United States v. Jimmy Strayhorn, Jr. ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4420
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY JAY STRAYHORN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00368-CCE-1)
Submitted: June 15, 2023 Decided: June 20, 2023
Before DIAZ, RICHARDSON, and HEYTENS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: William Stimson Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT
LAW, PLLC, Greensboro, North Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant
United States Attorney, Angela Hewlett Miller, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jimmy Jay Strayhorn, Jr., appeals from the second amended criminal judgment and
seeks a certificate of appealability on the district court’s partial denial of his amended
28 U.S.C. § 2255 motion. Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), indicating he has identified no meritorious issues for appeal but
identifying as a potential issue for review whether the district court abused its discretion
when it refused to conduct a full resentencing after vacating one of Strayhorn’s convictions
for using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). 1
Strayhorn has filed a pro se supplemental brief in further support of that argument. We
affirm in part and dismiss in part.
When a hybrid appeal such as Strayhorn’s is before the court, we have explained
that, “[i]f the petitioner seeks to appeal the order by raising arguments relating to the district
court’s decision whether to grant relief on his § 2255 petition, he is appealing the final
order in a proceeding under § 2255 and therefore must obtain a [certificate of appealability]
under [28 U.S.C.] § 2253.” United States v. Hadden, 475 F.3d 652, 666 (4th Cir. 2007)
(internal quotation marks omitted). “If, on the other hand, the petitioner seeks to appeal
1
The district court correctly determined that Strayhorn’s conspiracy to commit
Hobbs Act robbery conviction, in violation of 18 U.S.C. §§ 1951(a), 2, was no longer a
proper § 924(c) predicate and thus vacated the corresponding § 924(c) conviction. See
United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that residual clause of
§ 924(c) was unconstitutionally vague); In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021)
(holding that Davis “applies retroactively to cases on collateral review”); United States v.
Simms, 914 F.3d 229, 233-34 (4th Cir. 2019) (en banc) (holding that Hobbs Act conspiracy
could not constitute a “crime of violence” under elements clause of § 924(c)).
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matters relating to the propriety of the relief granted, he is appealing a new criminal
sentence and therefore need not comply with § 2253’s [certificate of appealability]
requirement.” Id. Thus, we have jurisdiction over Strayhorn’s challenge to the district
court’s refusal to conduct a resentencing hearing after it vacated Strayhorn’s § 924(c)
conviction premised on conspiracy to commit Hobbs Act robbery. However, as to any
arguments pertaining to the district court’s denial of relief on his habeas claims, Strayhorn
must establish his entitlement to a certificate of appealability before we may review the
merits of the district court’s dismissal.
Although Strayhorn contends that the district court erred when it refused to conduct
a full resentencing after vacating the § 924(c) conviction, a district court “has broad
discretion in crafting relief on a § 2255 claim.” United States v. Chaney, 911 F.3d 222,
225 (4th Cir. 2018). Accordingly, a district court “is authorized to conduct a resentencing
in awarding relief under § 2255, [but] not . . . required, in resolving every § 2255 motion,
to conduct a resentencing.” Hadden, 475 F.3d at 668.
As this court has expressly observed, a successful § 2255 proceeding must only
result in “the vacatur of the prisoner’s unlawful sentence . . . and one of the following: (1)
the prisoner’s release, (2) the grant of a future new trial to the prisoner, (3) or a new
sentence, be it imposed by (a) a resentencing or (b) a corrected sentence.” Id. at 661
(footnote omitted); see also 28 U.S.C. § 2255(b) (providing that, after a district court
concludes a sentence is unlawful because the underlying conviction was unlawful, “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”). Thus, “the
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goal of § 2255 review is to place the defendant in exactly the same position he would have
been had there been no error in the first instance.” Hadden, 475 F.3d at 665 (internal
quotation marks omitted). We have reviewed the record and discern no abuse of discretion
in the district court’s decision to reimpose the sentence without the prison term for the
vacated conviction. We therefore affirm the second amended criminal judgment.
To the extent Strayhorn seeks to challenge the district court’s decision to deny relief
on his other habeas claims, that order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of
appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists could find the
district court’s assessment of the constitutional claims debatable or wrong. See Buck v.
Davis, 580 U.S. 100, 115-17 (2017). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is
debatable and that the motion states a debatable claim of the denial of a constitutional right.
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)). We have independently reviewed the record and conclude that Strayhorn has
not made the requisite showing. We therefore deny Strayhorn’s motion for a certificate of
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appealability and dismiss the appeal as to the district court’s partial denial of his amended
§ 2255 motion. 2
In accordance with Anders, we have reviewed the entire record and have found no
meritorious grounds for appeal. Accordingly, we affirm in part, deny the motion for a
certificate of appealability, and dismiss in part. This court requires that counsel inform
Strayhorn, in writing, of his right to petition the Supreme Court of the United States for
further review. If Strayhorn requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof was served on Strayhorn.
We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid in the decisional
process.
AFFIRMED IN PART,
DISMISSED IN PART
2
Although Anders counsel requests a certificate of appealability in part due to this
court’s 23-month delay in docketing the notice of appeal, “nothing in the record suggests
that the docketing delay was more than a harmless clerical error.” United States v. Jenkins,
22 F.4th 162, 168 (4th Cir. 2021). Significantly, Strayhorn has not established—nor does
the record show—any prejudicial effect from the delay in docketing. See id. at 168 n.6.
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