Today's decision in Burton v. Stewart resolves a habeas procedural issue that should have been obvious. (See my postargument post here.) A defendant whose conviction is affirmed but whose sentence is reversed in the state court cannot file one federal habeas petition attacking the conviction and then go back with a second petition attacking the resentencing after exhausting his state remedies on the second round. That is a successive petition, and it is subject to stringent, almost-never-met conditions of 28 U.S.C. § 2244(b). The briefs in the case are collected here.
The odd thing here is that five federal jurists so casually brushed off the state's successive petition argument: the magistrate judge, the district judge, and the three judges of the court of appeals panel. Clear statements that there is only one final judgment in a criminal case -- the one including the sentence -- go back at least as far as the 1937 Berman case, quoted on page 9 of the opinion and page 8 of my brief. A second petition attacking the same judgment is successive, unless the first one was dismissed on a ground not going to the merits, such as failure to exhaust state remedies.
The case is worthwhile to clear up a point that apparently wasn't obvious enough. It probably won't be the subject of many law review articles.
Doug Berman at SL&P asks if the Court should just have "dismissed as improvidently granted" (DIG'd, in SCOTUS parlance).
Jeff Fisher, counsel for Burton, responded by email:
My best guess is that the reason the Court didn't just DIG relates to footnote 1 of my reply brief.... In short, the Court had never explicitly said whether a judgment that is final as to conviction but not as to sentence is "final" for the purposes of filing a federal habeas conviction. Of course, one might argue that this uncertainty should have weighed in favor of giving a break to a pro se petitioner who obviously was doing everything he could to figure out and comply with the Court's labyrinth of habeas law. But I digress . . .
It's also possible they wanted to slap down the Ninth Circuit's broad reading of Martinez-Villareal.
I wouldn't have thought that a separate statement for habeas purposes was necessary, but apparently it was. Having already taken briefing and argument, it was appropriate for the Court to decide it and not DIG it.
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