Burton v. Stewart

• Decision Date: 09 January 2007
• Docket Number: No. 05-9222.,05-9222.
• Citation: 127 S.Ct. 793,166 L.Ed.2d 628,75 USLW 4042,549 U.S. 147
• Parties: Lonnie Lee BURTON, Petitioner, v. Belinda STEWART, Superintendent, Stafford Creek Corrections Center.
• Court: U.S. Supreme Court

549 U.S. 147

127 S.Ct. 793

166 L.Ed.2d 628

75 USLW 4042

Lonnie Lee BURTON, Petitioner,

v.Belinda STEWART, Superintendent, Stafford Creek Corrections Center.

No. 05-9222.

Supreme Court of the United States

Jan. 9, 2007.

Rob McKenna, Attorney General, William Berggren Collins, Carol A. Murphy, Deputy Solicitors General, Paul Douglas Weisser, Senior Counsel, John J. Samson, Counsel of Record, Assistant Attorney General, Olympia, WA, for Respondent.

Brian Tsuchida, Laura Mate, Federal Public Defender, Western District of Washington, Seattle, Thomas C. Goldstein, Akin, Gump, Strauss Hauer & Feld LLP, Washington, DC, Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Amy Howe, Kevin K. Russell, Howe & Russell, P.C., Washington, DC, for petitioner.

PER CURIAM.

We granted certiorari in this case, 547 U.S. 1178, 126 S.Ct. 2352, 165 L.Ed.2d 278 (2006), to determine whether our decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review. We do not answer these questions, however, because petitioner-a state prisoner seeking postconviction relief from the federal courts-failed to comply with the gatekeeping requirements of 28 U.S.C. § 2244(b). That failure deprived the District Court of jurisdiction to hear his claims. Accordingly, we vacate the judgment of the Court of Appeals and remand with instructions to direct the District Court to dismiss petitioner's habeas corpus application for lack of jurisdiction.

I

On October 31, 1994, a Washington jury convicted petitioner Lonnie Burton of rape, robbery, and burglary. App. 3-4. The state trial court initially entered judgment and sentence on December 19, 1994 (1994 judgment). In that judgment, the court sentenced Burton to a total of 562 months in prison. State v. Burton, No. 35747-6-I etc., 86 Wash.App. 1046, 1997 WL 306429, *12 (Wash.App., June 9, 1997). The trial court rested the 562-month sentence on two alternative grounds under Washington's determinate sentencing scheme. First, it sentenced Burton to within-guidelines sentences for each offense-153 months for robbery, 105 months for burglary, and 304 months for rape-and directed that the sentences be served consecutively, for a total term of 562 months. Id., at *13. Under Washington's “multiple offense policy,” impositionof consecutive sentences constitutes an “exceptional” sentence, Wash. Rev.Code §§ 9.94A.120(18), 9.94A.400(1)(a) (2000), ¹ but the trial court justified such a sentence on the ground that running the three terms concurrently would result in a sentence “clearly too lenient” in light of the purposes of Washington's sentencing scheme. See § 9.94A.390(2)(i).² The second basis on which the court calculated a 562-month term was by running the sentences concurrently but imposing an exceptional sentence of 562 months solely for the rape conviction-again on the ground that the total sentence would otherwise be “clearly too lenient.” State v. Burton, 86 Wash.App. 1046, 1997 WL 306429, at *13.

After an unrelated prior conviction was overturned, Burton requested resentencing. Accordingly, over a year after the 1994 judgment, the trial court entered an amended judgment and sentence (1996 judgment), which, after recalculating Burton's offender scores, imposed a new sentence that relied solely on an exceptional 562-month sentence for the rape conviction, run concurrently with the other two terms. Ibid.; App. 45. On direct review, the Washington Court of Appeals upheld Burton's conviction, State v. Burton,supra, a decision the Washington Supreme Court declined to review, State v. Burton, 133 Wash.2d 1025, 950 P.2d 475 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1533, 140 L.Ed.2d 683 (1998). The State Court of Appeals remanded for resentencing, however, because the trial court's exclusive reliance on the exceptional rape sentence decreased Burton's potential early release credits, raising vindictiveness concerns. State v. Burton, 86 Wash.App. 1046, 1997 WL 306429, at *14.

In response, on March 16, 1998, the trial court entered a second amended judgment and sentence (1998 judgment). App. 3. In this judgment, the trial court recited the jury's 1994 guilty verdicts, id., at 3-4, and again imposed a 562-month sentence, reverting to its original basis for doing so-running the three within-guidelines sentences consecutively, id., at 7, 29-32. Burton sought review of this sentence, but the Washington courts eventually rejected his challenges both on direct review and in state postconviction proceedings. Id., at 43-55; App. to Brief for Petitioner 1a-4a.

On December 28, 1998, while state review of his sentence was still pending, Burton filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus in the United States District Court for the Western District of Washington (1998 petition). App. 34. The standard form he filled out warned applicants that they must “ordinarily first exhaust ... available state court remedies as to each ground on which” they sought “action by the federal court,” or run the risk of being “barred from presenting additional grounds at a later date.” Id., at 37-38. Burton nonetheless challenged his custody only by disputing the constitutionality of his three convictions, not by pressing any sentencing claims. Where the form requested the “[d]ate of judgment of conviction,” Burton listed “Dec. 16, 1994,” corresponding roughly to the date of the 1994 judgment. Id., at 34. The form asked whether the applicant had “any petition or appeal now pending in any court, either state or federal, as to the judgment under attack,” to which Burton answered “Yes,” explaining that “[the] sentence I received at resentencing is on direct appeal.” Id., at 40 (emphasis added) . The District Court denied relief, id., at 42, and the United States Court of Appeals for the Ninth Circuit affirmed, Burton v. Walter, 21 Fed.Appx. 632 (2001), cert. denied, 535 U.S. 1060, 122 S.Ct. 1923, 152 L.Ed.2d 830 (2002).

Over three years subsequent to filing the 1998 petition, after the Washington courts had rejected his sentencing challenges, Burton filed another federal habeas petition (2002 petition), again in the Western District of Washington. This time, Burton claimed to be contesting the 1998 judgment, and challenged only the constitutionality of his sentence. In particular, he alleged that it violated our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the extent the sentencing court departed from a standard sentence based on its own factual determinations. The District Court again denied the petition, App. 77, and the Ninth Circuit again affirmed, Burton v. Waddington, 142 Fed.Appx. 297 (2005). Both courts rejected the State's contention that the District Court lacked jurisdiction to entertain the petition because Burton had not obtained an order from the Court of Appeals authorizing him to file a “second or successive” habeas petition, as required by the habeas gatekeeping provisions, 28 U.S.C. § 2244(b)(3). On the merits, the Ninth Circuit rejected Burton's Apprendi claim and agreed with the State that Burton could not benefit from Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, because that decision announced a new rule that did not apply retroactively to Burton's sentence. 142 Fed.Appx., at 299.

It is this petition, the 2002 petition, that is before us today. We conclude, though, that because the 2002 petition is a “second or successive” petition that Burton did not seek or obtain authorization to file in the District Court, the District Court never had jurisdiction to consider it in the first place.

II

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

Burton's 2002 petition was a “second or successive” habeas application for which he did not seek, much less obtain, authorization to file. When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Burton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it.

The Ninth Circuit determined that the 2002 petition was not “second or successive”because, under McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), Burton had a “legitimate excuse for failing to raise” his sentencing challenges in the 1998 petition. 142 Fed. Appx., at 299 (quoting McCleskey, supra, at 490, 111 S.Ct. 1454; internal quotation marks omitted). Specifically, the Ninth Circuit reasoned that because Burton had not exhausted his...