United States v. Kearn.

No. 22-3068. 12/2/2022. D.Kan. Judge Phillips. Collateral Proceedings—Ineffective Assistance of Counsel—Change of Plea—Resentencing—Appellate Jurisdiction.

December 2, 2022

Kearn was convicted of three charges stemming from his photographing and distributing pornographic images of his 4-year-old daughter. He was sentenced to 292 months’ imprisonment. The Tenth Circuit affirmed the conviction and sentence. Kearn then brought ineffective assistance of counsel claims to collaterally attack his sentence, asserting that his trial counsel inadequately explained the government’s plea offer to him and thus was ineffective. The court granted the motion after an evidentiary hearing and, as a remedy, directed the government to reoffer the plea deal pursuant to Lafler v. Cooper, 566 U.S. 156 (2012). After the government’s reoffer, Kearn told the court he intended to accept the plea, and the court scheduled a change-of-plea hearing and resentencing for the same day. Soon after reoffering the plea, the government moved the district court to reconsider its grant of Kearn’s motion. The district court denied the government’s motion. The government appealed before the district court held its change-of-plea and resentencing hearings.

On appeal, Kearn moved to dismiss for lack of appellate jurisdiction. District courts have authority to vacate a prisoner’s sentence for a constitutional violation and to order a resentencing hearing under 28 USC § 2255, for, among other things, ineffective assistance of counsel in plea discussions, as discussed in Lafler. When district courts resentence defendants based on reoffered pleas under Lafler, appellate jurisdiction does not arise until the defendants are resentenced. Here, the orders granting Kearn’s § 2255 motion and setting a future resentencing are not final. Accordingly, the Tenth Circuit lacked appellate jurisdiction.

The appeal was dismissed.