Magwood v. Patterson

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MAGWOOD v. PATTERSON, WARDEN, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 09–158. Argued March 24, 2010—Decided June 24, 2010

Petitioner Magwood was sentenced to death for murder. After the Ala

bama courts denied relief on direct appeal and in postconviction pro

ceedings, he sought federal habeas relief. The District Court condi

tionally granted the writ as to his sentence, mandating that he be

released or resentenced. The state trial court sentenced him to death

a second time. He filed another federal habeas application, challeng

ing this new sentence on the grounds that he did not have fair warn

ing at the time of his offense that his conduct would permit a death

sentence under Alabama law, and that his attorney rendered ineffec

tive assistance during the resentencing proceeding. The District

Court once again conditionally granted the writ. The Eleventh Cir

cuit reversed, holding in relevant part that Magwood’s challenge to

his new death sentence was an unreviewable “second or successive”

challenge under 28 U. S. C. §2244(b) because he could have raised his

fair-warning claim in his earlier habeas application.

Held: The judgment is reversed and the case is remanded.

555 F. 3d 968, reversed and remanded.

JUSTICE THOMAS delivered the opinion of the Court, except as to

Part IV–B, concluding that because Magwood’s habeas application

challenges a new judgment for the first time, it is not “second or suc

cessive” under §2244(b). Pp. 8–15, 17–22.

(a) This case turns on when a claim should be deemed to arise in a

“second or successive habeas corpus application.” §§2244(b)(1), (2).

The State contends that §2244(b), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), should be read to

bar claims that a prisoner had a prior opportunity to present. Under

this “one opportunity” rule, Magwood’s fair-warning claim was “sec

2 MAGWOOD v. PATTERSON

Syllabus

ond and successive” because he had an opportunity to raise it in his

first application but did not. Magwood counters that §2244(b) should

not apply to a first application challenging a new judgment interven

ing between habeas applications. This Court agrees. The phrase

“second or successive” is not defined by AEDPA and it is a “term of

art.” Slack v. McDaniel, 529 U. S. 473, 486. To determine its mean

ing, the Court looks first to the statutory context. Section 2244(b)’s

limitations apply only to a “habeas corpus application under §2254,”

i.e., an application on “behalf of a person in custody pursuant to the

judgment of a State court,” §2254(b)(1). Both §2254(b)’s text and the

relief it provides indicate that “second or successive” must be inter

preted with respect to the judgment challenged. A §2254 petitioner

“seeks invalidation . . . of the judgment authorizing [his] confine

ment,” Wilkinson v. Dotson, 544 U. S. 74, 83. If a conditional writ is

granted, “the State may seek a new judgment (through a new trial or

a new sentencing proceeding).” Ibid. The State errs in contending

that, if §2254 is relevant at all, “custody” and not “judgment,” is the

proper reference because unlawful “custody” is the “substance” re

quirement for habeas relief. This argument is unpersuasive. Section

2254 articulates the kind of custody that may be challenged under

§2254. Because §2254 applies only to custody pursuant to a state

court judgment, that “judgment” is inextricable and essential to re

lief. It is a requirement that distinguishes §2254 from other statutes

permitting constitutional relief. See, e.g., §§2255, 2241. The State’s

“custody”-based rule is also difficult to justify because applying “sec

ond or successive” to any subsequent application filed before a pris

oner’s release would require a prisoner who remains in continuous

custody for an unrelated conviction to satisfy §2244(b)’s strict rules to

challenge the unrelated conviction for the first time. Nothing in the

statutory text or context supports such an anomalous result. Pp. 8–

13.

(b) This Court is also not convinced by the State’s argument that a

“one opportunity” rule would be consistent with the statute and

should be adopted because it better reflects AEDPA’s purpose of pre

venting piecemeal litigation and gamesmanship. AEDPA uses “sec

ond or successive” to modify “application,” not “claim” as the State

contends, and this Court has refused to adopt an interpretation of

§2244(b) that would “elid[e] the difference between an ‘application’

and a ‘claim,’ ” Artuz v. Bennett, 531 U. S. 4, 9. The State’s reading

also reflects a more fundamental error. It would undermine or ren

der superfluous much of §2244(b)(2). In some circumstances, it would

increase the restrictions on review by applying pre-AEDPA abuse-of

the-writ rules where §2244(b)(2) imposes no restrictions. In others, it

would decrease the restrictions on review by applying more lenient

Cite as: 561 U. S. ____ (2010) 3

Syllabus

pre-AEDPA abuse-of-the-writ rules where §2244(b) mandates stricter

requirements. Pp. 13–15.

(c) This Court’s interpretation of §2244(b) is consistent with its

precedents. Because none of the pre-AEDPA cases that the State in

vokes, e.g., Wong Doo v. United States, 265 U. S. 239, applies “second

or successive” to an application challenging a new judgment, these

cases shed no light on the question presented here. Nor do post-

AEDPA cases contradict the approach adopted here. Only Burton v.

Stewart, 549 U. S. 147, comes close to addressing the threshold ques

tion whether an application is “second or successive” if it challenges a

new judgment, and that decision confirms that the existence of a new

judgment is dispositive. In holding that both of the petitioner’s ha

beas petitions had challenged the same judgment, this Court in Bur

ton expressly recognized that had there been a new judgment inter

vening between the habeas petitions, the result might have been

different. Here, there is such an intervening judgment. This is Mag

wood’s first application challenging that intervening judgment.

Magwood challenges not the trial court’s error in his first sentencing,

but the court’s new error when it conducted a full resentencing and

reviewed the aggravating evidence afresh. Pp. 15, 17–21.

(d) Because Magwood has not attempted to challenge his underly

ing conviction, the Court has no occasion to address the State’s objec

tion that this reading of §2244(b) allows a petitioner who obtains a

conditional writ as to his sentence to file a subsequent application

challenging not only his resulting, new sentence, but also his original,

undisturbed conviction. Nor does the Court address whether Mag

wood’s fair-warning claim is procedurally defaulted or whether the

Eleventh Circuit erred in rejecting his ineffective-assistance-of

counsel claim. Pp. 21–22.

THOMAS, J., delivered the opinion of the Court, except as to Part IV–

B. SCALIA, J., joined in full, and STEVENS, BREYER, and SOTOMAYOR,

JJ., joined, except as to Part IV–B. BREYER, J., filed an opinion concur

ring in part and concurring in the judgment, in which STEVENS and SO-

TOMAYOR, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which

ROBERTS, C. J., and GINSBURG and ALITO, JJ., joined.

Cite as: 561 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–158

_________________

BILLY JOE MAGWOOD, PETITIONER v. TONY

PATTERSON, WARDEN, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 24, 2010]

JUSTICE THOMAS delivered the opinion of the Court,

except as to Part IV–B.

Petitioner Billy Joe Magwood was sentenced to death for

murdering a sheriff. After the Alabama courts denied

relief on direct appeal and in postconviction proceedings,

Magwood filed an application for a writ of habeas corpus

in Federal District Court, challenging both his conviction

and his sentence. The District Court conditionally granted

the writ as to the sentence, mandating that Magwood

either be released or resentenced. The state trial court

conducted a new sentencing hearing and again sentenced

Magwood to death. Magwood filed an application for a

writ of habeas corpus in federal court challenging this new

sentence. The District Court once again conditionally

granted the writ, finding constitutional defects in the new

sentence. The Court of Appeals for the Eleventh Circuit

reversed, holding in relevant part that Magwood’s chal

lenge to his new death sentence was an unreviewable

“second or successive” challenge under 28 U. S. C.

§2244(b) because he could have mounted the same chal

lenge to his original death sentence. We granted certio

2 MAGWOOD v. PATTERSON

Opinion of the Court

rari, and now reverse. Because Magwood’s habeas appli

cation1 challenges a new judgment for the first time, it is

not “second or successive” under §2244(b).

I

After a conviction for a drug offense, Magwood served

several years in the Coffee County Jail in Elba, Alabama,

under the watch of Sheriff C. F. “Neil” Grantham. During

his incarceration, Magwood, who had a long history of

mental illness, became convinced that Grantham had

imprisoned him without cause, and vowed to get even

upon his release. Magwood followed through on his

threat. On the morning of March 1, 1979, shortly after his

release, he parked outside the jail and awaited the sher

iff’s arrival. When Grantham exited his car, Magwood

shot him and fled the scene.

Magwood was indicted by a grand jury for the murder of

an on-duty sheriff, a capital offense under Alabama Code

§13–11–2(a)(5) (1975).2 He was tried in 1981. The prose

cution asked the jury to find Magwood guilty of aggra

vated murder as charged in the indictment, and sought

the death penalty. Magwood pleaded not guilty by reason

of insanity; however, the jury found him guilty of capital

murder under §13–11–2(a)(5), and imposed the sentence of

death based on the aggravation charged in the indictment.

——————

1 Although 28 U. S. C. §2244(b) refers to a habeas “application,” we

use the word “petition” interchangeably with the word “application,” as

we have in our prior cases.

2 At the time of the murder, Alabama Code §13–11–2(a) provided: “If

the jury finds the defendant guilty, it shall fix the punishment at death

when the defendant is charged by indictment with any of the following

offenses and with aggravation, which must also be averred in the

indictment . . . .” The offenses included “murder of any . . . sheriff . . .

while . . . on duty or because of some official or job-related act.” §13–

11–2(a)(5). The same statute set forth a list of “aggravating circum

stances,” §13–11–6, but the trial court found that none existed in

Magwood’s case.

Cite as: 561 U. S. ____ (2010) 3

Opinion of the Court

In accordance with Alabama law, the trial court reviewed

the basis for the jury’s decision. See §§13–11–3, 13–11–4.

Although the court did not find the existence of any statu

tory “aggravating circumstance” under §13–11–6, the

court relied on Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981),

to find that murder of a sheriff while “on duty or because

of some official or job-related acts,” §13–11–2(a)(5), is a

capital felony that, by definition, involves aggravation

sufficient for a death sentence.3 The trial court found that

Magwood’s young age (27 at the time of the offense) and

lack of significant criminal history qualified as mitigating

factors, but found no mitigation related to Magwood’s

mental state. Weighing the aggravation against the two

mitigating factors, the court approved the sentence of

death. The Alabama courts affirmed. See Magwood v.

State, 426 So. 2d 918, 929 (Ala. Crim. App. 1982); Ex parte

Magwood, 426 So. 2d 929, 932 (Ala. 1983). We denied

certiorari. Magwood v. Alabama, 462 U. S. 1124 (1983).

After the Alabama Supreme Court set an execution date of

——————

3 As relevant here, Kyzer did away with the prior Alabama rule that

an aggravating component of a capital felony could not double as an

aggravating factor supporting a capital sentence. In Kyzer, the defen

dant had been sentenced to death for the intentional murder of “two or

more human beings” under §13–11–2(a)(10). See 399 So. 2d, at 332.

The crime of murder, so defined, was aggravated by its serial nature,

just as Magwood’s crime of murder, as defined under §13–11–2(a)(5),

was aggravated by the fact that he killed an on-duty sheriff because of

the sheriff’s job-related acts. In Kyzer, the Alabama Supreme Court

ultimately remanded for a new trial, but in order to guide the lower

court on remand, addressed whether the aggravation in the charged

crime, see §13–11–2(a)(10), was sufficient to impose a sentence of death

even without a finding of any “aggravating circumstance” enumerated

in §13–11–6. See id., at 337. The court ruled that if the defendant was

convicted under §13–11–2(a)(10), “the jury and the trial judge at the

sentencing hearing [may] find the aggravation averred in the indict

ment as the aggravating circumstance, even though the aggravation is

not listed in §13–11–6 as an aggravating circumstance.” Id., at 339

(internal quotation marks omitted).

4 MAGWOOD v. PATTERSON

Opinion of the Court

July 22, 1983, Magwood filed a coram nobis petition and

an application for a stay of execution. The trial court held

a hearing on the petition and denied relief on July 18,

1983.4

Eight days before his scheduled execution, Magwood

filed an application for a writ of habeas corpus under 28

U. S. C. §2254, and the District Court granted a stay of

execution. After briefing by the parties, the District Court

upheld Magwood’s conviction but vacated his sentence and

conditionally granted the writ based on the trial court’s

failure to find statutory mitigating circumstances relating

to Magwood’s mental state.5 See Magwood v. Smith, 608

F. Supp. 218, 225–226, 229 (MD Ala. 1985). The Court of

Appeals affirmed. See Magwood v. Smith, 791 F. 2d 1438,

1450 (CA11 1986).

In response to the conditional writ, the state trial court

held a new sentencing proceeding in September 1986.

This time, the judge found that Magwood’s mental state,

as well as his age and lack of criminal history, qualified as

statutory mitigating circumstances. As before, the court

found that Magwood’s capital felony under §13–11–2(a)(5)

included sufficient aggravation to render him death eligi

ble. In his proposed findings, Magwood’s attorney agreed

that Magwood’s offense rendered him death eligible, but

argued that a death sentence would be inappropriate in

light of the mitigating factors. The trial court imposed a

——————

4 The Alabama Court of Criminal Appeals subsequently affirmed the

denial of Magwood’s coram nobis petition, see Magwood v. State, 449

So. 2d 1267 (1984), and the Alabama Supreme Court denied Magwood’s

motion to file an out-of-time appeal from that decision, see Ex parte

Magwood, 453 So. 2d 1349 (1984).

5 See Ala. Code §13–11–7 (“Mitigating circumstances shall be the

following: . . . (2) The capital felony was committed while the defendant

was under the influence of extreme mental or emotional disturbance

. . . . (6) The capacity of the defendant to appreciate the criminality of

his conduct or to conform his conduct to the requirements of law was

substantially impaired”).

Cite as: 561 U. S. ____ (2010) 5

Opinion of the Court

penalty of death, stating on the record that the new

“judgment and sentence [were] the result of a complete

and new assessment of all of the evidence, arguments of

counsel, and law.” Sentencing Tr., R. Tab 1, p. R–25. The

Alabama courts affirmed, see Magwood v. State, 548

So. 2d 512, 516 (Ala. Crim. App. 1988); Ex parte Magwood,

548 So. 2d 516, 516 (Ala. 1988), and this Court denied

certiorari, see Magwood v. Alabama, 493 U. S. 923 (1989).

Magwood filed a petition for relief under Alabama’s

former Temporary Rule of Criminal Procedure 20 (1987)

(now Ala. Rule Crim. Proc. 32) (Rule 20 petition) claiming,

inter alia, that his death sentence exceeded the maximum

sentence authorized by statute; that his death sentence

violated the Fifth, Eighth, and Fourteenth Amendments

because it rested upon an unforeseeable interpretation of

the capital sentencing statute; and that his attorney ren

dered ineffective assistance of counsel during resentenc

ing. The trial court denied relief. It held that the statu

tory basis for Magwood’s death sentence had been

affirmed on direct appeal and could not be relitigated. The

trial court also held that Magwood’s attorney played no

substantive role in the resentencing and had no obligation

to dispute the aggravation, given that the District Court

had required only that the trial court consider additional

mitigating factors.

Magwood appealed the denial of his Rule 20 petition,

arguing, inter alia, that his sentence was unconstitutional

because he did not have fair warning that his offense could

be punished by death, and that he received constitution

ally ineffective assistance of counsel at resentencing. See

Record in Appeal No. 92–843 (Ala. Crim. App.), Tab 25,

pp. 23–24, 53–61.

The Alabama Court of Criminal Appeals affirmed, citing

its decision on direct appeal as to the propriety of the

death sentence. See Magwood v. State, 689 So. 2d 959,

965 (1996) (citing Kyzer, 399 So. 2d 330, and Jackson v.

6 MAGWOOD v. PATTERSON

Opinion of the Court

State, 501 So. 2d 542 (Ala. Crim. App. 1986)).6 The Ala

bama Supreme Court denied certiorari, see 689 So. 2d, at

959, as did this Court, see Magwood v. Alabama, 522 U. S.

836 (1997).

In April 1997, Magwood sought leave to file a second or

successive application for a writ of habeas corpus challeng

ing his 1981 judgment of conviction. See §2244(b)(3)(A)

(requiring authorization from the Court of Appeals to file a

second or successive application). The Court of Appeals

denied his request. See In re Magwood, 113 F. 3d 1544

(CA11 1997). He simultaneously filed a petition for a writ

of habeas corpus challenging his new death sentence,

which the District Court conditionally granted. See Mag

wood v. Culliver, 481 F. Supp. 2d 1262, 1295 (MD Ala.

2007). In that petition, Magwood again argued that his

sentence was unconstitutional because he did not have fair

warning at the time of his offense that his conduct would

be sufficient to warrant a death sentence under Alabama

law, and that his attorney rendered ineffective assistance

during the resentencing proceeding.

Before addressing the merits of Magwood’s fair-warning

claim, the District Court sua sponte considered whether

the application was barred as a “successive petition” under

§2244, and concluded that it was not. Id., at 1283–1284

(“[H]abeas petitions challenging the constitutionality of a

resentencing proceeding are not successive to petitions

that challenge the underlying conviction and original

sentence” (citing 2 R. Hertz & J. Liebman, Federal Habeas

Corpus Practice & Procedure §28.3b(i), p. 1412 (5th ed.

2005) (“When a petitioner files a second or subsequent

petition to challenge a criminal judgment other than the

——————

6 In

Jackson v. State, the Alabama Court of Criminal Appeals held

that Kyzer supported a death sentence for a defendant who was con

victed for an offense committed before Kyzer was decided but was

resentenced after that decision. 501 So. 2d 542, 544 (1986).

Cite as: 561 U. S. ____ (2010) 7

Opinion of the Court

one attacked in an earlier petition, it cannot be said that

the two petitions are ‘successive’ ” (emphasis in original))).

The District Court rejected the State’s argument that

Magwood had procedurally defaulted the fair-warning

claim by failing to present it adequately to the state

courts, noting that Magwood had presented the claim both

in his Rule 20 petition and on appeal from the denial of

that petition. See 481 F. Supp. 2d, at 1285–1286; supra,

at 5. Addressing the merits, the District Court ruled that

Magwood’s death sentence was unconstitutional because

“at the time of the offense conduct, Magwood did not have

fair notice that he could be sentenced to death absent at

least one aggravating circumstance enumerated in former

1975 Ala. Code §13–11–6.” 481 F. Supp. 2d, at 1285. The

District Court also found the state court’s grounds for

rejecting Magwood’s ineffective-assistance claim unrea

sonable in light of clearly established federal law, noting

that Magwood’s attorney in fact had engaged substan

tively in the “complete and new” resentencing, and al

though the attorney could not be expected to object on

state-law grounds foreclosed by precedent, he was clearly

ineffective for failing to raise the federal fair-warning

claim. Id., at 1294 (internal quotation marks omitted).

The Court of Appeals reversed in relevant part. See 555

F. 3d 968 (CA11 2009). It concluded that the first step in

determining whether §2244(b) applies is to “separate the

new claims challenging the resentencing from the old

claims that were or should have been presented in the

prior application.” Id., at 975 (internal quotation marks

omitted). Under the Court of Appeals’ approach, any

claim that “challenge[s] the new, amended component of

the sentence” should be “regarded as part of a first peti

tion,” and any claim that “challenge[s] any component of

the original sentence that was not amended” should be

“regarded as part of a second petition.” Ibid. Applying

this test, the court held that because Magwood’s fair

8 MAGWOOD v. PATTERSON

Opinion of the Court

warning claim challenged the trial court’s reliance on the

same (allegedly improper) aggravating factor that the trial

court had relied upon for Magwood’s original sentence, his

claim was governed by §2244(b)’s restrictions on “second

or successive” habeas applications. Id., at 975–976. The

Court of Appeals then dismissed the claim because Mag

wood did not argue that it was reviewable under one of the

exceptions to §2244(b)’s general rule requiring dismissal of

claims first presented in a successive application.7 See id.,

at 976.

We granted certiorari to determine whether Magwood’s

application challenging his 1986 death sentence, imposed

as part of resentencing in response to a conditional writ

from the District Court, is subject to the constraints that

§2244(b) imposes on the review of “second or successive”

habeas applications. 558 U. S. ___ (2009).

II

As amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(b) pro

vides in relevant part:

“(1) A claim presented in a second or successive ha

beas corpus application under section 2254 that was

presented in a prior application shall be dismissed.

“(2) A claim presented in a second or successive ha

beas corpus application under section 2254 that was

not presented in a prior application shall be dismissed

unless—

——————

7 Thecourt treated Magwood’s ineffective-assistance claim as new

and free of the restrictions of §2244(b)(2), but reversed on the merits:

“While there was a possible objection, Alabama’s highest court had said

in Kyzer that a §13–11–2 aggravating factor could be used as an aggra

vating circumstance. We are not prepared to require counsel to raise

an argument that has already been decided adversely to his client’s

position by a state’s highest court in order to avoid being found ineffec

tive.” 555 F. 3d, at 977–978.

Cite as: 561 U. S. ____ (2010) 9

Opinion of the Court

“(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that

was previously unavailable; or

“(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise

of due diligence; and

“(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evi

dence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the

underlying offense.”

This case turns on the meaning of the phrase “second or

successive” in §2244(b). More specifically, it turns on

when a claim should be deemed to arise in a “second or

successive habeas corpus application.” §§2244(b)(1), (2).

If an application is “second or successive,” the petitioner

must obtain leave from the Court of Appeals before filing

it with the district court. See §2244(b)(3)(A). The district

court must dismiss any claim presented in an authorized

second or successive application unless the applicant

shows that the claim satisfies certain statutory require

ments. See §2244(b)(4). Thus, if Magwood’s application

was “second or successive,” the District Court should have

dismissed it in its entirety because he failed to obtain the

requisite authorization from the Court of Appeals. If,

however, Magwood’s application was not second or succes

sive, it was not subject to §2244(b) at all, and his fair

warning claim was reviewable (absent procedural default).

The State contends that although §2244(b), as amended

by AEDPA, applies the phrase “second or successive” to

“application[s],” it “is a claim-focused statute,” Brief for

Respondents 22–24, and “[c]laims, not applications, are

barred by §2244(b),” id., at 24 (citing Artuz v. Bennett, 531

10 MAGWOOD v. PATTERSON

Opinion of the Court

U. S. 4, 9 (2000)). According to the State, the phrase

should be read to reflect a principle that “a prisoner is

entitled to one, but only one, full and fair opportunity to

wage a collateral attack.” See Brief for Respondents

25–26 (citing Beyer v. Litscher, 306 F. 3d 504, 508 (CA7

2002); internal quotation marks omitted). The State

asserts that under this “one opportunity” rule, Magwood’s

fair-warning claim was successive because he had an

opportunity to raise it in his first application, but did not

do so. See Brief for Respondents 25–26.

Magwood, in contrast, reads §2244(b) to apply only to a

“second or successive” application challenging the same

state-court judgment. According to Magwood, his 1986

resentencing led to a new judgment, and his first applica

tion challenging that new judgment cannot be “second or

successive” such that §2244(b) would apply. We agree.

We begin with the text. Although Congress did not

define the phrase “second or successive,” as used to modify

“habeas corpus application under section 2254,”

§§2244(b)(1)–(2), it is well settled that the phrase does not

simply “refe[r] to all §2254 applications filed second or

successively in time,” Panetti v. Quarterman, 551 U. S.

930, 944 (2007); see id., at 947 (creating an “exceptio[n]” to

§2244(b) for a second application raising a claim that

would have been unripe had the petitioner presented it in

his first application); Stewart v. Martinez-Villareal, 523

U. S. 637, 643 (1998) (treating a second application as part

of a first application where it was premised on a newly

ripened claim that had been dismissed from the first

application “as premature”); Slack v. McDaniel, 529 U. S.

473, 478, 487 (2000) (declining to apply §2244(b) to a

second application where the District Court dismissed the

first application for lack of exhaustion).8

——————

8 In Slack v. McDaniel, we applied pre-AEDPA law, but “d[id] not

suggest the definition of second or successive would be different under

Cite as: 561 U. S. ____ (2010) 11

Opinion of the Court

We have described the phrase “second or successive” as

a “term of art.” Id., at 486. To determine its meaning, we

look first to the statutory context. The limitations im

posed by §2244(b) apply only to a “habeas corpus applica

tion under §2254,” that is, an “application for a writ of

habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court,” §2254(b)(1) (emphasis

added). The reference to a state-court judgment in

§2254(b) is significant because the term “application”

cannot be defined in a vacuum. A §2254 petitioner is

applying for something: His petition “seeks invalidation

(in whole or in part) of the judgment authorizing the pris

oner’s confinement,” Wilkinson v. Dotson, 544 U. S. 74, 83

(2005) (emphasis added). If his petition results in a dis

trict court’s granting of the writ, “the State may seek a

new judgment (through a new trial or a new sentencing

proceeding).” Ibid. (emphasis in original). Thus, both

§2254(b)’s text and the relief it provides indicate that the

phrase “second or successive” must be interpreted with

respect to the judgment challenged.

The State disagrees, contending that if the cross

reference to §2254 is relevant, we should focus not on the

statute’s reference to a “judgment” but on its reference to

“custody,” Brief for Respondents 53; compare §§2254(a),

(b) (establishing rules for review of “an application for a

writ of habeas corpus” on “behalf of a person in custody

pursuant to the judgment of a State court” (emphasis

added)) with §2254(a) (specifying that an application may

be entertained “only on the ground that [the petitioner] is

in custody in violation of the Constitution or laws or trea

ties of the United States” (emphasis added)). The State

explains that unlawful “custody” is the key “ ‘substance

——————

AEDPA.” 529 U. S., at 473, 486. Courts have followed Slack in post-

AEDPA cases, and the State agrees it is relevant to the question

presented here. See Brief for Respondents 36, n. 13.

12 MAGWOOD v. PATTERSON

Opinion of the Court

requirement’ ” of §2254, whereas being held pursuant to a

state-court “judgment” is merely a “ ‘status requirement.’ ”

Brief for Respondents 53 (quoting Liebman & Hertz,

Federal Habeas Corpus Practice and Procedure §8.1,

p. 391).

We find this argument unpersuasive. Section 2254

articulates the kind of confinement that may be chal

lenged on the ground that the petitioner is being held “in

violation of the Constitution or laws or treaties of the

United States.” §2254(a). The requirement of custody

pursuant to a state-court judgment distinguishes §2254

from other statutory provisions authorizing relief from

constitutional violations—such as §2255, which allows

challenges to the judgments of federal courts, or 42

U. S. C. §1983, which allows federal-court suits against

state and local officials. Custody is crucial for §2254

purposes, but it is inextricable from the judgment that

authorizes it.

The State’s “custody”-based rule is difficult to justify for

another reason. Under the State’s approach, applying the

phrase “second or successive” to any subsequent applica

tion filed before a prisoner’s release would mean that a

prisoner who remains in continuous custody for a com

pletely unrelated conviction would have to satisfy the

strict rules for review under §2244(b) to challenge his

unrelated conviction for the first time. Nothing in the

statutory text or context supports, much less requires,

such an anomalous result. See, e.g., Beyer, 306 F. 3d, at

507 (“[A] prisoner is entitled to one free-standing collateral

attack per judgment, rather than one attack per stretch of

imprisonment”); cf. Dotson, supra, at 85 (SCALIA, J., con

curring) (“[W]hen a habeas petitioner challenges only one

of several consecutive sentences, the court may invalidate

the challenged sentence even though the prisoner remains

Cite as: 561 U. S. ____ (2010) 13

Opinion of the Court

in custody to serve the others”).9

III

Appearing to recognize that Magwood has the stronger

textual argument, the State argues that we should rule

based on the statutory purpose. According to the State, a

“one opportunity” rule is consistent with the statutory

text, and better reflects AEDPA’s purpose of preventing

piecemeal litigation and gamesmanship.

We are not persuaded. AEDPA uses the phrase “second

or successive” to modify “application.” See §§2244(b)(1),

(2). The State reads the phrase to modify “claims.” See,

e.g., Brief for Respondents 51 (“Congress’ intent for

AEDPA was to eradicate successive claims”). We cannot

replace the actual text with speculation as to Congress’

intent. We have previously found Congress’ use of the

word “application” significant, and have refused to adopt

an interpretation of §2244(b) that would “elid[e] the differ

ence between an ‘application’ and a ‘claim,’ ” Artuz, 531

U. S., at 9; see also Gonzalez v. Crosby, 545 U. S. 524, 530

(2005) (“[F]or purposes of §2244(b), an ‘application’ for

habeas relief is a filing that contains one or more

‘claims’ ”). Therefore, although we agree with the State

that many of the rules under §2244(b) focus on claims,

that does not entitle us to rewrite the statute to make the

phrase “second or successive” modify claims as well.10

The State’s reading leads to a second, more fundamental

——————

9 Our focus on the judgment accords with current filing requirements.

See Habeas Corpus Rule 2(b) (requiring any petitioner to “ask for relief

from the state-court judgment being contested”); Rule 2(e) (prescribing

that any “petitioner who seeks relief from judgments of more than one

state court must file a separate petition covering the judgment or

judgments of each court”).

10 The dissent recognizes that the phrase “second or successive” ap

plies to an application as a whole, see post, at 2–4 (opinion of KENNEDY,

J.), but departs in other significant ways from the statutory text, see

infra, at 14–15.

14 MAGWOOD v. PATTERSON

Opinion of the Court

error. Under the State’s “one opportunity” rule, the

phrase “second or successive” would apply to any claim

that the petitioner had a full and fair opportunity to raise

in a prior application. And the phrase “second or succes

sive” would not apply to a claim that the petitioner did not

have a full and fair opportunity to raise previously.

This reading of §2244(b) would considerably under

mine—if not render superfluous—the exceptions to dis

missal set forth in §2244(b)(2). That section describes

circumstances when a claim not presented earlier may be

considered: intervening and retroactive case law, or newly

discovered facts suggesting “that . . . no reasonable fact

finder would have found the applicant guilty of the under

lying offense.” §2244(b)(2)(B)(ii). In either circumstance,

a petitioner cannot be said to have had a prior opportunity

to raise the claim, so under the State’s rule the claim

would not be successive and §2244(b)(2) would not apply to

it at all. This would be true even if the claim were raised

in a second application challenging the same judgment.11

In addition to duplicating the exceptions under §2244(b)

in some circumstances, the State’s rule would dilute them

in others. Whereas the exception to dismissal of fact

based claims not presented in a prior application applies

only if the facts provide clear and convincing evidence

——————

11 This case does not require us to determine whether §2244(b) ap

plies to every application filed by a prisoner in custody pursuant to a

state-court judgment if the prisoner challenged the same state-court

judgment once before. Three times we have held otherwise. See Slack

v. McDaniel, 529 U. S. 475, 487 (2000); Stewart v. Martinez-Villareal,

523 U. S. 637, 643 (1998); Panetti v. Quarterman, 551 U. S. 930, 945

(2007).

The dissent’s claim that our reading of §2244(b) calls one of those

decisions, Panetti, into doubt, see post, at 7–8, is unfounded. The

question in this case is whether a first application challenging a new

sentence in an intervening judgment is second or successive. It is not

whether an application challenging the same state-court judgment

must always be second or successive.

Cite as: 561 U. S. ____ (2010) 15

Opinion of the Court

“that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense,” §2244(b)(2)(B)(ii), under the State’s rule, all that

matters is that the facts “could not have been discovered

previously through the exercise of due diligence,”

§2244(b)(2)(B)(i). We decline to adopt a reading that

would thus truncate §2244(b)(2)’s requirements.

IV

A

We are not persuaded by the State or the dissent that

the approach we take here contradicts our precedents.

The State invokes several pre-AEDPA cases denying

review of claims in second or successive applications

where the petitioners did not avail themselves of prior

opportunities to present the claims. See Wong Doo v.

United States, 265 U. S. 239 (1924); Antone v. Dugger, 465

U. S. 200 (1984) (per curiam); Woodard v. Hutchins, 464

U. S. 377 (1984) (per curiam); Delo v. Stokes, 495 U. S. 320

(1990) (per curiam); McCleskey v. Zant, 499 U. S. 467

(1991). These cases, the State contends, show that Mag

wood’s fair-warning claim should be dismissed as second

or successive because he could have raised—but did not

raise—the claim in his first application.

But none of these pre-AEDPA decisions applies the

phrase “second or successive” to an application challenging

a new judgment. Therefore, the decisions cast no light on

the question before the Court today: whether abuse-of-the

writ rules, as modified by AEDPA under §2244(b)(2), apply

at all to an application challenging a new judgment. The

State’s misplaced reliance on those cases stems from its

failure to distinguish between §2244(b)’s threshold inquiry

into whether an application is “second or successive,” and

its subsequent inquiry into whether claims in a successive

application must be dismissed.

16 MAGWOOD v. PATTERSON

Opinion of the Court

Opinion of THOMAS, J.

B

The dissent similarly errs by interpreting the phrase

“second or successive” by reference to our longstanding

doctrine governing abuse of the writ. AEDPA modifies

those abuse-of-the-writ principles and creates new statu

tory rules under §2244(b). These rules apply only to “sec

ond or successive” applications. The dissent contends that

this reading renders AEDPA inapplicable to a broad range

of abusive claims that would have been barred under prior

rules. Yet, the dissent fails to cite any case in which this

Court has dismissed a claim as successive or abusive if the

petitioner raised it in an application challenging a new

judgment.

The dissent’s conclusion that our reading of §2254 “un

moor[s] the phrase ‘second or successive’ from its textual

and historical underpinnings,” post, at 8, is unwarranted.

Pre-AEDPA usage of the phrase “second or successive” is

consistent with our reading. A review of our habeas

precedents shows that pre-AEDPA cases cannot affirma

tively define the phrase “second or successive” as it ap

pears in AEDPA. Congress did not even apply the phrase

“second or successive” to applications filed by state prison

ers until it enacted AEDPA. The phrase originally arose

in the federal context, see §2255 (1946 ed., Supp. II), and

applied only to applications raising previously adjudicated

claims, see Sanders v. United States, 373 U. S. 1, 12

(1963). After this Court interpreted the law to permit

dismissal of “abusive” claims—as distinguished from

“successive” claims, see ibid.—Congress codified restric

tions on both types of claims in §2244(b), but still without

using the phrase “second or successive.” See §2244(b)

(1964 ed., Supp. IV) (providing rules governing applica

tions filed by state as well as federal prisoners). It was not

until 1996 that AEDPA incorporated the phrase “second or

successive” into §2244(b). In light of this complex history

of the phrase “second or successive,” we must rely upon

Cite as: 561 U. S. ____ (2010) 17

Opinion of the Court

the current text to determine when the phrase applies,

rather than pre-AEDPA precedents or superseded statu

tory formulations.12

C

Nor do our post-AEDPA cases contradict our approach.

Only one, Burton v. Stewart, 549 U. S. 147 (2007) (per

curiam), comes close to addressing the threshold question

whether an application is “second or successive” if it chal

lenges a new judgment. And that case confirms that the

existence of a new judgment is dispositive. In Burton, the

petitioner had been convicted and sentenced in state court

in 1994. See id., at 149. He successfully moved for resen

tencing based on vacatur of an unrelated prior conviction.

Id., at 150. The state appellate court affirmed the convic

tion but remanded for a second resentencing. Ibid. In

March 1998, the trial court entered an amended judgment

and new sentence. Id., at 151. In December 1998, with

state review of his new sentence still pending, the peti

tioner filed a §2254 application challenging his 1994 con

viction. The District Court denied it on the merits, the

Court of Appeals affirmed, and we denied certiorari. Ibid.

In 2002, after exhausting his state sentencing appeal,

the petitioner filed a §2254 petition challenging only his

1998 sentence. The District Court denied relief on the

merits and the Court of Appeals affirmed. We reversed,

holding that the petition challenging the sentence should

have been dismissed as an unauthorized “second or suc

cessive” application. Id., at 153; see §2244(b)(3)(A). We

——————

12 The dissent speculates about issues far beyond the question before

the Court. See, e.g., post, at 8–9 (suggesting that our judgment-based

reading of §2244(b) calls into question precedents recognizing habeas

petitions challenging the denial of good-time credits or parole). We

address only an application challenging a new state-court judgment for

the first time. We do not purport to constrain the scope of §2254 as we

have previously defined it.

18 MAGWOOD v. PATTERSON

Opinion of the Court

rejected the petitioner’s argument “that his 1998 and 2002

petitions challenged different judgments.” Id., at 155; see

id., at 156–157. Although petitioner had styled his first

petition as a challenge to the 1994 conviction and his

second petition as a challenge to the 1998 sentence, we

concluded that both attacked the same “judgment” be

cause the 1998 sentence was already in place when the

petitioner filed his first application for federal habeas

relief. See id., at 156. In other words, the judgment he

challenged in his 1998 application was “the same one

challenged in the subsequent 2002 petition”; it “was the

judgment pursuant to which [the petitioner] was being

detained.” Ibid. (emphasis added). We expressly recog

nized that the case might have been different had there

been a “new judgment intervening between the two ha

beas petitions.” Ibid. There was no such judgment in

Burton, but there is such an intervening judgment here.

This is Magwood’s first application challenging that

intervening judgment. The errors he alleges are new. It is

obvious to us—and the State does not dispute—that his

claim of ineffective assistance at resentencing turns upon

new errors. But, according to the State, his fair-warning

claim does not, because the state court made the same

mistake before. We disagree. An error made a second

time is still a new error. That is especially clear here,

where the state court conducted a full resentencing and

reviewed the aggravating evidence afresh. See Sentencing

Tr., R. Tab 1, at R–25 (“The Court in f[or]mulating the

present judgment has considered the original record of the

trial and sentence. . . . The present judgment and sentence

has been the result of a complete and new assessment of all

of the evidence, arguments of counsel, and law” (emphasis

added)).13

——————

13 Cf. Walker v. Roth, 133 F. 3d 454, 455 (CA7 1997) (“None of these

new claims were raised in his first petition, nor could they have been;

Cite as: 561 U. S. ____ (2010) 19

Opinion of the Court

D

The dissent’s concern that our rule will allow “petition

ers to bring abusive claims so long as they have won any

victory pursuant to a prior federal habeas petition,” post,

at 14, is greatly exaggerated. A petitioner may not raise

in federal court an error that he failed to raise properly in

state court in a challenge to the judgment reflecting the

error. If a petitioner does not satisfy the procedural re

quirements for bringing an error to the state court’s atten

tion—whether in trial, appellate, or habeas proceedings,

as state law may require—procedural default will bar

federal review. See Coleman v. Thompson, 501 U. S. 722,

729–730 (1991); O’Sullivan v. Boerckel, 526 U. S. 838, 848

(1999) (stating that the petitioner’s “failure to present

three of his federal habeas claims to the [state court] in a

timely fashion has resulted in a procedural default of

those claims”). In this case, the State argued that Mag

wood procedurally defaulted his fair-warning claim by

failing to raise it properly in his collateral challenge to the

1986 judgment, and sought dismissal on that ground.

Only after ruling that Magwood did not procedurally

default the claim did the District Court sua sponte con

sider whether §2244(b) barred review.14 We leave that

procedural-default ruling to the Court of Appeals to review

in the first instance. Here, we underscore only that proce

dural-default rules continue to constrain review of claims

in all applications, whether the applications are “second or

——————

[the petitioner] is attempting to challenge the constitutionality of a

proceeding which obviously occurred after he filed, and obtained relief,

in his first habeas petition”).

14 See 481 F. Supp. 2d 1262, 1267 (MD Ala. 2007) (“This court split

the proceedings on the current petition into two stages: Stage I (deter

mining whether the claims were procedurally defaulted) and Stage II

(considering the merits of the claims that were not procedurally de

faulted)”). Few of Magwood’s claims survived the initial cut.

20 MAGWOOD v. PATTERSON

Opinion of the Court

successive” or not.15

Ironically, in an effort to effectuate what they believe is

Congress’ intent not to give any unfair benefit to habeas

petitioners, the State and the dissent propose an alterna

tive rule that would “close our doors to a class of habeas

petitioners seeking review without any clear indication

that such was Congress’ intent.” Castro v. United States,

540 U. S. 375, 381 (2003). Many examples can be given,

but one suffices to illustrate this point. Suppose that a

petitioner files an application raising 10 meritorious

claims challenging his conviction. The district court

grants a conditional writ based on one of them, without

reaching the remaining nine. Upon retrial, the state court

commits the same 10 legal mistakes. (These are new

errors, but no more new than the sentencing error in

Magwood’s case.) Is an application presenting those same

10 claims—now based on the errors in the new judg

ment—“second or successive”? Under the opportunity

based rule advanced by the State and the dissent, the

answer must be yes. All 10 claims would have to be dis

missed. See §2244(b)(1) (requiring dismissal of any claim

presented in a prior application). The State attempts to

avoid this “procedural anomal[y],” Castro, supra, at 380,

by suggesting that we treat the nine unadjudicated claims

as part of a first application, because they were never

adjudicated on the merits. Cf. Slack, 529 U. S., at

478–481; Martinez-Villareal, 523 U. S., at 643–645. As for

the adjudicated claim, “[r]espondents assume that state

judges will follow instructions imposed by federal courts,”

and if not, “that federal courts will consider a petitioner’s

claim that the state court violated due process by failing to

——————

15 The dissent’s concern that such a petitioner may “reraise every

argument against a sentence that was rejected by the federal courts

during the first round of federal habeas review,” post, at 12, is similarly

hyperbolic. It will not take a court long to dispose of such claims where

the court has already analyzed the legal issues.

Cite as: 561 U. S. ____ (2010) 21

Opinion of the Court

honor the federal court’s mandate.” Brief for Respondents

42. We see no need to engage in such novel and complex

rationalizations. AEDPA’s text commands a more

straightforward rule: where, unlike in Burton, there is a

“new judgment intervening between the two habeas peti

tions,” 549 U. S., at 156, an application challenging the

resulting new judgment is not “second or successive” at all.

V

The State objects that our reading of §2244(b) would

allow a petitioner who obtains a conditional writ as to his

sentence to file a subsequent application challenging not

only his resulting, new sentence, but also his original,

undisturbed conviction. The State believes this result

follows because a sentence and conviction form a single

“judgment” for purposes of habeas review. This case gives

us no occasion to address that question, because Magwood

has not attempted to challenge his underlying conviction.16

We base our conclusion on the text, and that text is not

altered by consequences the State speculates will follow in

another case.17

* * *

For these reasons, we conclude that Magwood’s first

application challenging his new sentence under the 1986

judgment is not “second or successive” under §2244(b).

——————

16 Several Courts of Appeals have held that a petitioner who succeeds

on a first habeas application and is resentenced may challenge only the

“portion of a judgment that arose as a result of a previous successful

action.” Lang v. United States, 474 F. 3d 348, 351 (CA6 2007) (citing

decisions); see also Walker, 133 F. 3d, at 455; United States v. Esposito,

135 F. 3d 111, 113–114 (CA2 1997).

17 In any case, we cannot agree with the dissent that our reading of

§2244(b) gives a windfall to “a defendant who succeeds on even the

most minor and discrete issue.” Post, at 12. AEDPA permits relief

“only on the ground that [the petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” §2254(a).

22 MAGWOOD v. PATTERSON

Opinion of the Court

The Court of Appeals erred by reading §2244(b) to bar

review of the fair-warning claim Magwood presented in

that application. We do not address whether the fair

warning claim is procedurally defaulted. Nor do we ad

dress Magwood’s contention that the Court of Appeals

erred in rejecting his ineffective-assistance claim by not

addressing whether his attorney should have objected

under federal law.

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 561 U. S. ____ (2010) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–158

_________________

BILLY JOE MAGWOOD, PETITIONER v. TONY

PATTERSON, WARDEN, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 24, 2010]

JUSTICE BREYER, with whom JUSTICE STEVENS and

JUSTICE SOTOMAYOR join, concurring in part and concur

ring in the judgment.

I join the Court’s well-reasoned opinion with the excep

tion of Part IV–B. The Court neither purports to alter nor

does alter our holding in Panetti v. Quarterman, 551 U. S.

930 (2007). See ante, at 14, n. 11. In Panetti, we “declined

to interpret ‘second or successive’ as referring to all §2254

applications filed second or successively in time, even

when the later filings address a state-court judgment

already challenged in a prior §2254 application.” 551 U. S.

at 944 (emphasis added). In this case, by contrast, we

determine how 28 U. S. C. §2244(b) applies to a habeas

petition that is the first petition to address a new “state

court judgment” that has not “already [been] challenged in

a prior §2254 application.” And, for the reasons provided

by the Court, such a “first” petition is not “second or suc

cessive.” Of course, as the dissent correctly states, if

Magwood were challenging an undisturbed state-court

judgment for the second time, abuse-of-the-writ principles

would apply, including Panetti’s holding that an “applica

tion” containing a “claim” that “the petitioner had no fair

opportunity to raise” in his first habeas petition is not a

“second or successive” application. Post, at 3 (opinion of

KENNEDY, J.). Contrary to the dissent’s assertion, post, at

6–8, the Court’s decision today and our decision in Panetti

fit comfortably together.

Cite as: 561 U. S. ____ (2010) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–158

_________________

BILLY JOE MAGWOOD, PETITIONER v. TONY

PATTERSON, WARDEN, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 24, 2010]

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE,

JUSTICE GINSBURG, and JUSTICE ALITO join, dissenting.

The Court today decides that a state prisoner who suc

ceeds in his first federal habeas petition on a discrete

sentencing claim may later file a second petition raising

numerous previously unraised claims, even if that petition

is an abuse of the writ of habeas corpus. The Court, in my

respectful submission, reaches this conclusion by misread

ing precedents on the meaning of the phrase “second or

successive” in the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). The Court then rewrites

AEDPA’s text but refuses to grapple with the logical con

sequences of its own editorial judgment. A straightfor

ward application of the principles articulated in Panetti v.

Quarterman, 551 U. S. 930 (2007), consistent with the

conclusions of all of the Courts of Appeals that have con

sidered this issue, dictates the opposite result. The design

and purpose of AEDPA is to avoid abuses of the writ of

habeas corpus, in recognition of the potential for the writ’s

intrusive effect on state criminal justice systems. But

today’s opinion, with considerable irony, is not only a step

back from AEDPA protection for States but also a step

back even from abuse-of-the-writ principles that were in

place before AEDPA. So this respectful dissent becomes

necessary.

2 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

I

Absent two exceptions that are inapplicable here, the

relevant statutory provision in AEDPA provides:

“A claim presented in a second or successive habeas

corpus application under section 2254 that was not

presented in a prior application shall be dismissed

. . . .” 28 U. S. C. §2244(b)(2).

The question before the Court is whether petitioner Billy

Joe Magwood filed “a second or successive” application by

raising a claim in his second habeas petition that he had

available and yet failed to raise in his first petition.

The term “second or successive” is a habeas “term of

art.” Slack v. McDaniel, 529 U. S. 473, 486 (2000). It

incorporates the pre-AEDPA abuse-of-the-writ doctrine.

Panetti, 551 U. S., at 947. Before today, that legal princi

ple was established by the decisions of this Court. See,

e.g., ibid.; Slack, 529 U. S., at 486. Under that rule, to

determine whether an application is “second or succes

sive,” a court must look to the substance of the claim the

application raises and decide whether the petitioner had a

full and fair opportunity to raise the claim in the prior

application. Panetti, 551 U. S., at 947. Applying this

analytical framework puts applications into one of three

categories.

First, if the petitioner had a full and fair opportunity to

raise the claim in the prior application, a second-in-time

application that seeks to raise the same claim is barred as

“second or successive.” This is consistent with pre-AEDPA

cases applying the abuse-of-the-writ doctrine and the bar

on “second or successive” applications. See, e.g., Wong Doo

v. United States, 265 U. S. 239, 241 (1924) (second applica

tion barred where petitioner had a “full opportunity to

offer proof” of the same claim in his first habeas applica

tion); Woodard v. Hutchins, 464 U. S. 377, 379 (1984)

(Powell, J., concurring, writing for a majority of the Court)

Cite as: 561 U. S. ____ (2010) 3

KENNEDY, J., dissenting

(second application barred for claims that “could and

should have been raised in [the] first petition”); Delo v.

Stokes, 495 U. S. 320, 321 (1990) (per curiam) (subsequent

application barred for a claim that “could have been raised

in his first petition for federal habeas corpus”). As

McCleskey v. Zant, 499 U. S. 467, 489 (1991), explained, “a

petitioner can abuse the writ by raising a claim in a sub

sequent petition that he could have raised in his first,

regardless of whether the failure to raise it earlier

stemmed from a deliberate choice.” See also Habeas Cor

pus Rule 2(c) (instructing habeas petitioners to “specify all

the grounds for relief available to [them]” and to “state the

facts supporting each ground”); Schlup v. Delo, 513 U. S.

298, 317–323 (1995) (describing adoption in habeas,

through legislation and judicial decision, of modified res

judicata (claim preclusion) doctrine); 18 C. Wright, A.

Miller, & E. Cooper, Federal Practice and Procedure

§4406, p. 138 (2d ed. 2002) (claim preclusion aspect of res

judicata doctrine bars “matters that [were not, but] ought

to have been raised” in prior litigation).

Second, if the petitioner had no fair opportunity to raise

the claim in the prior application, a subsequent applica

tion raising that claim is not “second or successive,” and

§2244(b)(2)’s bar does not apply. This can occur where the

claim was not yet ripe at the time of the first petition, see,

e.g., Panetti, supra, at 947, or where the alleged violation

occurred only after the denial of the first petition, such as

the State’s failure to grant the prisoner parole as required

by state law, see, e.g., Hill v. Alaska, 297 F. 3d 895, 898–

899 (CA9 2002); Crouch v. Norris, 251 F. 3d 720, 723–725

(CA8 2001); In re Cain, 137 F. 3d 234, 236 (CA5 1998).

And to respond to the Court’s concern, see ante, at 20, if

the applicant in his second petition raises a claim that he

raised in his first petition but the District Court left unad

dressed at its own discretion, the second application would

not be “second or successive.” Reraising a previously

4 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

unaddressed claim is not abusive by any definition. If the

Court believes there are “[m]any examples” where abuse

of-the-writ principles unfairly close the door to state pris

oners seeking federal habeas review, ibid., one would

think the Court would be able to come up with an exam

ple. It does not do so.

Third, a “mixed petition”—raising both abusive and

nonabusive claims—would be “second or successive.” In

that circumstance the petitioner would have to obtain

authorization from the court of appeals to proceed with the

nonabusive claims. See §2244(b)(3); see also 28 J. Moore

et al., Federal Practice §671.10[2][b] (3d ed. 2010). After

the court of appeals makes its determination, a district

court may consider nonabusive claims that the petitioner

had no fair opportunity to present in his first petition and

dismiss the abusive claims. See §2244(b)(4).

The operation of the above rule is exemplified by the

Court’s decision in Panetti. Panetti’s claim that he was

mentally incompetent to be executed under Ford v. Wain

wright, 477 U. S. 399 (1986), did not become ripe until

after the denial of his first habeas petition. When the

Ford claim became ripe, Panetti filed a second habeas

petition, raising his Ford claim for the first time. In con

cluding that this second habeas petition was not a “second

or successive” application, this Court explained that “sec

ond or successive” did not “refe[r] to all §2254 applications

filed second or successively in time,” but was rather a

term-of-art that “takes its full meaning from our case law,

including decisions predating the enactment of [AEDPA].”

551 U. S., at 943–944. The Court relied on AEDPA’s

purpose of “ ‘further[ing] the principles of comity, finality,

and federalism,’ ” id., at 945 (quoting Miller-El v. Cockrell,

537 U. S. 322, 337 (2003)), an aversion to the “empty

formality requiring prisoners to file unripe” claims, 551

U. S., at 946, and this Court’s pre-AEDPA cases regarding

the abuse-of-the-writ doctrine, id., at 947. Panetti thus

Cite as: 561 U. S. ____ (2010) 5

KENNEDY, J., dissenting

looked to the nature of the claim raised in the second-in

time habeas petition to determine that the application was

not “second or successive.” Ibid.

The above principles apply to a situation, like the pre

sent one, where the petitioner in his first habeas proceed

ing succeeds in obtaining a conditional grant of relief,

which allows the state court to correct an error that oc

curred at the original sentencing. Assume, as alleged

here, that in correcting the error in a new sentencing

proceeding, the state court duplicates a different mistake

that also occurred at the first sentencing. The second

application is “second or successive” with respect to that

claim because the alleged error “could and should have”

been raised in the first petition. Woodard, 464 U. S., at

379 (opinion of Powell, J.). Put another way, under abuse

of-the-writ principles, a petitioner loses his right to chal

lenge the error by not raising a claim at the first opportu

nity after his claim becomes ripe. On the other hand, if

the petitioner raises a claim in his second habeas petition

that could not have been raised in the earlier petition—

perhaps because the error occurred for the first time dur

ing resentencing—then the application raising the claim is

not “second or successive” and §2244(b)(2)’s bar does not

apply.

Although the above-cited authorities are adequate to

show that the application in this case is “second or succes

sive,” it must be noted that no previous case from this

Court has dealt with the precise sequence of events here:

A petitioner attempts to bring a previously unraised claim

after a second resentencing proceeding that followed a

grant of federal habeas relief. The conclusion that such an

application is barred as “second or successive” unless the

claim was previously unavailable is consistent with the

approach of every court of appeals that has considered the

issue, although some of those cases highlight subtleties

that are not relevant under abuse-of-the-writ principles.

6 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

See, e.g., Pratt v. United States, 129 F. 3d 54, 62–63 (CA1

1997); Galtieri v. United States, 128 F. 3d 33, 37–38 (CA2

1997); United States v. Orozco-Ramirez, 211 F. 3d 862, 871

(CA5 2000); Lang v. United States, 474 F. 3d 348, 351−353

(CA6 2007). While most of these cases arose in the context

of federal prisoners’ challenges to their convictions or

sentences under 28 U. S. C. §2255, the “second or succes

sive” bar under §2244(b) applies to §2255 motions. See

§2255(h) (2006 ed., Supp. II).

In the present case the Court should conclude that

Magwood has filed a “second or successive habeas corpus

application.” In 1983, he filed a first federal habeas peti

tion raising nine claims, including that the trial court

improperly failed to consider two mitigating factors when

it imposed Magwood’s death sentence. The District Court

granted Magwood’s petition and ordered relief only on the

mitigating factor claim. The state trial court then held a

new sentencing proceeding, in which it considered all of

the mitigating factors and reimposed the death penalty.

In 1997, Magwood brought a second habeas petition, this

time raising an argument that could have been, but was

not, raised in his first petition. The argument was that he

was not eligible for the death penalty because he did not

have fair notice that his crime rendered him death eligi

ble. There is no reason that Magwood could not have

raised the identical argument in his first habeas petition.

Because Magwood had a full and fair opportunity to adju

dicate his death-eligibility claim in his first petition in

1983, his 1997 petition raising this claim is barred as

“second or successive.”

II

The Court reaches the opposite result by creating an ill

defined exception to the “second or successive” application

bar. The Court, in my respectful view, makes two critical

errors. First, it errs in rejecting Panetti’s claim-based

Cite as: 561 U. S. ____ (2010) 7

KENNEDY, J., dissenting

approach to determining whether an application is “second

or successive.” Second, it imposes an atextual exception to

§2244(b)’s bar against “second or successive” applications,

requiring that the second-in-time application be brought

against the same judgment. This second error is under

scored by the fact that the Court refuses to deal with the

logical implications of its newly created rule.

A

The Court concludes that because AEDPA refers to

“second or successive” applications rather than “second or

successive” claims, the nature of the claims raised in the

second application is irrelevant. See ante, at 13 (“[A]l

though we agree with the State that many of the rules

under §2244(b) focus on claims, that does not entitle us to

rewrite the statute to make the phrase ‘second or succes

sive’ modify claims as well”). This is incorrect. As ex

plained above, Panetti establishes that deciding whether

an application itself is “second or successive” requires

looking to the nature of the claim that the application

raises to determine whether the petitioner had a full and

fair opportunity to raise that claim in his earlier petition.

Indeed, the only way Panetti could have concluded that

the application there was not “second or successive” was to

look at the underlying claim the application raised. 551

U. S., at 947.

While the Court asserts it is not calling Panetti into

doubt, see ante, at 14, n. 11, it does not even attempt to

explain how its analysis is consistent with that opinion, cf.

Panetti, 551 U. S., at 964 (THOMAS, J., dissenting) (“Before

AEDPA’s enactment, the phrase ‘second or successive’

meant the same thing it does today—any subsequent

federal habeas application challenging a state-court judg

ment”). The best that can be said is the Court is limiting

its new doctrine so it has no applicability to previously

unexhausted Ford claims, confining the holding of Panetti

8 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

to the facts of that case. 551 U. S., at 968 (THOMAS, J.,

dissenting) (“Today’s decision thus stands only for the

proposition that Ford claims somehow deserve a special

(and unjustified) exemption from the statute’s plain

import”).

Failing to consider the nature of the claim when decid

ing whether an application is barred as “second or succes

sive” raises other difficulties. Consider a second-in-time

habeas petition challenging an alleged violation that

occurred entirely after the denial of the first petition; for

example, a failure to grant a prisoner parole at the time

promised him by state law or the unlawful withdrawal of

good-time credits. See supra, at 3. Under the Court’s

rule, it would appear that a habeas application challeng

ing those alleged violations would be barred as “second or

successive” because it would be a second-in-time applica

tion challenging custody pursuant to the same judgment.

That result would be inconsistent with abuse-of-the-writ

principles and might work a suspension of the writ of

habeas corpus.

B

Having unmoored the phrase “second or successive”

from its textual and historical underpinnings, the Court

creates a new puzzle for itself: If the nature of the claim is

not what makes an application “second or successive,”

then to what should a court look? Finding no reference

point in §2244(b)’s text, the Court searches in AEDPA for

a different peg.

The Court believes that it finds its peg in a different

provision:

“[A] district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Consti

tution or laws or treaties of the United States.”

Cite as: 561 U. S. ____ (2010) 9

KENNEDY, J., dissenting

§2254(a).

But this provision does not purport to create any prerequi

sites to §2244(b)’s bar against “second or successive” appli

cations. The accepted reading of the quoted language is

that this is a mere “status requirement.” See 1 R. Hertz &

J. Liebman, Federal Habeas Corpus Practice and Proce

dure §8.1, p. 391 (5th ed. 2005). The provision stands for

the simple proposition that a petitioner must be held

“pursuant to the judgment of a State court” to be able to

file any §2254(b) petition in the first place. That reading

also explains why federal habeas petitions can attack not

only the judgment pursuant to which the petitioner is

being held but also “the duration of sentence . . . and . . .

the conditions under which that sentence is being served,”

including rules such as “the basis of parole” and “good

time” credits. Id., §9.1, at 475–481.

The Court’s reading of the phrase “pursuant to the

judgment of a State court” as a limitation on §2244(b)(2)’s

“second or successive” application bar is artificial. The

Court would amend §2244(b)(2) to read: “A claim pre

sented in a second or successive habeas corpus application

under section 2254 that was not presented in a prior

application [against the same judgment] shall be dis

missed.” This is not what §2244(b)(2) says.

The Court wholly glosses over another significant prob

lem with its atextual analysis. The Court relies upon the

notion that “[a]n error made a second time is still a new

error.” Ante, at 18. But in making this statement, the

Court can mean one of two very different things:

First, it could mean that any error logically encom

passed in a reentered judgment is a “new” error. A crimi

nal “judgment” generally includes both the conviction and

the sentence. See, e.g., Fed. Rule Crim. Proc. 32(k)(1) (a

criminal judgment “must set forth the plea, the jury ver

dict or the court’s findings, the adjudication, and the

10 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

sentence”); Teague v. Lane, 489 U. S. 288, 314, n. 2 (1989)

(“As we have often stated, a criminal judgment necessarily

includes the sentence imposed upon the defendant”). This

well-established principle applies in the federal habeas

context, where petitioner is “in custody pursuant to the

judgment.” §2254(b). A person cannot be held in custody

“pursuant to” a sentence, but only pursuant to “the” (e.g.,

one) judgment, which includes both the conviction and

sentence. See Burton v. Stewart, 549 U. S. 147, 156–157

(2007) (per curiam) (explaining that AEDPA’s statute of

limitations did not run until the judgment—“both his

conviction and sentence became final” (internal quotation

marks omitted)).

Under this principle, the Court’s holding today would

allow a challenger in Magwood’s position to raise any

challenge to the guilt phase of the criminal judgment

against him in his second application, since a “new” judg

ment—consisting of both the conviction and sentence—has

now been reentered and all of the errors have (apparently)

occurred anew. As an illustration, the state trial court

here reentered the following judgment after resentencing:

“IT IS, THEREFORE, ORDERED AND ADJUDGED BY

THE COURT that Billy Joe Magwood is guilty of the

offense of aggravated murder . . . and that Billy Joe Mag

wood is sentenced to death.” App. to Pet. for Cert. 106a.

This would mean that Magwood’s attorney could dig

through anything that occurred from voir dire to the cross

examination of witnesses to the jury’s guilty verdict, and

raise any alleged errors for the first time in his second

habeas application, all because the trial court did not

properly consider two mitigating factors during Magwood’s

first sentencing proceeding.

Second, and alternatively, the Court could retreat even

further from the statutory text and conclude that only

some parts of the reentered judgment are open to chal

lenge by way of a second habeas application. Magwood,

Cite as: 561 U. S. ____ (2010) 11

KENNEDY, J., dissenting

for example, argues that he can only challenge previously

unraised errors made during sentencing. Brief for Peti

tioner 21, n. 8. Indeed, Magwood goes further and sug

gests that even the sentencing would not be reopened in a

case where a court’s order leads the trial court to revise

only the defendant’s term of supervised release. Id., at 28,

n. 11. If the Court is adopting this some-parts-of-the

criminal-judgment exception to the “second or successive”

application bar, it is unclear why the error that Magwood

now raises is a “new error” at all. After all, Magwood did

not challenge his death eligibility in his first habeas peti

tion but only disputed that he should not get the death

penalty, as a matter of discretion, if the trial court prop

erly weighed all of the aggravating and mitigating factors.

The state trial court conducted this reweighing and had no

reason to reconsider the uncontested finding that Mag

wood is death eligible. It is hard to see how the trial

court’s failure to reconsider sua sponte its previous death

eligibility finding is a “new error,” any more than its fail

ure to reconsider the various errors that may have taken

place at the guilt phase would have been new errors.

The Court contends the approach dictated by Panetti

“considerably undermine[s]—if not render[s] superfluous,”

ante, at 14, the exceptions in §2244(b)(2), which allow a

petitioner to bring a claim in a “second or successive”

application based on certain factual discoveries or based

on a new Supreme Court precedent that has been applied

retroactively. The Court seems to be saying that applying

Panetti’s rule would make the exceptions superfluous,

because any claim that would satisfy the exceptions would

necessarily satisfy the more general rule derived from the

abuse-of-the-writ doctrine. But the Court misconceives

the scope of the rule that an application is only “second or

successive” if it raises for the first time a claim that could

have been raised before. A second petition raising a claim

that could have been raised in a prior petition, even

12 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

though strengthened by a new decision from this Court or

based upon newly discovered evidence, is still “second or

successive.” Thus this subsequent application would only

be permitted if it qualified under the pertinent subsection

(b)(2) exception. In fact, it is the Court’s approach that

limits the relevance of the subsection (b)(2) exceptions.

Under the Court’s theory, the “second or successive” bar

does not apply at all to applications filed by petitioners in

Magwood’s situation, and thus the subsection (b)(2) excep

tions would have no operation in that context.

III

The Court’s approach disregards AEDPA’s “ ‘principles

of comity, finality, and federalism.’ ” Panetti, 551 U. S., at

945 (quoting Miller-El, 537 U. S., at 337). Under the

Court’s newly created exception to the “second or succes

sive” application bar, a defendant who succeeds on even

the most minor and discrete issue relating to his sentenc

ing would be able to raise 25 or 50 new sentencing claims

in his second habeas petition, all based on arguments he

failed to raise in his first petition. “[I]f reexamination of

[a] convictio[n] in the first round of habeas offends federal

ism and comity, the offense increases when a State must

defend its conviction in a second or subsequent habeas

proceeding on grounds not even raised in the first peti

tion.” McCleskey, 499 U. S., at 492.

The Court’s novel exception would also allow the once

successful petitioner to reraise every argument against a

sentence that was rejected by the federal courts during the

first round of federal habeas review. As respondents

explain, under the Court’s theory, “a post-resentencing

petitioner could simply staple a new cover page with the

words, ‘§2254 Petition Attacking New Judgment,’ to his

previously adjudicated petition.” Brief for Respondents

47. Because traditional res judicata principles do not

apply to federal habeas proceedings, see Salinger v. Loisel,

Cite as: 561 U. S. ____ (2010) 13

KENNEDY, J., dissenting

265 U. S. 224, 230 (1924), this would force federal courts

to address twice (or thrice, or more) the same claims of

error. The State and the victims would have to bear anew

the “ significant costs of federal habeas corpus review,”

McCleskey, supra, at 490–491, all because the petitioner

previously succeeded on a wholly different, discrete, and

possibly unrelated claim.

The Court’s suggestion that “[i]t will not take a court

long to dispose of such claims where the court has already

analyzed the legal issues,” ante, at 20, n. 15, misses the

point. This reassurance will be cold comfort to overworked

state district attorneys, who will now have to waste time

and resources writing briefs analyzing dozens of claims

that should be barred by abuse-of-the-writ principles. It is

difficult to motivate even the most dedicated professionals

to do their best work, day after day, when they have to

deal with the dispiriting task of responding to previously

rejected or otherwise abusive claims. But that is exactly

what the Court is mandating, under a statute that was

designed to require just the opposite result. If the analy

sis in this dissent is sound it is to be hoped that the States

will document the ill effects of the Court’s opinion so that

its costs and deficiencies are better understood if this

issue, or a related one, can again come before the Court.

The Court’s new exception will apply not only to death

penalty cases like the present one, where the newly raised

claim appears arguably meritorious. It will apply to all

federal habeas petitions following a prior successful peti

tion, most of which will not be in death cases and where

the abusive claims the Court now permits will wholly lack

merit. And, in this vein, it is striking that the Court’s

decision means that States subject to federal habeas re

view henceforth receive less recognition of a finality inter

est than the Federal Government does on direct review of

federal criminal convictions. See United States v. Parker,

101 F. 3d 527, 528 (CA7 1996) (Posner, C. J.) (“A party

14 MAGWOOD v. PATTERSON

KENNEDY, J., dissenting

cannot use the accident of a remand to raise in a second

appeal an issue that he could just as well have raised in

the first appeal because the remand did not affect it”).

The Court’s approach also turns AEDPA’s bar against

“second or successive” applications into a one-way ratchet

that favors habeas petitioners. Unless today’s decision is

read to unduly limit Panetti, see supra, at 7–8, AEDPA

still incorporates recognized exceptions to the abuse-of

the-writ doctrine to allow petitioners to bring their previ

ously unavailable and unripe claims, see ante, at 1

(BREYER, J., concurring in part and concurring in judg

ment). But after today’s holding, AEDPA now “modi

fie[s],” ante, at 15, abuse-of-the-writ principles and allows

petitioners to bring abusive claims so long as they have

won any victory pursuant to a prior federal habeas peti

tion. The Court thus reads AEDPA as creating a new

loophole that habeas petitioners can exploit to challenge

their sentences based on grounds they previously ne

glected to raise. This is inconsistent with the understand

ing that AEDPA adds “new restrictions on successive

petitions” and “further restricts the availability of relief to

habeas petitioners.” Felker v. Turpin, 518 U. S. 651, 664

(1996).

* * *

Had Magwood been unsuccessful in his first petition, all

agree that claims then available, but not raised, would be

barred. But because he prevailed in his attack on one part

of his sentencing proceeding the first time around, the

Court rules that he is free, postsentencing, to pursue

claims on federal habeas review that might have been

raised earlier. The Court is mistaken in concluding that

Congress, in enacting a statute aimed at placing new

restrictions on successive petitions, would have intended

this irrational result.

Magwood had every chance to raise his death-eligibility

Cite as: 561 U. S. ____ (2010) 15

KENNEDY, J., dissenting

claim in his first habeas petition. He has abused the writ

by raising this claim for the first time in his second peti

tion. His application is therefore “second or successive.” I

would affirm the judgment of the Court of Appeals.