United States District Court, E.D. Michigan, Southern Division
ORDER TRANSFERRING DEFENDANT'S SECOND OR
SUCCESSIVE 28 U.S.C. § 2255 MOTION TO THE COURT OF
APPEALS FOR THE SIXTH CIRCUIT 
G. Edmunds United States District Judge
Joseph Whiting moves for the second time under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
For the reasons that follow, this Court transfers
Defendant's § 2255 motion to the Sixth Circuit for a
determination of whether Defendant has established the
requirements to have this Court consider another § 2255
2010, a jury convicted Defendant of the following: (Count
One) substantive racketeering; (Count Two) conspiracy to
commit racketeering; (Count Thirteen) conspiracy to commit
murder in aid of racketeering; and (Count Forty-Seven)
receipt and possession of stolen vehicles. (Dkt. 1470.) This
Court then sentenced Defendant to 420 months on Counts One,
Two, and Thirteen, and 10 years on Count Forty-Seven, to be
served concurrently. (Dkt. 1854, at 3.) On direct appeal, the
Sixth Circuit affirmed. United States v. Nagi, 541
F.App'x 556 (6th Cir. 2013). The Supreme Court denied
Defendant's petition for certiorari. (Dkt. 2517.)
September 2014, Defendant filed a 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. (Dkt.
2630.) Defendant then sought leave to amend his motion, which
the Court granted, and Defendant filed an amended motion in
August 2015. (Dkt. 2706; Dkt. 2710.) As amended, the motion
argued that Defendant received ineffective assistance from
both his trial counsel and his appellate counsel. Defendant
argued that trial counsel was ineffective for failing to call
Anthony Viramontez as an alibi witness. He argued that
appellate counsel was ineffective for failing to argue that:
(1) the Government violated Brady v. Maryland, 373
U.S. 83 (1963); (2) the prosecutor knowingly permitted
perjured testimony that Whiting was involved in a conspiracy
to kill Doug Burnett; (3) the Government failed to properly
incorporate and identify all of the alleged coconspirators
regarding the conspiracy to commit murder; (4) the Government
failed to ensure a unanimous jury verdict on his conviction
for receipt of stolen vehicles; and (5) his sentence on Count
Thirteen was invalid in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).
August 27, 2015, this Court entered an order granting in part
and denying in part Defendant's amended § 2255
motion. (Dkt. 2717.) The motion was granted only as to
Defendant's claim that his sentence for his conviction on
Count Thirteen exceeded the statutory maximum, and this Court
ordered that he would be resentenced on that count.
(Id. at 8.) The rest of his claims were denied.
(Id. at 3-9.) On December 17, 2015, this Court
resentenced Defendant on Count Thirteen to 10 years, to run
concurrently with his other sentences. (Dkt. 2760, at 3.) All
other convictions and sentences remained the same, including
the 420-month sentences on Counts One and Two. (Id.)
Defendant again appealed, reasserting his claims that
appellate counsel was ineffective for failing to assert
Apprendi and Brady claims. (See
Dkt. 2782.) The Sixth Circuit affirmed, concluding that
"the district court did not err when it partially denied
Whiting's § 2255 motion." (Id. at 2.)
on December 21, 2016, Defendant filed a new § 2255
motion. (Dkt. 2827.) Since then, he has submitted several
additional filings. He has filed two motions to amend the new
§ 2255 motion, as well as a proposed amended § 2255
motion. (Dkt. 2856; Dkt. 2857; Dkt. 2879.) Additionally, he
has filed notices of joinder in the arguments raised in the
respective § 2255 motions of his co-defendants, Gary
Ball and Leonard Moore. (Dkt. 2837; Dkt. 2878.) Finally,
Defendant has moved for discovery. (Dkt. 2877.) The
Government has responded to Defendant's § 2255
motion, arguing that it should be transferred to the Sixth
Circuit for a determination of whether Defendant may file a
second or successive § 2255 motion. (Dkt. 2836; Dkt.
U.S.C. § 2255(h) provides that "[a] second or
successive motion must be certified . . . by a panel of the
appropriate court of appeals[.]" In Magwood v.
Patterson, the Supreme Court examined the meaning of
"second or successive" for the purposes of 28
U.S.C. § 2254(b). 561 U.S. 320 (2010). While this case
involves a § 2255 motion, rather than a § 2254
petition, lower courts have decided that "the rule
stated in Magwood applies to § 2255
motions." Johnson v. United States, 623 F.3d
41, 45 (2d Cir. 2010); see also Kramer v. United
States, 797 F.3d 493, 501-02 (7th Cir. 2015)
(interpreting Magwood in the context of §
2255); In re Lampton, 667 F.3d 585, 588 (5th Cir.
2012) (noting that the phrase "second or
successive" is a "term of art" that carries
"the same meaning in both provisions").
facts in Magwood were as follows. After a state
court sentenced Billy Magwood to death, he filed a §
2254 petition in the federal district court. 561 U.S. at 326.
The district court granted his petition, upholding his
conviction but vacating his sentence based on an error
committed during sentencing. Id. The state court
then held another sentencing proceeding and re-imposed the
death penalty. Id. Subsequently, Magwood filed
another § 2254 petition, challenging the new sentence.
Id. at 328. The question for the Supreme Court was
whether this petition was "second or successive"
under § 2254. Id. at 330.
Court decided that the later petition was not "second or
successive" because the re-imposition of the death
penalty constituted a new, intervening judgment. See
Id. at 342. The Court explained that "the phrase
'second or successive' must be interpreted with
respect to the judgment challenged." Id. at
333. And, when there is a "new judgment intervening
between the two habeas petitions, " the petition
"challenging the resulting new judgment is not
'second or successive' at all." Id. at
Sixth Circuit has since applied Magwood in a variety
of contexts. Its most relevant decision appears to be In
re Stansell, 828 F.3d 412 (6th Cir. 2016). There, after
noting that the petition in Magwood followed the
invalidation of an entire sentence, the Sixth
Circuit turned to the § 2254 petition currently before
it, which had followed a partial resentencing that
added five years of post-release
control. Id. at 416. The court asked:
"Does this partial resentencing create an intervening
judgment that permits Stansell to raise challenges to his
(undisturbed) conviction, his (undisturbed) term of
incarceration, and his (new) term of post-release
control?" Id. "Yes, " the court
decided. Id. "Because a new custodial sentence
means a new judgment for purposes of § 2254,
Stansell's partial resentencing restarted the second or
successive count." Id. at 416-17.
Sixth Circuit then closed with significant caveats. First, it
stated that "we do not imply that any change to
a petitioner's sentence reopens the door to successive
habeas filings; we hold only that a partial resentencing that
results in the imposition of post-release control is the
type of change that creates a new judgment for
purposes of the second or successive bar." Id.
at 419 (emphasis in original). The court added: "That is
because this type of change alters the sentence 'pursuant
to' which the petitioner is 'in custody.'"
Id. (quoting 28 U.S.C. § 2254(a), (b)(1)).
Furthermore, the court clarified that it was not
deciding what happens when a court "vacates the sentence
on one of the petitioner's counts but continues to hold
him in custody under the sentence imposed on another."
Id. The ensuing citations documented a circuit split
as to whether vacating convictions or sentences on one count
of a multi-count indictment resets the "second or
successive" motion count. Id. at 419-20
the import of these caveats, this Court concludes that when
it resentenced Defendant after his first § 2255 motion,
it did not produce a "new custodial sentence, " for
it did not "alter the sentence 'pursuant to'
which [he] is 'in custody.'" Id. at
419. All of Defendant's convictions were undisturbed,
and, while the concurrent 420-month sentence on Count
Thirteen was reduced to 10 years, the concurrent 420-month
sentences on Counts One and Two survived. As a ...