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The Definition of a "Second or Successive" Habeas Petition

Today, the U.S. Supreme Court agreed to address whether Billy Joe Magwood's second habeas petition, filed in 1997, was a "second or successive claim" under 28 U.S.C. §2244(b).  Magwood's Petition for Certiorari is asking the Court to address whether his claim is "second or successive" when he could have challenged his previously imposed (and now vacated) sentence on the same grounds.  A three judge panel for the Eleventh Circuit thought Magwood's petition was successive, but Magwood's attorneys, Jeffrey Fisher and Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, see things differently. 

Magwood, a former jail inmate in Coffee County, Alabama, shot and killed Sheriff Grantham on March 1, 1979.  He was convicted and sentenced to death in 1981.  In 1983, he filed a petition for habeas corpus challenging his sentence under Alabama's 1975 Death Penalty Act.  A district court granted relief, finding the sentencing court had failed to consider certain mitigating circumstances.  Magwood was re-sentenced in 1986.  The Alabama trial court considered Magwood's additional mitigating circumstances, and again sentenced Magwood to death.  Both the Alabama Court of Appeals and the Alabama Supreme Court affirmed.   

Magwood again filed for federal habeas relief, this time challenging his conviction on grounds that he did not have notice that the aggravating factors averred to in his indictment, and proved beyond a reasonable doubt to the jury, could be considered by the sentencing judge.  He alleged his lack of warning was facilitated by a strange anomaly in Alabama's 1975 Death Penalty Statute.  The anomaly occurred because the legislature had failed to include a provision that would allow the trial judge to affix the jury's sentence of death unless the trial judge relied on the aggravating circumstances averred to in the indictment.  Ex parte Kyzer, 399 So.2d 330 (Ala.1981) established that a sentencing judge could accept the jury's sentence of death based on the aggravating circumstances averred to in the indictment and proven beyond a reasonable doubt to the jury, even though the application was not specifically provided for in the 1975 Act.  Magwood had notice of the decision when he filed his first habeas petition in 1983, but he did not raise it.  In his second habeas petition, argued that his re-sentencing counsel was ineffective for failing to address Kyzer's constitutionality. 

The district court granted Magwood's petition for habeas relief.  That court believed that the ruling in Kyzer violated clearly established due process limitations on the retroactive application of a new law.  According to the district court, this death penalty claim could not be restricted by AEDPA's "second or successive" language because habeas petitions challenging re-sentencing procedures are neither second nor successive.

The Eleventh Circuit disagreed.  It found that because Magwood had "fair warning" of the Kyzer decision, and had failed to raise it, his claim was successive and barred under 28 U.S.C. §2244(b)(2).  To a certain degree this is true.  The Eleventh Circuit would agree with the district court that a habeas petition challenging a re-sentencing procedure on ineffective assistance of counsel grounds is not "second or successive" under §2244, because the prisoner could not be expected to anticipate that his counsel would render ineffective assistance until re-sentencing actually occurred. Certain claims, on the other hand, should be brought in the first habeas petition if the rule is in place at the time the prisoner files his first petition - particularly if the validity of the claim does not depend on some later-in-time trial procedure.  Requiring a petitioner to raise all available valid claims in his first petition is consistent with Congress' intent that AEDPA cut down the number of appeals flooding federal courts.

Magwood's Petition for Certiorari asked the Court to address whether the Eleventh Circuit had incorrectly denied Magwood's "fair warning" claim, because in its view, a habeas petition challenging resentencing procedure could not be second or successive, and to address whether Magwood's re-sentencing attorney had been ineffective for failing to argue that retroactive application of Kyzer violated due process.  The Supreme Court limited certiorari to the first question, and will not address the ineffective mess.

While Burton v. Stewart's conclusion - that petitions are successive when they challenge a state-court judgment already challenged in a prior §2254 application - support's Magwood's claim, the wrinkles presented by Magwood, and the Court's decision to limit certiorari to the first issue, raise some interesting issues.  More information on Magwood v. Culliver (09-158) can be found at SCOTUSblog's post on Today's Orders.  CJLF's Burton brief, addressing the "second or successive" issue, is available here.

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