Appealing the Choice of § 2255 Remedy

When a district court grants relief under 28 U.S.C. § 2255, it can choose from among several different remedies. Among those remedies are (1) correcting the petitioner’s sentence and (2) conducting a full resentencing. Successful § 2255 petitioners who want to challenge their new sentence can appeal under 28 U.S.C. § 1291 without first obtaining a certificate of appealability. But what if a § 2255 petitioner wants to challenge only the choice of remedy—correcting the sentence rather than resentencing—without challenging the sentence itself?

In Clark v. United States, the Third Circuit held that a § 2255 petitioner challenging the choice of remedy must obtain a certificate of appealability. In so holding, the Third Circuit joined with the Eleventh Circuit and split from the Fourth and Sixth Circuits. The court of appeals went on to hold that the petitioner in Clark had not made the requisite showing for a certificate of appealability.

The Remedy & Appeal in Clark

Simplifying a bit, the petitioner in Clark had been convicted of a variety of offenses, including a firearm offense. He was sentenced to life in prison plus an additional five years for the firearm offense to be served consecutively. The petitioner later sought relief under § 2255, challenging the firearm conviction. The district court determined that the conviction was unlawful and vacated it. But rather than conduct a full resentencing, the district court chose to correct the sentence. So the district court simply vacated the five-year consecutive sentence, leaving the remaining sentence untouched.

The petitioner then appealed. In that appeal, he did not challenge the the legality of his remaining sentence. He instead challenged the district court’s choice of remedy, arguing that the district court should have conducted a full resentencing rather than merely correct the sentence.

The Necessity of a Certificate of Appealability

28 U.S.C. § 2253(c) requires that litigants obtain a certificate of appealability before appealing “the final order in a proceeding under section 2255.” The defendant in Clark had not obtained a certificate of appealability from the district court on this issue. The Third Circuit accordingly needed to determine whether a certificate was necessary. The court concluded that it was.

The court explained that granting a § 2255 petition is a two-step process. The district court must first determine that petitioner’s sentence is unlawful. If the district court so concludes, it vacates and sets aside the existing judgment. The district court then proceeds to the next step of determining the appropriate remedy.

The Third Circuit held that the choice of remedy—in Clark, between resentencing and correcting the sentence—was part of the § 2255 proceeding. That’s because “§ 2255(b) requires the court to choose an appropriate remedy from among the four listed options; thus, the choice of a remedy is necessarily part of the § 2255 proceeding.” In so holding, the Third Circuit joined (and echoed the reasoning of) the Eleventh Circuit. But it split with the Fourth and Sixth Circuits, who hold that no certificate of appealability is needed.

The Third Circuit ended by noting that a challenge to the legality of the sentence itself would not require a certificate of appealability. But the petitioner in Clark did “not raise any sentence-specific challenges in his appeal—that is, he [did] not argue that his new criminal sentence [was] statutorily, constitutionally, or otherwise erroneous.” He instead challenged only the choice of remedy, which required a certificate.

Clark v. United States, 2023 WL 4986498 (3d Cir. Aug. 4, 2023), available at the Third Circuit and Westlaw