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What constitutes a “second or successive” petition in ...
Fri Mar 26, 2010 11:56am

What constitutes a “second or successive” petition in habeas
challenges to death sentences?

Magwood v. Patterson, argument recap
Anna Christensen | Friday, March 26th, 2010 10:00 am
Here, Harvard Law School’s Jay Rapaport recaps Wednesday’s oral
argument in Magwood v. Patterson. Jay’s earlier preview of the
proceedings is here. Check the Magwood v. Patterson (09-198)
SCOTUSwiki page for additional updates. [DISCLAIMER: Howe & Russell
and Akin Gump represented the petitioner, but Jay was not involved in
the case.]

Jeffrey Fisher represented petitioner Billy Joe Magwood. Mr. Fisher
began by arguing that Magwood’s current challenge to his resentencing
“cannot be a second or successive petition for the very simple reason
that it challenges a State court judgment that has . . . never been
covered in a habeas petition before.”

Several of the justices — most notably Justice Alito — pressed Mr.
Fisher on his characterization of sentence and conviction as distinct
judgments. According to Justice Alito, “[F]or habeas purposes, the
only thing that is relevant is the judgment pursuant to which the
petitioner is held in custody.” How, Justice Alito asked, could
Magwood challenge his re-sentencing yet simultaneously be unable to
challenge the underlying conviction?

Mr. Fisher acknowledged that the Court had treated conviction and
sentence as separate judgments in certain contexts and as part of the
same judgment in others. However, the minimal federal intrusion in
this case — there was no challenge to the petitioner’s conviction —
made it appropriate to treat the conviction and sentence as
distinct. Mr. Fisher also drew an analogy to the law of res
judicata, which allows claims for new grievances even if they are
identical to prior claims. Justice Scalia pressed Mr. Fisher on this
point, stating that the petitioner’s claim went to the “very same
act” as the original petition. Mr. Fisher disagreed and pointed out
that the trial court had called the re-sentencing a “complete and new
assessment of the evidence.”

Mr. Fisher then turned to the difficulties arising from the State’s
position. As a textual matter, Mr. Fisher argued that the State’s
claim-focused approach begged the question of what constituted a
“second or successive” petition. Mr. Fisher also stressed the
practical difficulties of the State’s approach. In Mr. Fisher’s
view, it was unclear what would happen to claims that were raised but
not adjudicated because the court disposed of the case on other
grounds. Worse still, in Mr. Fisher’s view, was that the State’s
rule would bar petitioners from seeking new habeas relief if the
State committed the same error that led to the original habeas relief.

Alabama Solicitor General Corey Maze argued on behalf of the State.
Justice Breyer wondered whether the State’s rule, which turned on
whether a claimant had a “full and fair opportunity” to litigate a
claim, was too complicated for judges to apply. Mr. Maze responded
that federal courts used exactly that approach for habeas challenges
to federal sentences.

The justices also probed the State’s position on what constituted a
“full and fair opportunity” to litigate a question. At separate
times, Justices Scalia and Breyer inquired whether AEDPA would bar a
claim that was raised in the original petition but was not decided
because the court resolved the case on other grounds. In such a
case, Mr. Maze acknowledged, AEDPA would not bar the claim because
there had been no chance to adjudicate it fully. However, a
petitioner would still have to raise all possible claims in his
petition in order to prevent them from being barred.

Finally, Mr. Maze stressed the interest of the State and the victim’s
family in finality of judgment.

  • read the opinion hereBritta, Fri Mar 26 10:54am
    The ScotusWiki file, with all briefing, for Magwood v. Patterson is at: Transcript of the oral argument is at:... more
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