DAMIEN FREEMAN, Petitioner-Appellant, v. LYNEAL WAINWRIGHT, Warden, Respondent-Appellee.
No. 18-3913
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: May 12, 2020
File Name: 20a0145p.06
Before: NORRIS, DONALD, and NALBANDIAN, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: March 11, 2020. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cv-01368—James S. Gwin, District Judge.
ARGUED: Katharine Mitchell-Tombras, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Jerri Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Katharine Mitchell-Tombras, COVINGTON & BURLING, LLP, Washington, D.C., for Appellant. Jerri Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
NALBANDIAN, J., delivered the opinion of the court in which NORRIS, J., joined. DONALD, J. (pp. 9–13), delivered a separate dissenting opinion.
NALBANDIAN, Circuit Judge. Missed deadlines are preventable and costly. So courts enforce them strictly. Unfortunately for Damien Freeman, that means the door to the federal courthouse is closed. This case presents a single question: does a limited resentencing that results in a better-than-before sentence constitute a new “judgment,” as defined in
I.
Damien Freeman pleaded guilty to felony murder in 2001. An Ohio trial court sentenced Freeman to fifteen years to life imprisonment, followed by post-release control for the maximum period allowed by law. Freeman failed to timely appeal.
Freeman took the proverb “if at first you don‘t succeed, try, try again” to heart. After four unsuccessful motions to withdraw his guilty plea and appeal belatedly, Freeman collaterally moved in state court to vacate his conviction and sentence in 2015. He argued the sentencing court‘s imposition of post-release control was “contrary to law” because Ohio law does not permit post-release control for felony murder convictions and his felony murder conviction was improper because there was no evidence he committed an underlying violent felony. (R. 9-2, Def.‘s Mem. in Opp‘n at PageID # 150.) The state trial court disagreed and denied his motion. But the Ohio Eighth Appellate District Court of Appeals granted Freeman post-conviction relief for the first time, at least in part. After affirming Freeman‘s conviction, that court agreed Ohio law does not provide for post-release control for felony murder. And it quoted State v. Opalach, No. 100938, 2014 WL 6065666, at *2 (Ohio Ct. App. Nov. 13, 2014), in holding that “a sentencing entry that incorrectly imposes postrelease control does not render the entire sentence void. Only that portion of the judgment that improperly imposes postrelease control is void.” (R. 9-2, Journal Entry and Op. at PageID # 234.) So the Court of Appeals remanded Freeman‘s
On remand, in January 2017, the trial court “vacated and replaced, nunc pro tunc” the journal entry from Freeman‘s original sentencing in 2001. (R. 9-2, Journal Entry at PageID # 238.) The court‘s revision left intact its original sentencing journal entry except for the single sentence discussing post-release control, which it removed.
After securing this partial victory, Freeman tried another challenge, this time federal court. He filed the
II.
We review de novo a district court‘s dismissal of a
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes strict limits on federal habeas corpus petitioners. Relevant here,
“Final judgment in a criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). And Freeman‘s sentence became final in January 2002 when he did not appeal within thirty days. See
When courts engage in a full resentencing, the resulting sentence is a new “judgment” that restarts
line of cases in which a limited resentencing benefits the prisoner, such as in a sentence-reduction proceeding under
18 U.S.C. § 3582(c) orCriminal Rule 35(b) . Such sentence modifications, federal law provides, do not disturb the underlying initial judgment, which continues to “constitute[ ] a final judgment.”18 U.S.C. § 3582(b) . As several other courts of appeals have noted, such “a reduced sentence [is] not a new one.”
Id. (quoting United States v. Jones, 796 F.3d 483, 485 (5th Cir. 2015)) (alteration in original). So to conclude that a court‘s addition of post-release control by nunc pro tunc order to the petitioner‘s sentence created a new “judgment” under
We confronted a limited resentencing resulting in a better-than-before sentence in Eberle v. Warden, Mansfield Correctional Institution—albeit an unpublished decision before Crangle. 532 F. App‘x 605 (6th Cir. 2013). In facts much like Freeman‘s, the Ohio Court of Appeals determined that an Ohio trial court incorrectly included post-release control in a defendant‘s sentence, so it “vacated the postrelease-control portion of the lower court‘s sentencing entry.” Id. at 607. The defendant then filed a
Just like Eberle, the trial court here did not hold a resentencing hearing. Nor, in effect, did it issue a new sentencing entry or issue a new judgment. Rather, it made a “single sentence modification” to Freeman‘s original sentencing journal entry, striking all post-release control. See id.; (R. 9-2, Journal Entry at PageID # 238.) True, the trial court labeled its own action as “vacat[ing] and replac[ing]” the original sentencing journal entry. But as Freeman concedes, we are not bound by the label a state court places on its actions, instead we must look to what the court actually did. (Appellant‘s Reply Br. at 6.) After all, the trial court only struck a single sentence from its original journal entry without even holding a hearing. What‘s more, Ohio law tells us “a sentencing entry that incorrectly imposes postrelease control does not render the entire sentence void. Only that portion of the judgment that improperly imposes postrelease control is void.” Opalach, 2014 WL 6065666, at *2. So it‘s clear that Freeman‘s resentencing, to the extent that term appropriately characterizes what the trial court did, was limited.
Crangle makes clear that limited resentencings that benefit the prisoner “do not disturb the underlying initial judgment, which continues to constitute a final judgment.” 838 F.3d at 678 (internal quotation marks omitted). If adding post-release control “materially increases the potential restrictions on [a prisoner‘s] liberty” and leaves the prisoner worse off, then removing post-release control must materially decrease the potential restrictions on a prisoner‘s liberty and leave the prisoner better off. Id. at 679. Thus, the trial court‘s modification of Freeman‘s sentence qualifies as a “limited resentencing [that] benefits the prisoner,” and did not disturb Freeman‘s initial judgment. And because Freeman filed his
Freeman tries to avoid Crangle three ways. We discuss each in turn.
First, Freeman argues the Crangle holding we apply here is dicta. He says distinguishing between sentences that leave a prisoner worse off and sentences that leave a prisoner better off was “‘not necessary to the outcome’ of the case and [is] therefore ‘dicta that is not binding.‘”
True, when an opinion discusses an issue beyond what the court must decide in that case, those statements do not bind future panels. Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 781 (6th Cir. 2014) (per curiam). But we believe that Crangle‘s discussion of limited resentencings that benefit prisoners was necessary to determine whether an addition of post-release control to an existing sentence created a new judgment under
Second, Freeman says Crangle‘s statement “that its holding is limited to new, worse-than before sentences is inconsistent with both binding Supreme Court precedent and persuasive authority from other Circuits. Those decisions compel the conclusion that any substantive re-sentencing—even one favorable to a petitioner—constitutes a new judgment, resetting the statute of limitations clock.” (Appellant‘s Br. at 16–17 (internal quotation marks omitted).) He cites two Supreme Court cases Crangle allegedly violates. First is Burton v. Stewart, 549 U.S. 147 (2007). Freeman argues that because the Court in Burton held that a resentencing that increased a prisoner‘s potential early release credits created a new judgment under AEDPA, Crangle‘s distinction between resentencings that leave a prisoner better off and those that leave a prisoner worse off cannot be correct. But that ignores the first aspect of Crangle‘s holding.
Next Freeman claims Crangle violates Magwood v. Patterson, 561 U.S. 320 (2010). He says that because a resentencing resulting in the same sentence as the original sentence constituted a new judgment in Magwood, it can‘t be true that a prisoner must be left worse off for a resentencing to create a new judgment under AEDPA. But an Alabama court conducted a full resentencing for Magwood. See Magwood v. State, 548 So. 2d 512, 513 (Ala. Crim. App. 1988). So again, Crangle accords with Supreme Court precedent.
Finally, we note that “we need not look [elsewhere] when binding precedent from our own Circuit answers the question.” United States v. Cavazos, 950 F.3d 329, 336 (6th Cir. 2020). Because Crangle binds us, any persuasive authority from other Circuits is irrelevant. But it is relevant that we have consistently applied Crangle to cases like Freeman‘s, albeit in unpublished orders. See, e.g., In re Robinson, No. 18-4210, 2019 U.S. App. LEXIS 14685, at *4–5 (6th Cir. May 16, 2019); Martin v. Phillips, No. 17-5499, 2018 WL 5623651, at *2 (6th Cir. July 13, 2018); Cortez v. Warden Chillicothe Corr. Inst., No. 17-3530, 2018 U.S. App. LEXIS 27015, at *3–4 (6th Cir. Feb. 16, 2018); In re Lloyd, No. 17-4014, 2018 U.S. App. LEXIS 1990, at *3 (6th Cir. Jan. 25, 2018).
As a last-ditch effort, Freeman puts forth several “practical considerations” he claims bolster his position. But “[t]he text is the law, and it is the text that must be observed.” Appoloni v. United States, 450 F.3d 185, 199 (6th Cir. 2006) (Griffin, J., concurring in part) (quoting
III.
For these reasons, we AFFIRM the district court‘s dismissal of Freeman‘s
DAMIEN FREEMAN, Petitioner-Appellant, v. LYNEAL WAINWRIGHT, Warden, Respondent-Appellee.
No. 18-3913
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
May 12, 2020
BERNICE BOUIE DONALD, dissenting. I disagree with the majority‘s conclusion that Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016) necessitates its holding. In determining so, the majority‘s decision conflicts with Supreme Court precedent. Therefore, I dissent.
In Crangle, we reversed the district court‘s holding that Crangle‘s
Crangle tells us that a nunc pro tunc order changing the imposition of post-release control, but otherwise keeping a defendant‘s sentence intact—what the majority considers a “limited resentencing“—constitutes a new judgment because the change amounts to “a material difference in [a defendant‘s] conditions of confinement.” Id. at 680. Crangle answers whether a defendant is subject to a new judgment when the change to the defendant‘s sentence is worse than-before. What about, as here, where the defendant‘s sentence may be characterized as better-than-before? Is the answer any different?1
As the majority points out, Crangle also answers that question, but it does so unnecessarily. The majority claims that, in order to reach Crangle‘s holding, “we first had to identify the limited resentencings that do not create new judgments.” Op. at 4. But that is simply not true. We acknowledged as much in Crangle, noting that, “[o]ur analysis is consistent with a line of cases in which a limited resentencing benefits the prisoner . . . .” Id. at 678
While Crangle answered our question in dictum, the Supreme Court was confronted with the question directly. In Burton v. Stewart, 549 U.S. 147 (2007), a case upon which Crangle relied, the Supreme Court was faced with determining whether the petitioner‘s amended, better-than-before sentence constituted a new judgment for the purposes of
In 1994, a state trial court sentenced Burton to a 562-month sentence for rape, robbery, and burglary, based on two alternative grounds under Washington‘s sentencing scheme—running all three counts consecutively for a total of 562 months or, in the alternative, imposing an “exceptional sentence of 562 months solely for the rape conviction” with the other sentences running concurrently. Id. at 149-50. In 1996, after a prior, unrelated conviction was overturned, Burton received an amended judgment and sentence, which “imposed a new sentence that relied solely on an exceptional 562-month sentence for the rape conviction, run concurrently with the other two terms.” Id. at 150. On direct review, the state appellate court upheld Burton‘s
Importantly, because of the adjusted basis of his sentence under the 1998 judgment, Burton became eligible for early release credits for up to thirty-three percent of his sentence, whereas when he was charged solely based on the rape count pursuant to the 1996 judgment his early release credit could not exceed fifteen percent of his term. Washington v. Burton, No. 35747-6-I, 1997 Wash. App. LEXIS 933, at *14 (Ct. App. June 9, 1997). Burton therefore received a less severe, better-than-before sentence. Id. at *37-38 (“Because the [1996 sentence] is more severe than the [1994] sentence in its implications for potential good time, we . . . vacate the sentence and remand.“).
While Burton‘s direct appeal of this new sentence was pending, he filed a
But this argument misreads AEDPA, which states that the limitations period applicable to “a person in custody pursuant to the judgment of a State court” shall
run from, as relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”
§ 2244(d)(1)(A) . Final judgment in a criminal case means sentence. The sentence is the judgment. Accordingly, Burton‘s limitations period did not begin until both his conviction and sentence became final by the conclusion of direct review or the expiration of the time for seeking such review—which occurred well after Burton filed his 1998 petition.
Id. at 156-57 (internal citations and quotations omitted).
The Supreme Court‘s holding that the district court did not have jurisdiction to consider Burton‘s second or successive petition required a finding that Burton‘s better-than-before 1998 judgment, increasing his early release credit, constituted a new judgment. Id. Consider it the other way: if the Supreme Court did not decide that Burton had received a new judgment in 1998 because it was better than his 1996 judgment, then Burton‘s petition would have been untimely as it would have been filed more than one year after the limitations period.3 Had that been the Supreme Court‘s reasoning, then the Court would have had no need to address the second or successive petition argument.
Burton thus necessitates that whether a new sentence is better or worse for the petitioner is not an element of whether a new sentence constitutes a new judgment for the purposes of
This view is also consistent with the precedent of several of our sister circuits. See Gonzalez v. Sherman, 873 F.3d 763, 765-66 (9th Cir. 2017) (finding that petitioner‘s new
The majority is right: the text is the law. But we are bound by this Court and the Supreme Court‘s precedential interpretations of that text. Although we have failed to apply Burton‘s holding in a number of unpublished post-Crangle opinions, see Op. at 7, the only thing worse than making those errors is continuing to defend them when the answer is now clear. I would VACATE the district court‘s dismissal of Freeman‘s