In re Gray

• Decision Date: 28 February 2017
• Docket Number: No. 16-433,16-433
• Citation: 850 F.3d 139
• Parties: IN RE: William Robert GRAY, Jr., Movant.
• Court: U.S. Court of Appeals — Fourth Circuit

850 F.3d 139

IN RE: William Robert GRAY, Jr., Movant.

No. 16-433

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2016

Decided: February 28, 2017

ARGUED: Jacob Edwards, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Movant. Peter Andrew Regulski, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent. ON BRIEF: Thomas V. Burch, Mary G. Griffin, Third–Year Law Student, David R. Waldrep, Third–Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Movant. Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent.

Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit Judges.

Motion denied with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Duncan and Judge Thacker joined.

GREGORY, Chief Judge:

William Robert Gray, Jr., seeks leave to file a second or successive 28 U.S.C. § 2254 petition challenging his conviction for first-degree murder. Because this petition will be Gray's first § 2254 petition to challenge the new judgment, imposed after Gray was resentenced, we find that the petition is not second or successive within the meaning of 28 U.S.C. § 2244(b). We therefore deny the motion as unnecessary and direct the district court to consider Gray's second-in-time § 2254 petition as the first challenge to the new judgment.

I.

In 1993, Gray was convicted in North Carolina state court of first degree murder and sentenced to death. J.A. 28. After losing on direct appeal and on his postconviction motion for appropriate relief, Gray filed a 28 U.S.C. § 2254 petition in federal district court. The court dismissed his petition, but we reversed in part, finding that trial counsel was ineffective at sentencing. We ordered the district court to grant the writ of habeas corpus "unless the State of North Carolina affords Gray a new sentencing hearing within a reasonable time." Gray v. Branker , 529 F.3d 220, 242 (4th Cir. 2008).

Nearly five years later, when Gray had still not been resentenced, he filed several pro se motions challenging his conviction and the delay in his resentencing. J.A. 152. The district court ordered the State to provide periodic updates on the status of Gray's resentencing, but it otherwise denied Gray's motions. We affirmed. Gray v. Lee , 608 Fed.Appx. 172, 173 (4th Cir. 2015), cert. denied sub nom. Gray v. R.C. Lee , ––– U.S. ––––, 136 S.Ct. 908, 193 L.Ed.2d 800 (2016). While Gray's appeal to this Court was pending, the North Carolina court finally resentenced Gray to life imprisonment after the State decided it would not seek the death penalty. J.A. 155.

In February 2016, Gray filed with this Court a 28 U.S.C. § 2244(b) motion for authorization to file a second or successive § 2254 petition. Gray now asks this Court to find such authorization unnecessary because, he argues, his resentencing means that this will be his first § 2254 petition to challenge the new, intervening judgment.

II.

Under the Anti–Terrorism and Effective Death Penalty Act ("AEDPA"), a petitioner incarcerated pursuant to a state judgment cannot bring a "second or successive" motion for federal habeas relief without authorization from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3). Only in limited, statutorily prescribed circumstances will a court of appeals grant such authorization. See id. § 2244(b)(2). If the court of appeals determines that a habeas petition is not second or successive, then authorization to file is unnecessary and the court of appeals generally will return the petition to the district court. See, e.g. , Johnson v. United States , 623 F.3d 41, 42 (2d Cir. 2010) ; In re Brown , 594 Fed.Appx. 726, 730 (3d Cir. 2014).

Here, Gray does not argue that this Court should authorize his second-in-time § 2254 habeas petition as a permissible second or successive petition under § 2244(b). Instead, he contends that because his second-in-time § 2254 petition challenges a new judgment, it is not second or successive at all. Our analysis is therefore guided by the Supreme Court's decision in Magwood v. Patterson , 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), which addresses when a habeas petition is "second or successive" within the meaning of § 2244(b).

In Magwood , after losing on direct appeal and in postconviction proceedings, Billie Joe Magwood filed a § 2254 petition challenging his state murder conviction and death sentence. The district court conditionally granted the writ as to his sentence, ordering that Magwood be released or resentenced. The trial court subsequently resentenced Magwood to death. Id. at 323, 130 S.Ct. 2788. Magwood then filed a second-in-time § 2254 petition challenging only his new death sentence. The district court again conditionally granted the writ. Id. The Eleventh Circuit reversed, holding that Magwood's challenge was an unreviewable second or successive habeas petition. It held that to determine whether a petition is second or successive under § 2244(b), a court should "separate the new claims challenging the resentencing from the old claims that were or should have been presented in the prior application." Magwood v. Culliver , 555 F.3d 968, 976 (11th Cir. 2009). The Eleventh Circuit then found that the petition was second or successive because Magwood could have raised the petition's claims in his first habeas petition. Id.

The Supreme Court rejected this claims-based approach and held that Magwood's second-in-time § 2254 petition challenging his new sentence was not second or successive under § 2244(b). Magwood , 561 U.S. at 342, 130 S.Ct. 2788. The Court explained that "the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged," id. at 333, 130 S.Ct. 2788, and where "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 (quoting Burton v. Stewart , 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) ) (citation omitted). The proper focus, according to the Magwood Court, is on the newness of the judgment as a whole .

The Court further explained that the phrase "second or successive" in § 2244(b) applies to the habeas petition itself, not to the petition's individual claims. Id. at 334–35, 130 S.Ct. 2788. Hence, a court must first determine whether a petition is second or successive, and only if it is should the court review the petition's individual claims to see if they meet § 2244(b)'s requirements. Id. The Court thus did away with a claims-based approach to determining whether a petition is second or successive in favor of a judgment-based approach, and "the existence of a new judgment is dispositive." Id. at 338, 130 S.Ct. 2788.¹

Courts have long acknowledged and the Supreme Court has confirmed that a final judgment of conviction includes both the adjudication of guilt (or "conviction") and the sentence. See Deal v. United States , 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 1993 ; United States v. Dodson , 291 F.3d 268, 272 (4th Cir. 2002). Accordingly, then, when a defendant is resentenced, he or she is confined pursuant to a new judgment even if the adjudication of guilt is undisturbed. See, e.g. , King v. Morgan , 807 F.3d 154, 158 (6th Cir. 2015) ("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."). Because in Magwood the prisoner's § 2254 petition was his first challenge to the "intervening judgment" that issued when Magwood was resentenced between his first and second § 2254 petitions, Magwood , 561 U.S. at 339, 130 S.Ct. 2788, the Court concluded that the petition was "not ‘second or successive’ at all" under § 2244(b), id. at 342, 130 S.Ct. 2788.

In dicta, the Magwood Court stated that it had no occasion to decide whether a petitioner who had "obtain[ed] a conditional writ as to his sentence" could "file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction." Id.² Magwood was only challenging alleged sentencing errors, and so the Court had no reason to reach the question of whether Magwood could also challenge his underlying conviction.

That unanswered question is precisely the one before us: whether Gray, after being resentenced to life in prison following a successful habeas petition, can challenge his underlying, undisturbed conviction in a second-in-time habeas petition. Though the Fourth Circuit has not yet addressed this question, all but one court of appeals to do so have concluded that under Magwood , a prisoner may file a second-in-time habeas petition challenging an undisturbed, underlying conviction after being resentenced. King , 807 F.3d at 156 ("[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."); Insignares v. Sec'y, Florida Dep't of Corr. , 755 F.3d 1273, 1281 (11th Cir. 2014) ("[W]hen a habeas petition is the first to challenge a new judgment, it is not ‘second or successive,’ regardless of whether its claims challenge the sentence or the underlying conviction."); Wentzell v. Neven , 674 F.3d 1124, 1127 (9th Cir. 2012) (adopting the Second Circuit's approach in Johnson and stating, in response to the argument that a petition was second or successive because it raised claims that could have been presented in a prior petition, "[t]he Supreme Court rejected such a ‘one opportunity rule’ in Magwood "); Johnson , 623 F.3d at 46 ("[W]here a first habeas petition results in an amended judgment, a subsequent petition is not successive regardless of whether it challenges the conviction, the sentence, or both."); see also Brown , 594 Fed.Appx. at 729 (adopting, in an...