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Oral Argument in Magwood v. Patterson

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Yesterday, the U.S. Supreme Court heard oral argument in Magwood v. Patterson (09-158), to address whether a 1997 habeas claim brought by a convicted murderer was a "second or successive petition" under 28 U.S.C. §2244(b), when he could have raised the claim in his first habeas petition in 1985. 

In 1979, Magwood lay in wait to shoot and kill Sheriff Grantham in the parking lot of the Coffee County, Alabama, Jail.  He shot Sheriff Grantham three times, once each in the head, face, and chest. He then fled.  As Magwood sped away, he exchanged gunfire with Deputy Thomas Weeks, who witnessed the murder.  Magwood is not challenging his conviction for the murder.  Since 1997, Magwood has been challenging whether he was correctly resentenced to death under Alabama law.  Today's News Scan provides some more details on the procedural history of Magwood's case. 
In yesterday's arguments, Jeffrey Fisher, counsel for Billy Joe Magwood, began by stating that 28 U.S.C. §2244 restricts habeas claims by setting up a two step framework.  He said that §2244's "modified res judicata rule" only applied when a petitioner challenged a judgment that had already been reviewed by a habeas court, and that the petition filed by Magwood in 1997 challenged a new sentence, and therefore, a new judgment.  Justice Alito responded by pointing out that §2244(b) does not make any reference to judgment, and wondered if Fisher was asking for a rule that would allow a habeas court to review a "judgment of sentence" and "judgment of conviction" when "the only thing that is relevant is the judgment pursuant to which the Petitioner is held in custody." 

Fisher suggested that he was, because federal courts should have the power to invalidate a habeas petitioner's sentence.  This prompted Chief Justice Roberts to wonder whether a habeas petitioner could file a new habeas petition each time a federal court remanded a case for resentencing.  Fisher stated that he was not sure, but said that when the question has arisen in a §2255 case, federal courts have dismissed the claim if the Petitioner was challenging an issue he lost on his first appeal. 

Justice Scalia seemed inclined to read §2244(b) this way as well.  He did not agree with Fisher's argument that Magwood's 1997 petition was not "second or successive" because it was a separate piece of paper, or judgment, sentencing Magwood to death.  Justice Scalia was more inclined to agree with the state's argument "that if it is the second petition that could have raised the issue, it is second or successive."

Solicitor General for Alabama, Corey Maze, highlighted this point in his argument.  He began by addressing questions raised by Justice Alito over whether a judgment was a conviction or a sentence.  He argued that if Magwood was correct, and a petitioner could separate a judgment from a conviction, then Burton v. Stewart was incorrect. 

Justice Breyer disagreed at first, stating "it's a dilemma here."  By the end of argument, however, he seemed to favor Maze's "simple rule" that a habeas petitioner abuses the writ "by having a chance to raise the claim, but then not doing it."  Justice Breyer may have been more inclined to agree with Maze's argument once he understood the state's proposed rule would not prohibit a habeas petitioner to fully litigate every claim he brought in a habeas petition.  During his argument, Maze assured the Justice that if a petitioner did raise several claims in his habeas petition, and the district court only addressed one claim when it dismissed the petition, the petitioner could raise the remaining claims "again and again, as long as he does each one once, and they are not second or successive...."

On rebuttal, Fisher addressed one question from the Court.  Justice Sotomayor asked Fisher to address a question asked earlier by Chief Justice Roberts, and answer whether a judge's order to resentence a defendant from 10 to 8 years would "mean that [the] petitioner can come back and say, my fine was wrong, my supervised release was wrong, other convictions, other sentences that were consecutive or concurrent are wrong?"  Fisher responded, "[p]robably not[,]" and then stated, "that question can arise only in a Federal situation." 

1 Comment

The reason Maze is right about situation where prisoner raises multiple claims and is only granted relief on one of them is obvious. You cannot appeal a win. Thus, he never had a full and fair opportunity to litigate those claims.

Fisher, I think, is wrong that pure sentencing issues could never come up under federal habeas review of state criminal judgments. Sentences can be challenged as violating due process, Apprendi etc.

This case really is about the effect of the state court judgment and the first habeas judgment.

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