under § 2255.’” 28 U.S.C. § 2253(c)(1)(B). A COA may issue only if the defendant “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Unless the COA has issued, Courts of Appeals have no jurisdiction to rule on the merits of any appeal, according to the Court. Miller-El v. Cockrell, 537 U.S. 322 (2003).

The Court observed that in the instant case, Clark challenged the District Court’s choice to correct his sentence instead of holding a full resentencing. The Court noted that the Fourth and Sixth Circuits do not require a COA in these circumstances, but the Eleventh Circuit does. Compare United States v. Hadden, 475 F.3d 652 (4th Cir. 2007), and Ajan v. United States, 731 F.3d 629 (6th Cir. 2013), with United States v. Cody, 998 F.3d 912 (11th Cir. 2021).

In deepening the Circuit split, the Third Circuit agreed with the reasoning of Cody, stating: “‘It is apparent from the text of § 2255 that a district court’s choice between correcting a sentence and performing a full resentencing is a part of the proceeding under that statute,’ not part of the underlying criminal case.” The Third Circuit reasoned that since § 2255(b) requires the District Court to choose an appropriate remedy from the four listed options, the choice is necessarily part of the § 2255 proceeding. Consequently, allowing Clark to directly appeal the District Court’s choice of remedy would be flouting § 2253(c)(1)(B)’s “command that a COA must issue for a defendant to appeal ‘the final order in a proceeding under § 2255,’” the Court reasoned. Therefore, the Court held that “a COA is required when an appeal challenges solely whether the district court granted an appropriate § 2255 remedy.”

Therefore, to consider the merits of Clark’s appeal, he must obtain a COA, which requires “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). That showing “is satisfied even if the claim is only debatably constitutional.” United States v. Doe, 810 F.3d 132 (3d Cir. 2015). “A claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that [the] petitioner will not prevail.” Miller-El.

In Clark’s case, because the Sentencing Guidelines do not apply, he could “not argue that vacatur of the § 924(c) conviction impacted his overall offense level or Guidelines calculations, and nothing in the record suggests that a full resentencing was required,” the Court explained. Furthermore, while “defendants have an unqualified due process right to be present at sentencing (including resentencing), United States v. Mannino, 212 F.3d 835 (3d Cir. 2000), they do not have a right to be present any time a criminal sentence is merely corrected.” See, e.g., Fed. R. Crim. P. 35 or 18 U.S.C. § 3582(c). Thus, the Court ruled that Clark’s § 924(c) conviction did not constitutionally entitle him to a full resentencing.

Because reasonable jurists “would agree without debate that the district court did not violate Clark’s constitutional rights by denying his request for a full resentencing,” the Court ruled that it will not issue a COA.

Accordingly, the Court dismissed the appeal for lack of jurisdiction. See: Clark v. United States, 76 F.4th 206 (3d Cir. 2023).  

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