Challenge to new judgment not â€œsecond or successiveâ€
DISCLOSURE: Howe & Russell and Akin Gump represented the petitioner in this case, but I was not involved in the proceedings.
Under 28 U.S.C. § 2244(b), state prisoners seeking federal habeas relief are prohibited from filing certain "second or successive" applications for relief, even if the claims made in those applications are meritorious. Yesterday, in Magwood v. Patterson (No. 09-158), the Court held that when a state prisoner obtains federal habeas relief and is re-sentenced, a habeas application challenging the new judgment is not "second or successive," even if the prisoner could have challenged the original sentence on the same ground.
Justice Thomas wrote the opinion of the Court, which Justice Scalia joined in full and which Justices Stevens, Breyer, and Sotomayor joined in large part. Explaining that the phrase "second or successive" is a term of art, the Court looked to the phrase's "statutory context" to determine its meaning. It noted that Section 2244(b) limits only "habeas corpus application[s] under §2254." Based on Section 2254(b)'s "text and the relief it provides," the Court thus concluded that the phrase ""second or successive' must be interpreted with respect to the judgment challenged."
The Court rejected the State's contention that the focus under Section 2254 is on the legality of the applicant's custody. First, it explained, Section 2254's "requirement of custody pursuant to a state-court judgment distinguishes [it] from other statutory provisions authorizing relief from constitutional violations." Second, a custody-based rule would anomalously inhibit "a prisoner who remains in continuous custody for a completely unrelated conviction [from challenging] his unrelated conviction for the first time."
The Court further rejected the State's argument that its interpretation better comported with the purpose of the statute "” viz., to prevent piecemeal litigation. The Court declined to "replace the [statute's] actual text with speculation as to Congress' intent," adding that it had "previously found Congress' use of the word "application' significant," and that a custody-based interpretation would ""elid[e] the difference between an "application' and a "claim.'"
The Court finally stressed the limited scope and implications of its holding. The procedural default rule, it emphasized, constrained prisoners' ability to bring abusive claims in the future. Not only did the Court explicitly decline to address whether Magwood's claim was so defaulted, but it also declined to answer whether a petitioner who is resentenced can challenge both his "new sentence [and] his original, undisturbed conviction."
Justice Breyer concurred, joined by Justices Stevens and Sotomayor. He emphasized that the Court "neither purports to alter nor does alter [its] holding in Panetti v. Quarterman" (2007). That case, he explained, addressed filings directed toward "a state-court judgment already challenged in a prior §2254 application." Magwood is distinct, he suggested, because it considers "a habeas petition that is the first petition to address a new "state-court judgment' that has not "already [been] challenged in a prior §2254 application.'"
In an opinion joined by the Chief Justice and Justices Ginsburg and Alito, Justice Kennedy dissented. He argued that "a petitioner loses his right to challenge [an] error by not raising a claim at the first opportunity after his claim becomes ripe." "Because Magwood had a full and fair opportunity to adjudicate his death-eligibility claim in his first petition in 1983, his 1997 petition raising this claim [for the first time] is barred as "second or successive'" within the meaning of Section 2244(b). To allow Magwood to raise that claim now, he concluded, would be to permit an abuse of the writ.