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
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
October Term 2017 could have been a big one for appellate jurisdiction at the Supreme Court. But it was not to be. Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc. settled before the Court could decide whether denials of state-action immunity are immediately appealable collateral orders. United States v. Sanchez-Gomez—which […]
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....