PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 07-11
RICHARD THOMAS STITT, a/k/a
Patrick V. Hardy, a/k/a Tom Tom,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
No. 07-12
RICHARD THOMAS STITT, a/k/a
Patrick V. Hardy, a/k/a Tom Tom,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(2:98-cr-00047-JBF)
Argued: September 24, 2008
Decided: December 24, 2008
Before WILLIAMS, Chief Judge, and MOTZ
and SHEDD, Circuit Judges.
2 UNITED STATES v. STITT
Affirmed in part; reversed and remanded in part with instruc-
tions by published opinion. Chief Judge Williams wrote the
opinion, in which Judge Motz and Judge Shedd joined.
COUNSEL
ARGUED: Gerald Thomas Zerkin, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Richmond, Virginia, for Rich-
ard Thomas Stitt. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for the
United States. ON BRIEF: Michael S. Nachmanoff, Federal
Public Defender, Alexandria, Virginia; Amy L. Austin, Assis-
tant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia; Jeffrey L.
Stredler, WILLIAMS MULLEN, Norfolk, Virginia, for Rich-
ard Thomas Stitt. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia; Darryl J. Mitchell, Assistant United
States Attorney, William D. Muhr, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for the United States.
OPINION
WILLIAMS, Chief Judge:
We granted Richard Thomas Stitt, a federal inmate, a cer-
tificate 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 Gov-
ernment 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 pen-
alty because the statute under which Stitt’s death sentence
UNITED STATES v. STITT 3
was imposed has since been repealed, see 21 U.S.C.A.
§ 848(g) (West 1999) (repealed 2006), and by sentencing Stitt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 hear-
ing.
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 Vir-
ginia and North Carolina.1 See United States v. Stitt("Stitt I"),
250 F.3d 878, 881-82 (4th Cir. 2001). Following a penalty
phase conducted pursuant to § 848(g), the jury recommended
a death sentence for each of the murders, and the district court
sentenced Stitt to death plus 780 months imprisonment. We
affirmed Stitt’s conviction and sentence on direct appeal. Stitt
I, 250 F.3d at 900.
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
1
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.
4 UNITED STATES v. STITT
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 Malin-
ski hired this "expert" instead of asking the district court to
appoint an expert in order to keep the district court from delv-
ing into Malinski’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"), 369 F. Supp. 2d 679 (E.D. Va. 2005). Accord-
ingly, the district court vacated Stitt’s death sentence. Both
sides appealed. We granted Stitt a COA on a single
claim—whether Malinski had an actual conflict of interest at
the guilt phase. We initially affirmed the district court’s denial
of relief as to Stitt’s guilt-phase conflict of interest claim and
its grant of relief as to his penalty-phase conflict of interest
claim. United States v. Stitt ("Stitt III"), 441 F.3d 297 (4th Cir.
2006). Prior to the issuance of our mandate, however, we
withdrew our opinion in Stitt III, concluding that we lacked
jurisdiction to hear the appeal because "there is no final judg-
ment ‘until the prisoners are resentenced.’" United States v.
Stitt ("Stitt IV"), 459 F.3d 483, 485 (4th Cir. 2006) (quoting
2
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 evi-
dentiary hearings he was unable to verify how much he was paid or who
paid him to represent Stitt.
UNITED STATES v. STITT 5
Andrews v. United States, 373 U.S. 334, 340 (1963)). We
remanded the case to the district court with instructions to
resentence Stitt.
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)(1) 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.A. 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 pendency 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"), 475 F. Supp. 2d 571 (E.D. Va.
2007). In the alternative, the district court concluded that,
even if it had the statutory authority to call a new sentencing
jury, it would exercise its discretion under § 2255 and decline
to do so. Id. at 576. Accordingly, the district court, from the
bench, resentenced Stitt to life imprisonment plus 780
months.
Both Stitt and the Government filed timely appeals. Pursu-
ant to United States v. Hadden, 475 F.3d 652 (4th Cir. 2007),3
3
In United States v. Hadden, 475 F.3d 652 (4th Cir. 2007), we
explained:
6 UNITED STATES v. STITT
Stitt requested a COA from this court on two issues: whether
Malinski labored under an actual conflict of interest during
the guilt-phase of the trial that adversely affected his repre-
sentation and whether Stitt was denied his right to learned
counsel. By order dated June 12, 2008, we granted Stitt a
COA on his conflict of interest claim.
Meanwhile, in its appeal, the Government no longer con-
tests the district court’s decision to grant Stitt relief as to his
claim that Malinski labored under a conflict of interest during
the penalty phase. Instead, the Government confines its appeal
to whether the district court’s resentencing decision was error.
We possess jurisdiction over the Government’s appeal pursu-
ant 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
Because a § 2255 resentencing or correction of the prisoner’s
sentence thus bears traits of both a § 2255 proceeding and a crim-
inal 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 proceed-
ing 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 prison-
er’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.
UNITED STATES v. STITT 7
adversely affected his representation. We review the district
court’s legal conclusions in denying a § 2255 motion de novo.
United States v. Poindexter, 492 F.3d 263, 267 (4th Cir.
2007). Where the district court held an evidentiary hearing
prior to its ruling, we review its findings of fact for clear
error. United States v. Roane, 378 F.3d 382, 395 (4th Cir.
2004).
Generally, in order to show ineffective assistance of coun-
sel, Stitt would be required to meet the familiar two-part
Strickland test: (1) that his lawyer afforded him defective rep-
resentation; 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. Wash-
ington, 466 U.S. 668, 694 (1984). But, when counsel is bur-
dened by an actual conflict of interest, he "breaches the duty
of loyalty, perhaps the most basic of counsel’s duties." Id. at
692. In such cases, "it is difficult to measure the precise effect
on the defense of representation corrupted by conflicting
interests." Id. Because of this difficulty in measuring preju-
dice and the seriousness of a conflict of interest, "[p]rejudice
is presumed . . . if the defendant demonstrates that counsel
actively represented conflicting interests and that an actual
conflict of interest adversely affected his lawyer’s perfor-
mance." Strickland, 466 U.S. at 692 (quoting Cuyler v. Sulli-
van, 446 U.S. 335, 348, 350 (1980)) (internal quotation marks
omitted).
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, 943 F.2d
370, 375 (4th Cir. 1991) (emphasis omitted). These require-
ments "are often intertwined." Id. But, an "[a]dverse effect
cannot be presumed from the mere existence of a conflict of
interest." Rubin v. Gee, 292 F.3d 396, 401 (4th Cir. 2002).
Only if Stitt can meet these two requirements does he qualify
8 UNITED STATES v. STITT
for Sullivan’s presumption of prejudice. See Sullivan, 446
U.S. at 348-49; Rubin, 292 F.3d at 401-02.
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 finan-
cial 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 investi-
gation 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, 441 F.3d at 305-06. Although we
later vacated that opinion, see Stitt IV, 459 F.3d at 484, we did
not purport to question the reasoning we used in denying
Stitt’s claim.
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 occur-
ring in North Carolina. Likewise, Stitt argues, two key Gov-
ernment 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
4
To establish the existence of an adverse effect, a defendant must satisfy
a three-part test:
UNITED STATES v. STITT 9
has still failed to rebut the district court’s explicit factual find-
ing 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, 369 F. Supp. 2d at 692. The district court expressly
found that Malinski and co-counsel Franklin Schwartz "were
paid flat fees for their services, with costs and expenses to be
paid as they arose. . . . Petitioner’s family agreed to raise the
money for any additional costs and expenses." Id. at 691. Stitt
contends, as he did previously, that this factual finding is
clearly erroneous given that the district court also found
"Malinski was evasive and not credible in answering ques-
tions 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 Malinski was not credible in
some respects; it simply evidences that the district
court found Malinski credible as to some issues, but
not others.
Stitt II, 441 F.3d at 306.
We believe this reasoning remains applicable today and,
accordingly, we cannot find that the district court clearly erred
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 deci-
sion. . . . 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, 240 F.3d 348, 361 (4th Cir. 2001) (en banc), aff’d, 535
U.S. 162 (2002).
10 UNITED STATES v. STITT
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 dis-
trict 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 Govern-
ment’s cross-appeal involves questions of law, which we
review de novo. United States v. Tate, 524 F.3d 449, 455 (4th
Cir. 2008). In declining to empanel a new sentencing jury, the
district court first concluded that it lacked the statutory
authority to do so before further concluding that, even if such
authority existed, it would use its broad equitable powers
under § 2255 to resentence Stitt without a jury.
Thus, the Government points to what it believes are two
statutes authorizing the empanelment 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)(C),
which provides "any person engaging in or working in fur-
therance of a continuing criminal enterprise ("CCE"), . . . who
intentionally kills or counsels, commands, induces, procures,
or causes the intentional killing of an individual and such kill-
ing results . . . may be sentenced to death." Section 848(g)
provided that "[a] person shall be subjected to the penalty of
UNITED STATES v. STITT 11
death for any offense under this section only if a hearing is
held in accordance with this section." Section 848(i)(1) autho-
rized a sentencing hearing, providing that, if the Government
filed its notice of intent to seek the death penalty and a defen-
dant 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)(1). The statute further provided that the
sentencing hearing "shall" take place "before the jury which
determined the defendant’s guilt." § 848(i)(1)(A). Stitt’s ini-
tial sentencing hearing was conducted in accordance with the
remainder of § 848.
In 2006, however, prior to Stitt’s resentencing, §§ 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 pro-
vided" 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 enu-
merated exceptions, when a defendant is found guilty of a
capital offense a separate penalty hearing "shall be con-
ducted" 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)(1)-(2).
The Government first argues that Stitt may be resentenced
by a new capital sentencing jury under § 3593(b)(2)(D).5 We
5
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 sen-
tencing jury for Stitt. The Government did not fully develop this argument
in its brief, however, and we decline to address it.
12 UNITED STATES v. STITT
disagree. Subparagraph (D), by its clear terms, permits a sec-
ond sentencing jury only when the initial sentence was
imposed "under this section." Stitt’s original sentencing hear-
ing 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,
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, 226 F.3d 291, 308 (4th Cir.
2000) aff’d, 534 U.S. 438 (2002) ("[E]ven if . . . the literal
text of the statute produces a result that is, arguably, some-
what anomalous—we are not simply free to ignore unambigu-
ous language because we can imagine a preferable version.").
Accordingly, we agree with the district court that
§ 3593(b)(2)(D) did not authorize the empanelling of a new
sentencing jury in this case.
ii.
We thus turn to the Government’s alternative argument,
that §§ 848(g)-(r) are saved against Stitt and authorize con-
vening a second sentencing jury. In particular, the Govern-
ment 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 lia-
bility incurred under such statute, unless the repeal-
ing Act shall so expressly provide, and such statute
shall be treated as still remaining in force for the pur-
pose of sustaining any proper action or prosecution
UNITED STATES v. STITT 13
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, 410 U.S. 605, 607-08, 93 S.Ct. 1151
(1973) (citations omitted). In order to avoid this common law
rule, "often the product of legislative inadvertence," Congress
enacted the Savings Statute. Warden, Lewisburg Penitentiary
v. Marrero, 417 U.S. 653, 660 (1974). The Marrero Court
explained that the Savings Statute "does not ordinarily pre-
serve discarded remedies or procedures," just the penalties,
liability, and forfeitures—the "punishment" of the prior stat-
ute. Id. at 661-62. Thus, the Marrero Court held that a "no-
parole provision" in a federal drug statute was "an element of
. . . punishment" saved by § 109. Id. at 662. As Marrero sug-
gests, courts have generally understood § 109 to save "merely
substantive rights and liabilities," but not "remedies" or "pro-
cedure." United States v. Obermeier, 186 F.2d 243, 254-55
(2d Cir. 1950).
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, 91 F.3d 670, 673 (4th
Cir. 1996). See also United States v. Brown, 429 F.2d 566
14 UNITED STATES v. STITT
(5th Cir. 1970) ("[P]enalties accruing while a statute was in
force may be prosecuted after its repeal"). For example, in
United States v. Cook, 890 F.2d 672, 675-76 (4th Cir. 1989),
we followed the logic of Marrero to hold that a later-repealed
"no probation" provision in a federal drug statute was saved
because "probation, if imposed, must be imposed as part of
the sentence pronounced at the sentencing hearing, [and
accordingly] it is included within the definition of ‘any pen-
alty.’" Id. at 676. Summarizing, we explained that because
probation was not available as a sentencing option at the time
Cook committed her crime, "section 109 prevents a statutory
change in offense classification that occurs between the time
of the violation and subsequent sentencing from making pro-
bation an available penalty at sentencing." Id.
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, 354 F.3d 171, 175 (2d Cir. 2003)
(emphasis added).
In a similar vein, the Supreme Court has explained, in sav-
ing 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, 344 U.S. 386, 390
(1953).
UNITED STATES v. STITT 15
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 (quoting The Western
Maid, 257 U.S. 419, 433 (1922)). The De La Rama Court fur-
ther noted that when considering "the repeal of statutes which
create rights and also prescribe how the rights are to be vindi-
cated," terms like "substantive and procedural are not dispa-
rate categories; they are fused components of the expression
of a policy." De La Rama, 344 U.S. at 390. Thus, in that case,
"the right created by the repealed statute and the procedure for
enforcing that right were so bound together that section 109
could not fully preserve the right without also preserving the
procedure." Barthelemy v. J. Ray McDermott & Co., 537 F.2d
168, 172 (5th Cir. 1976).
We think that this case law leads inexorably to the conclu-
sion 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 sen-
tence. Thus, in Cook, we continued to apply the original sen-
tencing 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 provi-
sions 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 pre-
served without also preserving the mechanisms for enforcing
it, §§ 848(g)-(r). Indeed, the repealed portions of § 848 are a
constitutionally required condition precedent to imposing
§ 848(e)’s penalty of a death sentence. See, e.g., Ring v. Ari-
zona, 536 U.S. 584, 609 (2002) (noting that the Sixth Amend-
ment requires aggravating circumstances be proven to jury
because they "operate as the functional equivalent of an ele-
ment of a greater offense"); Maynard v. Cartwright, 486 U.S.
16 UNITED STATES v. STITT
356, 362 (1988) ("[O]ur cases have insisted that the channel-
ing and limiting of the sentencer’s discretion in imposing the
death penalty is a fundamental constitutional requirement for
sufficiently minimizing the risk of wholly arbitrary and capri-
cious action."). This constitutional mandate, derived from the
fact that "death is different," indicates that in cases involving
capital sentencing, the procedures attendant to that capital
sentencing are part of the "penalty" saved by the general Sav-
ings Statute because, without these procedures, that penalty is
extinguished as a matter of constitutional law. Ring, 536 U.S.
at 606.
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)(1)(B)(iv) provided for the empa-
nelling 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 pris-
oner as to render the judgment vulnerable to collat-
eral 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.
UNITED STATES v. STITT 17
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, 106 F.3d 1170, 1171 (4th Cir. 1997) (quot-
ing United States v. Garcia, 956 F.2d 41, 45 (4th Cir. 1992)).
The "most appropriate remedy," we have explained, "is to put
§ 2255 defendants in the same boat as direct appellants, i.e.,
to permit resentencing." Id. at 1172. "[T]he defendant may be
‘placed in exactly the same position in which he would have
been had there been no error in the first instance.’" Id. at 1172
(quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir.
1996)).
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)(1) (emphasis added). That hearing "shall"
be conducted "before a jury impaneled for the 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)(1)(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(l)
(emphasis added). Given the repeated use of the term "shall,"
we believe it was not "appropriate" for the district court to
forego empanelling a new penalty-phase jury.
The district court’s decision also conflicts with our admoni-
tion that the defendant be placed in the "same position" as if
18 UNITED STATES v. STITT
there was no error. In this case, that position would be await-
ing 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