Stitt v. U.S.
| Decision Date | 06 February 2007 |
| Docket Number | Criminal Action No. 2:98cr47. |
| Citation | 475 F.Supp.2d 571 |
| Parties | Richard Thomas STITT, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Darryl James Mitchell, Lead Attorney, United States Attorney's Office, Norfolk, VA, for USA, Plaintiff.
Richard Thomas Stitt, Defendant, Pro se.
Amy Leigh Austin, Frank W. Dunham, Jr., Lead Attorneys, Office of the Public Defender, Richmond, VA, Jeffrey Lance Stredler, Lead Attorney, Williams Mullen Hofheimer Nusbaum, Norfolk, VA, for Richard Thomas Stitt, also known as Patrick V. Hardy, also known as Tom Tom, Defendant.
Before the Court is the question of Petitioner's resentencing following this Court's earlier Order vacating Petitioner's death sentence. For the reasons stated below, this Court will ORDER the parties to attend a sentencing hearing without convening a new jury for the purpose of considering the death penalty.
On February 17, 1999, after a jury trial and subsequent penalty phase, the Court sentenced Petitioner to death on each of three counts of Murder During a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(e)(1)(A) (2000). The Court also sentenced Petitioner to life imprisonment for Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a), (c) (2000) and Murder With a Firearm During a Drug Trafficking Crime in violation of 18 U.S.C. § 924(i)(2)(l) (2000). In addition, Petitioner was sentenced to various lesser terms of imprisonment on seven other counts.
On May 25, 2001, the United States Court of Appeals for the Fourth Circuit (the "Fourth Circuit") affirmed Petitioner's convictions and sentences. United States v. Stitt, 250 F.3d 878, 900 (4th Cir. 2001). On May 13, 2002, the United States Supreme Court denied certiorari. Stitt v. United States, 535 U.S. 1074, 122 S.Ct. 1953, 152 L.Ed.2d 855 (2002). On May 13, 2003, Petitioner filed a motion to Vacate, Set Aside or Correct a Sentence Previously Imposed pursuant to 28 U.S.C. § 2255 (2000). Petitioner argued that his sentence was invalid because (1) he received ineffective assistance of counsel, (2) he was denied learned counsel, (3) a thirteenth juror deliberated, (4) the Government withheld evidence, (5) the death penalty is unconstitutional, and (6) the Government's expert recanted his testimony. On April 1, 2005, the Court entered a Memorandum Opinion & Order vacating Petitioner's three death sentences on the basis of ineffective assistance of counsel and stating that the Court "shall schedule a hearing to correct the sentence as may appear appropriate." Stitt v. United States, 369 F.Supp.2d 679, 695, 700 (E.D.Va.2005). The parties both appealed before a new hearing could be scheduled. The Fourth Circuit initially affirmed this Court and remanded the case for resentencing. United States v. Stitt, 441 F.3d 297, 306 (4th Cir.2006), recalled by 459 F.3d 483 (4th Cir.2006).
On August 16, 2006, before the Fourth Circuit had issued its mandate, the Fourth Circuit decided that it lacked jurisdiction over Petitioner's appeal because Petitioner had not yet been resentenced. United States v. Stitt, 459 F.3d 483, 486 (4th Cir. 2006). The Fourth Circuit relied on Andrews v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), which held that a court of appeals lacks jurisdiction over an appeal from a § 2255 determination until the district court imposes an appropriate remedy. The Fourth Circuit remanded the case to this Court for resentencing. Stitt, 459 F.3d at 486. On November 30, 2006, the Court ordered Petitioner and the Government to file briefs addressing the question of whether the Court can resentence Petitioner without the possible application of the death penalty. The Government filed its memorandum on December 28, 2006. Petitioner filed his response on January 3, 2007.
The question before the Court is whether the Court can exercise its "broad and flexible § 2255 remedial power" to resentence Petitioner without the impaneling of a new jury for a death penalty determination. United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir.1997). As a preliminary matter, the Government contends that the Fourth Circuit, upon dismissing the parties' § 2255 appeals and remanding to this Court, clearly contemplated that this Court would resentence Petitioner by means of a capital resentencing procedure. The Fourth Circuit's majority opinion, however, merely states, "We dismiss the appeal for lack of jurisdiction and remand to the district court for resentencing." Stitt, 459 F.3d at 486. It is true that language in Judge Williams' concurring opinion indicates that she assumed that this Court had ordered a future capital resentencing. See id. at 486-88 (Williams, J., concurring). Nonetheless, the majority opinion only references a pending "resentencing," and in any case, the Fourth Circuit's holding only pertains to its own lack of jurisdiction to consider an appeal at that stage and not the eventual § 2255 remedy to be imposed by this Court.
Before the Court can "fashion an appropriate remedy," United States v. Garcia, 956 F.2d 41, 45 (4th Cir.1992), it must determine the sentencing statute applicable to this case. Petitioner's death sentences were authorized by 21 U.S.C. § 848(e) (2000). This section states that the death penalty may apply to murder during a continuing criminal enterprise. Id. The statute providing the death sentencing hearing procedure for defendants found guilty of murder during a continuing criminal enterprise, 21 U.S.C. § 848(i) (2000), was repealed by a component of the USA PATRIOT Improvement and Reauthorization Act of 2005. See Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, § 221, 120 Stat. 192, 231 (2006). The now-repealed statute provided that when the defendant has been found guilty under § 848(e) and the Government has filed the appropriate notice, 21 U.S.C. § 848(i)(1) (repealed 2006). The statute which applied to Petitioner's original sentencing contemplated the possibility of impaneling a new jury for the purpose of a second death sentencing hearing.
The current death sentencing hearing procedures that the Government argues are applicable to Petitioner's crime are found in the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. (2000) ("FDPA"). The FDPA hearing procedure provides that if the defendant has been found guilty of a crime covered by the statute and the Government has given the proper notice, 18 U.S.C. § 3593(b). Therefore, the current FDPA also provides for a second capital sentencing hearing before a new jury.
Petitioner argues that the FDPA cannot apply, because Petitioner was sentenced under 21 U.S.C. § 848(e) and not the FDPA. As noted above, the § 848 authority for impaneling a new jury for a redetermination of a sentence has been repealed. Petitioner argues that this deprives the Court of the authority to convene a new jury for a new sentencing hearing. Petitioner further argues that the FDPA's authority for convening a new jury is irrelevant to Petitioner's case, as the FDPA states that a new jury may be impaneled when "reconsideration of the sentence under this section is necessary...." 18 U.S.C. § 3593(b)(2)(D) (emphasis added). Petitioner states that because he was never sentenced under "this [FDPA] section," the FDPA does not provide authority for impaneling a new jury for resentencing.
The Court finds that it lacks the statutory authority to convene a death penalty sentencing hearing in this case. The statutory mechanism providing for impaneling a new jury for reconsideration of a death sentence in Petitioner's case has been repealed. The FDPA, as Petitioner points out, does not apply to the instant case. "When it is no longer possible to sentence a defendant before the jury that determined guilt, the FDPA lists four clear situations where a new jury can be impaneled, and no more. These are:
(A) the defendant was convicted upon a plea of guilty;
(B) the defendant was convicted after a trial before the court sitting without a jury;
(C) the jury that determined the defendant's guilt was discharged for good cause; or (D) after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary....
18 U.S.C. § 3593(b)(2). Sections A, B, and C are clearly inapplicable. Section D is inapplicable as well, because Petitioner was not originally sentenced under the procedures of § 3593. Therefore, the Court will not impanel a new jury for death penalty purposes because the Court lacks the statutory authority to do so.
In addition, the Court notes that the general savings statute, 1 U.S.C. § 109 (2000), is not applicable in the instant case. This section provides that:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
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United States v. Stitt, 07-11.
...Act, 18 U.S.C.A. § 3591 et seq. ("FDPA"), did not provide a mechanism for empanelling a new sentencing jury. Stitt v. United States ("Stitt V"), 475 F.Supp.2d 571 (E.D.Va.2007). In the alternative, the district court concluded that, even if it had the statutory authority to call a new sente......
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U.S. v. Hammer
...sentencing and no longer provided a procedure for impaneling a new jury for reconsideration of a death sentence. Stitt v. United States, 475 F.Supp.2d 571, 574 (E.D.Va.2007). The district court said that not only did it lack the statutory authority to convene a new capital sentencing hearin......