King v. Morgan

• Decision Date: 01 December 2015
• Docket Number: No. 13–4189.,13–4189.
• Citation: 807 F.3d 154
• Parties: Delawrence KING, Petitioner–Appellant, v. Donald MORGAN, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

807 F.3d 154

Delawrence KING, Petitioner–Appellant,

v.Donald MORGAN, Warden, Respondent–Appellee.

No. 13–4189.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2015.

Decided and Filed: Dec. 1, 2015.

ARGUED:Erin E. Murphy, Bancroft PLLC, Washington, D.C., for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, OH, for Appellee. ON BRIEF:Erin E. Murphy, Paul D. Clement, Raymond P. Tolentino, Bancroft PLLC, Washington, D.C., for Appellant. Gregory T. Hartke, Office of the Ohio Attorney General, Columbus, OH, for Appellee.

Before: BOGGS, SUTTON, and WHITE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

The Anti–Terrorism and Effective Death Penalty Act does not take kindly to repeat requests for habeas relief. It mandates that, if an inmate has already lost one such request, he may not file a "second or successive" petition without satisfying several stringent requirements. What happens, however, if the inmate wins a state-court collateral challenge, obtaining some relief (e.g., a new trial or a new sentence) but not a release from custody? Does the "second or successive" rule apply to federal habeas challenges to the new state-court judgment? In one setting, the answer is easy. If the inmate challenges a new feature of the proceeding that ended with a second conviction and sentence, the petition is not "second or successive." It is a new challenge to a new error. Application of the rule becomes more complicated if the second petition challenges the inmate's custody on grounds that could have been raised in his first petition. In that setting, may the claimant challenge a new sentence on grounds that could have been raised in the first petition? And, after a new sentence is issued, may the claimant do the same with an unchanged and reinstated conviction ?

Magwood v. Patterson answered the first question. 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). It held that a petition challenging a new sentence imposed after a full resentencing and leading to a new judgment does not count as second or successive—even if the claimant previously filed petitions that challenged the original sentence and even if he raised or could have raised the same claims in those earlier petitions. We answer the second question today, holding that a habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the "second or successive" requirements.

I.

In 2004, an Ohio jury found DeLawrence King guilty of two counts of murder and one count of felonious assault, with a firearm specification on each count. State v. King, No. 04CA008577, 2005 WL 1962967, at *1 (Ohio Ct.App. Aug. 17, 2005). The state court sentenced King to fifteen years to life on each of the murder counts, three years on the assault count, and three years on each of the firearm specifications. The court merged the firearm specifications and directed the sentences on the two murder convictions to be served concurrently but consecutively as to the other two sentences. The resulting sentence totaled twenty-one years to life. The convictions and sentence were affirmed on direct appeal. Id. at *10, appeal denied, 107 Ohio St.3d 1700, 840 N.E.2d 205 (2005) (mem.).

In 2006, King filed a habeas petition in federal court. The district court denied relief, and we denied a certificate of appealability. In 2009, King asked the state trial court to vacate his sentence because it failed to include mandatory post-release control. See State v. Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958, 964 (2009). The court complied and resentenced King. But the court's action did not lead to the hoped-for result. The new sentence totaled thirty-three years to life, mainly because the court imposed consecutive sentences on the murder counts after previously imposing concurrent sentences on them. The court entered a new "Judgment Entry of Conviction and Sentence," reinstating the underlying convictions and imposing the new sentence. R. 4–10 at 2.

After further challenges in state court failed, King filed another federal habeas petition. This one raised seven claims. The district court rejected the two claims stemming from the new sentence, one as procedurally defaulted, the other as raising a non-cognizable state law challenge. We denied a certificate of appealability on those claims and have no need to address them further. See 28 U.S.C. § 2253(c)(1), (3). The other five claims attacked the original convictions. The district court held that those claims were second or successive and dismissed them. See id. § 2244(b). We granted a certificate of appealability to determine if the five challenges to King's conviction should be considered second or successive claims. King v. Morgan, No. 13–4189 (6th Cir. Oct. 14, 2014) (unpublished order). At that point, we appointed Erin Murphy to represent King, and we are grateful for her service in doing so.

II.

AEDPA limits a prisoner's right to file a "second or successive" habeas petition in federal court. If the inmate is "in custody pursuant to the judgment of a State court," 28 U.S.C. § 2254(a), as King is, a federal court of appeals may "authoriz[e] the district court to consider a second or successive application" only with respect to claims "not presented in a prior application" and not previously available because they rest on new law ("a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable") or new facts ("the factual predicate for the claim could not have been discovered previously through the exercise of due diligence ... [and] would be sufficient to establish ... that, but for constitutional error, no reasonable factfinder would have found the applicant guilty"). Id. § 2244(b). The same strictures apply to prisoners in federal custody. See id. § 2255(h).

The words "second or successive" are not hard to grasp by themselves. What is difficult is distinguishing first from second petitions when the claimant obtains relief between the two petitions. Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), fills in some of the gap by focusing on whether the inmate challenges an intervening judgment. In the Court's words: "[W]here ... there is a new judgment intervening between the two habeas petitions, ... an application challenging the resulting new judgment is not ‘second or successive’ at all." Id. at 341–42, 130 S.Ct. 2788 (quotation omitted). Because petitions seek the "invalidation (in whole or in part) of the judgment authorizing the prisoner's confinement," Magwood tells us, no part of the petition counts as second or successive as long as it is the first to challenge the new judgment. Id. at 332, 130 S.Ct. 2788. That means that, if an initial federal habeas petition (or state-court collateral challenge) leads to an amended judgment, the first petition that follows the entry of the new judgment is not second or successive, even if it raises claims that the inmate could have raised in the first petition. Id. at 328–29, 331, 130 S.Ct. 2788.

Magwood's judgment-based approach takes us a good way down the road of resolving today's question. King's petition, like Magwood's, is the first to challenge a new judgment. The wrinkle is that the petition in Magwood limited its claims to the sentence entered after resentencing. See id. at 342, 130 S.Ct. 2788. That leaves today's question: Does the "second or successive" count begin anew if the new petition challenges the original, undisturbed conviction ?

Yes, the count begins anew for several reasons.

Magwood's reasoning as an initial matter favors this approach. "Because Magwood's habeas application challenges a new judgment for the first time," the Court explained, that "intervening" development resets the application count and prevents it from being "second or successive." Id. at 323–24, 339, 130 S.Ct. 2788. This judgment-based reasoning naturally applies to all new judgments, whether they capture new sentences or new convictions or merely reinstate one or the other.

Strengthening that inference is the reality that Magwood could have adopted a claims-based approach to the problem before it. The Court could have applied the second-petition rule on a claim-by-claim basis, "separat[ing]" the claims within a petition and deeming some successive and others not. See id. at 329, 331, 130 S.Ct. 2788. But it declined. It reasoned that such an approach would not respect the language of the statute and thus would "elide the difference between an ‘application’ and a ‘claim,’ " a distinction that the statute makes important because "AEDPA uses the phrase ‘second or successive’ to modify ‘application.’ " Id. at 334, 130 S.Ct. 2788 (quotation omitted). The same reasoning applies to convictions.

As a matter of custom and usage, moreover, a judgment in a criminal case "includes both the adjudication of guilt and the sentence."

Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) ; see also Rashad v. Lafler, 675 F.3d 564, 568 (6th Cir.2012) (the federal habeas statute "speaks of one ‘judgment[ ]’ "); Fed.R.Crim.P. 32(k)(1) ; Ohio R.Crim. P. 32(C). Even when the only change in the state-court proceeding relates to the sentence, the new judgment will reinstate the conviction and the modified sentence. If "the existence of a new judgment is dispositive" in resetting the "second or successive" count, Magwood, 561 U.S. at 338, 130 S.Ct. 2788, and if the count applies to petitions, not claims, id. at 334–35, 130 S.Ct. 2788, the existence of a new judgment permits a new application to attack the sentence, the conviction, or both.

A few practical considerations support this approach as well. Some claims within a habeas application, it turns out, will apply to the underlying conviction and the new sentence. What then? Would the second-petition rule apply to one claim but not the other? That would make little...