Affirmed in part; reversed and remanded in part with instructions by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.
OPINION
We granted Richard Thomas Stitt, a federal inmate, a certificate of appealability (“COA”) to consider his claim that during the guilt phase of his federal capital proceeding, his trial counsel labored under a conflict of interest that adversely affected his representation. By way of cross-appeal, the Government argues that the district court, after granting Stitt relief under 28 U.S.C.A. § 2255 (West Supp. 2008) as to the penalty phase of his trial and vacating his death sentence, erred by concluding that Stitt was no longer eligible for the death penalty because the statute *348 under which Stitt’s death sentence was imposed has since been repealed, see 21 U.S.C.A. § 848(g) (West 1999) (repealed 2006), and by sentencing Stitt to life imprisonment. We agree with the district court that Stitt is not entitled to relief as to his guilt-phase conflict of interest claim, but we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109 (West 2005). Accordingly, we vacate Stitt’s life sentence and remand the case for a new sentencing hearing.
I.
In 1998, a jury sitting in the Eastern District of Virginia convicted Stitt of three counts of murder during a continuing criminal enterprise, in violation of 21 U.S.C.A. § 848, as well as numerous other federal drug and firearms offenses in Virginia and North Carolina.
1
See United States v. Stitt (“Stitt
I”),
On May 12, 2003, Stitt filed a timely motion under 28 U.S.C.A. § 2255 to vacate his conviction and sentence. In his § 2255 motion, Stitt raised two claims relevant to the current appeal. First, Stitt contended that his trial counsel, Norman Malinski, labored under a conflict of interest at the guilt phase of Stitt’s trial. Specifically, Stitt claimed that Malinski failed to conduct an investigation or hire appropriate experts to investigate the alleged criminal acts that occurred in North Carolina. Stitt claimed that Malinski failed to do so because, under the fee agreement between him and Malinksi, any expense payments were to come from the retainer paid to Malinski, and Malinski wanted to keep that money. Second, Stitt argued that Malinski was likewise under a conflict of interest during the penalty phase of Stitt’s trial. This claim focused on Malinski’s decision to hire an “expert” on future dangerousness whose only knowledge of federal prisons came from watching a television program. Stitt argued that Malinski hired this “expert” instead of asking the district court to appoint an expert in order to keep the district court from delving into Malin-ski’s fee agreement with Stitt. 2
Following two evidentiary hearings, the district court entered an order denying all of Stitt’s claims except the claim that Stitt had been denied his right to conflict-free counsel during the penalty phase of his trial.
Stitt v. United States (“Stitt II”),
On remand, the district court sua sponte entered an order requesting the parties to brief the following question:
Although 21 U.S.C. § 848(i)(l) contemplates the impaneling of a new jury for the purpose of a capital resentencing, can this Court exercise its “broad and flexible § 2255 remedial power,” United States v. Hillary,106 F.3d 1170 , 1172 (4th Cir.1997), to “correct the sentence as may appear appropriate,” 28 U.S.C. § 2255, and resentence Petitioner without application of the Death Penalty.
(J.Á. at 1774.)
Following briefing, the district court answered its question in the affirmative and declined to empanel a new sentencing jury for the penalty phase, concluding that Stitt was no longer statutorily eligible for the death penalty. The district court reached this conclusion after finding that § 848(g), which had been repealed during the pen-dency of Stitt’s appeals, could no longer apply to Stitt and that the Federal Death Penalty Act, 18 U.S.C.A. § 3591
et seq.
(“FDPA”), did not provide a mechanism for empanelling a new sentencing jury.
Stitt v. United States (“Stitt V”),
Both Stitt and the Government filed timely appeals. Pursuant to
United States v. Hadden,
Meanwhile, in its appeal, the Government no longer contests the district court’s decision to grant Stitt relief as to his claim that Malinski labored under a conflict of *350 interest during the penalty phase. Instead, the Government confínes its appeal to whether the district court’s resentenc-ing decision was error. We possess jurisdiction over the Government’s appeal pursuant to 18 U.S.C.A. § 3742(b) (West 2000) and 28 U.S.C.A. § 1291 (West 2006).
II.
A.
We first address Stitt’s claim that Malinski had an actual conflict of interest during the guilt phase of Stitt’s trial that adversely affected his representation. We review the district court’s legal conclusions in denying a § 2255 motion
de novo. United States v. Poindexter,
Generally, in order to show ineffective assistance of counsel, Stitt would be required to meet the familiar two-part
Strickland
test: (1) that his lawyer afforded him defective representation; and (2) that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington,
Thus, in order to fall within the
Sullivan
presumption, we have explained that a defendant must demonstrate “an actual conflict of interest” that “result[s] in an adverse effect on counsel’s performance.”
United States v. Tatum,
B.
Stitt’s claim before us is that Malinski labored under a financial conflict of interest that kept him from retaining investigators in North Carolina during the guilt phase of Stitt’s trial. In particular, Stitt contends that, under the financial agreement between him and Malinski, Malinski was required to pay for all case-related expenses out of his own pocket and that Malinski, not wishing to incur the costs of an out-of-state investigator, thus declined to pursue any investigation in North Carolina.
Stitt’s claim raises an intriguing procedural point; in
Stitt III,
we granted Stitt a COA on this claim but denied relief, concluding that Stitt could show neither an actual conflict nor an adverse effect.
Stitt III,
In an effort to avoid our conclusion in Stitt III, Stitt has brought forth evidence that an investigation in North Carolina would have been a reasonable choice. In particular, Stitt argues that Count One of the indictment against him, which alleged a conspiracy to distribute in excess of 50 grams of crack, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999) and 18 U.S.C.A. § 2 (West 2000), listed 48 overt acts occurring in North Carolina. Likewise, Stitt argues, two key Government witnesses, Marcus Reid and Sadat Muhammad, testified extensively and almost exclusively about Stitt’s drug operations in North Carolina.
Even were we to assume, however, that Stitt’s evidence on this point satisfies the “adverse effect” prong of Sullivan,
4
Stitt has still failed to rebut the district court’s explicit factual finding that “there is no indication that the money Malinski received for his representation was directly correlated to money that would be paid for experts or other fees and costs.”
Stitt II,
court also found “Malinski was evasive and not credible in answering questions about the source of the funds, his expenditures, and his record-keeping.” Id. at 692. As Judge Motz succinctly wrote for this court in our later-withdrawn opinion in Stitt III, This finding does not contradict the district court’s further finding that Malin-ski was not credible in some respects; it simply evidences that the district court found Malinski credible as to some issues, but not others.
Stitt III,
We believe this reasoning remains applicable today and, accordingly, we cannot find that the district court clearly erred in accepting Malinski’s explanation as to the source of his funding during the guilt phase. With this factual finding in place, Stitt cannot show an “actual conflict,” and we therefore affirm the district court’s denial of this claim.
III.
In its cross-appeal, the Government contends that the district court committed reversible error in refusing to empanel a new sentencing jury for Stitt after it granted him relief on his penalty-phase conflict of interest claim. The Government’s cross-appeal involves questions of law, which we review
de novo. United States v. Tate,
Thus, the Government points to what it believes are two statutes authorizing the empanehnent of a new sentencing jury for Stitt, § 848(g) and the FDPA, 18 U.S.C.A. § 3593(c). The Government further contends that, under § 2255, the district court was not permitted to resentence Stitt without calling a new sentencing jury. We address each contention in turn.
A.
i.
When Stitt was initially sentenced to death in 1998, his death sentence was authorized by 21 U.S.C.A. § 848(e)(1)(A), which provides “any person engaging in or working in furtherance of a continuing criminal enterprise (‘CCE’), ... who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results ... may be sentenced to death.” Section 848(g) provided that “[a] person shall be subjected to the penalty of death for any offense under this section only if a hearing is held in accordance with this section.” Section 848(i)(l) authorized a sentencing hearing, providing that, if the Government filed its notice of intent to seek the death penalty and a defendant was found guilty under subsection (e), “the judge who presided at the trial ... shall conduct a separate sentencing hearing to determine the punishment to be imposed.” 21 U.S.C.A. § 848(i)(l). The statute further provided that the sentencing hearing “shall” take place “before the jury which determined the defendant’s guilt.” § 848(i)(l)(A). Stitt’s initial sentencing hearing was conducted in accordance with the remainder of § 848.
In 2006, however, prior to Stitt’s resen-tencing, §§ 848(g)(r) were repealed by Congress and § 848(e) offenses were made death penalty eligible in accordance with the FDPA. See Pub.L. 109-177, 120 Stat. 231, 232. See also 18 U.S.C.A. § 3591(a) (noting a “defendant who has been found guilty of ... any other offense for which a sentence of death is provided” is to have a hearing held under § 3593 to determine whether imposition of a death sentence is proper).
Section 3593 further provides that, subject to several enumerated exceptions, when a defendant is found guilty of a capital offense a separate penalty hearing “shall be conducted” before the jury that determined the defendant’s guilt. The exceptions are in cases where: (A) the defendant pled guilty; (B) the defendant was convicted at a bench trial; (C) “the jury that determined the defendant’s guilt was discharged for good cause;” or (D) “after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary.” 18 U.S.C.A. § 3593(b)(l)-(2).
The Government first argues that Stitt may be resentenced by a new capital sentencing jury under § 3593(b)(2)(D).
5
We disagree. Subparagraph (D), by its clear terms, permits a second sentencing jury only when the initial sentence was imposed “under this section.” Stitt’s original sentencing hearing was conducted under § 848, not the FDPA. However .broadly one reads the phrase “under this section,” it plainly cannot be read to encompass a sentence imposed under § 848,
*353
which appears in a different Title of the United States Code. We are not permitted to ignore the statute’s plain language.
See Sigmon Coal Co. v. Apfel,
ii.
We thus turn to the Government’s alternative argument, that §§ 848(g)-(r) are saved against Stitt and authorize convening a second sentencing jury. In particular, the Government contends that, because § 848(e) maintained death eligibility for defendants like Stitt, it would be anomalous to conclude that there are no statutory mechanisms for holding a new capital sentencing proceeding. In contrast, Stitt argues that, as the district court concluded, the Savings Statute saves only substance, not procedures like those encompassed in § 848.
The Savings Statute, 1 U.S.C.A. § 109, provides:
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
1 U.S.C.A. § 109.
Originally passed in 1871, the statute serves to undo the common law rule of abatement. As the Supreme Court has explained:
At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. Abatement by repeal included a statute’s repeal and re-enactment with different penalties. And the rule applied even when the penalty was reduced.
Bradley v. United States,
Consistent with
Marrero,
we have explained that, under the Savings Statute, “a liability that arises under a later-repealed statute is preserved despite repeal and may be enforced by a post-repeal action.”
Korshin v. Comm’r,
Accordingly, we followed our earlier pronouncement “that the term ‘penalty’ in section 109 ‘embraces ... the
sentence
imposed by the court.’ ”
Id.
(quotation marks omitted) (emphasis added). Likewise, other courts have indicated that “sentencing is an integral part of the ‘prosecution’ of the accused, as that term is used in § 109, and therefore that
§ 109 saves sentencing provisions
in addition to substantive laws.”
United States v. Smith,
In a similar vein, the Supreme Court has explained, in saving a later-repealed statute, that:
[W]here the object of Congress was to destroy rights in the future while saving those which have accrued, to strike down enforcing provisions that have special relation to the accrued right and as such are part and parcel of it, is to mutilate that right and hence to defeat rather than further the legislative purpose.
De La Rama S S Co. v. United States,
The Court reasoned that “[l]egal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.”
Id.
at 390,
We think that this case law leads inexorably to the conclusion that §§ 848(g)-(r) are saved by the Savings Statute. First, as noted, courts are in agreement that “sentencing provisions” are saved as part of the “prosecution” of a “penalty” even when a later change alters the availability of a particular sentence. Thus, in Cook, we continued to apply the original sentencing options even though a change in offense classification created new alternatives at Cook’s resentencing. Likewise, in this case we continue to apply the original sentencing provisions because the repeal of §§ 848(g)-(r) would have the effect of eliminating a previously-available sentencing option, a death sentence, at the resentencing.
Second, and perhaps more importantly, just like in
De La Rama,
the penalty provided in § 848(e) cannot be fully preserved without also preserving the mechanisms for enforcing it, §§ 848(g)-(r). Indeed, the repealed portions of § 848 are a constitutionally required condition prece
*355
dent to imposing § 848(e)’s penalty of a death sentence.
See, e.g., Ring v. Arizona,
Accordingly, because the “enforcing provisions” of § 848(g)-(r) are both akin to a “sentencing provision” and also have a constitutionally mandated “special relation to the accrued right,” the Savings Statute operates to save them against Stitt. And, § 848(i)(l)(B)(iv) provided for the empan-elling of a sentencing jury in cases where the original death sentence was later vacated. Thus, the district court erred by concluding that it lacked the statutory authority to convene a new sentencing jury.
B.
In the alternative, the district court concluded that, even assuming it possessed statutory authority to convene a new penalty-phase jury for Stitt, it would use its equitable § 2255 powers and decline to do so. The operative provision of § 2255 provides as follows:
If the court finds ... 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.
28 U.S.C.A. § 2255(b).
This language “confers a ‘broad and flexible’ power to the district courts ‘to fashion an appropriate remedy.’”
United States v. Hillary,
We review a district court’s use of its equitable powers under § 2255 for abuse of discretion, focusing upon whether the district court’s choice was “appropriate.” Id. Although we recognize the broad discretion the district court possesses in crafting a remedy under § 2255, we must find that it abused that discretion in this case. Section 848(i) provided that, if the Government files the appropriate death-eligibility notice (which it did in 1998), and if the defendant is found guilty of the death eligible offenses (which Stitt was in 1999), then “the judge who presided at the trial ... shall conduct a separate hearing to determine the punishment to be imposed.” 21 U.S.C.A. § 848(i)(l) (emphasis added). That hearing “shall ” be conducted “before a jury impaneled for the *356 purpose of the hearing if ... after initial imposition of a sentence under this section, redetermination of the sentence under this section is necessary.” 21 U.S.C.A. § 848(i)(l)(B)(iv) (emphasis added). And, if a jury recommends a sentence of death, “the court shall sentence the defendant to death.” 21 U.S.C.A. § 848(i) (emphasis added). Given the repeated use of the term “shall,” we believe it was not “appropriate” for the district court to forego em-panelling a new penalty-phase jury.
The district court’s decision also conflicts with our admonition that the defendant be placed in the “same position” as if there was no error. In this case, that position would be awaiting a penalty phase after having been convicted of death-eligible offenses. The district court’s justification, the time between the initial death penalty hearing and the resentencing, fails to recognize that Congress, by providing in § 848(i) that a second penalty phase “shall” be held when the original death sentence is later overturned, has already legislatively addressed that concern.
IV.
The decision of the district court denying Stitt habeas relief as to his guilt-phase claims is affirmed. Because, however, the Savings Statute saves § 848(g), we believe the district court’s decision to sentence Stitt to life imprisonment plus 780 months without calling a new sentencing jury must be reversed, and we remand the case for a new capital sentencing hearing conducted pursuant to § 848(g).
AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH INSTRUCTIONS
Notes
. Stitt was tried jointly with Kermit Brown, Robert Mann, and Percell Davis. The trial lasted almost two months and established that Stitt was the leader of a drug organization responsible for distributing more than 150 kilograms of crack cocaine in Portsmouth, Virginia and Raleigh, North Carolina from 1990 to 1998. The three murder charges were based upon the killings of James Griffin, Sinclair Simon Jr., and James Gilliam, Jr., all of which occurred in Virginia.
. Indeed, the financing arrangement between Malinski and Stitt remains shrouded in mystery to this day. During trial, the Government contended that Malinski received more than $500,000 in drug money to defend Stitt. While Malinski contested the Government on this point, during the evidentiary hearings he was unable to verify how much he was paid or who paid him to represent Stitt.
. In
United States v. Hadden,
Because a § 2255 resentencing or correction of the prisoner’s sentence thus bears traits of both a § 2255 proceeding and a criminal action, we conclude that an order entering the result of such a resentencing or an order correcting the prisoner's sentence is a hybrid order that is both part of the petitioner’s § 2255 proceeding and part of his criminal case.
Id. at 664.
Thus, "[t]o the extent the order formally completes the prisoner’s § 2255 proceeding, it is part of that proceeding, and, accordingly, a prisoner’s appeal of that aspect of the order is an appeal of a § 2255 proceeding.” Id. And, before we can entertain that appeal, the prisoner "must obtain a COA under § 2253.” Id. But, "[t]o the extent the order vacates the original sentence and enters a new criminal sentence ... the order is part of the petitioner’s criminal case.” Id. Thus, under Hadden, Stitt's appeal is part of his § 2255 proceeding, while the Government’s appeal is part of Stitt’s original criminal case.
. To establish the existence of an adverse effect, a defendant must satisfy a three-part test:
First, the petitioner must identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued. Second, the petitioner must show that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney at the time of the attorney's tactical decision.... Finally, the petitioner must establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.
Mickens v. Taylor,
. At oral argument, the Government also pressed 18 U.S.C.A. § 3593(b)(2)(C), which permits the calling of a new jury for sentencing when the first was excused for “good cause,’’ as authorizing a new sentencing jury for Stitt. The Government did not fully develop this argument in its brief, however, and we decline to address it.