I will split the discussion of the Burton argument into two parts, jurisdiction first and retroactivity in a later post.

   The Court is clearly well aware of the jurisdictional successive petition problem in this case, and fears that it might make a major change in successive petition law by inadvertence appear to be unfounded. Most observers appear to think the Court will dispose of the case on jurisdiction. See, e.g., the AP story by Mark Sherman and Lyle Denniston at SCOTUSblog.

   Burton filed two federal habeas petitions: one challenging his conviction while his resentencing was still on appeal in the state courts, and the present petition after the state courts had rejected his sentencing claims. The second petition is therefore successive and subject to the very strict limits on successive petitions in the Antiterrorism and Effective Death Penalty Act of 1996. Jeffrey Fisher, for the defendant, says on pages 15 and 17 that the district court should have dismissed the first petition for lack of jurisdiction but that there is no proper objection to the second. This is so wrong it is painful to read. When a prisoner has exhausted state remedies on some claims but not others and files a habeas petition on the exhausted claims, the habeas court does not lack jurisdiction to consider them. Rose v. Lundy, 455 U.S. 509 (1982) is very clear that if a petitioner does proceed with his exhausted claims, he risks being barred by the successive petition rule if returns later with the others. Ideally, the district judge should advise a pro se petitioner of this consequence, but it is not required. As our brief notes at page 6, there is a warning in the form that prisoners are required to use.

   From their questions on pages 12-15, it appears that Justices Kennedy, Souter, and Ginsburg are aware of how wrong Fisher's argument is. At 15:20-23, Justice Souter says, "But if the first proceeding was not in fact jurisdictionally barred, then you would lose under the second and successive objection in this case, right?" Right.

   On pages 26-29, the state DSG makes a fact-specific argument based on the timing of the judgments in this case. It's a valid argument and a possible winner, but I personally hope the Court does not rule on this basis. The precedent thus set would leave open the question of whether prisoners can file two federal habeas petitions when the timing is different from this case, a question which should be answered with a loud, clear "no."

   The federal ASG argues (p. 45) that it doesn't matter for federal prisoners because the statute is different. 28 U.S.C. § 2255 authorizes a motion to vacate, set aside, or correct a sentence and so must necessarily follow any resentencing required by the decision on the direct appeal. A point that could have been made here is that Congress understood when it enacted that statute that is was a complete replacement for habeas corpus as a collateral attack, so this statute illustrates that habeas also should follow any required resentencing.

   On rebuttal, Fisher claims again that the state should have objected to the first petition and is now barred from objecting to the second (p. 50). Nope.  Nonexhaustion of other claims not mentioned in the petition is no ground for objecting to a habeas petition. You can't default an issue by not making a meritless objection, and you have no obligation to warn your opponent he is defaulting claims he may want to make in the future. Further, the successive petition rule in AEDPA goes to subject matter jurisdiction. Such issues cannot be defaulted.

   The transcript tends to confirm what the observers of the argument concluded. This case will probably go down on the successive petition rule. Doug Berman thinks this will be a "major ruling on habeas law," but I think it will be relatively minor as Supreme Court cases go. It will confirm what the habeas lawyers have known for a long time, at least since Lundy in 1982.