U.S. v. Stitt

• Citation: 459 F.3d 483
• Decision Date: 24 March 2006
• Docket Number: No. 05-11.,No. 05-10.,05-10.,05-11.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

459 F.3d 483

UNITED STATES of America, Plaintiff-Appellee, v. Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.

No. 05-10.

No. 05-11.

United States Court of Appeals, Fourth Circuit.

Argued January 31, 2006.

Decided March 24, 2006.

Decided on Supplemental Briefing August 16, 2006.

ARGUED: Amy Leigh Austin, Assistant Federal Public Defender, Gerald Thomas Zerkin, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Richard Thomas Stitt. Thomas Ernest Booth, United States Department of Justice, Criminal Division, Washington, D.C., for the United States. ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia; Jeffrey L. Stredler, Williams Mullen, Norfolk, Virginia, for Richard Thomas Stitt. Paul J. McNulty, United States Attorney, Howard J. Zlotnik, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the United States.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Dismissed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined. Judge WILLIAMS wrote a separate concurring opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

Richard Thomas Stitt filed this habeas action pursuant to 28 U.S.C. § 2255 (2000) after exhausting all direct appeals of his convictions of and capital sentence for drug, firearms, and capital murder offenses. The district court rejected Stitt's claims pertaining to his guilt, but vacated Stitt's capital sentence after finding that Stitt's counsel provided constitutionally ineffective representation during the sentencing phase of Stitt's trial. The Government appealed the district court's judgment vacating Stitt's sentence, and we granted Stitt a certificate of appealability on his claim that his lawyer was constitutionally ineffective during the guilt phase of Stitt's trial. We heard argument in this case and thereafter published an opinion affirming the judgment of the district court in all respects and remanding the case for resentencing. See United States v. Stitt, 441 F.3d 297 (4th Cir.2006).

Prior to the issuance of the mandate in this case, we discovered Supreme Court precedent indicating that we lacked jurisdiction over this appeal. See Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). Because we have an obligation to inquire into jurisdictional issues sua sponte, see, e.g., Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 304 (4th Cir.2006), we withheld the issuance of the mandate and directed the parties to submit supplemental briefs addressing the jurisdictional question. After consideration of those briefs and the relevant legal authorities, we now conclude that we lack jurisdiction over this appeal. Accordingly, we recall our earlier opinion, vacate our judgment, and dismiss the appeal for lack of jurisdiction.

Section 2255 provides that, if the district court finds that the petitioner is entitled to relief, "the court 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." 28 U.S.C. § 2255 ¶ 2. The statute also provides that "[a]n appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." Id. ¶ 4.

In Andrews, the petitioners challenged the constitutionality of their sentences under § 2255. See Andrews, 373 U.S. at 336, 83 S.Ct. 1236. The district court granted them relief, vacated their sentences, and ordered that they be resentenced. The Government appealed, and the district court stayed petitioners' resentencing. Id. The court of appeals reversed and remanded, but the Supreme Court set aside the judgment of the court of appeals, holding that the court of appeals lacked jurisdiction. See id. at 340, 83 S.Ct. 1236. The Supreme Court explained that § 2255 provides a list of possible remedies that include discharging the prisoner, resentencing him, granting a new trial, or correcting the sentence. See id. at 339, 83 S.Ct. 1236 (quoting 28 U.S.C. § 2255 ¶ 2). The Court reasoned that the district court's judgment did not become final until it granted the appropriate remedy: "Where, as here, what was appropriately asked and appropriately granted was the resentencing of the petitioners, it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced." Id. at 339, 83 S.Ct. 1236.

The Court explained that "[t]he basic reason for the rule against piecemeal interlocutory appeals in the federal system is particularly apparent in the cases before us. Until the petitioners are resentenced, it is impossible to know whether the Government will be able to show any colorable claim of prejudicial error." Id. at 340, 83 S.Ct. 1236. Subsequent cases interpreting Andrews squarely hold that a district court's judgment vacating a sentence does not become final — and thus is not appealable — until the court has resentenced the defendant. See, e.g., United States v. Martin, 226 F.3d 1042, 1048 (9th Cir.2000).

In arguing that we should treat the district court's judgment as final, the Government cites United States v. Gordon, 156 F.3d 376 (2d. Cir.1998), and United States v. Allen, 613 F.2d 1248 (3d Cir.1980). But in those cases the judgment of the district court vacated the convictions and ordered a new trial. Gordon, 156 F.3d at 377; Allen, 613 F.2d at 1249-50. Even if we were inclined to follow those cases, a question we need not decide here, they certainly do not govern the appealability of the order at issue here, which, like that in Andrews, 373 U.S. at 339, 83 S.Ct. 1236, vacated a sentence and "returned [the case] to the trial court" for resentencing. In such cases, Andrews mandates that there is no final judgment "until the prisoners [a]re resentenced." Id. at 340, 83 S.Ct. 1236.

We recognize that, should it decide to reconsider this issue, the Supreme Court may adopt the Government's argument and hold that a district court's order vacating a capital sentence is an appealable final order. However, if a Supreme Court precedent "has direct application in a case," we must follow it, leaving to the Supreme Court "the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 238, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In this case, a Supreme Court precedent, Andrews, holds that an order vacating a sentence does not become final until resentencing occurs; Andrews is controlling and we must follow it.

Accordingly, because Stitt has not yet been resentenced, we find that we lack jurisdiction over this appeal.^* We dismiss the appeal for lack of jurisdiction and remand to the district court for resentencing.

DISMISSED AND REMANDED

WILLIAMS, Circuit Judge, concurring:

I fully concur in Judge Motz's opinion. I write separately to elaborate on my view that we lack jurisdiction over Stitt's appeal. While I agree with the Government that our holding may lead to an inefficient allocation of resources, I believe that the text of 28 U.S.C.A. § 2255 (West Supp. 2006) — and the Supreme Court's prior interpretation of this statute — compels us to conclude that jurisdiction is lacking over an appeal of a district court order that grants a § 2255 petitioner a future capital resentencing hearing, but does not actually accomplish the resentencing itself.

As Judge Motz notes, Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), held that appellate jurisdiction is lacking over a district court's order that contemplates a § 2255 petitioner will be resentenced at some time in the future but does not actually accomplish the task of resentencing the petitioner. Id. at 338-340, 83 S.Ct. 1236. This holding was based on the Supreme Court's interpretation of what is now paragraphs 2 and 4 of § 2255.¹ Paragraph 2 provides that if the district court determines collateral relief is appropriate, it may remedy the petitioner's unlawful conviction or sentence in one of four ways: "the court . . . shall [1] discharge the prisoner or [2] resentence him or [3] grant a new trial or [4] correct the sentence as may appear appropriate." 28 U.S.C.A. § 2255. Paragraph 4 provides that "[a]n appeal may be taken to the court of appeals from the order entered on the [§ 2255] motion. . . ." Id. According to the Supreme Court, a district court's order that contemplates a future sentencing is preliminary to an order actually "resentenc[ing the petitioner]" under paragraph 2, and is therefore not "the order entered on the [§ 2255] motion" under paragraph 4. Andrews, 373 U.S. at 340, 83 S.Ct. 1236. Accordingly, no appeal can be taken from such an order. Id.

Here, the district court vacated Stitt's sentence and entered an order stating that it would schedule a hearing to determine Stitt's appropriate sentence. The district court, however, did not actually conduct a resentencing hearing, and, to this day, it has not done so. Accordingly, under a straightforward application of Andrews, the district court's order is not appealable.

In seeking to avoid this conclusion, the Government contends that Andrews is distinguishable on the grounds that the district court here ordered that Stitt be given a future capital resentencing hearing. At a capital sentencing hearing, unlike a non-capital sentencing hearing, the convicted defendant is entitled to a hearing before a jury on the issue of whether death is the appropriate penalty for his crime. See 18 U.S.C.A. § 3593 (West 2000); see also Ring v. Arizona, 536 U.S. 584, 122 S.Ct 2428, 153 L.Ed.2d 556 (2002). According to the Government, allowing appellate review of the district court's order granting a future capital...