PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2704
____________
KENT LEROY CLARK,
Appellant
v.
UNITED STATES OF AMERICA
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:19-cv-17214)
District Judge: Honorable Madeline Cox Arleo
____________
Argued on January 19, 2023
Before: AMBRO,* PORTER, and FREEMAN,
Circuit Judges
(Filed: August 4, 2023)
*
Judge Ambro assumed senior status on February 6, 2023.
Louise Arkel
Evan J. Austin [Argued]
Rahul K. Sharma
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Counsel for Appellant
Mark E. Coyne
Steven G. Sanders [Argued]
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Defendant-Appellee
___________
OPINION OF THE COURT
____________
FREEMAN, Circuit Judge.
As a matter of first impression in this Circuit, we must
decide whether a certificate of appealability is required for a
prisoner in federal custody to appeal a district court’s choice of
remedy in a 28 U.S.C. § 2255 proceeding. We hold that a
certificate of appealability is required. Because Kent Clark has
failed to make the requisite showing to obtain one, we will
dismiss his appeal for lack of jurisdiction.
2
I
In January 1985, Clark and Darryl Devose carried out a
violent scheme in hopes of extorting $200,000 from a banker.
They assaulted and kidnapped a postal worker at gunpoint,
stripped him of his uniform, and restrained him in the back of
his mail truck. Disguised in the postal worker’s clothing,
Devose gained entry to the banker’s home by feigning a mail
delivery and then signaled to Clark to join him. Once inside,
they held the banker’s 85-year-old mother-in-law and 19-year-
old daughter at gunpoint and called the banker while he was at
work to demand a $200,000 ransom. While Devose was in
another room, Clark raped the banker’s daughter. After calling
a third accomplice at the drop site to report that the plan was
underway, Clark and Devose handcuffed the banker’s daughter
and mother-in-law to the refrigerator and moved to leave the
home. They saw police officers outside the front door, so they
fled through the back door, discarding the postal uniform and
a revolver in their path.
A grand jury returned an indictment charging Clark and
Devose with several crimes. Devose pleaded guilty and agreed
to testify against Clark. In 1990, after a five-day trial, a jury
found Clark guilty of seven counts: two conspiracy offenses,
attempted extortion, assault of a postal worker, kidnapping,
theft of a postal vehicle, and a firearm offense. The firearm
conviction was for using a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c)(1), and it carried a
mandatory minimum sentence of five years’ imprisonment.
The kidnapping offense was the predicate “crime of violence.”
After a sentencing hearing, the District Court sentenced
Clark to life imprisonment on the kidnapping count to run
3
concurrent to lesser terms of imprisonment imposed on all
other counts except the § 924(c) count, on which it sentenced
Clark to a consecutive five years’ imprisonment, as the statute
required. Clark’s offenses predated the effective date of the
Sentencing Reform Act of 1984, so the Sentencing Guidelines
did not apply to his case. U.S. Sent’g Guidelines Manual,
Ch.1, Pt.A (U.S. Sent’g Comm’n 2021) (“[T]he guidelines
took effect on November 1, 1987, and apply to all offenses
committed on or after that date.”).
This Court affirmed the judgment on direct appeal, and
Clark filed numerous unsuccessful collateral attacks in the
ensuing years. In 2019, the Supreme Court decided United
States v. Davis, 139 S. Ct. 2319 (2019), holding that a portion
of § 924(c)’s definition of “crime of violence” is
unconstitutionally vague. Thereafter, we granted Clark leave
to file a second or successive 28 U.S.C. § 2255 motion
challenging his § 924(c) conviction.
In the District Court, the parties agreed that kidnapping
does not qualify as a crime of violence under § 924(c) after
Davis, but they disagreed about how the Court should resolve
the § 2255 motion. Clark urged the District Court to grant it,
vacate the § 924(c) conviction, and conduct a full resentencing
on the remaining counts of conviction.1 The government
1
In support of a full resentencing, Clark argued that (1) the
firearm conviction was a “consequential alteration of the
[sentencing] calculus” undertaken by the 1991 sentencing
court, (2) evidence of his post-sentencing rehabilitation should
4
argued that the District Court should apply the concurrent
sentence doctrine and deny the § 2255 motion outright
because, in its view, vacating the unconstitutional § 924(c)
conviction would not affect Clark’s life sentence.2 Clark
responded that the concurrent sentence doctrine was
inapplicable because his sentence on the § 924(c) count has
collateral consequences affecting his parole eligibility. See
United States v. Clemons, 843 F.2d 741, 743 n.2 (3d Cir. 1988)
(noting that the concurrent sentence doctrine does not apply
be considered under Pepper v. United States, 562 U.S. 476
(2011), (3) it is “quite possible” he was wrongly convicted,
particularly as there was no DNA evidence linking him to the
crimes, and (4) “[e]ven if [he] is not innocent, his sentence to
life in prison in 1991 may well have been the product of
sentencing policies that have been drastically reconsidered in
the intervening years.” App. 292–95.
2
Under the concurrent sentence doctrine, courts have
“discretion to avoid resolution of legal issues affecting less
than all of the counts in an indictment where at least one count
will survive and the sentences on all counts are concurrent.”
United States v. McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997).
Recently, we held that a district court did not abuse its
discretion when it applied the logic of the concurrent sentence
doctrine and declined to consider two defendants’ post-
conviction challenges to § 924(c) sentences that ran
consecutive to their unchallenged life sentences. Duka v.
United States, 27 F.4th 189, 194–95 (3d Cir. 2022).
5
“when defendants may suffer possible collateral consequences,
such as impaired parole eligibility”).3
The District Court declined to apply the concurrent
sentence doctrine because the § 924(c) conviction had
collateral consequences for Clark’s parole eligibility. It
granted the § 2255 motion in part, vacated the § 924(c)
conviction and its accompanying five-year consecutive
sentence, and ordered that Clark’s remaining convictions and
sentences remain undisturbed. It denied Clark’s request for a
full resentencing, explaining:
[Clark’s] § 924(c) conviction carried a
mandatory minimum sentence of five years, to
be served consecutively to the other sentences,
which the sentencing court separately imposed.
Other than speculation on the part of Petitioner,
nothing suggests the Court increased the
sentences on the kidnapping or other charges due
to the § 924(c) conviction. The sentencing took
place prior to imposition of the Sentencing
Guidelines; as such, Clark’s § 924(c) conviction
3
Clark is eligible for parole on his life sentence because he
committed his kidnapping offense before the Sentencing
Reform Act of 1984 went into effect; for that reason, his
circumstances differ from those in Duka, 27 F.4th at 191. See
supra note 2. Clark was not eligible for parole on his now-
vacated § 924(c) sentence. Act of Oct. 12, 1984, Pub. L. No.
98–473, § 1005(a), 98 Stat. 1837, 2138-39 (current version at
18 U.S.C. § 924(c) (2022)).
6
could not have increased his Guidelines or
statutory penalties for the kidnapping conviction.
App. 17 (emphasis removed). The District Court entered its
order on the § 2255 motion on August 12, 2021, and it entered
a corresponding amended judgment of sentence on August 26,
2021.
On September 10, 2021, Clark filed a notice of appeal
from the order “entered in this action on August 12, 2021.”
App. 1. We informed Clark that an appeal from the final order
in a § 2255 proceeding may not proceed unless a judge issues
a certificate of appealability (“COA”). Thereafter, Clark filed
an “Application for Certificate of Appealability” in which he
characterized his appeal as a direct appeal from a new criminal
sentence and thus argued that a COA is unnecessary. In the
alternative, he argued that a COA should issue because
reasonable jurists could debate whether the District Court
abused its discretion by declining to conduct a full
resentencing. In response, the government asserted that Clark
is challenging the District Court’s choice of a remedy in a
§ 2255 matter, which it argued is an appeal from the final order
in a § 2255 proceeding and thus requires a COA. A motions
panel referred the matter to a merits panel to consider whether
Clark must obtain a COA.
II
As a threshold matter, we must determine whether we
have jurisdiction to consider the merits of Clark’s appeal. The
District Court had subject matter jurisdiction under 28 U.S.C.
§ 2255. Solis v. United States, 252 F.3d 289, 293 (3d Cir.
2001). We always have jurisdiction to consider our own
7
jurisdiction. El v. City of Pittsburgh, 975 F.3d 327, 333 (3d
Cir. 2020).
Clark argues that this is a direct appeal from a new
criminal sentence—a proceeding over which we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The government contends that Clark is appealing from the final
order in a 28 U.S.C. § 2255 proceeding, so this Court lacks
jurisdiction unless Clark obtains a COA. 28 U.S.C. § 2253(c).
Because § 2255’s statutory framework supports the
government’s position, we conclude that Clark must obtain a
COA before this Court can consider the merits of his appeal.
A
28 U.S.C. § 2255 provides a process through which
persons in federal custody can collaterally attack their
sentences. When a prisoner files a § 2255 motion, a district
court must determine whether the judgment of sentence “was
rendered without jurisdiction, or that the sentence imposed was
not authorized by law or otherwise open to collateral attack, or
that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” 28 U.S.C. § 2255(b). If the
court answers that question in the affirmative, it “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.” Id.
Thus, the remedy for an unlawful sentence proceeds in
two steps. At Step One, the court vacates and sets aside the
judgment, and at Step Two it selects the “appropriate” remedy
from among four options: (1) “discharge the prisoner,” (2)
8
“resentence him,” (3) “grant a new trial,” or (4) “correct [his]
sentence.” Id.; see also United States v. Cody, 998 F.3d 912,
915–16 (11th Cir. 2021) (discussing § 2255(b)’s “two-part
remedial process”).
A defendant must obtain a COA to pursue an appeal
“from . . . the final order in a proceeding under section 2255.”
28 U.S.C. § 2253(c)(1)(B). Until a COA has issued, federal
courts of appeals lack jurisdiction to rule on the merits of such
a challenge. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
A COA may issue only if the defendant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
In Clark’s case, the District Court concluded that § 2255
relief was warranted due to the unconstitutional 18 U.S.C.
§ 924(c) conviction, so it proceeded to the two-step remedial
process—first vacating and setting aside the judgment, and
then correcting Clark’s sentence. In this appeal, Clark
challenges the District Court’s choice to correct his sentence
rather than hold a full resentencing.
Our sister courts are divided about whether a COA is
necessary when a defendant obtains § 2255 relief and seeks to
challenge the district court’s choice of remedy. The Fourth and
Sixth Circuits do not require a COA in this circumstance. The
Fourth Circuit held that a prisoner who receives a corrected
sentence may “challenge[] the relief granted—i.e., whether the
relief was ‘appropriate’ under § 2255” without a COA. United
States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007); accord
Ajan v. United States, 731 F.3d 629, 631 (6th Cir. 2013)
(quoting Hadden and reaching the same result). In contrast,
the Eleventh Circuit requires a COA “when a federal prisoner
9
obtains relief through a [§ 2255] motion . . . and appeals the
decision to correct only the illegal sentence instead of
performing a full resentencing.” Cody, 998 F.3d at 913.
We agree with the Eleventh Circuit that “[i]t is apparent
from the text of section 2255 that a district court’s choice
between correcting a sentence and performing a full
resentencing is a part of the proceeding under that statute,” not
part of the underlying criminal case. Cody, 998 F.3d at 915.
After all, when a district court vacates an unconstitutional
sentence, § 2255(b) requires the court to choose an appropriate
remedy from among the four listed options; thus, the choice of
a remedy is necessarily part of the § 2255 proceeding. If we
nonetheless permitted Clark a direct appeal of the choice of
remedy, we would flout § 2253(c)(1)(B)’s command that a
COA must issue for a defendant to appeal “the final order in a
proceeding under section 2255.” As such, we hold that a COA
is required when an appeal challenges solely whether the
district court granted an appropriate § 2255 remedy.
Clark urges us to construe this appeal as a challenge to
his new criminal sentence. It is uncontroverted that a challenge
to the sentence entered following a § 2255 proceeding is
directly appealable.4 Cody, 998 F.3d at 916 (“An erroneous
4
Thus, today we answer in the affirmative the question we left
unresolved in United States v. Williams: “whether a movant
who obtains a modified sentence on a § 2255 motion may
appeal from the new sentence without obtaining a certificate of
appealability if he seeks nothing more on the appeal than relief
10
resentencing or an erroneous correction following a proceeding
under section 2255 is reviewable without a certificate of
appealability.”); Hadden, 475 F.3d at 664 (recognizing that a
challenge to “whether the new sentence was in conformity with
the Constitution or Sentencing Guidelines” does not require a
COA); Ajan, 731 F.3d at 631 (same, quoting Hadden); United
States v. Lafayette, 337 F.3d 1043, 1046 (D.C. Cir. 2003)
(recognizing that no COA is required to appeal the sentence
entered after a successful § 2255 motion).
But Clark does not raise any sentence-specific
challenges in his appeal—that is, he does not argue that his new
criminal sentence is statutorily, constitutionally, or otherwise
erroneous. Instead, he challenges only the District Court’s
choice not to grant a full resentencing. Because Clark seeks to
challenge Step Two of his § 2255 proceeding—choice of
remedy—he must obtain a COA.5
from the sentence.” 158 F.3d 736, 740–41 (3d Cir. 1998). Our
answer is both consistent with that of our sister circuits, as well
as this Court’s own practice. Indeed, we routinely hear appeals
challenging sentence-specific aspects of new sentences entered
following § 2255 proceedings. See, e.g., United States v.
Smack, 347 F.3d 533 (3d Cir. 2003); United States v. Blount,
235 F. App’x 935 (3d Cir. 2007); United States v. Wiltshire,
736 F. App’x 322 (3d Cir. 2018).
5
We disagree with Clark’s contention that the District Court
abused its discretion by failing to exercise the full extent of its
discretion—i.e., by holding “that because resentencing was not
required, it would not do [so].” Appellant’s Br. 17. The
11
B
“Our conclusion that a certificate of appealability is
required for this appeal to go forward does not necessarily
compel us to dismiss the appeal.” United States v. Williams,
158 F.3d 736, 741 (3d Cir. 1998). We now consider whether
Clark has met the requirements to obtain one. We have
jurisdiction under 28 U.S.C. § 2253 to decide whether to issue
a COA. Solis, 252 F.3d at 293.
To obtain a COA, a defendant must “ma[k]e a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This showing “is satisfied even if the
claim is only debatably constitutional.” United States v. Doe,
810 F.3d 132, 145 (3d Cir. 2015). “A claim can be debatable
even though every jurist of reason might agree, after the COA
has been granted and the case has received full consideration,
that [the] petitioner will not prevail.” Miller-El, 537 U.S. at
338.
District Court’s opinion shows that it understood its discretion
to choose among the available § 2255 remedies. See, e.g., App.
14 (“Section 2255 provides a ‘flexible remedy,’ . . . and a court
has the discretion to vacate the judgment, grant a new trial,
resentence, or correct the sentence, ‘as may appear
appropriate[]’ . . . .” (citations omitted)); App. 18 (“[T]he
Court is satisfied that it is within the Court’s discretion to
vacate Petitioner’s 924(c) conviction and five-year consecutive
sentence but leave his other convictions and sentences
undisturbed.”).
12
Clark asserts that “the District Court’s decision to
correct [his] sentence rather than grant him a full resentencing
implicated his Due Process right to be present at a full
resentencing hearing.”6 Appellant’s Reply Br. 14. We
disagree.
This is not a case in which the District Court was
required to conduct a full resentencing after vacating one count
of conviction. Cf. United States v. Davis, 112 F.3d 118, 121
(3d Cir. 1997) (“The interdependence of the vacated § 924(c)
conviction and the remaining . . . offenses suggests that
resentencing on all counts is the only result consistent with the
punishment prescribed by law [and under the Sentencing
Guidelines].”). Because Clark’s offenses predate the
enactment of the Sentencing Guidelines, he cannot argue that
vacatur of the § 924(c) conviction impacted his overall offense
level or Guidelines calculations, and nothing in the record
suggests that a full resentencing was required. Cf. United
States v. Brown, 879 F.3d 1231 (11th Cir. 2018) (hearing a
choice-of-remedy appeal from a § 2255 proceeding in which
the district court imposed an upward variance from the new
Guidelines range without holding a resentencing hearing).
Moreover, although defendants have an unqualified due
process right to be present at sentencing (including
resentencing), United States v. Mannino, 212 F.3d 835, 845 (3d
6
Clark also argues that a COA is warranted because a
constitutional claim—i.e., that the § 924(c) conviction is
unconstitutional under United States v. Davis, 139 S. Ct. 2319
(2019)—was the basis for his § 2255 motion. But he does not
appeal the District Court’s resolution of the Davis question, so
that cannot be a basis for a COA.
13
Cir. 2000), they do not have a right to be present any time a
criminal sentence is merely corrected. See, e.g., Fed. R. Crim.
P. 43(b) (recognizing that a defendant’s presence is not
required in “a proceeding involv[ing] the correction or
reduction of a sentence under Rule 35 or 18 U.S.C.
§ 3582(c)”). Given the circumstances of his case, vacatur of
Clark’s § 924(c) conviction did not constitutionally entitle him
to a full resentencing.
When it is debatable that the district court’s choice of
remedy violated the defendant’s constitutional rights, a COA
will issue. Here, jurists of reason would agree without debate
that the District Court did not violate Clark’s constitutional
rights by denying his request for a full resentencing.
Accordingly, we will not issue a COA.
III
An appeal challenging the district court’s choice of
remedy in a § 2255 proceeding is subject to the COA
requirement, so we lack jurisdiction to hear a defendant’s
appeal unless he makes a substantial showing of the denial of
a constitutional right. Clark has failed to make the required
showing for a COA, so we will dismiss the appeal for lack of
jurisdiction.
14