Habeas: After Resentencing, Petition Challenging New Sentence Treated as 1st, not 2nd or Successive, Petition

Magwood v. Patterson, USSC No. 09-158, 6/24/10

After a defendant has been resentenced in state court pursuant to relief granted on a federal habeas petition, a second federal habeas petition challenging the new sentence will be treated as a first petition (vs. a “2nd or successive” petition), even if raising grounds that could have been raised in the original petition.

We have described the phrase “second or successive” as a “term of art.” Id., at 486. To determine its meaning, we look first to the statutory context. The limitations imposed by §2244(b) apply only to a “habeas corpus application under §2254,” that is, an “application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court,” §2254(b)(1) (emphasis added). The reference to a state-court judgment in §2254(b) is significant because the term “application” cannot be defined in a vacuum. A §2254 petitioner is applying for something: His petition “seeks invalidation (in whole or in part) of the judgment authorizing the prisoner’s confinement,” Wilkinson v. Dotson, 544 U. S. 74, 83 (2005) (emphasis added). If his petition results in a district court’s granting of the writ, “the State may seek a new judgment (through a new trial or a new sentencing proceeding).” Ibid. (emphasis in original). Thus, both §2254(b)’s text and the relief it provides indicate that the phrase “second or successive” must be interpreted with respect to the judgment challenged.

…

This is Magwood’s first application challenging that intervening judgment. The errors he alleges are new. It is obvious to us—and the State does not dispute—that his claim of ineffective assistance at resentencing turns upon new errors. But, according to the State, his fair-warning claim does not, because the state court made the same mistake before. We disagree. An error made a second time is still a new error. That is especially clear here, where the state court conducted a full resentencing and reviewed the aggravating evidence afresh. See Sentencing Tr., R. Tab 1, at R–25 (“The Court in f[or]mulating the present judgment has considered the original record of the trial and sentence. . . . The present judgment and sentence has been the result of a complete and new assessment of all of the evidence, arguments of counsel, and law” (emphasis added)).13

Potentially crucial limitation with respect to challenge to conviction:

The State objects that our reading of §2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. … This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.16 …

16 Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the “portion of a judgment that arose as a result of a previous successful action.” Lang v. United States, 474 F. 3d 348, 351 (CA6 2007) (citing decisions); see also Walker, 133 F. 3d, at 455; United States v. Esposito, 135 F. 3d 111, 113–114 (CA2 1997).

Keep in mind, too, that this opinion doesn’t change the rule that sentence modification outside the direct-appeal process doesn’t reset the 2254 clock: David Lozano, Jr. v. Frank, 424 F. 3d 554 (7th Cir 2005).

UPDATE: In Suggs v. U.S., No. 10-3944 (7th Cir. Jan. 17, 2013), the Seventh Circuit addressed the question Magwood did not regarding a second-in-time petition that challenges only the prisoner’s underlying conviction after the prisoner had already won resentencing with a previous petition. Suggs, a federal prisoner, challenged his conviction and sentence with a § 2255 petition and succeeded in getting resentencing. After his resentencing, Suggs obtained new information he claims shows he’s innocent, so he filed a second petition challenging his conviction. Under circuit precedent predating Magwood, his second-in-time petition is limited to errors at the resentencing. The court concludes that precedent is still good:

The Magwood Court expressly declined to extend its holding to the situation we face here, where the second motion challenges the original conviction, not the new sentence. This circuit’s precedent holds that the second motion here is barred as second or successive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001). We recognize that the reasoning in Magwood casts some doubt about the continued viability of Dahler. However, because Magwood explicitly limited its holding so as not to reach the situation we face here, we are not persuaded that we should overrule our precedent.

Judge Sykes dissents, saying Magwood has “displaced” Dahler and citing cases from two other circuits holding a petition like Suggs’s should not be barred. Suggs creates a circuit split, and that, along with the importance of the issue to habeas practice, means the Supreme Court will likely be addressing the question sooner or later.