7th Circuit orders new resentencing hearing

December 21, 2015

A man who appealed the parts of his Section 2255 proceeding that were denied, as well as his new criminal judgment entered on rehearing, will be getting a new sentencing hearing, the 7th Circuit Court of Appeals determined Monday.

Describing Frederick T. Garner’s case as an “unnecessary procedural snarl,” the 7th Circuit ordered a full resentencing on his convictions of federal gun and drug crimes. He was originally sentenced to 322 months in prison, but later sought relief under 28 U.S.C. Section 2255, asserting ineffective assistance of counsel and that his sentence was enhanced using a state conviction that was later vacated, violating his due process rights.

The district court granted his motion regarding the enhancement aspect and ordered resentencing. But, at resentencing, the parties believed it could not question the effectiveness of Garner’s counsel based on the district court’s ruling in the Section 2255 matter. After he was resentenced to 248 months, Garner appealed.

Chief Judge Diane Wood noted this case “went off the rails” when Garner thought he needed to appeal the adverse portion of the district court’s August 2013 opinion.

Garner did not win in part and lose in part in 2013 when the court ruled on his Section 2255 motion, Wood wrote. He won, period, she said.

“The only relief that he wanted was resentencing, and resentencing is what the district court promised. But because of the misunderstanding that arose after Garner tried to appeal from the district court’s comments indicating the court saw no merit in Garner’s ineffective-counsel argument, Garner did not receive the full resentencing to which he was entitled,” she continued.

“All that remains is to dispose of the two appeals before us: No. 13-3506, which complains about the district court’s rationale in the Section 2255 case, and No. 15-3661, which is an untimely appeal from resentencing.”

Because Garner prevailed in the Section 2255 proceeding, he is not allowed to appeal in that case. And although is appeal in the criminal case is untimely, the government agreed not to challenge it. The judges vacated the new criminal sentence and remanded for full resentencing, at which both sides will be free to present all their arguments.

The appeals are Frederick T. Garner v. United States of America, 13-3506, 15-3661.


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