United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
VACATE SENTENCE [# 138]
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Quenton Thomas Whitsell,
Sr.'s Motion to Vacate Sentence. Dkt. No. 138. Petitioner
argues that new precedent requires this Court to resentence
him. Id. at pg. 7 (Pg. ID 1217). For the reasons
that follow, this Court will deny Petitioner's Motion to
21, 2010, Petitioner pleaded guilty to possession with intent
to distribute and possession of a firearm in furtherance of a
drug trafficking crime. Dkt. No. 63, pg. 1 (Pg. ID 441). On
January 3, 2011, this Court sentenced him to 322 months of
imprisonment. Dkt. No. 76, pg. 2 (Pg. ID 610). On January 7,
2013, Petitioner filed a Motion to Vacate Sentence. Dkt. No.
99. This Court denied his Motion on April 23, 2015. Dkt. No.
126. Thereafter, the Fair Sentencing Act was amended and the
guideline sentencing range for Petitioner's offense was
lowered. The Fair Sentencing Act lowered Petitioner's
sentence based on the amount of crack cocaine Petitioner was
in possession of. Dkt. No. 93, pg. 4 (Pg. ID 747). On June
16, 2015, this Court resentenced Petitioner to 216 months of
imprisonment. Dkt. No. 131. On August 16, 2017, Petitioner
filed a second Motion to Vacate Sentence. Dkt. No. 138.
Petitioner argues that the ruling in Dean v. United
States requires this Court to resentence him. 137 S.Ct.
1170 (2017); id. at pg. 7 (Pg. ID 1217). In
Dean, the Supreme Court held that sentencing courts
can consider the mandatory firearm sentence imposed under 18
U.S.C. § 924(c) when calculating a sentence for a
predicate violent or drug trafficking offense. Dean,
137 S.Ct. at 1178. Respondent opposed the Motion on October
2, 2017. Dkt. No. 141. Petitioner replied on October 31,
2017. Dkt. No. 143.
petitioner wishes to file a second or successive application
for writ of habeas corpus, he must “move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244 (2016).
will grant relief under 28 U.S.C. § 2255 if there was:
“(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.” U.S. v. Doyle, 631
F.3d 815, 817 (6th Cir. 2011).
or Successive Application
argues that the present Motion is Petitioner's second or
successive application for writ of habeas corpus. Dkt. No.
141, pg. 3 (Pg. ID 1227). Respondent claims that Petitioner
is actually challenging his initial sentencing because
Petitioner references his original sentencing in his Motion.
Id. at pg. 4 (Pg. ID 1228); Dkt. No. 138, pg. 7 (Pg.
ID 1217). Therefore, Petitioner must get an order from the
Sixth Circuit so that this Court can consider the present
Motion. Id. Petitioner argues that his Motion is not
a second or successive application because he is not
challenging his original sentencing that occurred on January
3, 2011. See Dkt. No. 143, pg. 7 (Pg. ID 1241). He
is challenging his resentencing that occurred on June 16,
2015. See id.
second or successive application “must be interpreted
with respect to the judgment challenged.” Magwood
v. Patterson, 561 U.S. 320, 332-33 (2010). Therefore, an
application that challenges a new or different judgment is
not second or successive. See Id. at 332-43.
Accordingly, an application that challenges a resentencing is
not second or successive. See Magwood v. Patterson,
561 U.S. at 331. The resentencing is a new judgment. See
id.; In re Stansell, 828 F.3d 412, 417 (6th
Cir. 2016) (“final judgment in a criminal case means
sentence. The sentence is the judgment.”) (quoting
Berman v. U.S., 302 U.S. 211, 212 (1937)).
Therefore, if Petitioner's Motion is challenging his
resentencing, then it is not a second or successive
Sixth Circuit has elaborated on the significance of a
court's resentencing on the second or successive analysis
that the Supreme Court created in Magwood. In In
re Stansell, the Sixth Circuit considered whether an
application for writ of habeas corpus was second or
successive. In re Stansell, 828 F.3d 412, 416-17
(6th Cir. 2016). In Stansell, the state trial court
sentenced the petitioner to twenty years to life in prison.
Id. at 414. The petitioner unsuccessfully challenged
his sentence in federal district court. Id. The
state trial court then resentenced Petitioner, instituting a
sentence of five years of post-release control in addition to
the original twenty years. Id. The petitioner then
filed a second habeas petition, claiming that the trial court
erred when it classified him as a sexually violent predator
during his first sentencing hearing. Id.
This was the only claim in the petitioner's second
application, and it was the same claim that he raised in his
first petition. Id.
Sixth Circuit held that the petitioner's partial
resentencing, which added a term of post-release control,
constituted a new judgment. Id. at 416. Therefore,
Petitioner's second habeas petition was not second or
successive. Id. The Court reasoned that “the
sentence that matters in a habeas case . . . is the one
pursuant to which an individual is held in custody.”
Id. The Court stated that before his resentencing,
the judgment that kept the petitioner in custody was the
sentence of twenty years. Id. However, after his
resentencing, what kept the petitioner in custody was a
sentence of twenty years and five years of post-release
control. Id. Therefore, the partial resentence was a
new judgment and the petitioner's second habeas
application was not second or successive. Id. at
416-17. Here, Petitioner is in ...