                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0372n.06

                                         Case No. 07-2494
                                                                                            FILED
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                  Jun 02, 2011
                                                                                 LEONARD GREEN, Clerk
 GERALD DEVAUGHN HESTLE,                               )
                                                       )
         Plaintiff-Appellant,                          )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
                 v.                                    )      COURT FOR THE EASTERN
                                                       )      DISTRICT OF MICHIGAN
 UNITED STATES of AMERICA,                             )
                                                       )
       Defendant-Appellee.                             )
 _______________________________________               )

Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. This is an appeal from the district court’s denial

of a federal prisoner’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Because

we find that the magistrate judge — and consequently the district court — erred in its analysis of the

underlying claim, we REVERSE and REMAND for reconsideration under a proper analysis.

                                                  I.

       The police arrested Gerald Hestle for possession of cocaine with intent to distribute, and the

case proceeded to jury trial. During jury voir dire, the prosecutor exercised peremptory strikes of

the only two black venire members. Hestle’s attorney raised a Batson challenge and the prosecutor

offered a non-discriminatory basis for the strikes. Hestle’s attorney declined to comment or reply.

The court overruled the Batson challenge and accepted the prosecutor’s strikes.

       The jury convicted Hestle and he appealed, raising two claims: Batson and sufficiency of

the evidence. A panel of this court affirmed on both claims. See United States v. Hestle, 107 F.
No. 07-2494, Hestle v. United States


App’x 500 (6th Cir. 2004). We rejected the Batson claim because the defendant’s counsel, by

making only one insufficient argument in the trial court, “had not proven purposeful discrimination.”

Id. at 503. In a separate concurrence, one judge opined that the Batson claim failed on appeal only

because Hestle’s counsel had not argued it sufficiently at trial. Id. at 504-05 (Moore, J. concurring).

          Hestle then moved the district court to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2255 and raised five arguments in support of that motion, including a claim that his trial

counsel had been ineffective for failing to argue the Batson issue more vigorously. The district court

referred the motion to a magistrate judge for a Report and Recommendation. The magistrate judge

addressed each of Hestle’s claims and ultimately advised the district court to deny the motion.

          The magistrate judge construed Hestle’s § 2255 motion as an improper attempt to re-litigate

the Batson issue, noting that Hestle “cannot use a § 2255 proceeding, in the guise of ineffective

assistance of counsel, to relitigate issues decided adversely to him on direct appeal,” quoting

Clemons v. United States, No. 3:01-cv-496, 2005 WL 2416995, at *2 (E.D. Tenn. Sept. 30, 2005).

Clemons, however, concerned a sufficiency-of-the-evidence claim, not a Batson challenge and

success on the ineffective-assistance issue would require rejection of a prior holding on direct appeal:

          Clemons first claims [ineffective assistance of trial counsel on the basis] that his
          attorney should have moved for acquittal at the close of the government’s case with
          respect to the firearm charge. According to Clemons, the government failed to prove
          ‘active employment’ of the firearm on his part. The allegation that the government
          failed to prove the elements of the firearm conviction was raised and rejected on
          direct appeal. . . . Clemons cannot use a § 2255 proceeding, in the guise of ineffective
          assistance of counsel, to relitigate issues decided adversely to him on direct appeal.
          See, e.g., DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996).[1]



          1
              DuPont did not contain a Batson claim either; it concerned a sentencing argument.

                                                             2
No. 07-2494, Hestle v. United States


Id. The magistrate judge’s reliance on this case law was misplaced.

          Hestle’s failure to persuade the court of his Batson claim on direct appeal did not foreclose

a motion to vacate for ineffective assistance in a § 2255 motion, because a finding of ineffective

assistance could be consistent with our holding on direct appeal. In White v. Mitchell, 431 F.3d 517,

526 (6th Cir. 2005), we held that “[w]hile these two claims are related due to the fact that the

ineffective assistance claim is based on the failure to raise a Batson challenge, the two claims are

analytically distinct.” Therefore, the magistrate judge erred by refusing to consider the ineffective-

assistance claim on its own merits, and the district court erred by adopting that ruling.

                                                   II.

          Because the district court erred in its procedural treatment of the underlying ineffective-

assistance claim, we REVERSE and REMAND for reconsideration under a proper analysis.




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