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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

QUENTON THOMAS WHITSELL, SR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

 /

Case No. 17-cv-12691

Related to 9-cr-20236

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

OPINION AND ORDER DENYING PETITIONER’S MOTION TO VACATE SENTENCE 

[# 138]

I.INTRODUCTION

Pending before the Court is Petitioner Quenton Thomas Whitsell, Sr.’s 

Motion to Vacate Sentence. Dkt. No. 138. Petitioner argues that new precedent 

requires this Court to resentence him. Id. at pg. 7 (Pg. ID 1217). For the reasons 

that follow, this Court will deny Petitioner’s Motion to Vacate Sentence. 

II. FACTUAL BACKGROUND

On July 21, 2010, Petitioner pleaded guilty to possession with intent to 

distribute and possession of a firearm in furtherance of a drug trafficking crime. 

Dkt. No. 63, pg. 1 (Pg. ID 441). On January 3, 2011, this Court sentenced him to 

322 months of imprisonment. Dkt. No. 76, pg. 2 (Pg. ID 610). On January 7, 2013, 
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Petitioner filed a Motion to Vacate Sentence. Dkt. No. 99. This Court denied his 

Motion on April 23, 2015. Dkt. No. 126. Thereafter, the Fair Sentencing Act was 

amended and the guideline sentencing range for Petitioner’s offense was lowered. 

The Fair Sentencing Act lowered Petitioner’s sentence based on the amount of 

crack cocaine Petitioner was in possession of. Dkt. No. 93, pg. 4 (Pg. ID 747). On 

June 16, 2015, this Court resentenced Petitioner to 216 months of imprisonment. 

Dkt. No. 131. On August 16, 2017, Petitioner filed a second Motion to Vacate 

Sentence. Dkt. No. 138. Petitioner argues that the ruling in Dean v. United States 

requires this Court to resentence him. 137 S. Ct. 1170 (2017); id. at pg. 7 (Pg. ID 

1217). In Dean, the Supreme Court held that sentencing courts can consider the 

mandatory firearm sentence imposed under 18 U.S.C. § 924(c) when calculating a 

sentence for a predicate violent or drug trafficking offense. Dean, 137 S. Ct. at 

1178. Respondent opposed the Motion on October 2, 2017. Dkt. No. 141. 

Petitioner replied on October 31, 2017. Dkt. No. 143.

III. LEGAL STANDARD

If a petitioner wishes to file a second or successive application for writ of 

habeas corpus, he must “move in the appropriate court of appeals for an order 

authorizing the district court to consider the application.” 28 U.S.C. § 2244 (2016).
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A Court will grant relief under 28 U.S.C. § 2255 if there was: “(1) an error 

of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or 

(3) an error of fact or law that was so fundamental as to render the entire 

proceeding invalid.” U.S. v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011). 

IV. DISCUSSION

Second or Successive Application

Respondent argues that the present Motion is Petitioner’s second or 

successive application for writ of habeas corpus. Dkt. No. 141, pg. 3 (Pg. ID 1227). 

Respondent claims that Petitioner is actually challenging his initial sentencing 

because Petitioner references his original sentencing in his Motion. Id. at pg. 4 (Pg. 

ID 1228); Dkt. No. 138, pg. 7 (Pg. ID 1217). Therefore, Petitioner must get an 

order from the Sixth Circuit so that this Court can consider the present Motion. Id.

Petitioner argues that his Motion is not a second or successive application because 

he is not challenging his original sentencing that occurred on January 3, 2011. See

Dkt. No. 143, pg. 7 (Pg. ID 1241). He is challenging his resentencing that occurred 

on June 16, 2015. See id. 

A second or successive application “must be interpreted with respect to the 

judgment challenged.” Magwood v. Patterson, 561 U.S. 320, 332–33 (2010). 

Therefore, an application that challenges a new or different judgment is not second 
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or successive. See id. at 332–43. Accordingly, an application that challenges a 

resentencing is not second or successive. See Magwood v. Patterson, 561 U.S. at 

331. The resentencing is a new judgment. See id.; In re Stansell, 828 F.3d 412, 417 

(6th Cir. 2016) (“final judgment in a criminal case means sentence. The sentence is 

the judgment.”) (quoting Berman v. U.S., 302 U.S. 211, 212 (1937)). Therefore, if 

Petitioner’s Motion is challenging his resentencing, then it is not a second or 

successive application. 

The Sixth Circuit has elaborated on the significance of a court’s resentencing 

on the second or successive analysis that the Supreme Court created in Magwood. 

In In re Stansell, the Sixth Circuit considered whether an application for writ of 

habeas corpus was second or successive. In re Stansell, 828 F.3d 412, 416–17 (6th 

Cir. 2016). In Stansell, the state trial court sentenced the petitioner to twenty years 

to life in prison. Id. at 414. The petitioner unsuccessfully challenged his sentence 

in federal district court. Id. The state trial court then resentenced Petitioner, 

instituting a sentence of five years of post-release control in addition to the original 

twenty years. Id. The petitioner then filed a second habeas petition, claiming that 

the trial court erred when it classified him as a sexually violent predator during his 

first sentencing hearing. Id. This was the only claim in the petitioner’s second 

application, and it was the same claim that he raised in his first petition. Id. 
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The Sixth Circuit held that the petitioner’s partial resentencing, which added 

a term of post-release control, constituted a new judgment. Id. at 416. Therefore, 

Petitioner’s second habeas petition was not second or successive. Id. The Court 

reasoned that “the sentence that matters in a habeas case . . . is the one pursuant to 

which an individual is held in custody.” Id. The Court stated that before his 

resentencing, the judgment that kept the petitioner in custody was the sentence of 

twenty years. Id. However, after his resentencing, what kept the petitioner in 

custody was a sentence of twenty years and five years of post-release control. Id. 

Therefore, the partial resentence was a new judgment and the petitioner’s second 

habeas application was not second or successive. Id. at 416–17. Here, Petitioner is 

in custody pursuant to his resentencing sentence of 216 months. So although 

Petitioner is challenging something that occurred during his first sentencing 

hearing, he is no longer in custody based on his first sentencing hearing. 

The present case is sufficiently similar to the Stansell case in other ways. In 

both cases, trial courts sentenced the petitioners twice. And in both cases, the 

petitioner’s second habeas petition challenged events that occurred during their 

first sentencing hearing. However, the present case presents a stronger case than 

Stansell that Petitioner’s present motion is not second or successive. The Petitioner 

in this case had a full resentencing. This is unlike the Petitioner in Stansell—the 

trial court only partially resentenced him. The partial resentence in Stansell was 
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enough to render a habeas application non-successive. So the full resentencing in 

this case presents a stronger circumstance to find that Petitioner’s application is not 

second or successive. The Petitioner here is also bringing a different claim than he 

did in his first petition, where the Petitioner in Stansell brought the same exact 

claim in his first and second petitions. Bringing the exact same claim still resulted 

in a finding that the petitioner’s application was non-successive. So asserting a 

different claim presents a stronger circumstance to find that Petitioner’s application 

is not second or successive. 

In conclusion, this Court holds that Petitioner’s Motion to Vacate is not 

second or successive. Therefore, this Court has jurisdiction to address the 

substance of the Motion.

Retroactive Application of Dean

This Court can now address the crux of Petitioner’s Motion to Vacate. 

Petitioner argues that the holding in Dean is retroactive such that he is entitled to a 

new sentencing hearing. Dkt. No. 143, pg. 9 (Pg. ID 1243). Respondent argues that 

this Court cannot retroactively apply Dean to this case. Dkt. No. 141, pg. 5 (Pg. ID 

1229). 

A rule that is substantive applies retroactively on collateral review; however, 

a procedural rule does not apply retroactively. See In re Patrick, 833 F.3d 584, 586 
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(6th Cir. 2016). A rule is substantive “if it alters the range of conduct or the class 

of persons that the law punishes.” Id. A rule is procedural if it regulates “the matter 

of determining the defendant’s culpability and alter[s] the range of permissible 

methods for determining whether a defendant’s conduct is punishable.” Id. 

This Court must determine if the rule announced in Dean is substantive or 

procedural. It is a separate offense to use or possess a firearm in connection with a 

violent or drug trafficking crime. 18 U.S.C. § 924(c) (2016). This separate offense 

has a mandatory minimum sentence of five years for the first conviction and 

twenty five years for the second conviction. Id. In Dean, the Supreme Court held 

that sentencing courts can consider the mandatory firearm sentence imposed under 

18 U.S.C. § 924(c) when calculating a sentence for the predicate violent or drug 

trafficking offense. Dean, 137 S. Ct. at 1178. 

Petitioner argues that other circuit courts, including the Sixth Circuit, have 

ordered resentencing in light of the decision in Dean. Dkt. No. 143, pg. 9–10 (Pg. 

ID 1243–44). However, Petitioner cites appeal cases, and not cases in which 

movants were challenging their judgments on collateral attack. See U.S. v. Person, 

No. 16-4031, 2017 WL 5191864, at *1 (6th Cir. Nov. 9, 2017) (on appeal); U.S. v. 

Robinson, No. 17-5200, 2017 WL 4162299, at *1 (6th Cir. Sept. 20, 2017) (on 

appeal).
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This Court must determine if Dean is applicable on collateral review. Based 

on the rule in In re Patrick, this Court holds that the rule announced in Dean is 

procedural and not retroactively applicable. Dean changes what factors a trial court 

may consider when determining a defendant’s sentence for his predicate offense. 

This rule does not change the range of conduct that the law punishes. Nor does the 

rule change the class of people that the law punishes. However, the Dean rule does 

regulate the manner of determining culpability and changes the permissible 

methods for determining whether a defendant’s conduct is punishable. Therefore, 

Dean is a non-retroactive procedural rule. Accordingly, this Court denies 

Petitioner’s Motion to Vacate Sentence. Although Petitioner’s Motion is not 

second or successive, Dean is not retroactively applicable.

V. CONCLUSION

For the reasons discussed herein, the Court will deny Petitioner’s Motion to 

Vacate Sentence.

SO ORDERED.

Dated: January 8, 2018 /s/Gershwin A. Drain 

GERSHWIN A. DRAIN 

United States District Judge