Split Created: What is a Second or Successive Habeas Petition

Per Suggs v. United States (7th Cir. Jan. 17, 2013)

AEDPA bars second or successive habeas petitions.  Here, the prisoner's first petition resulted in resentencing.  Now the prisoner challenges his conviction in a second petition.  Relying on past circuit precedent, a divided panel of the CA7 holds the petition barred, because the conviction issue could have been raised in the first petition.  (p. 8).

The CA2 and CA9 disagree.  (p. 11.)  The correct result is a very close call but I tend to agree with Judge Sykes' dissent and the other circuits:  The petition is not second or successive because the intervening resentencing creates a new judgment, and habeas petitions are directed at judgments.  At bottom, though, I question the panel procedure of the CA7.

The split revolves around the interpretation of a recent Supreme Court decision, Magwood v. Patterson, 130 S. Ct. 2788 (2010).  In Magwood, the Supreme Court held that a petition directed at the new sentence, following resentencing after an initial petition, could not be second or successive:  "[B]oth § 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." 

Magwood, however, specifically reserved the question here, and did so with a footnote apparently favorably citing past circuit practice:

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.[fn]

fn.: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."

This reservation and citation would seem at first glance to leave past precedent intact.  Nonetheless, the statutory interpretation of Magwood--that second or successive refers to judgments, not claims--fatally undermines past precedent and demands that any petition following a new sentence not be barred because there is a new judgment.

I do not fault the Seventh Circuit majority for following past precedent because it was not explicitly overruled.  This is a very close issue.  I do fault the panel, however, for not pre-circulating their opinion.  As this blog has previously noted, Seventh Circuit Local Rule 40(e) demands precirculation where, as here, an opinion creates a conflict among circuits.  Precirculation would have also been required had the opinion adopted the position of other circuits and overruled past precedent.

In sum, regardless of the position adopted, this case should have been considered for en banc review prior to publication.  And the en banc court may have felt more liberty to depart from past precedent to follow the logic of Magwood.