Whether the Pearce presumption of judicial vindictiveness applies when a second (new) sentencer imposes a harsher sentence following a successful collateral attack on the original sentence

QUESTION PRESENTED This case turns on whether the Pearce presumption of judicial vindictiveness applies—for the Government to then rebut with new evidence—when a second (mew) sentencer imposes a harsher _ sentence, representing an actual (true) increase, following a successful collateral attack on the original sentence. The question presented is whether the 9th Circuit erred in failing to address whether the new judge’s application of new controlling case law to a collateral attack on the original sentence is a “triggering event”. If not, the controlling question is whether the Pearce presumption applies to a second sentencer, absent a traditional reversal or order from a higher tribunal, which is also the subject of a long-standing and firmly entrenched circuit split. This Court should grant certiorari to resolve these issues. When the Court (a new judge) granted Mr. ValdezLopez §2255 motion it was because the Court was ostensibly bound by Johnson and Davis (and the government also did not oppose the §2255 motion).! This is akin to an order of a higher tribunal and is therefore a "triggering event" requiring application of the Pearce presumption and rendering moot any potential second (new) sentencer issue. The 9th Circuits panel opinion, however, failed to consider Valdez-Lopez arguments and merely stated that the presumption does not apply because the Court itself granted the §2255 motion and was not the original judge. The Court’s opinion can be found at 4 F.4th 886 1 Johnson v. United States, 135 S. Ct. 2551 (2015); United States v. Davis, 139 S. Ct. 2319 (2019) ii (9th Cir. 2021) and is reproduced at App. 1-16. The §2255 order is reproduced at App. 18. When the new judge was ostensibly forced to grant the §2255 motion this directly and substantially reduced Valdez-Lopez exposure. The resentencing record reflects that there is a reasonable likelihood that the harsher sentence was the product of actual vindictiveness stemming from the successful collateral attack, various institutional interests and the fettering of the usually broad sentencing authority of the new judge. The Court could not and did not rely on information, conduct or events occurring after the original sentence. The Court’s sentence was also contrary to the recommendations of probation (15 yrs) and the government (reimpose original sentence sentence of 20 yrs). (C.A. E.R. 20, 35). The mere fact that the harsher sentence was imposed by a new judge does not insulate against a deprivation of Valdez-Lopez Due Process Rights guaranteed by the Fifth and Fourteenth Amendments or his Sixth Amendment right to not be punished for going to trial. This is not a retrial by a new judge and no new information upon which the court could rely was received. Accordingly, the actual increase of 60 months despite the vacated 924(c) count cannot stand and the Pearce presumption should apply in second (mew) sentencer cases following a successful §2255 attack on a_ sentence that was, in _ part, unconstitutional. Judge Fletcher, although concurring, wrote separately stating the sentencing law at issue here has gone awry. He notes that the law should not permit a judge, whether the original judge or a replacement judge, to impose a longer sentence when iii the only change in the record is the fact that petitioner prevailed on collateral attack because part of the original sentence was unconstitutional. App. 16.