Petition for Writ of Certiorari — Christopher Alan Mitchell, Petitioner v. United States

NO.

____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

CHRISTOPHER ALAN MITCHELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Attorney for Mr. Christopher Mitchell

QUESTIONS PRESENTED FOR REVIEW

On August 18, 2017 the district court granted Christopher Mitchell’s 28 U.S.C. § 2255

motion seeking relief from his 15-year mandatory minimum sentence under the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). It thereby ordered that de novo resentencing

occur. The order replied upon then-controlling precedent, and the government did not appeal.

More than three years later that resentencing had still not completed, and due to an intervening

change in the law the government sought reinstatement of Mr. Mitchell’s original judgment.

But, in the interim, Mr. Mitchell had received a 24-year sentence on related conduct in state

court. He asked that rather than reimposing his original judgment, that the district court order

his federal sentence be served concurrent with his related state sentence. But, the district court

did not address his request for concurrent sentencing and instead entered an order vacating its

prior vacatur order, and reinstating Mr. Mitchell’s original sentence.

On appeal the Sixth Circuit held, inter alia, (1) that the district court had authority to

vacate or modify its more-than-three-year-old order vacating Mr. Mitchell’s original sentence,

and (2) that when the controlling law changed while Mr. Mitchell’s resentencing was ongoing,

the district court lacked authority to do anything but reinstate the original judgment.

The questions presented here are:

(1)

Is an order granting relief and resentencing under 28 U.S.C. § 2255 final when the order

changes the statutory sentencing range such that the district court cannot reimpose the

original sentence, and such that any injury to the government is immediately apparent?

(2)

Alternatively, if such an order is not final, is the district court required to vacate it

when the controlling law changes during the course of resentencing?

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

Christopher A. Mitchell v. United States, 2:14-cv-183 (E.D. Tenn.)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

PARTIES TO THE PROCEEDINGS ................................................................................... iii

RELATED CASES................................................................................................................ iii

TABLE OF CONTENTS .......................................................................................................iv

TABLE OF AUTHORITIES ................................................................................................... v

OPINIONS BELOW ............................................................................................................... 1

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF……………………………………………………………………...3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 5

REASONS FOR GRANTING OF THE WRIT .................................................................... 8

ARGUMENT…………………………………...…………………………….……………..10

I.

The Sixth Circuit erroneously relied upon Andrews v. United States to

conclude that the order vacating Mr. Mitchell’s original sentence was not yet

final..………………………………………………………………………………..11

II.

Even if the district court had authority to vacate its prior vacatur order, it was

nonetheless required to address Mr. Mitchell’s nonfrivolous request for a

concurrent sentence……………………………………………………………...…13

CONCLUSION .................................................................................................................... 17

iv

TABLE OF AUTHORITIES

Page

Federal Court Cases:

Andrews v. United States, 373 U.S. 334 (1963)…………………………………..7, 8, 11-12

Pepper v. United States, 562 U.S. 476 (2011)…………………………..…………….8-9, 15

Rita v. United States, 551 U.S. 338 (2007)……………………………..………………..8, 13

United States v. Cash, 2019 U.S. App. LEXIS 24599 (6th Cir. Aug. 16, 2019)…………….13

United States v. Hayman, 342 U.S. 205 (1952)……………………………..………………13

United States v. Martin, 371 F. App’x 602 (6th Cir. 2010)…………….……….………….13

United States v. Mitchell, 38 F.4th 382 (3d Cir. 2022)………………….……………….9, 15

United States v. Mobley, 833 F.3d 797 (7th Cir. 2016)…………………………………..9, 15

United States v. Pizzino, 419 F. App’x 579 (6th Cir. 2011)………………….……………..13

United States v. Setsert, 566 U.S. 231 (2021)…………………………….……………….6, 8

United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (“Stitt I”)…………...……….5

United States v. Stitt, 139 S. Ct. 399 (2018) (Stitt II)…………….……………………..6, 10

United States v. Wilms, 495 F.3d 277 (6th Cir. 2007)……………………….…………….13

Statutes:

18 U.S.C. § 922(g) ................................................................................................................. 5

18 U.S.C. § 924(a)(2) (2017) ............................................................................................... 12

18 U.S.C. § 924(e) ............................................................................................. ii, 2, 5, 12, 14

18 U.S.C. § 3553(a) ............................................................................................................. 10

28 U.S.C. § 1254(1) ............................................................................................................... 2

28 U.S.C. § 2255 ........................................................................................................... passim

28 U.S.C. foll. § 2255 .......................................................................................................... 13

v

Guidelines:

U.S.S.G. § 5G1.3(b) ........................................................................................................ 5-7, 8

Rules:

Fed. R. App. P. 4(a)(1)(B).................................................................................................... 13

Supreme Court Rule 13 .......................................................................................................... 2

Supreme Court Rule 29.4(a) .................................................................................................. 2

Rule 11, Rules Governing Section 2255 .............................................................................. 13

Other Sources:

Vacate, Black’s Law Dictionary (11th ed. 2019) ................................................................. 15

vi

OPINIONS BELOW

United States v. Mitchell, Opinion and Judgment, No. 20-6031, Doc. 47-2

(6th Cir. Aug. 5, 2022)..……………………………………………..……...Appx. 1-12

United States v. Mitchell, Reconsideration Order, 2:09-cr-17, R. 116,

(E.D. Tenn. Sept. 28, 2020)………………………………………….….....Appx. 13-14

United States v. Mitchell, Vacatur and Reinstatement Order, 2:09-cr-17, R. 111,

(E.D. Tenn. Aug. 20, 2020)………………………………………….….....Appx. 15-20

1

JURISDICTIONAL STATEMENT

Christopher Mitchell was originally sentenced in 2009 after pleading guilty to being a

felon in possession of a firearm pursuant to 18 U.S.C. § 924(e).

He thereafter filed a motion

for relief from that sentence under 28 U.S.C. § 2255, which was granted by the district court

on August 18, 2017.

resentencing.

As part of that order the district court also ordered a de novo

That resentencing continued over the course of more than three year, until

October 20, 2020, when the district court entered an order cancelling the resentencing and

reimposing the original judgment.

on September 3, 2020.

Mr. Mitchell filed a timely notice of appeal from that order

He also filed a motion for reconsideration, which the district court

denied on September 28, 2020.

Mr. Mitchell timely appealed that second order on October

8, 2020.

On June 17, 2021, the Court of Appeals for the Sixth Circuit granted a certificate of

appealability.

court.

But after briefing, on August 5, 2022, it issued an order affirming the district

This Court's jurisdiction is invoked under Title 28, United States Code, Section

1254(1). Pursuant to Rule 13 of the Supreme Court the time for filing a petition for certiorari

review is 90 days from the judgment of the Court of Appeals.

Accordingly, this petition is

timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the

United States and to Assistant United States Attorney Luke A. McLaurin, who appeared in the

United States Court of Appeals for the Sixth Circuit on behalf of the United States Attorney’s

Office, a federal office which is authorized by law to appear before this Court on its own behalf.

2

PRAYER FOR RELIEF

Petitioner, Christopher Mitchell, respectfully prays that a writ of certiorari issue to

review the order of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Federal statute 28 U.S.C. § 2255 provides that:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming

the right to be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the court which imposed the sentence to

vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause notice thereof to be served upon the United States

attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the court finds that the judgment 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, 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.

(c) A court may entertain and determine such motion without requiring the production of the

prisoner at the hearing.

(d) An 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.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply

for relief by motion pursuant to this section, shall not be entertained if it appears that the

applicant has failed to apply for relief, by motion, to the court which sentenced him, or that

such court has denied him relief, unless it also appears that the remedy by motion is inadequate

or ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation

period shall run from the latest of—

3

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United States

is removed, if the movant was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could

have been discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings

brought under this section, and any subsequent proceedings on review, the court may appoint

counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory

authority. Appointment of counsel under this section shall be governed by section 3006A of

title 18.

(h) A second or successive motion must be certified as provided in section 2244 by a panel of

the appropriate court of appeals to contain-(1) newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of

the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.

4

STATEMENT OF THE CASE AND FACTS

Over a decade ago Christopher Mitchell pled guilty to being a felon in possession of a

firearm pursuant to 18 U.S.C. § 922(g).

Pet. App. at 2.

He was original sentenced under

the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), and thereby received a

mandatory minimum sentence of 180-months’ incarceration. Id. This was based on two

Tennessee convictions for aggravated burglary and one Tennessee conviction for regular

burglary. Id.

Several years later, through counsel, he filed a motion to vacate or modify his sentenced

under 28 U.S.C. § 2255. Id. at 3.

And, after the Sixth Circuit issued its holding in United

States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (“Stitt I”) (Tennessee aggravated burglary

does not qualify as a crime of violence under ACCA), the district court vacated his ACCA

sentence and ordered that he be returned to the jurisdiction for resentencing. Id.

A

resentencing hearing was scheduled, and the district court heard argument on two different

dates but continued the hearing both times—once so that the district court could consider an

objection to the non-ACCA Guidelines range, and a second time because this Court had

granted certiorari in Stitt I. Id. (See also Minutes, 1st Resent. Hrg, R. 72, PageID #215; Resent.

TR, Part II, R. 84, PageID #943, 983.) At neither hearing was a new sentence ordered.

See

Pet. App. at 3.

In the interim between Mr. Mitchell’s original sentencing and the grant of his § 2255

motion he had been sentenced in Tennessee state court on related conduct.

(State Judgments,

R. 70-1, PageID #205-08.) During the second installment of Mr. Mitchell’s resentencing

hearings his attorney argued that pursuant to United States Sentencing Guidelines (“U.S.S.G.”)

5

§ 5G1.3(b) the district court could order that his federal sentence be concurrent with the related

state convictions. (TR Sent., Part II, R. 84, PageID #982.) The district court declined to issue

a ruling on that request, noting that “those are all arguments that can be raised” at the

continuation of the resentencing hearing. (Id. at PageID #982-83.) A continuation of the

resentencing hearing was never held, despite Mr. Mitchell’s requests, as this Court concluded

that Tennessee’s locational element was not overbroad, therefore overturning Stitt I. United

States v. Stitt, 139 S. Ct. 399, 404 (2018) (Stitt II); Pet. App. at 3. However, Mr. Mitchell also

specifically opposed the government’s motion to cancel the resentencing hearing and reinstate

the original judgment, arguing that “the original judgment has been vacated and should not

simply be reinstated without addressing all sentencing issued raised by the defense.” (Opp. to

Mot. to Cancel Resent., R. 110, PageID #1114.); see also Pet. App. at 3. The district court

denied Mr. Mitchell’s requests, cancelled the ongoing resentencing hearing, and ordered

reinstatement of his original judgment.

Pet. App. at 3.

Mr. Mitchell filed a motion to reconsider, were in he reraised his request for a

concurrent sentence, arguing that United States v. Setsert, 566 U.S. 231 (2021) and U.S.S.G.

§ 5G1.3(b) required consideration of concurrent time.

(Mot. to Recon., R. 112, PageID

#1123.) He noted that his original federal judgment was silent as to whether his sentence

should be concurrent or consecutive to his state sentence which means the Bureau of Prisons

(“BOP”) will interpret it as requiring that the federal sentence be consecutive.

(Id.) But, he

argued, pursuant to U.S.S.G. § 5G1.3(b) “[b]ecause the term of imprisonment results from the

state offense which is relevant conduct and related to the instant offense . . . the federal sentence

shall also be ordered to be served fully concurrent with the state sentence and [the court shall]

6

adjust the sentence for imprisonment already served on the undischarged term of

imprisonment.” (Id.)

But, the district court declined to consider whether concurrent

sentencing was appropriate here, it denied the motion for reconsideration, and it denied a

certificate of appealability.

Pet. App. at 3.

The Sixth Circuit thereafter granted a certificate of appealability as to “whether the

district court’s imposition of Mitchell’s original sentence violated the Constitution or laws of

the United States because (1) the imposition of the original sentence resulted in his federal

sentence running consecutively to his state sentence or (2) the district court inadequately

explained why the § 3553(a) factors justified the consecutive sentence.”

Id.; (Sixth Cir. R.,

Doc. 9-2 at 5-6.) After briefing, it issued an order and judgment affirming the district court.

Pet. App. at 2.

It relied upon this Court’s prior decision in Andrews v. United States, 373

U.S. 334 (1963) to conclude that the district court’s 2017 order granting § 2255 relief and

vacating Mr. Mitchell’s original sentence was not final, even though it had not been appealed

by the government, because it concluded all such § 2255 orders are interlocutory until a new

sentence has been imposed.

Pet. App. at 6.

It also held that when the controlling authority

changed regarding whether Mr. Mitchell was today subject to ACCA that change required

vacatur of the district court’s order vacating his original sentence, and required reinstatement

of the original judgment. Id. at 4-6.

7

REASONS FOR GRANTING OF THE WRIT

This appeal addresses the important, and recurring, question of when an order granting

relief under 28 U.S.C. § 2255 for purposes of resentencing becomes final, and what the duties

are of the lower courts when a change in the law, occurring after the § 2255 was granted,

impacts questions material to the original § 2255 and to the present resentencing.

The Court

of Appeals held that any such change in controlling law requires reimposition of the original

judgment, even if the government never appealed the order granting § 2255 relief.

It reached

this conclusion because it also held that this Court’s prior decision in Andrews v. United States,

373 U.S. 334 (1963) meant that every § 2255 order granting relief and ordering a resentencing

does not become final until the defendant is in fact resentenced.

But, that conclusion

overlooks the rational applied by this Court in Andrews, and results in an outcome at odds with

Andrews.

The result here is extreme for Mr. Mitchell, whose prior judgment did not address a

24-year state conviction on related conduct because that conviction had not yet occurred when

the prior judgment issued.

That prior judgment also predated this Court’s holding in United

States v. Setsert, 566 U.S. 231 (2021).

By concluding that the district court was required to

reimpose the original—but long since vacated—sentence, the Sixth Circuit sanctioned a

consecutive sentence for Mr. Mitchell of a cumulative 39 years, but without any explanation

from the district court as to the appropriateness of that sentence under the 18 U.S.C. § 2255

factors and U.S.S.G. § 5G1.3(b).

That conclusion runs afoul of not only Andrews, but also

this Court’s prior pronouncements in Rita v. United States, 551 U.S. 338, 339-40 (2007)

(district court must consider nonfrivolous arguments in support of a lower sentence), Pepper

8

v. United States, 562 U.S. 476, 507 (2011), the Seventh Circuit’s conclusion in United States

v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016) (when a judgment has been vacated, and a de

novo resentencing has been ordered, “the defendant has a 'clean' slate—that is, there is no

sentence until the district court imposes a new one")); and the Third Circuit’s holding in United

States v. Mitchell, 38 F.4th 382, 388 (3d Cir. 2022) (a vacatur for de novo resentencing “washes

away the original sentence,” such that the “entire sentence” is set aside; it “effectively wipe[s]

the slate clean”).

This case presents the Court with an opportunity to define when an order granting §

2255 relief for resentencing becomes final, where the grant of relief changes the statutory range

such that the defendant cannot receive the same sentence he originally had.

It also provides

the Court with the opportunity to address whether a change in the law after a § 2255 is granted

(but not appealed) automatically requires reinstatement of the vacated judgment, or if the

parties and the court should instead move forward and issue a new sentence as part of a

resentencing.

Both questions are of unique importance not only to Mr. Mitchell, but to the vast and

ever-growing number of defendants who receive relief under § 2255.

vehicle for tackling these issues.

9

This case is a good

ARGUMENT

Mr. Mitchell was waiting to be resentenced after a successful 28 U.S.C. § 2255 motion

resulted in the vacatur of his judgment and sentence.

Years after his sentence was correctly

vacated under controlling law and while awaiting resentencing, the applicable law changed as

this Court issued United States v. Stitt, 139 S. Ct. 399 (2018) (“Stitt II”).

As part of that

resentencing—and three years after the district court vacated his 15-year ACCA sentence—

the district court concluded that Stitt II required reapplication of the ACCA’s fifteen (15) year

mandatory minimum.

Because it was going to sentence Mr. Mitchell to that 15-year

minimum, but nothing higher, and because it overlooked that Mr. Mitchell had requested that

his federal sentence be concurrent with his related state sentence, the district court simply

reimposed the original 15-year sentence.

(Vacatur Order, R. 111, PageID #1121 n.6 (“Since

the Court is without discretion to impose any sentence of less than 180 months of

imprisonment, no sentencing hearing is needed.”)

In doing so, it erroneously failed to address Mr. Mitchell’s nonfrivolous request for his

sentence to be concurrent with his related state sentence.

That resulted in a sentence of

twenty-four (24) years in state court for the identical conduct that is the basis of his federal

fifteen (15) year mandatory minimum.

Because the district court failed to address his

nonfrivolous request for concurrent sentencing he is presently subject to a total of thirty-nine

years in prison, but without the district court ever considering whether this cumulative

sentence was justified by the 18 U.S.C. § 3553(a) factors and without the district court ever

justifying why it varied from the Guidelines’ recommendation for a concurrent sentence under

U.S.S.G. § 5G1.3(b).

10

Before the Sixth Circuit the government presented the novel argument that Stitt II,

which was decided well over a year after Mr. Mitchell’s original judgment was vacated and

while he was in the process of being resentenced, required the district court to reimpose the

original judgment. The Sixth Circuit erroneously agreed.

law to so conclude.

The district court correctly vacated Mr. Mitchell’s original judgment and

sentence under the controlling law at the time.

the law changed.

But, it relied on inapposite case

It was during the course of resentencing that

Just because Stitt II meant that Mr. Mitchell’s Tennessee burglary

convictions once again counted as ACCA predicates, that does not mean that Stitt II magically

resurrected the original—voided—sentence.

I.

The Sixth Circuit erroneously relied upon Andrews v. United States to

conclude that the order vacating Mr. Mitchell’s original sentence was not

yet final.

The Sixth Circuit concluded that the order granting Mr. Mitchell’s § 2255 motion and

vacating his original sentence was not final until a new sentence was imposed. Pet. App. at

6.

Thus, it concluded that the district court had the authority to vacate the § 2255 grant, even

through more than three years had passed since its entry.

To reach this conclusion, it relied

upon Andrews, 373 U.S. at 337, and interpreted that case as holding that “[o]rders vacating

sentences under § 2255, after all, are interlocutory where resentenceing has yet to occur.”

Pet. App. at 6.

But looking at this quotation in isolation misses the bigger context and picture of

Andrews and overlooks the reason that this Court reached its decision in Andrews.

The Court

explained in Andrews that “it is obvious that there could be no final disposition of the § 2255

proceedings until the petitioners were resentenced” because “[t]he District Court may, as

before, sentence the petitioners to the same 25 years’ imprisonment,” and that “[u]ntil the

11

petitioners are resentenced, it is impossible to know whether the Government will be able to

show any colorable claim of prejudicial error.”

Andrews, 373 U.S. at 340.

Thus, in

Andrews, even though the defendant won relief under § 2255, that relief did not change his

statutory range such that it was possible for him to receive the exact same sentence at his

resentencing that he originally received.

So, at the time the § 2255 was granted it remained

possible for the same sentence to be reimposed, such that it could turn out that the government

ultimately suffered no injury at all.

But, the same cannot be said here.

When the district court vacated Mr. Mitchell’s

original sentenced under § 2255 it held that ACCA was erroneously applied.

Unlike in

Andrews, without ACCA the district court could not resentence Mr. Mitchell to the same 15year sentence because at that time, ACCA increased a 10-year statutory maximum to a 15-year

mandatory minimum. Compare 18 U.S.C. § 924(a)(2) (2017) with 18 U.S.C. § 924(e).

By

granting the § 2255 motion the district court fundamentally changed the available

punishments. In short, the government’s injury was apparent at the very moment the district

court granted the § 2255—precisely because there was no way to reimpose the same sentence

under the § 2255 order. Thus, the primary reason this Court gave when concluding that the

grant of § 2255 for resentencing is not final until the defendant is resentenced does not apply

here.

Instead, that rational indicates that this § 2255 was final, because any harm to the

government necessarily occurred at the time the ACCA enhancement was voided.

The Sixth Circuit’s reliance on Andrews is misplaced.

Because its injury was

immediately apparent upon the district court’s grant of Mr. Mitchell’s § 2255 motion, that

order became final when the time for the government to appeal expired.

12

And that was only

60 days—not three-plus years—after the § 2255 was granted.

United States v. Hayman, 342

U.S. 205, 209 n.4 (1952); Rule 11, Rules Governing Section 2255, 28 U.S.C. foll. § 2255; Fed.

R. App. P. 4(a)(1)(B).

Accordingly, the district court lacked the authority to modify its order

granting Mr. Mitchell § 2255 relief.

resentencing.

II.

It could only move forward and complete the

The Sixth Circuit erred in holding otherwise.

Even if the district court had authority to vacate its prior vacatur order, it

was nonetheless required to address Mr. Mitchell’s nonfrivolous request

for a concurrent sentence.

Alternatively, the Sixth Circuit erred by concluding that when the controlling law

changed, such that Mr. Mitchell was again subject to ACCA, that the district court lacked

authority to do anything other than reinstate the original ACCA sentence.

Pet. App. at 6.

To the contrary, because Mr. Mitchell raised a nonfrivolous request for a concurrent sentence

as part of his resentencing hearing, the district court was instead required to address that

request prior to issuing its order vacating its prior § 2255 vacatur, or any order that resulted in

a new sentence.

Rita v. United States, 551 U.S. 338, 339-40 (2007) (explaining the

sentencing judge’s duty to adequately consider all “nonfrivolous reasons for imposing a

different sentence”); United States v. Pizzino, 419 F. App’x 579, 584 (6th Cir. 2011)

(explaining the district court’s duty to address a defendant’s nonfrivolous arguments for a

lower sentence (citing United States v. Wilms, 495 F.3d 277, 282 (6th Cir. 2007))); United

States v. Cash, 2019 U.S. App. LEXIS 24599, at *4 (6th Cir. Aug. 16, 2019) (“where, as here,

a defendant specifically requests a concurrent sentence, the district court must explicitly rule

on that request and adequately explain its ruling” (citing United States v. Martin, 371 F. App’x

602, 604 (6th Cir. 2010))).

13

Mr. Mitchell’s original sentence had long since been vacated—it no longer existed and

did not control anything—such that the district court had discretion to complete the

resentencing.

His original ACCA judgment (including its silence as to concurrent

sentencing) was not magically resurrected by this Court’s subsequent decision in Stitt II. Given

Mr. Mitchell’s nonfrivolous request for a concurrent sentence, the district court not only had

discretion to deny the government’s motion to vacate its prior vacatur order, but had an

obligation to conclude the resentencing by giving adequate consideration to that request, even

if after considering Mr. Mitchell’s request for a concurrent sentence the district court still

believed that reimposition of the original judgment was appropriate.

Years had passed since the original judgment was vacated and the time in which the

district court relied upon the new law issued by this Court in Stitt II.

On July 27, 2017 the

parties filed a joint motion arguing that Mr. Mitchell “can no longer be subjected to the

enhanced statutory penalties of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e),” and that the district court “should grant him relief under 28 U.S.C. § 2255.” (Joint

Status Report, R. 53, PageID #159.)

The government made no qualifications to this

conclusion, instead affirmatively arguing that the district court should either resentence him or

correct his sentence.

(Id. at PageID #160.)

Thereafter, on August 18, 2017, the district

court vacated his prior judgment, closed the civil case (where all of the § 2255 litigation

occurred), and ordered a resentencing hearing.

(Judgment Order, R. 55, PageID #171.)

That resentencing occurred over the course of years, and it was not until April 1, 2019 that the

government affirmatively asked the district court to reverse course.

86, PageID #987-90.)

(Gov’t Sent. Memo., R.

And, when it first requested that the original judgment be reimposed,

14

even the government repeatedly indicated that the choice to vacate the § 2255 order in lieu of

resentencing was discretionary.

(Sent. Memo., R. 86, PageID #989-99 (“Because the § 2255

proceedings are not final this Court, may—and should—modify its earlier order . . . .”

(emphasis added)).)

It was during this resentencing that Mr. Mitchell asked that his sentence be concurrent

with his related state sentence.

Because the original sentence had been vacated it no longer

had any force or effect—Mr. Mitchell had no federal sentence at all.

Vacate, Black’s Law

Dictionary (11th ed. 2019) (defining “vacate” as “To nullify or cancel; make void; invalidate

<the court vacated the judgment>. Cf. OVERRULE.”); Mitchell, 38 F.4th at 388 (“To vacate

is ‘to cancel or rescind’ and to ‘render an act void.’ Thus, a vacatur ‘cancels’ the previous

sentence.”). A vacatur “cancel[s] the unlawful sentence and render[s] the defendant

unsentenced.” Mitchell, 38 F.4th at 388.

It “washes away the original sentence,” and where

the resentencing is to be de novo (as is the case when a defendant wins vacatur under 18 U.S.C.

§ 2255), the “entire sentence” is set aside; a vacatur “effectively wipe[s] the slate clean.” Id.

(citing Pepper v. United States, 562 U.S. 476, 507 (2011)).

When a judgment has been

vacated, and a de novo resentencing has been ordered, “the defendant has a 'clean' slate—that

is, there is no sentence until the district court imposes a new one." United States v. Mobley,

833 F.3d 797, 802 (7th Cir. 2016) (emphasis added).

In order for Mr. Mitchell’s original ACCA-sentence to become effective again, the

district court had to order it back into effect—it had to resentence him.

The error here is the

Sixth Circuit’s conclusion that the district court was required to enter an order vacating its

prior vacatur order instead of proceeding to the resentencing.

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It was during this resentencing

process that Stitt II announce new law.

That new law meant that Mr. Mitchell’s burglary

convictions now qualified as ACCA predicates, such that any new sentence must also be an

ACCA sentence, but it did not require that the original judgment be reinstated, as the Sixth

Circuit’s opinion suggests.

Stitt II merely meant that the district court had to consider

whether Mr. Mitchell was now, again, subject to ACCA as part of his resentencing.

Stitt II did not automatically erase the vacatur that had previously occurred.

water was already under the bridge, so to speak.

That

By granting the § 2255 and vacating the

ACCA sentence under the then controlling law the prior sentence became no more.

And just

as with any case that proceeds after this Court vacates a judgment, the normal—and

appropriate—course is to move forward and resentence under the law applicable today.

See

Mitchell, 38 F.4th at 388.

The Sixth Circuit erred by holding that the district court was required to reinstate the

original—yet validly vacated under then-controlling law—judgment when the controlling law

changed.

Instead, the district court should have considered Mr. Mitchell’s nonfrivolous

request that his 24-year state sentence and his 15-year federal sentence, both ordered to punish

the same conduct, be served concurrently.

The district court should have considered Mr.

Mitchell’s nonfrivolous request for concurrent sentencing before it decided to reimpose the

original judgment.

Or at a minimum, it should have addressed his request for concurrent

sentencing in its order vacating the first vacatur order.

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CONCLUSION

In consideration of the foregoing, Mr. Christopher Mitchell submits that the petition

for certiorari should be granted, the order of the Sixth Circuit Court of Appeals vacated, and

the case remanded to the district court for resentencing.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

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