                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0677n.06

                                            No. 08-4654                                   FILED
                                                                                      Nov 05, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

MATTHEW L. HILL,                                  )
                                                  )
        Petitioner-Appellee,                      )       ON APPEAL FROM THE
                                                  )       UNITED STATES DISTRICT
                v.                                )       COURT FOR THE SOUTHERN
                                                  )       DISTRICT OF OHIO
MICHAEL SHEETS, Warden,                           )
                                                  )
      Respondent-Appellant.                       )
____________________________


Before: GRIFFIN and WHITE, Circuit Judges; MURPHY, District Judge.*

        HELENE N. WHITE, Circuit Judge. In this habeas corpus proceeding, Warden Michael

Sheets appeals the district court’s order vacating petitioner Matthew Hill’s sentence and directing

that Hill either be resentenced or released as a remedy for the violation of his constitutional rights

under Blakely v. Washington, 542 U.S. 296 (2004). We DISMISS the petition for lack of

jurisdiction.

                           FACTS AND PROCEDURAL HISTORY

        We accept the state appellate court’s summary of the case:

                On February 2, 2004, Appellant entered the residence of Danny Thornhill.
        An altercation occurred between Appellant and Thornhill. During this altercation,
        Thornhill was struck repeatedly with a handgun. Thornhill fled the residence,
        followed by Appellant who fired at least two shots at Thornhill. By the time police
        arrived, Appellant had fled from the scene.


        *
       The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 08-4654
Hill v. Sheets

               On February 11, 2004, the Muskingum County Grand Jury indicted Appellant
       on the following charges: one count of Aggravated Robbery with a gun specification,
       in violation of Ohio Revised Code Section 2911.01(A)(1) and 2941.145, a felony of
       the first degree; one count of Aggravated Burglary with a gun specification, in
       violation of Ohio Revised Code Section 2911.11(A)(2) and 2941.145, a felony of the
       first degree; two counts of Felonious Assault with a gun specification, in violation
       of Ohio Revised Code Section 2903.11(A)(2) and 2941.145, a felony of the second
       degree; one count of Theft of a Firearm, in violation of Ohio Revised Code Section
       2913.02(A)(1) and 2941.145, a felony of the fourth degree; and one count of
       Aggravated Burglary with a gun specification, in violation of Ohio Revised Code
       Section 2911.11(A)(1) and 2941.145, a felony of the first degree.

               On February 18, 2004, appellant appeared for arraignment and pled “not
       guilty” to all counts set forth in the Indictment.

               On August 3, 2004, a jury heard the case. At the conclusion of the trial, the
       jury deliberated and returned a verdict of “guilty” on the two counts of Felonious
       Assault with a gun specification, in violation of Ohio Revised Code Section
       2903.11(A)(2) and 2941.145, both felonies of the second degree. The [j]ury found
       Appellant “not guilty” on all other counts.

                Appellant was sentenced on September 20, 2004. At the sentencing hearing,
       the trial court heard the report of the presentence investigator and the arguments of
       counsel for the respective parties before pronouncing sentence. Ultimately, the trial
       court sentenced Appellant to serve a prison sentence of eight years on each count of
       Felonious Assault and three years on each gun specification, all sentences to be
       served consecutive to one another for a total sentence of 22 years. This sentence is
       the maximum sentence that Appellant could have received for the crimes for which
       he was convicted.[1]


       1
           At sentencing, the trial court explained its reasons for the sentence:

               The Court also finds that, given your prior criminal history going back to a
       juvenile, which includes robbery, thefts, the normal run-a-way type offenses as well
       as aggravated vehicular assault and aggravated vehicular homicide, you have hurt
       people in the past and obviously you have not learned from it; including a domestic
       violence in 2003 and discharging a firearm in 2004, and then you go break into a
       person’s house and end up shooting at him on the street.

                  Based on that, the Court finds, first of all, that a prison sentence is

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No. 08-4654
Hill v. Sheets



       appropriate. The Court also finds that the minimum sentence would demean the
       seriousness of the offense and also not adequately protect society, and the maximum
       sentence is necessary to protect society because you create the greatest likelihood of
       committing further crimes of similar nature. You have throughout your history so
       far. Therefore, the Court will impose an 8-year sentence on each of the felonies of
       the second degree.

              The Court also finds that your criminal history shows that consecutive terms
       are needed to protect the public. Therefore, the Court will order the 8-year sentences
       be served consecutively. Given your nature and your history and all that you have
       done so far, the Court finds that it’s needed to protect the public.

               The Court also imposes the 3-year gun specifications. Each of the gun
       specifications must – by law must be served consecutively.

Four days later, the trial court issued a written entry of judgment further explaining the sentence:

              The Court finds that the presumption for second degree felonies is a prison
       term and that a gun specification is a mandatory consecutive sentence.

               The Court after consideration of purposes and principles under Revised Code
       § 2929.11, and the factors under § 2929.12 and § 2929.13(D), finds that the offenses
       were facilitated by the defendant’s relationship with the victim, that he has a prior
       adjudication, a history of criminal convictions, has failed to respond in the past to
       probation, has failed to acknowledge a pattern of alcohol/drug abuse related to the
       offenses, and shows no genuine remorse. The Court further finds that the Defendant
       as a juvenile was convicted of Aggravated Vehicular Assault, Aggravated Vehicular
       Homicide, and Robbery; as an adult he has a conviction for domestic violence, and
       was ordered to attend an anger management class. Based upon the factors found, the
       Court finds that the presumption for prison has not been rebutted.

               The Court further finds that a minimum sentence would demean the
       seriousness of the offenses, and would not adequately protect society. The Court in
       further consideration of the Defendant’s record finds that he has numerous prior
       crimes of violence, that he has a continuing pattern of violent acts, and that he poses
       the greatest likelihood of committing future crimes and in order to punish the
       defendant and protect the public maximum consecutive sentences are not only
       warranted, but are not disproportionate to the danger the defendant poses. The Court
       further finds that the offenses herein as well as the gun specifications are not of allied

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No. 08-4654
Hill v. Sheets

        Although the remaining procedural history in state court is complex, resolution of this appeal

does not require that we describe it in detail. It is sufficient to note that Hill challenged his

conviction in both direct-appeal and post-conviction proceedings, raising several grounds including

that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). See also State v. Foster, 845

N.E.2d 470 (Ohio 2006).

        In June 2007 Hill, pro se, filed a federal habeas petition in the district court. He raised two

claims: 1) that his sentence was unconstitutional because the trial judge decided sentencing factors

instead of the jury, and 2) that his appellate counsel was ineffective for failing to raise a double-

jeopardy claim on direct appeal. The Warden argued that Hill’s claims were procedurally defaulted

and meritless.

        In July 2008, a magistrate judge issued a report and recommendation, finding that Hill had

procedurally defaulted his claims in state court, but that the ineffective assistance of Hill’s appellate

counsel in failing to raise a Blakely claim provided cause and prejudice excusing the default. The

magistrate judge concluded that Hill’s Blakely claim had merit (and that his double-jeopardy claim

did not) and recommended conditionally granting the petition on the Blakely claim. Over the

Warden’s objections, the district court adopted the report and recommendation. The court’s

November 4, 2008, order vacated Hill’s sentence and directed that he “be released from incarceration

unless the state resentences him within sixty (60) days.” The Warden appealed.


        similar import and the defendant shall be sentenced on both counts and both gun
        specifications.

(emphasis removed.)

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No. 08-4654
Hill v. Sheets

        Two days after filing his notice of appeal, the Warden moved for a stay of final judgment

pending appeal, which the district court granted. By that time, Hill had filed pro se motions in state

court to begin the resentencing process.2 Hill was resentenced in state court on December 29, 2008,

by a different sentencing judge, to the same 22-year sentence.

       On appeal, Hill filed a motion for counsel, which was granted, as were the parties’ motions

to take judicial notice of Hill’s resentencing.

                                           DISCUSSION

       First and foremost, this appeal presents a jurisdictional issue. As this court has explained,

       Article III, Section 2 of the United States Constitution authorizes the federal judiciary
       only to hear cases or controversies, and therefore federal courts may not exercise
       jurisdiction when the controversy has been mooted, that is to say, when the issues
       presented are no longer live or the parties lack a legally cognizable interest in the
       outcome.

Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006) (internal quotation marks and citations omitted).

In Gentry, this court held that a prisoner’s release did not moot her habeas petition where her status



       2
         The timing was as follows: On November 28, 2008, Hill submitted pro se motions for
presentence investigation and appointment of counsel “following the issuance of a Writ of Habeas
Corpus by the United States District Court for Ohio on November 5, 2008, remanding defendant Hill
for resentencing in this Court.” Also on November 28, 2008, the Warden filed the stay motion in
federal district court. (R. 27.) Hill submitted his pro se brief opposing the motion on December 9,
2008. Hill filed his pro se state-court sentencing memorandum on December 16, 2008. On
December 17, 2008, the federal district court granted the stay. On December 22, 2008, the state
court held a hearing regarding resentencing and continued the matter to “more fully research the
details of the case.” The court, apparently unaware of the stay, cited Hill’s favorable habeas-corpus
judgment in federal court as the basis for resentencing. On December 29, 2008, the state court, still
apparently unaware of the stay, again referenced Hill’s favorable federal habeas judgment, and
resentenced Hill. Counsel for both Hill and the State of Ohio were present at both December state-
court resentencing hearings.

                                                  -5-
No. 08-4654
Hill v. Sheets

as a convicted felon would cause her to face “collateral consequences,” such as not being able vote

or hold public office, and being subject to federal criminal laws and restrictions that apply only to

felons. Id. at 694-95. The Gentry court distinguished the petitioner’s habeas claim, which

challenged her conviction, from those of individuals who had challenged only their sentences, or

conditions of confinement, and received full relief from any constitutional error once they were

released. Id. at 694; see also James v. Singletary, 995 F.2d 187, 188-89 (11th Cir. 1993) (federal

habeas petition challenging sentencing mooted when state courts resentenced petitioner).

       The district court’s order conditionally granting Hill’s petition vacated his sentence and

directed that he “be released from incarceration unless the state resentences him within sixty (60)

days.” Because the state resentenced Hill, he has obtained one of the two individually sufficient

options for relief ordered by the district court. Further, because Hill obtained habeas relief with

regard to his sentencing claim alone, he does not have a cognizable interest in avoiding the collateral

consequences of his conviction. As the Warden himself noted in his motion for stay, “[t]o

resentence Hill would effectively moot this litigation.” We agree. The appeal before us is moot.

       In their briefs, both parties assert that Hill’s resentencing was “void” pursuant to 28 U.S.C.

§ 2251(b). That statute states in relevant part:

       § 2251 Stay of State court proceedings

       (a) In general.–

                 (1) Pending matters.– A justice or judge of the United States before
                 whom a habeas corpus proceeding is pending, may, before final
                 judgment or after final judgment of discharge, or pending appeal, stay
                 any proceeding against the person detained in any State court or by or


                                                   -6-
No. 08-4654
Hill v. Sheets

                 under the authority of any State for any matter involved in the habeas
                 corpus proceeding.
        ...
       (b) No further proceedings.– After the granting of such a stay, any such proceeding
       in any State court or by or under the authority of any State shall be void. If no stay
       is granted, any such proceeding shall be as valid as if no habeas corpus proceedings
       or appeal were pending.

28 U.S.C. § 2251 (bold removed).

       Despite the parties’ concessions, it does not appear that 28 U.S.C. § 2251(b) applies here.

The stay provision allows federal courts to stay state-court proceedings. See § 2251(a)(1) (a federal

judge “may . . . stay any proceeding against the person detained in any State court”); 17B CHARLES

ALAN WRIGHT, ARTHUR MILLER, EDWARD H. COOPER, & VIKRAM DAVID AMAR,

FEDERAL PRACTICE AND PROCEDURE, § 4268.4 (referring to § 2251, stating “[b]oth before

and after judgment the district court has authority to stay all state-court proceedings that have the

effect of defeating or impairing the federal court’s jurisdiction.”); McFarland v. Scott, 512 U.S. 849,

857 (1994) (“The federal habeas corpus statute grants any federal judge ‘before whom a habeas

corpus proceeding is pending’ power to stay a state-court action ‘for any matter involved in the

habeas corpus proceeding.’”) (citing 28 U.S.C. § 2251, emphasis removed). Despite the parties’

assertions to the contrary, it is plain that the district court’s order did not stay any state-court

proceeding; rather, the court stayed its own judgment.3 See Opinion and Order, R.30 at 1 (“On

November 4, 2008 final judgment was entered . . . . This matter now is before the Court on


       3
        This is precisely what the Warden had asked the district court to do. The Warden’s stay
motion consistently (and only) referred to the district court’s own November 4, 2008, order of final
judgment. The Warden’s stay motion was entitled “Respondent Sheets’ Motion for Stay of Court’s
November 4, 2008[,] Judgment.” Nor did the Warden’s motion cite § 2251 in its stay request.

                                                  -7-
No. 08-4654
Hill v. Sheets

respondent’s request for a stay of final judgment . . . . respondent’s request for a stay [] is granted.”).

Thus, Hill’s resentencing is not void under 28 U.S.C. § 2251(b).4

                                            CONCLUSION

        For the foregoing reasons, the appeal is moot. We DISMISS for lack of jurisdiction.




        4
        Nor does it appear that Hill’s resentencing violates the district court’s order. The order
granting the stay clearly envisioned affording the State time to resolve the appeal before being
compelled to resentence or release Hill. See R. 30 at 3, 2 (“By granting the request for a stay,
respondent will be able to obtain appellate review of this Court’s decision.”) (“the Court agrees that
respondent will suffer some injury absent a stay. If the Court doesn’t stay execution of the
conditional writ of habeas corpus, and the State of Ohio is required to re-sentence petitioner,
respondent’s appeal of this Court’s decision may be rendered moot.”). However, the order does not
purport to prevent the state from changing course and voluntarily participating in a resentencing
proceeding before resolution of the appeal.

                                                   -8-
