Ajan v. United States

• Decision Date: 03 October 2013
• Docket Number: No. 09–6366.,09–6366.
• Citation: 731 F.3d 629
• Parties: Allen M. AJAN, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

731 F.3d 629

Allen M. AJAN, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 09–6366.

United States Court of Appeals,Sixth Circuit.

Argued: July 26, 2013.

Decided and Filed: Oct. 3, 2013.

ARGUED:April L. Farris, Yetter Coleman LLP, Austin, Texas, for Appellant. Debra A. Breneman, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:April L. Farris, Yetter Coleman LLP, Austin, Texas, for Appellant. Debra A. Breneman, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: KEITH and McKEAGUE, Circuit Judges; WATSON, District Judge. ^*

OPINION

DAMON J. KEITH, Circuit Judge.

Allen Mark Ajan was convicted by a federal jury of several drug-related offenses, aiding and abetting a kidnapping, and two § 924(c) firearm offenses. In 2003, he was sentenced to a term of 646 months of imprisonment. After an unsuccessful direct appeal, he filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. His motion was granted in part and denied in part by the district court, which entered an Amended Judgment and new sentence without conducting a resentencing hearing. Without having obtained a certificate of appealability (“COA”), Ajan appeals the Amended Judgment and sentence, arguing that he was entitled to a resentencing hearing. For the reasons detailed below, we hold that a COA is not required because Ajan is appealing a previously unreviewed aspect of his criminal case. On the merits of Ajan's appeal, we vacate the Amended Judgment with the instruction that the district court exercise its discretion in selecting a § 2255 remedy.

I. Appellate Jurisdiction over § 2255 Relief

Ajan filed a notice to appeal the Amended Judgment the district court entered after partially granting his § 2255 motion to vacate. Because he had not obtained a COA, we initially construed his notice as a request for a COA. Ajan argues that he does not need a COA because the Amended Judgment he is appealing punishes him for his criminal conduct and is a previously unreviewed aspect of his criminal case. The Government insists that a COA is necessary because the Amended Judgment was entered as a result of Ajan's collateral § 2255 proceedings. Whether a COA is required to appeal the relief granted after a successful § 2255 motion is an open question within this Circuit. ¹ We conclude that Ajan is correct.

Title 28 U.S.C. § 2253(c)(1)(B) requires a prisoner to obtain a COA in order to appeal “the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, prisoners must make a substantial showing that they have been denied a constitutional right. 28 U.S.C. § 2253(c)(2). Therefore, it is necessary to determine whether the Amended Judgment constitutes “the final order” in Ajan's § 2255 proceeding. If so, this Court lacks jurisdiction in the absence of a COA. United States v. Hardin, 481 F.3d 924, 925 (6th Cir.2007) (noting that § 2253 “prohibits us from taking up an appeal from a final order in any section 2255 proceeding without such a certificate [of appealability]”). “A matter requiring statutory interpretation is a question of law requiring de novo review, and the starting point for interpretation is the language of the statute itself.” United States v. Batti, 631 F.3d 371, 375 (6th Cir.2011) (quoting United States v. Shafer, 573 F.3d 267, 272 (6th Cir.2009)).

Section 2255 provides federal prisoners with a means to secure a second look at the legality of their conviction or sentence, beyond the direct appeal of right. A federal prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The court initially considers whether or not the petitioner is entitled to any § 2255 relief. If the court finds that the petitioner's judgment was unlawful for any one of a number of reasons specified in the statute, “the court shall vacate and set the judgment aside.” § 2255(b). Once the judgment is vacated, the district court must proceed to grant one of four remedies “as may appear appropriate”: (1) “discharge” the prisoner, (2) “resentence” the prisoner, (3) “grant a new trial,” or (4) “correct” the sentence. Id.

In Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the Supreme Court held that a prisoner's successful § 2254 petition led to “a new judgment, and [the] first application challenging that new judgment cannot be ‘second or successive.’ ” Id. at 2796. The Court reasoned that “second or successive” is a term that applies to the judgment being challenged, and since the judgment being challenged did not exist at the time the first § 2254 petition was brought, the habeas petition before the Court was not “second or successive.” Id. at 2796–97. Although the Magwood rule was announced in the context of § 2254—which provides collateral relief from state criminal judgments—the rule applies with equal force to § 2255—which provides collateral relief from federal criminal judgments. See id. at 2796.

Here, Ajan's successful § 2255 petition led to a new judgment—the Amended Judgment—which did not exist at the time his § 2255 petition was brought. It is the Amended Judgment that Ajan appeals. Because Ajan seeks to “challeng [e] the relief granted—i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in conformity with the Constitution or Sentencing Guidelines, etc.—he is appealing a new criminal sentence and therefore need not obtain a COA....” United States v. Hadden, 475 F.3d 652, 664 (4th Cir.2007). Other Circuits have utilized similar reasoning to hold that a COA is not required to appeal the relief granted after a successful § 2255motion. See United States v. Futch, 518 F.3d 887, 895 (11th Cir.2008); Hadden, 475 F.3d at 663–66;United States v. Lafayette, 337 F.3d 1043, 1046 (D.C.Cir.2003).

Our approach aligns with the principles of fairness already established in our criminal justice jurisprudence. The successful § 2255 petitioner has obtained relief because the original sentence was unlawful. Requiring a COA to appeal further would limit review of a defendant's first legal sentence to only constitutional error. See§ 2253(c)(2). Yet a criminal defendant is entitled to a direct review of a sentence for non-constitutional error. See18 U.S.C. § 3742(a) (providing for appellate jurisdiction over a “final sentence” entered by the district court without a COA); 28 U.S.C. § 1291 (providing appellate jurisdiction over “final decisions” of a district court); Hadden, 475 F.3d at 664 (“[T]he end result of the resentencing or correction of the prisoner's sentence [under § 2255] is an entirely new sentence.... To hold otherwise would prevent the defendant from ever obtaining direct appellate review of his new sentence.”).²

II. Post- § 2255 Remedy

Having held that we have jurisdiction, we now turn to the merits of Ajan's appeal. After his partially successful § 2255 motion, the district court granted Ajan relief by reimposing the same sentences on his remaining counts. Ajan asserts that the district court's relief was legal error because it was based on the erroneous belief that it lacked the discretion to vary the sentence on his remaining counts. The Government responds that the district court was well aware of its general authority to vary a sentence and purposefully choose to reimpose the same term on Ajan's remaining counts. A thorough review of the record reveals ambiguity as to what the district court believed about its statutory authority to grant § 2255 relief, and we must therefore vacate Ajan's sentence and remand the case.

A federal jury found Ajan guilty of three drug-related offenses, one kidnapping offense, and two counts—Counts Seven and Ten—of § 924(c) firearm offenses. In 2003, Ajan was sentenced to 262 months of imprisonment on the drug and kidnapping offenses, to run concurrently, a mandatory consecutive 84 months on Count Seven, and a mandatory consecutive 300 months on Count Ten. The Sentencing Guidelines were mandatory at the time Ajan was sentenced, and he was sentenced to a total term of 646 months—about 54 years—which was the bottom-end of his mandatory range. On direct appeal his convictions and sentence were affirmed. See generally United States v. Simpson, 116 Fed.Appx. 736 (6th Cir.2004).

In 2006, Ajan moved the district court to vacate and set aside his judgment under § 2255. The parties agreed that one of his § 924(c) firearm convictions, Count Ten, was not an offense under the charged criminal statute. Ajan requested that the district court resentence him on his remaining counts, but the Government argued that giving Ajan a lower sentence would require the district court to impermissibly account for the consecutive 84–month sentence mandated under Ajan's remaining § 924(c) firearm count (Count Seven).

The district court summarily relied on the Government's argument regarding Count Seven. In 2009, without conducting sentencing proceedings, the district court entered an order vacating Count Ten and ordering that an amended judgment be entered. The district court's “Amended Judgment” reinstated the total term for Ajan's remaining offenses (and cut his original unlawful sentence in half) for a total term of 346 months—about 29 years—to run from the date of his original sentencing hearing.

The question here is whether the district court was aware of its statutory discretion in granting a post- § 2255 remedy. Section 2255 “gives district judges wide berth in choosing the proper scope of post–2255 proceedings.” United States v. Jones, 114 F.3d 896, 897 (9th Cir.1997). Thus, we review the form of relief granted for an abuse of discretion. Cf. United States v. Bryant, 246 F.3d 650, 654 (6th Cir.2001). As previously noted, § 2255 permits the district court to grant relief in one of four forms “as may appear appropriate” when a motion is found to be meritorious: discharge the prisoner, resentence the prisoner,...