Matthew Hill v. Michael Sheets , 409 F. App'x 821 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0677n.06
No. 08-4654 FILED
Nov 05, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MATTHEW L. HILL, )
)
Petitioner-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
MICHAEL SHEETS, Warden, )
)
Respondent-Appellant. )
____________________________
Before: GRIFFIN and WHITE, Circuit Judges; MURPHY, District Judge.*
HELENE N. WHITE, Circuit Judge. In this habeas corpus proceeding, Warden Michael
Sheets appeals the district court’s order vacating petitioner Matthew Hill’s sentence and directing
that Hill either be resentenced or released as a remedy for the violation of his constitutional rights
under Blakely v. Washington, 542 U.S. 296 (2004). We DISMISS the petition for lack of
jurisdiction.
FACTS AND PROCEDURAL HISTORY
We accept the state appellate court’s summary of the case:
On February 2, 2004, Appellant entered the residence of Danny Thornhill.
An altercation occurred between Appellant and Thornhill. During this altercation,
Thornhill was struck repeatedly with a handgun. Thornhill fled the residence,
followed by Appellant who fired at least two shots at Thornhill. By the time police
arrived, Appellant had fled from the scene.
*
The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 08-4654
Hill v. Sheets
On February 11, 2004, the Muskingum County Grand Jury indicted Appellant
on the following charges: one count of Aggravated Robbery with a gun specification,
in violation of Ohio Revised Code Section 2911.01(A)(1) and 2941.145, a felony of
the first degree; one count of Aggravated Burglary with a gun specification, in
violation of Ohio Revised Code Section 2911.11(A)(2) and 2941.145, a felony of the
first degree; two counts of Felonious Assault with a gun specification, in violation
of Ohio Revised Code Section 2903.11(A)(2) and 2941.145, a felony of the second
degree; one count of Theft of a Firearm, in violation of Ohio Revised Code Section
2913.02(A)(1) and 2941.145, a felony of the fourth degree; and one count of
Aggravated Burglary with a gun specification, in violation of Ohio Revised Code
Section 2911.11(A)(1) and 2941.145, a felony of the first degree.
On February 18, 2004, appellant appeared for arraignment and pled “not
guilty” to all counts set forth in the Indictment.
On August 3, 2004, a jury heard the case. At the conclusion of the trial, the
jury deliberated and returned a verdict of “guilty” on the two counts of Felonious
Assault with a gun specification, in violation of Ohio Revised Code Section
2903.11(A)(2) and 2941.145, both felonies of the second degree. The [j]ury found
Appellant “not guilty” on all other counts.
Appellant was sentenced on September 20, 2004. At the sentencing hearing,
the trial court heard the report of the presentence investigator and the arguments of
counsel for the respective parties before pronouncing sentence. Ultimately, the trial
court sentenced Appellant to serve a prison sentence of eight years on each count of
Felonious Assault and three years on each gun specification, all sentences to be
served consecutive to one another for a total sentence of 22 years. This sentence is
the maximum sentence that Appellant could have received for the crimes for which
he was convicted.[1]
1
At sentencing, the trial court explained its reasons for the sentence:
The Court also finds that, given your prior criminal history going back to a
juvenile, which includes robbery, thefts, the normal run-a-way type offenses as well
as aggravated vehicular assault and aggravated vehicular homicide, you have hurt
people in the past and obviously you have not learned from it; including a domestic
violence in 2003 and discharging a firearm in 2004, and then you go break into a
person’s house and end up shooting at him on the street.
Based on that, the Court finds, first of all, that a prison sentence is
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Hill v. Sheets
appropriate. The Court also finds that the minimum sentence would demean the
seriousness of the offense and also not adequately protect society, and the maximum
sentence is necessary to protect society because you create the greatest likelihood of
committing further crimes of similar nature. You have throughout your history so
far. Therefore, the Court will impose an 8-year sentence on each of the felonies of
the second degree.
The Court also finds that your criminal history shows that consecutive terms
are needed to protect the public. Therefore, the Court will order the 8-year sentences
be served consecutively. Given your nature and your history and all that you have
done so far, the Court finds that it’s needed to protect the public.
The Court also imposes the 3-year gun specifications. Each of the gun
specifications must – by law must be served consecutively.
Four days later, the trial court issued a written entry of judgment further explaining the sentence:
The Court finds that the presumption for second degree felonies is a prison
term and that a gun specification is a mandatory consecutive sentence.
The Court after consideration of purposes and principles under Revised Code
§ 2929.11, and the factors under § 2929.12 and § 2929.13(D), finds that the offenses
were facilitated by the defendant’s relationship with the victim, that he has a prior
adjudication, a history of criminal convictions, has failed to respond in the past to
probation, has failed to acknowledge a pattern of alcohol/drug abuse related to the
offenses, and shows no genuine remorse. The Court further finds that the Defendant
as a juvenile was convicted of Aggravated Vehicular Assault, Aggravated Vehicular
Homicide, and Robbery; as an adult he has a conviction for domestic violence, and
was ordered to attend an anger management class. Based upon the factors found, the
Court finds that the presumption for prison has not been rebutted.
The Court further finds that a minimum sentence would demean the
seriousness of the offenses, and would not adequately protect society. The Court in
further consideration of the Defendant’s record finds that he has numerous prior
crimes of violence, that he has a continuing pattern of violent acts, and that he poses
the greatest likelihood of committing future crimes and in order to punish the
defendant and protect the public maximum consecutive sentences are not only
warranted, but are not disproportionate to the danger the defendant poses. The Court
further finds that the offenses herein as well as the gun specifications are not of allied
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No. 08-4654
Hill v. Sheets
Although the remaining procedural history in state court is complex, resolution of this appeal
does not require that we describe it in detail. It is sufficient to note that Hill challenged his
conviction in both direct-appeal and post-conviction proceedings, raising several grounds including
that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). See also State v. Foster, 845
N.E.2d 470 (Ohio 2006).
In June 2007 Hill, pro se, filed a federal habeas petition in the district court. He raised two
claims: 1) that his sentence was unconstitutional because the trial judge decided sentencing factors
instead of the jury, and 2) that his appellate counsel was ineffective for failing to raise a double-
jeopardy claim on direct appeal. The Warden argued that Hill’s claims were procedurally defaulted
and meritless.
In July 2008, a magistrate judge issued a report and recommendation, finding that Hill had
procedurally defaulted his claims in state court, but that the ineffective assistance of Hill’s appellate
counsel in failing to raise a Blakely claim provided cause and prejudice excusing the default. The
magistrate judge concluded that Hill’s Blakely claim had merit (and that his double-jeopardy claim
did not) and recommended conditionally granting the petition on the Blakely claim. Over the
Warden’s objections, the district court adopted the report and recommendation. The court’s
November 4, 2008, order vacated Hill’s sentence and directed that he “be released from incarceration
unless the state resentences him within sixty (60) days.” The Warden appealed.
similar import and the defendant shall be sentenced on both counts and both gun
specifications.
(emphasis removed.)
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No. 08-4654
Hill v. Sheets
Two days after filing his notice of appeal, the Warden moved for a stay of final judgment
pending appeal, which the district court granted. By that time, Hill had filed pro se motions in state
court to begin the resentencing process.2 Hill was resentenced in state court on December 29, 2008,
by a different sentencing judge, to the same 22-year sentence.
On appeal, Hill filed a motion for counsel, which was granted, as were the parties’ motions
to take judicial notice of Hill’s resentencing.
DISCUSSION
First and foremost, this appeal presents a jurisdictional issue. As this court has explained,
Article III, Section 2 of the United States Constitution authorizes the federal judiciary
only to hear cases or controversies, and therefore federal courts may not exercise
jurisdiction when the controversy has been mooted, that is to say, when the issues
presented are no longer live or the parties lack a legally cognizable interest in the
outcome.
Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006) (internal quotation marks and citations omitted).
In Gentry, this court held that a prisoner’s release did not moot her habeas petition where her status
2
The timing was as follows: On November 28, 2008, Hill submitted pro se motions for
presentence investigation and appointment of counsel “following the issuance of a Writ of Habeas
Corpus by the United States District Court for Ohio on November 5, 2008, remanding defendant Hill
for resentencing in this Court.” Also on November 28, 2008, the Warden filed the stay motion in
federal district court. (R. 27.) Hill submitted his pro se brief opposing the motion on December 9,
2008. Hill filed his pro se state-court sentencing memorandum on December 16, 2008. On
December 17, 2008, the federal district court granted the stay. On December 22, 2008, the state
court held a hearing regarding resentencing and continued the matter to “more fully research the
details of the case.” The court, apparently unaware of the stay, cited Hill’s favorable habeas-corpus
judgment in federal court as the basis for resentencing. On December 29, 2008, the state court, still
apparently unaware of the stay, again referenced Hill’s favorable federal habeas judgment, and
resentenced Hill. Counsel for both Hill and the State of Ohio were present at both December state-
court resentencing hearings.
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as a convicted felon would cause her to face “collateral consequences,” such as not being able vote
or hold public office, and being subject to federal criminal laws and restrictions that apply only to
felons. Id. at 694-95. The Gentry court distinguished the petitioner’s habeas claim, which
challenged her conviction, from those of individuals who had challenged only their sentences, or
conditions of confinement, and received full relief from any constitutional error once they were
released. Id. at 694; see also James v. Singletary, 995 F.2d 187, 188-89 (11th Cir. 1993) (federal
habeas petition challenging sentencing mooted when state courts resentenced petitioner).
The district court’s order conditionally granting Hill’s petition vacated his sentence and
directed that he “be released from incarceration unless the state resentences him within sixty (60)
days.” Because the state resentenced Hill, he has obtained one of the two individually sufficient
options for relief ordered by the district court. Further, because Hill obtained habeas relief with
regard to his sentencing claim alone, he does not have a cognizable interest in avoiding the collateral
consequences of his conviction. As the Warden himself noted in his motion for stay, “[t]o
resentence Hill would effectively moot this litigation.” We agree. The appeal before us is moot.
In their briefs, both parties assert that Hill’s resentencing was “void” pursuant to 28 U.S.C.
§ 2251(b). That statute states in relevant part:
§ 2251 Stay of State court proceedings
(a) In general.–
(1) Pending matters.– A justice or judge of the United States before
whom a habeas corpus proceeding is pending, may, before final
judgment or after final judgment of discharge, or pending appeal, stay
any proceeding against the person detained in any State court or by or
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under the authority of any State for any matter involved in the habeas
corpus proceeding.
...
(b) No further proceedings.– After the granting of such a stay, any such proceeding
in any State court or by or under the authority of any State shall be void. If no stay
is granted, any such proceeding shall be as valid as if no habeas corpus proceedings
or appeal were pending.
28 U.S.C. § 2251 (bold removed).
Despite the parties’ concessions, it does not appear that 28 U.S.C. § 2251(b) applies here.
The stay provision allows federal courts to stay state-court proceedings. See § 2251(a)(1) (a federal
judge “may . . . stay any proceeding against the person detained in any State court”); 17B CHARLES
ALAN WRIGHT, ARTHUR MILLER, EDWARD H. COOPER, & VIKRAM DAVID AMAR,
FEDERAL PRACTICE AND PROCEDURE, § 4268.4 (referring to § 2251, stating “[b]oth before
and after judgment the district court has authority to stay all state-court proceedings that have the
effect of defeating or impairing the federal court’s jurisdiction.”); McFarland v. Scott, 512 U.S. 849,
857 (1994) (“The federal habeas corpus statute grants any federal judge ‘before whom a habeas
corpus proceeding is pending’ power to stay a state-court action ‘for any matter involved in the
habeas corpus proceeding.’”) (citing 28 U.S.C. § 2251, emphasis removed). Despite the parties’
assertions to the contrary, it is plain that the district court’s order did not stay any state-court
proceeding; rather, the court stayed its own judgment.3 See Opinion and Order, R.30 at 1 (“On
November 4, 2008 final judgment was entered . . . . This matter now is before the Court on
3
This is precisely what the Warden had asked the district court to do. The Warden’s stay
motion consistently (and only) referred to the district court’s own November 4, 2008, order of final
judgment. The Warden’s stay motion was entitled “Respondent Sheets’ Motion for Stay of Court’s
November 4, 2008[,] Judgment.” Nor did the Warden’s motion cite § 2251 in its stay request.
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respondent’s request for a stay of final judgment . . . . respondent’s request for a stay [] is granted.”).
Thus, Hill’s resentencing is not void under 28 U.S.C. § 2251(b).4
CONCLUSION
For the foregoing reasons, the appeal is moot. We DISMISS for lack of jurisdiction.
4
Nor does it appear that Hill’s resentencing violates the district court’s order. The order
granting the stay clearly envisioned affording the State time to resolve the appeal before being
compelled to resentence or release Hill. See R. 30 at 3, 2 (“By granting the request for a stay,
respondent will be able to obtain appellate review of this Court’s decision.”) (“the Court agrees that
respondent will suffer some injury absent a stay. If the Court doesn’t stay execution of the
conditional writ of habeas corpus, and the State of Ohio is required to re-sentence petitioner,
respondent’s appeal of this Court’s decision may be rendered moot.”). However, the order does not
purport to prevent the state from changing course and voluntarily participating in a resentencing
proceeding before resolution of the appeal.
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