Kipp Jr. v. Rardin
This text of Kipp Jr. v. Rardin (Kipp Jr. v. Rardin) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1 WO 2
6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
9 Ronald G Kipp, Jr., No. CV-20-00167-TUC-RM 10 Petitioner, ORDER 11 v. 12 Jared Rardin, 13 Respondent. 14
15 Pending before the Court is Petitioner’s Emergency Motion for Resentencing and 16 Order for Release from Custody. (Doc. 28.) Respondent filed a Response (Doc. 30) and 17 Petitioner replied (Doc. 31.) The Motion is fully briefed and will be granted. 18 On October 26, 2022, this Court entered an Order adopting in full Magistrate 19 Judge Rateau’s Report and Recommendation (R&R) recommending that Petitioner’s 20 Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be granted in 21 part and denied in part. (Docs. 25, 26.) Specifically, the Court granted the Petition to the 22 extent that it found Petitioner entitled to a resentencing without a career offender 23 classification.1 (Id.) The Court found that the law of the circuit of conviction, here, the 24 Fifth Circuit Court of Appeals, applied to the Amended Petition, and that the Fifth 25 Circuit’s holding in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) mandated the 26 conclusion that Petitioner lacked the requisite predicate convictions to support a career 27
28 1 The Petition was denied to the extent that Petitioner argued that his supervised release enhancement was incorrectly determined. 1 offender designation under the applicable sentencing guidelines. (Doc. 25 at 13-14.) As a 2 result, the Court found Petitioner’s claim of actual innocence meritorious. (Id.) The Court 3 did not address Petitioner’s request that he be resentenced to a term of no more than 162 4 months2 in prison and the parties did not brief the issue of whether this Court had 5 jurisdiction to resentence Petitioner. 6 Petitioner then filed his Emergency Motion for Resentencing and Order for 7 Release from Custody. (Doc. 28.) Petitioner argues that this Court should resentence him 8 to 162 months in prison and order his immediate release from custody. (Id.) Petitioner 9 contends that this resolution is appropriate pursuant to 28 U.S.C. § 2243, which states 10 that a federal habeas court “shall summarily hear and determine the facts, and dispose of 11 the matter as law and justice require.” Petitioner cites to cases from the Second, Seventh, 12 and Eleventh Circuit Courts of Appeals that have held that the court in the district where 13 a petitioner is incarcerated may resentence him after granting a habeas petition. See 14 United States v. Triestman, 178 F.3d 624, 630 (2d Cir. 1999) (district court had authority 15 under § 2243 to dispose of habeas matter as law and justice require, to include 16 resentencing); Brown v. Caraway, 719 F.3d 583, 596 (7th Cir. 2013) (remanding habeas 17 petition for resentencing consistent with non-career offender finding); Bryant v. Warden, 18 FCC-Coleman Medium, 738 F.3d 1253 (11th Cir. 2013) (discussing resentencing in 19 context of § 2241), overruled on other grounds by McCarthan v. Director of Goodwill 20 Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). In this district, a court has 21 resentenced a successful habeas petitioner to immediate release followed by a term of 22 supervised release, despite that the petitioner was sentenced and incarcerated in the 23 Middle District of Florida. See Terry v. Shartle, No. 4:15-cv-107-TUC-CKJ (D. Ariz. 24 Dec. 6, 2017) (Doc. 68). 25 Respondent opposes Petitioner’s Motion for Resentencing. (Doc. 30.) Respondent 26 objects to resentencing Petitioner in the District of Arizona, rather than in the Western 27 2 Respondent did not dispute that Petitioner’s mandatory sentencing Guidelines range, 28 without the career offender designation, was 130-162 months in prison. Nor do the parties dispute that Petitioner has been incarcerated longer than 162 months. 1 District of Texas, where he was convicted and sentenced and where he committed his 2 crimes. (Id.) Respondent contends that there is no statutory or case law basis for 3 resentencing Petitioner in this Court and cites other circuit court cases that have directed 4 the habeas court to transfer the case to the sentencing court for resentencing. See 5 Guenther v. Marske, 997 F.3d 735, 737 (7th Cir. 2021) (reversing denial of § 2241 6 Petition and directing transfer of case for resentencing). The Tenth Circuit Court of 7 Appeals has held, in an unpublished decision, that a habeas court did not have jurisdiction 8 to vacate a petitioner’s sentence because § 2241 gives the district court the power to 9 release a defendant confined in its district, but “no other power.” United States v. Rhodes, 10 834 F. App'x 457, 462 (10th Cir. 2020) (citing Fay v. Noia, 372 U.S. 391, 430-31 11 (1963)). 12 In reply, Petitioner argues that Respondent has not identified any controlling 13 authority that would prevent this Court from resentencing Petitioner. (Doc. 31.) 14 Furthermore, Respondent does not dispute that Petitioner’s sentence should be reduced to 15 162 months, nor that he has now been incarcerated for over 246 months. (Id.) 16 Accordingly, Petitioner avers that a resentencing hearing is not necessary because 17 Respondent does not dispute the proper outcome. (Id.) Petitioner further states that he 18 waives his right to appear at a sentencing hearing and to an updated presentencing report 19 if it enables him to be released from custody sooner. (Id.) 20 The Court is unpersuaded by Respondent’s argument that it lacks authority to 21 resentence Petitioner and order his immediate release. None of the cases Respondent cites 22 mandate that this Court must transfer this matter to the Western District of Texas for 23 resentencing. To the contrary, the Court finds that resentencing and immediate release 24 from custody is consistent with its power to “dispose of the matter as law and justice 25 require” under 28 U.S.C. § 2243. There is no dispute that a habeas court may order 26 release of a prisoner whom it finds is in custody in violation of the United States 27 Constitution. 28 1 Furthermore, in Terry v. Shartle, a habeas case with similar facts and legal issues, 2|| this Court ordered release of a prisoner who obtained habeas relief under § 2241. No. || 4:15-cv-107-TUC-CKJ (D. Ariz. Dec. 6, 2017). In that case, the Respondent conceded 4|| that the Petitioner was actually innocent of a sentencing enhancement that had led him to 5 || receive a sentence of life imprisonment. /d. Having granted the § 2241 petition with 6|| respect to the petitioner’s allegation that he was ineligible for the sentencing □□ enhancement, the Court reduced the petitioner’s sentence to the statutory maximum for 8 || which he was eligible. Jd. The Court finds the same outcome appropriate here. 9 Accordingly, 10 IT IS ORDERED that the Emergency Motion for Resentencing and Order for 11 || Release from Custody (Doc. 28) is granted.
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