Petition for Writ of Certiorari — Eddie David Cox, Petitioner v. United States

No._____________

In The Supreme Court of the United States

_______________

EDDIE DAVID COX,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

______________________________________________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________________________________

Zachary Newland

Brandon Sample PLC

P.O. Box 250

Rutland, Vermont 05702

Phone: (802) 444-4357

Fax: (802) 779-9590

Texas Bar No. 24088967

Email: zach@brandonsample.com

https://brandonsample.com

QUESTIONS PRESENTED FOR REVIEW

1.

Should the Court GVR the judgment of the Eighth Circuit so the

appeals court may consider, in the first instance, whether Cox is

entitled to relief from his conviction in light of Rehaif v. United States,

2019 WL 2552487 (2019)?

2.

Does an original sentencing court have authority to resentence

following a grant of 28 U.S.C. § 2241 relief by a different district court?

3.

Does a district court commit procedural error when resentencing a

defendant by basing its new sentence on the original sentence that was

imposed?

4.

Is a sentence of 966 months on an octogenarian, a 360 percent

increase above the high end of the Guidelines, substantively

unreasonable?

5.

Does the Double Jeopardy Clause bar a court from resentencing a

defendant on counts for sentences that have already been served?

i

LIST OF PARTIES

Petitioner, Eddie David Cox, was the defendant in the district

court and the appellant in the court of appeals. Respondent, the United

States of America, was the plaintiff in the district court and the

appellee in the court of appeals.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...................................... iii

LIST OF PARTIES ............................................................................... iii

TABLE OF CONTENTS ...................................................................... iii

TABLE OF AUTHORITIES ................................................................ iv

PETITION FOR WRIT OF CERTIORARI ......................................... 1

OPINION AND ORDER BELOW ........................................................ 1

STATEMENT OF JURISDICTION ..................................................... 1

RELEVANT STATUTORY PROVISIONS .......................................... 3

STATEMENT OF CASE ....................................................................... 7

REASONS FOR GRANTING THE WRIT ..........................................16

I. The Court Should GVR The Case To The Eighth Circuit In Light

of Rehaif ...............................................................................................16

II. There Is A Split Concerning Whether A § 2241 Court, Versus An

Original Sentencing Court, Has Authority To Resentence After A

Grant of § 2241 Relief ..........................................................................17

III. Resolving Whether Cox’s Sentence of 966 Months Is

Substantively Unreasonable Is Of Exceptional Importance ...............19

IV. There Is A Split In The Circuits Over Whether It Violates The

Double Jeopardy Clause To Resentence A Defendant On Counts For

Sentences The Defendant Has Already Served ...................................19

CONCLUSION ......................................................................................20

iii

TABLE OF AUTHORITIES

CASES

Cox v. Krueger, 2017 WL 4706898 (C.D. Ill. 2017) ...............................8, 9

Cox v. United States, No. 94-00992-CV-W-GAF (W.D. Mo.).................... 8

Hill v. Sepanek, 2017 WL 73338 (E.D. Ky., Jan. 6, 2017) .....................18

Johnson v. United States, 135 S. Ct. 2251 (2015) .................................... 9

Joseph v. United States, 135 S.Ct. 705 (Mem) (2014).............................17

Rehaif v. United States, 2019 WL 2552487 (2019) .................... i, 1, 16, 19

United States v. Brye, 935 F. Supp. 2d 1294 (M.D. Fl. 2013) .................19

United States v. Cox, 766 Fed. Appx. 423 (8th Cir. 2019) .......... 15, 18, 21

United States v. Cox, 942 F.2d 1282 (8th Cir. 1991) ............................... 8

STATUTES

18 U.S.C. § 1951 ....................................................................................... 7

18 U.S.C. § 3231 ....................................................................................... 1

18 U.S.C. § 3742 ....................................................................................... 3

18 U.S.C. § 912......................................................................................... 7

18 U.S.C. § 913......................................................................................... 7

18 U.S.C. § 922(g) .................................................................................... 7

iv

21 U.S.C. § 841(a)(1) ................................................................................ 7

21 U.S.C. § 846......................................................................................... 7

28 U.S.C. § 1254(1) .................................................................................. 3

28 U.S.C. § 1291 ....................................................................................... 3

28 U.S.C. § 2243 ..................................................................................2, 18

28 U.S.C. § 2255(h) .................................................................................19

v

PETITION FOR WRIT OF CERTIORARI

Eddie David Cox respectfully petitions this Court for a writ of

certiorari to review the U.S. Court of Appeals for the Eighth Circuit’s

judgment affirming the district court’s 966-month sentence on an

octogenarian for a conviction that that is now called into question by

this Court’s recent decision in Rehaif v. United States, No. 2019 WL

2552487 (2019).

OPINION AND ORDER BELOW

The Eighth Circuit’s opinion and judgment affirming Cox’s

sentence in No. 18-1630 is included in the Appendix at A.

STATEMENT OF JURISDICTION

While district courts in criminal cases generally have jurisdiction

under 18 U.S.C. § 3231, the district court had no jurisdiction to

resentence Cox pursuant to that statute. The district court re-sentenced

Cox as a result of a 28 U.S.C. § 2241 grant by the Central District of

Illinois. But the grant of § 2241 relief by the Central District of Illinois

did not—and could not—confer jurisdiction on the district court to

resentence Cox. This is because 18 U.S.C. § 3582(c)(1)(B) only allows, as

applicable here, modification of a term of imprisonment “to the extent

otherwise expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B)

(emphasis added.) While a federal habeas court has the authority to

dispose of a § 2241 petition “as law and justice require,” 28 U.S.C. §

2243, this power may not be delegated or directed to another federal

district court. Earlier cases which approved of § 2241 courts

“remanding” successful habeas cases to the original court of jurisdiction

for resentencing are not reconcilable with § 3582(c)(1)(B). In light of §

3582(c)(1)(B), a § 2241 court that affords a federal prisoner habeas relief

from a sentence has sole jurisdiction to correct the sentence.

Accordingly, the district court’s resentencing of Cox was without

jurisdiction. Consequently, the Eighth Circuit lacked jurisdiction over

Cox’s appeal.

However, should the Court disagree with Cox’s jurisdictional

arguments, the district court had jurisdiction under 18 U.S.C. § 3231.

The district court’s judgment memorializing its new sentence was

entered on March 8, 2018. Cox filed a timely notice of appeal on March

21, 2018. The Eighth Circuit, assuming the district court had

jurisdiction in the first instance, had jurisdiction under 18 U.S.C. §

3742 and 28 U.S.C. § 1291 to review the district court’s sentence. The

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Eighth Circuit’s judgment was entered March 25, 2019. This Court has

jurisdiction under 28 U.S.C. § 1254(1), and Part III of the Rules of the

Supreme Court of the United States. This petition is timely pursuant to

Supreme Court Rule 13.1.

RELEVANT STATUTORY PROVISIONS

This case involves the application of 18 U.S.C. § 922(g), 18 U.S.C.

3553(a); 18 U.S.C. § 3582(c)(1)(B); 28 U.S.C. § 2241 and 28 U.S.C. §

2243, which state in pertinent part:

18 U.S.C. § 922(g)(1)

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year

18 U.S.C. § 3553(a)

(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 subsection.

18 U.S.C. § 3582(c)(1)(B)

3

(c) Modification of an Imposed Term of Imprisonment.—The court may

not modify a term of imprisonment once it has been imposed except

that—

(1) in any case—

(B) the court may modify an imposed term of imprisonment to the

extent otherwise expressly permitted by statute or by Rule 35 of the

Federal Rules of Criminal Procedure

28 U.S.C. § 2241(a)

(a) Writs of habeas corpus may be granted by the Supreme Court, any

justice thereof, the district courts and any circuit judge within their

respective jurisdictions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein the restraint

complained of is had.

28 U.S.C. § 2243

A court, justice or judge entertaining an application for a writ of

habeas corpus shall forthwith award the writ or issue an order directing

the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person

detained is not entitled thereto.

The writ, or order to show cause shall be directed to the person

having custody of the person detained. It shall be returned within three

days unless for good cause additional time, not exceeding twenty days,

is allowed.

The person to whom the writ or order is directed shall make a

return certifying the true cause of the detention.

When the writ or order is returned a day shall be set for hearing,

not more than five days after the return unless for good cause

additional time is allowed.

Unless the application for the writ and the return present only

issues of law the person to whom the writ is directed shall be required

to produce at the hearing the body of the person detained.

The applicant or the person detained may, under oath, deny any of

the facts set forth in the return or allege any other material facts.

The return and all suggestions made against it may be amended,

by leave of court, before or after being filed.

5

The court shall summarily hear and determine the facts, and

dispose of the matter as law and justice require.

6

STATEMENT OF CASE

(a) Cox’s Original Proceedings

Cox was charged in a twelve count indictment with: conspiring to

distribute cocaine, a violation of 21 U.S.C. § 846 (Count One);

impersonating a United States officer, a violation of 18 U.S.C. § 912

(Counts Two and Twelve); possession with intent to distribute cocaine, a

violation of 21 U.S.C. § 841(a)(1) (Count Three); Hobbs Act robbery, a

violation of 18 U.S.C. § 1951 (Counts Four and Seven); felon in

possession of a firearm, a violation of 18 U.S.C. §§ 922(g) and 924(e)

(Counts Five and Eight) and impersonating a federal officer in making

an arrest or search, a violation of 18 U.S.C. § 913 (Counts Six, Nine,

Ten, and Eleven). After being found guilty of all counts following a jury

trial, Cox was sentenced to life imprisonment on Count One; 36 months

on Counts Two and Twelve; 360 months on Count Three; 240 months on

Counts Four and Seven; life imprisonment on Counts Five and Eight

pursuant to the Armed Career Criminal Act (ACCA); and 36 months for

Counts Six, Nine, Ten, and Eleven. All the sentences were ordered to be

served concurrently. Id.

7

Cox’s conspiracy conviction was later reversed by the Eighth

Circuit on direct appeal. United States v. Cox, 942 F.2d 1282, 1283-84

(8th Cir. 1991). The district court subsequently reduced Cox’s sentence

on Count Three to 210 months imprisonment after Cox sought, and was

granted, partial 28 U.S.C. § 2255 relief. Cox v. United States, No. 9400992-CV-W-GAF (W.D. Mo.).

(b) Cox Is Granted 28 U.S.C. § 2241 Relief

In 2017 the U.S. District Court for the Central District of Illinois

granted Cox 28 U.S.C. § 2241 relief from Cox’s sentences on Counts

Five and Eight. Cox v. Krueger, 2017 WL 4706898 (C.D. Ill. 2017). The

Central District of Illinois court held that Cox was entitled to § 2241

relief from his life sentences on Counts Five and Eight because Cox’s

pre-Controlled Substances Act drug conviction never qualified him for

the ACCA enhancement, and his kidnapping prior was not qualifying

post Johnson v. United States, 135 S. Ct. 2251 (2015). Cox, 2017 WL

4706898 * 4-6. The § 2241 court held that § 2241 was the proper vehicle

for Cox’s challenge because Cox could not have mounted a challenge to

the use of the pre-CSA conviction to support the ACCA enhancement

until Johnson was decided. Id. * 4-5. Further, because the Eighth

8

Circuit rejected Cox’s attempt to argue the inapplicability of that prior

conviction during Cox’s request for leave to file a second or successive §

2255 motion, the § 2241 Court held that § 2255 was inadequate or

ineffective to test the legality of Cox’s detention. Id. Accordingly, the §

2241 court granted Cox’s § 2241 petition and ordered that:

(2) Cox's enhanced sentence under the Armed Career

Criminal Act imposed by the Western District of Missouri

in Case No. 89–00196–01–CR–W–GAF is VACATED;

(3) The Respondent is DIRECTED to deliver Cox to the

United States District Court for the Western District of

Missouri for resentencing;

(4) The Clerk is DIRECTED to enter final judgment in favor

of Cox; and

(5) The Clerk is DIRECTED to send copies of this Order to

the United States District Court for the Western District of

Missouri and the Clerk thereof for filing in No. 89–00196–

01–CR–W–GAF.

Id. * 6.

(c)

The District Court Resentences Cox, An 83 Year Old

Man, To 966 Months

After receiving the § 2241 order granting Cox relief, the district

court directed the parties to submit briefing concerning whether the

Eighth Circuit would recognize the § 2241 order. In response, the

9

Government argued that it was “debatable” whether Cox could have

received § 2241 relief in the Eighth Circuit, “particularly […] since Cox

presented essentially the same arguments in his petition for permission

to file a successive § 2255 motion, which the Eighth Circuit denied.”

Cox, in turn, provided the district court with pros and cons about how

the mandate rule, law of the case doctrine, and principles of coordinate

jurisdiction might counsel against the district court implementing the §

2241 grant of relief. On December 29, 2017, the district court, without

discussing the arguments raised by the parties, scheduled Cox for

resentencing.

The district court subsequently ordered the preparation of a new

Presentence Investigation Report, and the parties filed their respective

sentencing memorandums. The Government argued for a sentence of

690 months in its sentencing memorandum, suggesting that an

equivalent life sentence would “best implement the decision of the

original court that the defendant spend the remainder of his life in

prison.” However, the only way the district court could impose such a

sentence was by unbundling Cox’s entire “sentencing package,”

something the Government urged the district court to do.

10

Cox, in turn, argued for a sentence of what was, in effect, time

served. Further, Cox argued against the unbundling of Cox’s entire

sentence under the “sentencing package” rule and suggested

alternatively that the Double Jeopardy Clause barred the district court

from re-sentencing Cox on counts for which he had already fully

discharged the sentence. In addition, Cox argued that the Government’s

proposed sentence of 690 months was inconsistent with the principle of

parsimony and other relevant § 3553(a) factors. Cox noted, for example,

the recognized low rate of recidivism for elderly offenders, the

availability of community support for Cox—notwithstanding nearly

three decades of incarceration—and the fact that Cox throughout his

entire incarceration has remained infraction free.

The addendum to the PSR suggested Cox remained ACCA eligible

despite the § 2241 grant of relief. However, the PSR advised the district

court that if it found that Cox’s pre-CSA conviction was not qualifying

for the ACCA enhancement, then Cox was also no longer a career

offender. Without the ACCA or career offender enhancement, the

addendum to the PSR calculated Cox’s total offense level as 30, with a

11

criminal history category of six. This produced an advisory guideline

range of 168 to 210 months imprisonment.

On March 7, 2018, Cox appeared for resentencing. At the outset of

the hearing the district court concluded that it was a “de novo

resentencing,” and that it had the “authority to take into consideration

all counts and fashion a sentence that meets the statutory requirements

and is reasonable and appropriate herein based upon the statutory

considerations.” The district court further commented, before receiving

allocution from counsel and the defendant, that it wanted “to state for

the record an alternative sentence in the event it was found on appeal

that I did not have authority to resentence on anything other than

Counts 5 and 8.”

Next, the district court determined, consistent with the addendum

to the PSR, that Cox’s total offense level was 30, criminal history

category VI. Thus, the advisory guideline was 168 to 210 months.

Cox gave allocution describing how he has changed since he was

originally sentenced nearly three decades ago, reiterated that he has

had “no disciplinary reports whatsoever” the past 30 years, and how he

intended to work, even at 83, if released.

12

In terms of alternative sentences, the Government suggested the

district court stack the sentences on Counts Five and Eight for a total of

240 months, which would produce an overall sentence of 40 years. With

credit for good conduct time, the Government estimated that Cox would

have “five or six more” years left to serve. Nevertheless, the

Government continued to urge the district court to resentence Cox to

690 months.

Ultimately, the district court resentenced Cox to 966 months of

imprisonment. The district court achieved this sentence by sentencing

Cox to 36 months on Counts Two, Six, Nine, Ten, Eleven and Twelve,

concurrent with all other sentences, 210 months on Count Three

consecutive to Cox’s other sentences, 240 months on Counts Four and

Seven, but consecutive to all other sentences, and 120 months on

Counts Five and Eight, consecutive with each other and consecutive to

all of Cox’s other sentences. Further, the district court imposed an

alternative sentence of 120 months on Counts Five and Eight,

consecutive with each other and all other sentences, should it later be

determined that the district court did “not have the authority to fashion

a de novo resentencing.”

13

To justify its staggering sentence of 966 months on an 83 year old

defendant who has been incarcerated for almost 30 years, a sentence

266 months longer than the 690 month sentence asked for by the

Government, the district court in pertinent part, expressly relied upon

the fact that Cox was originally sentenced to life in prison. Judgment

was entered memorializing the district court’s sentence on March 8,

2018.

(d)

The Eighth Circuit Affirms The District Court

On March 25, 2019, the Eighth Circuit affirmed the district court’s

decision to conduct a de novo resentencing, and its staggering sentence

of 966 months. United States v. Cox, 766 Fed. Appx. 423 (8th Cir. 2019).

According to the Eighth Circuit, the district court had the power to

conduct a de novo resentencing and resentencing Cox on counts other

than Five and Eight did not violate the Double Jeopardy Clause. Id. at

425-26. The Court also affirmed Cox’s sentence, over the dissent of

Circuit Judge Kelly. Id. While the majority found no procedural

impropriety with the sentence or its substantive reasonableness, Judge

Kelly would have held that the sentence was procedurally improper

because the district court based the sentence “on an improper factor—

14

the original life sentence imposed in 1990. Section 3553(a) does not call

for consideration of a defendant’s original sentence, and for good reason:

Cox’s original sentence was based on statutory mandatory minimums

and a mandatory Guidelines range that no longer apply.” Id. at 428.

Judge Kelly also would have found the sentence substantively

unreasonable because its 63-year variance was not supported by “the

‘significant justification’ necessary to support such a substantial

variance above the recommended Guidelines range, especially when

Cox has demonstrated post-offense rehabilitation by maintaining a

clean disciplinary record in prison for nearly three decades, among

other things.” Id.

15

REASONS FOR GRANTING THE WRIT

I.

The Court Should GVR The Case To The Eighth Circuit In Light

of Rehaif

In Rehaif v. United States, 2019 WL 2552487 (2019), this Court

held that a defendant may not be convicted of an offense under 18

U.S.C. § 922(g) unless the defendant knows that his status barred him

possessing a firearm. Id. Cox was convicted on Counts Five and Eight

under § 922(g) following a jury trial. Cox, 942 F.2d at 1284. Because

Cox’s appeal followed a resentencing by the district court, there was no

occasion for Cox to re-raise a challenge to his § 922(g) convictions before

the Eighth Circuit. That has changed with this Court’s decision in

Rehaif. As noted by Justice Kagan in a statement respecting denial of

certiorari, when a new claim becomes available based on an intervening

Supreme Court decision, the defendant should have the opportunity to

present the matter to the court of appeals in the first instance. Joseph v.

United States, 135 S.Ct. 705 (Mem) (2014) (Kagan, J., statement

respecting denial of certiorari). The Court should afford Cox the

opportunity present his Rehaif arguments to the Eighth Circuit in the

first instance. Accordingly, the Court should grant, vacate, and remand

16

this matter to the Eighth Circuit for further consideration in light of

Rehaif.

II.

There Is A Split Concerning Whether A § 2241 Court, Versus An

Original Sentencing Court, Has Authority To Resentence After A

Grant of § 2241 Relief

The Eighth Circuit held that the district court had the authority

to resentence Cox because “28 U.S.C. § 2243, which allows a court

hearing a § 2241 habeas claim to ‘dispose of the matter as law and

justice require,” [gave] the Western District [the] authority to conduct

the resentencing as it did here.” Cox, 766 Fed. Appx. at 425 (alterations

added). Foremost, it is not clear how the Western District of Missouri

had the authority to resentence pursuant to § 2243 since that statute

only grants authority to § 2241 courts. It is undisputed that the

Western District of Missouri did not grant Cox § 2241 relief—the

Central District of Illinois did.

Several § 2241 courts who have granted habeas relief in modern

times have struggled with whether to resentence the prisoner

themselves or return the case to the original court of jurisdiction. Hill v.

Sepanek, 2017 WL 73338 * 5-9 (E.D. Ky., Jan. 6, 2017); Boone v.

Quintana, 2016 WL 3566216 * 4-7 (E.D. Ky., Jun. 27, 2016). But as the

17

Court in Boone noted, “the proper respondent is the person responsible

for maintaining – not authorizing – the custody of the prisoner.”) Id. * 7

(emphasis added). And at least one receiving court has declined to

implement a grant of § 2241 relief at all. United States v. Brye, 935 F.

Supp. 2d 1294 (M.D. Fl. 2013); United States v. Brye, 935 F. Supp. 2d

1319 (M.D. Fl. 2013).

The instant case presents an excellent procedural vehicle to

resolve the split among the lower courts about whether a § 2241 court—

or the original sentencing court—may resentence following a grant of §

2241 relief. This issue is of tremendous importance particularly in light

of Rehaif, which is very likely to spawn § 2241 litigation around the

country by federal prisoners who have already filed and been denied 28

U.S.C. § 2255 relief. This is because Rehaif, a decision of statutory

interpretation, may not be relief upon to seek authorization to file a

second or successive § 2255 motion. 28 U.S.C. § 2255(h). Rather, federal

prisoners who have already filed and been denied § 2255 relief must

proceed via § 2241 with their Rehaif claims. Accordingly, the Court

should grant certiorari on this question.

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III.

Resolving Whether Cox’s Sentence of 966 Months Is Substantively

Unreasonable Is Of Exceptional Importance

As Judge Kelly noted in her dissent in Cox, there was no

“substantial justification” for the district court’s sentence of 966

months, a 360 percent variance above the high end of the advisory

Guidelines, on an 83-year old defendant who has been in federal prison

for three decades and maintained clear conduct that entire time. Cox,

766 Fed. Appx at 428. Thousands of federal defendants are sentenced

each year to substantial terms of imprisonment. This Court has yet to

accept review in a case that provides clarity to lower courts about the

boundaries of sentences reviewed for substantive reasonableness. The

instant case presents an excellent vehicle for the Court to review this

question as it was fully briefed, and the sentence in the case is

staggering considering the amount of variance and the age of the

defendant. Accordingly, the Court should grant certiorari on this

question.

IV.

There Is A Split In The Circuits Over Whether It Violates The

Double Jeopardy Clause To Resentence A Defendant On Counts

For Sentences The Defendant Has Already Served

19

The Eighth Circuit held that it was not improper for the

district court to resentence Cox on counts that Cox had already

completed the sentence for. Cox, 766 Fed. Appx. at 426. The Eighth

Circuit’s decision conflicts with decisions from the Fourth Circuit.

United States v. Silvers, 90 F.3d 95, 101-102 (4th Cir. 1996) (“Although

an expectation of finality does not legitimately accrue by the mere

commencement of the sentence, once a defendant fully serves a sentence

for a particular crime, the Double Jeopardy Clause's bar on multiple

punishments prevents any attempt to increase thereafter a sentence for

that crime”); United States v. Olivares, 292 F.3d 196, 199 (4th Cir.

2002). Accordingly, the Court should grant certiorari to resolve the split

on this important legal question.

CONCLUSION

The petition for a writ of certiorari should be granted.

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