                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2009

USA v. Hammer
Precedential or Non-Precedential: Precedential

Docket No. 06-9000




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                                    PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


         Nos. 06-9000 and 06-9001


    UNITED STATES OF AMERICA,
                   Appellee/Cross-Appellant
               v.

        DAVID PAUL HAMMER,
                    Appellant/Cross-Appellee


Appeals from the United States District Court
  for the Middle District of Pennsylvania
     (D.C. Criminal No. 96-cr-00239)
 District Judge: Honorable Malcolm Muir


          Argued January 14, 2009

Before: McKEE, RENDELL and NYGAARD,
             Circuit Judges.

           (Filed: May 11, 2009)
Anne L. Saunders, Esq.
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

Matthew Stiegler, Esq. [ARGUED]
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

Michael Wiseman, Esq.
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
  Counsel for Appellant/Cross-Appellee

Gwynn X. Kinsey, Jr., Esq. [ARGUED]
U.S. Department of Justice
Criminal Division, Capital Case Unit
1331 F. Street, N.W., Room 336
Washington, DC 20530

Frederick E. Martin, Esq.
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701
  Counsel for Appellee/Cross-Appellant

                             2
                 OPINION OF THE COURT


RENDELL, Circuit Judge.

       David Paul Hammer pled guilty to murder in 1998 and
was sentenced to death. He appeals from the District Court’s
denial of relief under 28 U.S.C. § 2255 for his guilt-phase
claims. The government appeals from the District Court’s order
that Hammer be resentenced. We will dismiss the appeals, as
we lack jurisdiction because the orders of the District Court are
not final.

                   I. Factual Background 1

        In April of 1996, while a prisoner at USP Allenwood,
Hammer killed his cellmate, Andrew Marti. After tying Marti
to the bed frame and gagging him with a pair of socks, Hammer
strangled Marti using a rope made of strips of braided sheets.


  1
    The District Court opinion contains an exhaustive detailing
of the facts of this case. See United States v. Hammer, 404 F.
Supp. 2d 676 (M.D. Pa. 2005). We will not extensively revisit
them here. We discuss the events of the trial, the penalty phase,
and the post-conviction proceedings to provide context and
background information, but note that, because we conclude that
we have no jurisdiction based on lack of finality, they are not
essential to our reasoning or conclusion.

                               3
He was charged with first degree murder, and the government
declared its intention to seek the death penalty.

        After a psychiatric evaluation, Hammer presented an
insanity defense. A forensic psychiatrist testified that Hammer
suffered from dissociative identity disorder (formerly known as
multiple personality disorder) and that one of his alter
personalities2 killed Marti; therefore, the defense argued,
Hammer himself was not legally responsible. A government
expert testified that Hammer did not suffer from the disorder
and was responsible for his actions. About three weeks into the
trial, Hammer told the court that he wanted to plead guilty.
After another psychiatric evaluation, Hammer was deemed
competent and pled guilty on June 22, 1998. At the change of
plea proceeding, the government gave a brief summary of the
evidence, and the court asked Hammer if he concurred.
Hammer disagreed with some of the summary’s details, but
acknowledged that he tied Marti to the bed and killed him, and
that before the incident he told other inmates that he was going
to kill Marti. Hammer’s acknowledgment of responsibility for
Marti’s death led the court to find intent to kill and
premeditation.

     The penalty phase lasted three weeks. For a jury to
recommend the death penalty, it must find that the government


   2
    The defense’s forensic psychiatrist testified that Hammer
had four alter personalities: 1) Jocko, a violent male; 2)
Tammy, a female; 3) Wilbur, a child; and 4) Jasper, a
chimpanzee. He contended that Jocko killed Marti.

                               4
has proven at least one statutory aggravating factor beyond a
reasonable doubt. 18 U.S.C. § 3592(c). The Hammer jury
found the following statutory aggravating factors unanimously
and beyond a reasonable doubt: 1) that Hammer intentionally
killed Marti and that he did so after substantial planning and
premeditation; and 2) that he had previously been convicted of
several felony offenses involving the use of a firearm. The jury
also found the following non-statutory aggravating factors,
unanimously and beyond a reasonable doubt: 1) that Hammer
represented a continuing danger to the lives and safety of others
because he was likely to commit criminal acts of violence; and
2) that he caused harm to Marti’s family as a result of the
murder.

       The jury was then presented with 15 possible mitigating
factors,3 and required to determine whether or not Hammer had
proven any of them by a preponderance of the evidence. The
jury found unanimously that Hammer had proved the following
mitigating factors: 1) Hammer was the product of a violent,
abusive, and chaotic childhood; 2) he attempted to seek help for
mental difficulties while he was a child; 3) he would be
sentenced to life in prison with no possibility of release if he
were not sentenced to death; and 4) his friends and family would
be adversely affected by his execution. The jury found
unanimously that Hammer had failed to prove by a


  3
   The mitigating factors covered Hammer’s mental state at the
time of the killing, his mental, emotional, and family history, his
time in prison, and his level of remorse and acceptance of
responsibility.

                                5
preponderance of the evidence that: 1) at the time of his offense
his capacity to appreciate the wrongfulness of his conduct or
conform his conduct to the requirements of the law was
significantly impaired; 2) at the time of the offense he was under
substantial duress; and 3) he suffers from a major mental disease
or defect. The jury was not unanimous as to the remaining
factors.

       The jury decided that the aggravating factors sufficiently
outweighed the mitigating factors and recommended a death
sentence on July 24, 1998. A week later, Hammer filed a pro se
motion to discharge counsel. After a lengthy inpatient
psychiatric evaluation, he was found competent, and the District
Court granted his motion to discharge counsel. On November
4, 1998, the court sentenced Hammer to die by lethal injection.

       Hammer appealed his conviction but then vacillated
repeatedly over the course of several years, filing a motion to
dismiss the appeal, a motion to recall the mandate, a petition for
rehearing en banc, and a petition for a writ of certiorari.
Hammer filed a § 2255 motion, and then moved to dismiss it.
The District Court granted the motion and dismissed counsel.
On appeal, we vacated that order, granted a certificate of
appealability, and remanded with instructions to determine
whether, once and for all, Hammer wanted to proceed under
§ 2255. United States v. Hammer, No. 04-9001 (3d Cir. June 3,
2004) (per curiam order).

       The District Court appointed the Federal Public Defender
to represent Hammer, who filed a third amended § 2255 motion
challenging both the guilt and penalty phases of his trial. The

                                6
District Court rejected all of Hammer’s claims relating to the
guilt phase of his trial, namely, his attacks on the change of plea
proceedings, the validity of the proceedings allowing him to
decide pro se whether to appeal, and counsel’s effectiveness.
The court did grant relief as to Hammer’s penalty phase claims,
holding that the government violated Brady v. Maryland, 373
U.S. 83 (1963), when it did not turn over certain materials to the
defense until the § 2255 hearing in September, 2005, long after
the trial. Among those materials were 33 “302 statements” from
the FBI that summarized interviews with prison inmates. Some
of the statements indicated that Hammer had previously braided
sheets into ropes for use during sex. Hammer contends that
these statements were exculpatory and relevant to the
aggravating factor of substantial planning, and therefore he was
entitled to a new penalty phase. The District Court found that
the government’s failure to turn over the 302 statements violated
Brady and tainted the jury’s determination that Hammer killed
Marti after substantial planning and premeditation. The court
also found that some of the jury’s findings on mitigating factors
were erroneous.

       The District Court vacated Hammer’s sentence and gave
the government 60 days to move for a new penalty phase; the
court said that if the government failed to so move, it would
impose a life sentence. The government moved for the new
penalty phase, but resentencing has not yet occurred. Hammer
appeals the District Court’s denial of guilt-phase relief, and the
government appeals the District Court’s order vacating the death
penalty and granting resentencing.



                                7
                        II. Jurisdiction

       Hammer argues that we do not have jurisdiction over the
government’s appeal of the order that he be resentenced because
there is no final, appealable order until the resentencing has
occurred. The government maintains that we do have
jurisdiction.

        On May 30, 2006, Hammer filed a Suggestion of
Jurisdiction Impediment as to the government’s appeal. On
December 12, 2006, we declined to dismiss Hammer’s appeal
for lack of jurisdiction, and on December 21, 2006, we declined
to dismiss the government’s appeal for lack of jurisdiction.4 On
March 21, 2007, Hammer filed a petition for a Writ of Certiorari
challenging jurisdiction, and we stayed the appeals. The
Supreme Court denied the petition. Hammer v. United States,
128 S. Ct. 43 (2007).

      The issue before us is whether we have jurisdiction to
review an order under 28 U.S.C. § 2255 granting a new
sentencing hearing but denying a new trial in a capital murder
prosecution. We will deal first with the appeal from the grant of
a new penalty phase. Remarkably, this is an issue of first
impression in the Third Circuit.




  4
   The denial by a motions panel of a motion to dismiss for lack
of jurisdiction acts as a referral to the merits panel. Reilly v.
City of Atlantic City, 532 F.3d 216, 223 (3d Cir. 2008).

                               8
      A. Jurisdiction Over the Government’s Appeal of the
Grant of a New Penalty Phase

        Under § 2255, if the district court finds that the petitioner
is entitled to relief, “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.”
The statute also provides that an “appeal may be taken to the
court of appeals from the order entered on the motion as from a
final judgment on application for a writ of habeas corpus.” 28
U.S.C. § 2255.

        In 1963, the Supreme Court spoke directly to this finality
issue in the non-capital context. In Andrews v. United States,
373 U.S. 334 (1963), the two petitioners challenged the
constitutionality of their sentences under § 2255, arguing that
they had been denied their right of allocution at sentencing. The
district court granted relief, vacated the petitioners’ sentences,
and ordered that they be resentenced. The government
appealed, and the district court stayed the resentencing. The
court of appeals reversed the district court’s resentencing order.
Id. at 336.

       The Supreme Court held that the court of appeals did not
have jurisdiction because the district court’s judgment did not
become final until it granted one of the four remedies listed in
§ 2255: discharging the prisoners, resentencing them, granting
them a new trial, or correcting their sentences. Id. at 340-41.
The Court said that it was clear that the order granting
resentencing was interlocutory, not final. “Where, as here, what
was appropriately asked and appropriately granted was the

                                 9
resentencing of the petitioners, it is obvious that there could be
no final disposition of the § 2255 proceedings until the
petitioners were resentenced.” Id. at 339. The Court cited the
“long-established rule against piecemeal appeals in federal
cases” and noted that the reason for the rule was particularly
important in the instant case: “Until the petitioners are
resentenced, it is impossible to know whether the Government
will be able to show any colorable claim of prejudicial error. . .
. [U]ntil the court acts, none of the parties to this controversy
will have had a final adjudication of his claims by the trial court
in these § 2255 proceedings.” Id. at 340.

        While we have not before addressed the precise issue
presented here, we did consider whether a grant of a new trial is
a final, appealable order under § 2255 in United States v. Allen,
613 F.2d 1248 (3d Cir. 1980). In Allen, the petitioner sought a
new trial under § 2255, arguing that his conviction was based on
insufficient evidence. The district court granted the motion and
the government appealed. We found that we did have
jurisdiction because the grant of a new trial was a final,
appealable order under § 2255. We relied on the language of the
statute that specifies that the grant of a new trial is one of the
four enumerated “order[s] entered on the motion” and said that
“the crucial question in these cases in determining finality is
whether the district court has entered one of the orders specified
in paragraph 3 of § 2255.” Id. at 1250. We then cited Andrews
as a situation in which the court of appeals did not have
jurisdiction because the district court had not entered one of the
four orders on the motion: while the district court had ordered
that the petitioners be resentenced, it had not actually
resentenced them.

                                10
        Neither Andrews nor Allen was a capital case. In United
States v. Stitt, 459 F.3d 483 (4th Cir. 2006), the United States
Court of Appeals for the Fourth Circuit addressed the precise
situation we face here: a petitioner who was sentenced to death
and sought relief under § 2255, a district court that denied relief
as to the guilt-phase claims but ordered resentencing, and a
government appeal of the order vacating the death sentence.
The court of appeals initially affirmed the district court and
remanded for resentencing. After the opinion was published,
the court of appeals discovered Andrews v. United States and
asked for supplemental briefing on the question of whether it
had jurisdiction over the § 2255 appeal when the petitioner had
not yet been resentenced. Id. at 484. The court concluded that
it did not have jurisdiction.

        The Stitt court looked to Andrews and found it
controlling: in both cases, the district court had vacated a
sentence and ordered resentencing. “In such cases, Andrews
mandates that there is no final judgment ‘until the prisoners
[a]re resentenced.’” Id. at 485 (quoting Andrews, 373 U.S. at
340)). In its brief in Stitt, the government had cited our Allen
decision as authority for the proposition that the district court’s
judgment was final; the Stitt court noted that Allen was a case in
which the district court vacated the conviction and ordered a
new trial, and distinguished between the order for a new trial
and an order that the petitioner be resentenced. Id. The Stitt
court found that it lacked jurisdiction over the appeal and
remanded to the district court for resentencing.

       Judge Williams wrote a concurring opinion to elaborate
on the jurisdictional issue. She addressed the government’s

                                11
argument that Andrews was distinguishable from Stitt because
Stitt was a capital case. The government argued in Stitt, as it
does here, that given the procedural parallels between a capital
sentencing and a trial, a capital defendant’s resentencing should
be considered a “new trial” for purposes of § 2255. A capital
resentencing hearing involves a jury and bears many of the
hallmarks of a trial. See 18 U.S.C. § 3593(b) (if the defendant
is found guilty or pleads guilty to a capital offense, the judge
conducts a separate sentencing hearing before a jury to
determine punishment). The government pointed out that
appellate jurisdiction exists over an order granting a § 2255
petitioner a future new trial and therefore should exist over an
order granting a new capital sentencing hearing. It argued that
it would be a waste of resources to postpone appellate review
until after the resentencing hearing, given the possibility that the
appeals court would find that resentencing was not warranted in
the first place. Judge Williams agreed that the waste of
resources argument was compelling, and that the procedures
required for a capital sentencing hearing closely resemble the
guilt phase of a criminal trial.       She found, however, that
regardless of procedural similarities between a new trial and a
capital sentencing hearing, a “trial” by definition encompasses
both guilt and sentencing phases:

       [A] future capital resentencing hearing, like a future non-
       capital resentencing hearing, is a ‘resentencing’ and not
       a ‘new trial’ for purposes of § 2255. While a capital
       sentencing shares some of the procedural requirements
       afforded defendants at the guilt phase of a criminal trial
       the purpose of a capital sentencing hearing, like the
       purpose of any sentencing hearing, is to determine the

                                12
       proper punishment to be imposed on a criminal
       wrongdoer, not to determine whether a defendant should
       be convicted of the charged crime. Accordingly, under
       Andrews, a district court’s order granting a future capital
       resentencing hearing, such as the order at issue here, is
       not appealable.

Id. at 488.

       We agree with the Stitt court. The Supreme Court in
Andrews and our own court in Allen have held all too clearly
that we do not have jurisdiction over the government’s appeal of
the District Court’s resentencing order: a § 2255 proceeding is
not final until the prisoner is resentenced. See Andrews, 373
U.S. at 339. Other authority supports this principle. See, e.g.,
United States v. Hayes, 532 F.3d 349, 352 (5th Cir. 2008)
(finding an appeal timely when the government filed it within
sixty days of the defendant’s resentencing, rather than sixty days
of the order entitling him to be resentenced, because the order
was not final until the district court resentenced the defendant);
United States v. Futch, 518 F.3d 887, 894 (11th Cir. 2008)
(concluding that § 2255 proceedings were not completed and
final until the defendant had been resentenced, completing both
the criminal case and the collateral § 2255 proceeding); United
States v. Hadden, 475 F.3d 652 (4th Cir. 2007) (distinguishing
between an order for a future resentencing and an order for a
new trial and holding that “a district court’s order that
contemplates the court’s correction of the prisoner’s sentence at
some time in the future . . . does not complete the § 2255
proceeding and is therefore not immediately appealable.”);
United States v. Martin, 226 F.3d 1042 (9th Cir. 2000) (holding

                               13
that a district court’s judgment vacating a sentence does not
become final and appealable until the defendant has been
resentenced).

        In Allen, we held that § 2255 laid out exactly what is a
final, appealable “order entered on the motion.” There are four
such orders: 1) discharge the prisoner, 2) resentence the
prisoner, 3) grant a new trial, or 4) correct the sentence. An
order that contemplates a future resentencing but does not
accomplish it is not an “order entered on the motion” and is not
final and appealable. 28 U.S.C. § 2255.

       As to the government’s argument that a capital
sentencing should be equated with a new trial, we find this to be
an interesting argument but ultimately lacking in persuasive
appeal. A trial determines guilt; a sentencing determines the
penalty for a guilty defendant. A capital sentencing is still a
sentencing: it determines what punishment an already-convicted
defendant should receive.

       The government notes that both the text of § 2255 and
Andrews contemplate that the § 2255 court will resentence the
petitioner, but that § 2255 does not make any provision for
resentencing that involves a jury. It argues that the District
Court must conduct the resentencing under its guise as the trial
court, not the § 2255 court, and therefore its jurisdiction as a
§ 2255 court has ended and the resentencing order is final.

       It is true, as the government points out, that § 2255 does
not specifically contemplate the process of capital resentencing.
But § 2255 applies in capital and non-capital cases alike, as the

                               14
statute under which federal prisoners file habeas corpus
petitions. Cf. Hain v. Mullin, 436 F.3d 1168, 1178 & n.2 (10th
Cir. 2006) (referring to federal capital trials and including both
§ 2254 and § 2255 proceedings as vehicles for collateral attack).
The statute does not have to address specifically every feature
of sentencing procedure in order to apply in the capital context.
Furthermore, had Congress wanted a different rule to apply in
capital cases, it could have said so.

        We can draw guidance as to the procedural questions
from what happened after the initial remand for resentencing in
Stitt. The district court refused to impanel a capital jury,
concluding that the statute under which Stitt had been convicted,
18 U.S.C. § 848, had been amended since his initial sentencing
and no longer provided a procedure for impaneling a new jury
for reconsideration of a death sentence. Stitt v. United States,
475 F. Supp. 2d 571, 574 (E.D. Va. 2007). The district court
said that not only did it lack the statutory authority to convene
a new capital sentencing hearing, but that even if it had such
authority, it would use its broad equitable powers under § 2255
to hold a new sentencing hearing without the possibility of the
death penalty and without impaneling a jury. Id. at 576. The
court said that too much time – eight years – had elapsed since
the initial sentencing, and cited “the general statutory preference
for a unitary jury.” Id. at 577.

        The court of appeals took a dim view of this reasoning.
United States v. Stitt, 552 F.3d 345 (4th Cir. 2008), petition for
cert. filed, (U.S. Apr. 24, 2009) (No. 08-10074). It found that
the Savings Statute meant that Stitt could be sentenced under 18
U.S.C. § 848, and that the district court’s refusal to impanel a

                                15
capital sentencing jury under § 2255 was an abuse of discretion.
The court quoted the mandatory language from § 848: “‘the
judge who presided at the trial . . . shall conduct a separate
hearing to determine the punishment to be imposed. . . . [That
hearing] ‘shall’ be conducted ‘before a jury impaneled for the
purpose of the hearing . . . .’” Id. at 355-56 (quoting 21 U.S.C.
§ 848(i)(1)).      The court then emphasized its previous
“admonition that the defendant be placed in the ‘same position’
is if there was no error. In this case, that position would be
awaiting a penalty phase after having been convicted of death
eligible offenses.” Id. at 356. The court of appeals remanded
the case for a new capital sentencing hearing.

        The Stitt court did not have a problem with the district
court’s impaneling a capital sentencing jury, and neither do we.
It is undisputed that Hammer was convicted and sentenced
under the Federal Death Penalty Act, 18 U.S.C. § 3593. The
FDPA has the same mandatory language that the Stitt court cited
in 18 U.S.C. § 848: when a defendant is found guilty or pleads
guilty to a capital offense, the judge “shall” conduct a separate
sentencing hearing, and the hearing “shall be conducted” before
a jury impaneled for the purpose of the hearing if: A) the
defendant was convicted upon a guilty plea; B) the defendant
was convicted after a bench trial; C) the jury determined that 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.”
Hammer’s resentencing fits under 18 U.S.C. § 3593(b)(2)(D).
Although § 2255 does not deal directly with the procedures for
impaneling a capital jury, its instruction that the § 2255 court
shall resentence a defendant is clear.

                               16
        Finally, the government cannot answer the most basic
point from Andrews: “Until the petitioners are resentenced, it is
impossible to know whether the Government will be able to
show any colorable claim of prejudicial error. . . . [U]ntil the
court acts, none of the parties to this controversy will have had
a final adjudication of his claims by the trial court in these
§ 2255 proceedings.” 373 U.S. at 340. The government will not
be able to show prejudicial error until the District Court
resentences Hammer, and it will presumably have no reason to
appeal if a jury again imposes a death sentence.

      B. Jurisdiction Over Hammer’s Appeal of the District
Court’s Denial of a New Guilt Phase

        We now turn to the defendant’s appeal from the guilt
phase, namely his claim of ineffectiveness of trial counsel and
his challenge to the validity of the change of plea proceedings
and the proceedings allowing him to decide pro se whether to
appeal. We conclude that the order denying Hammer relief as
to the guilt phase does not become final until he is resentenced.

        At oral argument, Hammer’s counsel acknowledged that
it was not clear that we had jurisdiction over Hammer’s appeal:
he pointed to authority saying that an order denying a new trial
is a final, appealable order, but also acknowledged that certain
cases say that an order must be final as to all parties before it is
appealable. See Stitt, 459 F.3d at 486 n*. In a criminal case, a
final judgment requires both conviction and sentence. Corey v.
United States, 375 U.S. 169, 174 (1963); United States v.
Lanham, 631 F.2d 356, 357 (4th Cir. 1980); see also 28 U.S.C.
§ 1291. Although proceedings under § 2255 are civil, not

                                17
criminal, the statute expressly authorizes appeals to be taken “as
from a final judgment on application for a writ of habeas
corpus,” and Andrews has been interpreted as applying the final
judgment rule in habeas proceedings. See, e.g., Matthis v. Zant,
903 F.2d 1368 (11th Cir. 1990). Thus, the order denying
Hammer relief as to his guilt phase claims will not become final
until he is resentenced. Therefore, we do not have jurisdiction
over his appeal.

       In light of the above, we will dismiss the appeal.




                               18
