Unpublished Dispositioncharles Orin Hood, Petitioner-appellant, v. United States of America, Respondent-appellee, 925 F.2d 1463 (6th Cir. 1991)

ORDER

Petitioner, Charles Orin Hood, appeals the district court's judgment denying his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Hood was convicted by a jury of kidnapping and transporting a stolen vehicle. He was sentenced to a total of 96 years imprisonment (91 years on the kidnapping charge with a five year consecutive sentence on the vehicle charge). The court also ordered, pursuant to 18 U.S.C. § 4205(b), that he not be eligible for parole until after service of thirty years. The conviction was affirmed on direct appeal and the United States Supreme Court denied certiorari. This court later affirmed the district court's judgment denying Hood's motion for a reduction of sentence filed pursuant to Fed. R. Crim. P. 35(b).

Thereafter, Hood filed his motion to vacate alleging that the thirty year parole ineligibility term was erroneously applied based upon this court's decision in United States v. Hagen, 869 F.2d 277 (6th Cir.), cert. denied, 109 S. Ct. 3228 (1989). In Hagen, this court ruled that district courts did not have the authority under 18 U.S.C. § 4205(b) to set parole ineligibility terms in excess of ten years. Hood sought to have his sentence corrected by changing his parole eligibility to ten years.

The district court first denied Hood's motion in a marginal order. This court, on April 12, 1990, vacated the judgment and remanded the case (Case No. 89-5833) because the district court's marginal order was not in the form required by Fed. R. Civ. P. 58. Thereafter, the district court denied the motion, finding that this court's prior decisions upholding the sentence imposed were final judgments and were res judicata to issues raised in the instant motion.

On appeal, Hood argues that res judicata should not bar relief in the face of an intervening change in the law.

Upon review, we shall reverse the district court's judgment. The Supreme Court held in Sanders v. United States, 373 U.S. 1 (1963), that the doctrine of res judicata does not generally apply to petitions for habeas corpus. The court held that res judicata will apply to habeas petitions only if three factors are met. See Lonberger v. Marshall, 808 F.2d 1169, 1173 (6th Cir. 1987). We hold that the third factor is not met here, as the "ends of justice" would not be served by continuing to apply the construction of Sec. 4205(b) rejected by Hagen.

Accordingly, the district court's judgment is hereby reversed pursuant to Rule 9(b) (6), Rules of the Sixth Circuit.