Alonzo Suggs v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3944

A LONZO S UGGS,

Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cv-00775—William D. Stiehl, Judge.

A RGUED S EPTEMBER 13, 2012—D ECIDED JANUARY 17, 2013

Before M ANION, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. This appeal depends on a

nuance of habeas corpus practice under the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). The

specific issue is whether a second-in-time motion filed

under 28 U.S.C. § 2255 is barred as “second or succes-

sive” when a prisoner has been resentenced pursuant to

a successful first section 2255 motion, and the new

motion challenges only the underlying conviction, not

2 No. 10-3944

the resentencing. The Supreme Court recently addressed

a closely related but distinct question in Magwood v.

Patterson, 561 U.S. ___, 130 S. Ct. 2788 (2010), holding

that a petitioner’s second challenge to his sentence

under 28 U.S.C. § 2254 was not barred as “second or

successive” when it (a) came after the petitioner had been

resentenced because of a successful, initial section 2254

petition and (b) asserted a claim based only on the

resentencing. The Magwood Court expressly declined to

extend its holding to the situation we face here, where

the second motion challenges the original conviction, not

the new sentence. This circuit’s precedent holds that

the second motion here is barred as second or succes-

sive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001).

We recognize that the reasoning in Magwood casts some

doubt about the continued viability of Dahler. However,

because Magwood explicitly limited its holding so as not

to reach the situation we face here, we are not persuaded

that we should overrule our precedent. Based on the

authority of Dahler, we conclude that Suggs’ motion is

“second or successive” under section 2255, and we affirm

the district court’s dismissal for lack of jurisdiction.

I. Factual and Procedural Background

In 2001, Alonzo Suggs was convicted of conspiracy to

possess cocaine with the intent to distribute and was

sentenced to 300 months in prison. He challenged his

conviction and sentence on nine grounds under 28 U.S.C.

§ 2255, which authorizes federal courts to vacate, set aside,

or correct a federal prisoner’s sentence. Suggs eventually

No. 10-3944 3

succeeded on one of those grounds — he received ineffec-

tive assistance of counsel regarding his sentencing guide-

line calculations. After a remand, the district court recal-

culated the guidelines and imposed a new sentence of

240 months.

After his resentencing, which occurred in 2009, eight

years after his trial, Suggs obtained new information

that he argues shows his innocence. A key witness

against him has now recanted his testimony and claims

that his first statement to law enforcement did not im-

plicate Suggs. If that in fact happened, and if the first

exculpatory statement was not disclosed to Suggs and

his attorney as he claims, there could have been a viola-

tion of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.

United States, 405 U.S. 150 (1972). The government agrees

here that if this were Suggs’ first section 2255 motion,

the evidence he has presented would be enough to

require at least an evidentiary hearing on the Brady claim.

The problem is that sections 2244(a) and 2255(h)

sharply restrict a “second or successive” motion to

narrow circumstances that do not apply here. Suggs

requested permission from this court to bring a second

challenge to his conviction because of his newly dis-

covered evidence. See 28 U.S.C. § 2255(h). We denied

his request, finding that his new evidence did “not come

close to showing that no reasonable factfinder would

have found him guilty as required for authorization.”

Suggs v. United States, No. 09-3070, Order (7th Cir. Aug. 27,

2009). Suggs then filed a new motion under section 2255

in the district court challenging his conviction based on

the new evidence. Although this was literally his second

4 No. 10-3944

motion under section 2255, Suggs argued that it should

not be barred as “second or successive” because his

resentencing imposed a new judgment such that his new

motion under section 2255 should not be barred. The

district court disagreed and dismissed his motion based

on Dahler, the controlling circuit precedent. Suggs now

appeals the dismissal.

II. Analysis

We must determine whether Suggs’ most recent

motion counts as “second or successive” under section

2255 and thus should be barred under sections 2244

and 2255. We have jurisdiction under 28 U.S.C. §§ 1291

and 2253(a). We review de novo the district court’s deter-

mination of this question of law.

A. Section 2255’s Limits on Second or Successive Petitions

Section 2255 gives a federal prisoner one opportunity

to challenge a conviction and sentence following a direct

appeal. See 28 U.S.C. § 2255(a), (h). If a prisoner seeks to

challenge his conviction or sentence a second time, he

must persuade a court of appeals to certify the motion

and authorize the district court to hear it. See 28 U.S.C.

§§ 2244(a)-(b), 2255(h). The court of appeals may authorize

a second or successive motion only if it presents either

(1) newly discovered evidence that makes a clear and

convincing showing of innocence or (2) a new rule of

constitutional law made retroactive by the Supreme

Court. 28 U.S.C. § 2255(h). Without authorization from

the court of appeals, the district court has no jurisdiction

No. 10-3944 5

to hear the petition. Burton v. Stewart, 549 U.S. 147, 152-53

(2007).

Not all literally subsequent motions, however, are

“second or successive” within the meaning of the

statutes, for the phrase is a term of art in the technical

world of habeas procedure. See Panetti v. Quarterman,

551 U.S. 930, 944 (2007) (“The Court has declined to

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

applications filed second or successively in time . . . .”). For

example, since AEDPA’s earliest days, we have held

that if a petitioner successfully challenges a sentence via

one section 2255 motion and is resentenced, a later

motion challenging the resentencing is not “second or

successive.” Walker v. Roth, 133 F.3d 454 (7th Cir. 1997).

Similarly, if an incompetency challenge to the death

penalty is not ripe when a petitioner files the first ap-

plication, the petitioner’s second application once the

challenge is ripe is not “second or successive.” Panetti,

551 U.S. at 945 (petition raising incompetency challenge

to death penalty as soon as the claim is ripe is not

second or successive where it would not have been ripe

at time of first petition); see also Stewart v. Martinez-

Villareal, 523 U.S. 637, 645 (1998) (construing petitioner’s

initial and subsequent applications raising an incom-

petency challenge to the death penalty as a single ap-

plication so that later application was not “second or

successive”). Or if a prisoner’s first application is

dismissed without a decision on the merits because of

failure to exhaust state remedies and the prisoner files

another application after exhausting state remedies, the

application with newly exhausted claims is not “second or

successive.” Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).

6 No. 10-3944

B. The Meaning of “Second or Successive”

This case turns on whether Suggs’ motion filed after his

resentencing is “second or successive” within the

meaning of section 2255. If not, then Suggs does not

need this court’s certification under section 2255(h) for

the district court to have jurisdiction to hear the motion.

We have held that that such motions after resentencing

are not second or successive when they allege errors

made during the resentencing, but they are second or

successive when they challenge the underlying convic-

tion. See Dahler v. United States, 259 F.3d 763 (7th Cir.

2001), which adopted as a holding what we had said in

dicta in Walker v. Roth, 133 F.3d 454 (7th Cir. 1997).

In Magwood v. Patterson, however, the Supreme Court

held that a petition challenging a death sentence

was not second or successive where the second petition

followed a resentencing after a remand from a successful

initial petition, even though the same challenge to the

sentence also could have been made to the original sen-

tence. 561 U.S. ___, 130 S. Ct. 2788 (2010). We conclude

that because Magwood expressly declined to extend its

holding to the facts before us here, it did not disturb

our circuit’s precedent, Dahler, which applies to Suggs’

motion and required the district court to dismiss it as

second or successive.1

1

Although Magwood concerned a challenge to a state court

judgment under 28 U.S.C. § 2254, the bar on second or succes-

sive challenges under section 2254 is parallel to the bar under

section 2255. We therefore apply analysis and reasoning

(continued...)

No. 10-3944 7

In Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), we consid-

ered a petition filed after resentencing that challenged

only aspects of the resentencing hearing. We held that

such a petition was not second or successive. We rea-

soned that the petitioner could not have raised the issues

he presented in the second petition in his initial petition

because he challenged the “constitutionality of a pro-

ceeding which obviously occurred after he filed, and

obtained relief, in his first habeas petition.” We noted

that his second petition did not challenge his original

conviction, and we commented: “Of course, had

Walker sought to challenge aspects of his conviction the

district court would have been correct in dismissing his

1

(...continued)

based on section 2254’s treatment of second or successive

petitions to section 2255. See White v. United States, 371 F.3d 900,

903 (7th Cir. 2004) (“Congress made parallel changes to §§ 2254

and 2255 to ensure that successive litigation would take place

only under the most compelling of circumstances.”); Bennett

v. United States, 119 F.3d 470, 471 (7th Cir. 1997) (noting

statutory language of section 2254 was “made applicable to

section 2255 motions by the eighth paragraph of section 2255

[2255(h)]”); see also Johnson v. United States, 623 F.3d 41, 45 (2d

Cir. 2010). But see Gonzalez v. Crosby, 545 U.S. 524, 529 n.3

(2005) (limiting its analysis of Rule 60(b) to section 2254, not

section 2255, noting the section governing second or succes-

sive applications under section 2255 “is similar to, and refers

to, the statutory subsection applicable to second or successive

§ 2254 petitions, [but] is not identical”). Here, unlike in

Gonzalez, the Court did not expressly limit its reasoning to

section 2254, so we do not either.

8 No. 10-3944

petition as successive.” Id. at 455 & n.1, citing Nunez v.

United States, 96 F.3d 990 (7th Cir. 1996).

In Dahler v. United States, 259 F.3d 763 (7th Cir. 2001), we

faced exactly that situation. The prisoner successfully

challenged his sentence through a section 2255 motion,

was resentenced, and then attempted to raise another

challenge to an error made in his initial conviction

and sentencing. We explained that the prisoner in Dahler,

unlike in Walker, was challenging not a new error made

at the resentencing but a much earlier error that could

have been challenged in several proceedings before the

second motion — at trial, on direct appeal, or in his first

section 2255 motion. We found that section 2255 distin-

guishes between “challenges to events that are novel to

the resentencing” and “events that predated the resen-

tencing,” and that any challenge to an error preceding the

resentencing “must be treated as a collateral attack on

the original conviction and sentence, rather than as an

initial challenge to the last sentence.” Id. at 765. We looked

to what the motion actually challenged to determine

whether a motion following a resentencing was “second

or successive.” If it alleged that errors occurred during

the resentencing, it was not second or successive, but if

it alleged that errors were made before the resentencing,

then it was.

In Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788

(2010), the petitioner was convicted of murdering a

sheriff and was sentenced to death in state court. He

successfully challenged his sentence via a section 2254

petition, and the state court held a new full hearing on

No. 10-3944 9

his sentence and again sentenced him to death. He filed

another section 2254 petition, arguing for the first time

(in habeas proceedings) that his sentence was uncon-

stitutional because he lacked fair warning that his

murder of a sheriff was an aggravating factor sufficient

to warrant the death penalty and that he received inef-

fective assistance by his counsel at the resentencing. 130

S. Ct. at 2792-96.

The Supreme Court found that the new petition was not

“second or successive” for purposes of the statutory

limits. The Court reasoned that whether an applica-

tion was second or successive must be considered in

reference to the judgment that was challenged: if there

was a new judgment following the first application, that

judgment created a clean slate. Treating the petitioner’s

resentencing as a new, intervening, judgment, the Court

held that his new petition challenged the intervening

judgment and therefore was not “second or successive.”

Id. at 2797-2801 (“This is Magwood’s first application

challenging that intervening judgment.”). The Court

emphasized, though, that the petition was the first

petition challenging the new judgment and that the

“errors [the petitioner] alleges are new,” noting that “[a]n

error made a second time is still a new error.” Id. at 2801.

That reasoning could be understood to extend to a

situation like this case, but the Magwood Court took pains

to limit its holding. The State and the dissenting Justices

in Magwood argued that the Court’s holding would

extend to cases like this one, where a post-resentencing

petition challenges not the new sentence but only the

10 No. 10-3944

underlying conviction. See id. at 2802, 2808 (Kennedy, J.,

dissenting). The Court demurred:

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. We

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

altered by consequences the State speculates will

follow in another case.

Id. at 2802-03 (footnotes omitted).

Thus, Magwood left open the question whether a

motion following a resentencing is “second or successive”

where it challenges the underlying conviction, not the

resentencing. Suggs’ case is distinct from the situation

in Magwood, where the errors alleged in the second

petition were “new.” 130 S. Ct. at 2801. The petitioner

in Magwood challenged an error made in the initial sen-

tencing and again in the resentencing, leading the Court

to observe that “[a]n error made a second time is still a

new error.” Id. at 2801. The same is not true here. Suggs

does not claim that any errors, new or repeated, occurred

in his resentencing.

Because the question before us is settled in our circuit

and the Supreme Court considered the question but

No. 10-3944 11

expressly declined to answer it, we follow our circuit’s

precedents and hold that Suggs’ motion is second or

successive. Even if the Court’s reasoning in Magwood

could extend to the facts here, we believe it would be

premature to depart from our precedent where the

Court has not asked us to. Magwood’s application to

these facts is not sufficiently clear for us to abandon

principles of stare decisis based on what the Supreme

Court itself called “speculation” about how the Court

would rule on an issue it expressly chose not to decide.

We recognize that our reading of Magwood differs

from the approach taken by other circuits. See, e.g., Wentzell

v. Neven, 674 F.3d 1124 (9th Cir. 2012); Johnson v. United

States; 623 F.3d 41 (2d Cir. 2010). Those circuits found

Magwood’s teaching sufficiently clear to extend it to the

circumstances before them. Here, however, where we

have clear circuit precedent directing us otherwise, we

do not find Magwood’s guidance to be clear enough to

depart from our precedent.

In reaching this conclusion, it is relevant that other

circuits’ broader readings of Magwood have the odd

effect of interpreting AEDPA to relax limits on successive

claims beyond the pre-AEDPA standards. Under the pre-

AEDPA doctrine of abuse of the writ, a prisoner in Suggs’

position could have brought a challenge to his original

conviction only if he could show either cause and preju-

dice or a fundamental miscarriage of justice. In McCleskey

v. Zant, the Court laid out the standards that applied

then for successive petitions: if the government objected

to a prisoner’s petition as an abuse of the writ, the failure

12 No. 10-3944

to raise the claim earlier would be excused only if the

petitioner could show either that he had cause for failing

to raise it and suffered prejudice therefrom, or that to

deny the petition would be a fundamental miscarriage

of justice. 499 U.S. 467, 493-95 (1991). Under the Johnson

and Wentzell reading of Magwood, however, any prisoner

who has successfully challenged his sentence can bring

a new collateral challenge to his original conviction

without making any showing of cause, prejudice, or a

fundamental miscarriage of justice. This seems to us an

unlikely result, given that AEDPA’s text imposed new

and tighter limits on successive petitions and that

AEDPA was intended more broadly “to further the princi-

ples of comity, finality, and federalism.” Duncan v.

Walker, 533 U.S. 167, 178 (2001), quoting Williams v. Taylor,

529 U.S. 420, 436 (2000).

Conclusion

Because Suggs’ new motion challenges his underlying

conviction, not his resentencing, the motion is successive

to his first motion. We therefore A FFIRM the district

court’s dismissal for lack of jurisdiction.

No. 10-3944 13

S YKES, Circuit Judge, dissenting. I respectfully dissent.

The Supreme Court’s decision in Magwood v. Patterson,

561 U.S. ___, 130 S. Ct. 2788 (2010), has displaced

our decision in Dahler v. United States, 259 F.3d 763 (7th

Cir. 2001). Magwood held that a second-in-time habeas

petition under 28 U.S.C. § 2254 is not “second or succes-

sive” under 28 U.S.C. § 2244(b) if it challenges a new

judgment entered after a successful § 2254 petition. 130

S. Ct. at 2796-97. This is so, the Court held, even if the

claim asserted in the attack on the new judgment could

have been raised in the first petition. Id. In Dahler we

held that a habeas petition under 28 U.S.C. § 2255 chal-

lenging a new judgment must be treated as successive

under § 2244(b) if it belatedly raises a claim of error

that could have been made earlier. 259 F.3d at 765. That

holding did not survive Magwood.

As my colleagues have explained, Magwood involved

an Alabama prisoner on death row who won a new

sentencing hearing on his first round of habeas review

in federal court under § 2254. When the state court reim-

posed the death sentence, he returned to federal court

on a new § 2254 petition. The question was whether

the new petition qualified as a “second or successive”

habeas application under § 2244(b) and was therefore

subject to the strict limitations on successive collateral

attacks imposed by that section.1 The Supreme Court

1

A “second or successive” collateral attack by a state or federal

prisoner requires authorization from the court of appeals, see

(continued...)

14 No. 10-3944

focused on the text of §§ 2244(b) and 2254 as amended

by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), and held that the new petition was not

properly classified as second or successive.

The Court noted first that the limits imposed by

§ 2244(b) apply to “a ‘habeas corpus application under

§ 2254,’ that is, [to] an ‘application for a writ of habeas

corpus on behalf of a person in custody pursuant to the

judgment of a State court.’ ” Magwood, 130 S. Ct. at 2797

(quoting 28 U.S.C. § 2254(b)(1) (emphasis in original)). The

Court also observed that a habeas application “seeks

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

the prisoner’s confinement.” Id. (quotation marks omitted)

(emphasis in original). Accordingly, based on the text of

§ 2254(b) and the nature of the relief it provides, the

Court held that the phrase “second or successive” in

§ 2244(b) “must be interpreted with respect to the judg-

ment challenged.” Id.

1

(...continued)

28 U.S.C. §§ 2244(a)-(b), 2255(h), and must meet the

standards set by § 2244(b). As relevant here, § 2244(b)(2)

provides that “[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 unless” (1) it

“relies on a new rule of constitutional law” made retroactive

on collateral review; or (2) “the factual predicate for the

claim could not have been discovered previously through the

exercise of due diligence” and those facts would establish

that “no reasonable factfinder would have found the applicant

guilty.” 28 U.S.C. § 2244(b)(2)(A), (B) (emphasis added).

No. 10-3944 15

So far Dahler and Magwood are consistent. In Dahler

we addressed § 2244(b)’s limits on successive collateral

attacks in the context of a habeas application by a federal

prisoner who, like the state prisoner in Magwood, won

a new sentencing hearing on his first round of habeas

review under § 2255.2 After resentencing the prisoner

filed another § 2255 petition attacking the new judgment

but raising a claim of error that he could have made

in the first petition. As in Magwood, the question was

whether the second petition was properly deemed

“second or successive” under § 2244(b). We began by

noting that “[o]ne substantive chance per judgment is the

norm under § 2255 [] and § 2244(b).” Dahler, 259 F.3d at

764. Magwood confirmed this principle, although it did

so in the context of a habeas petition by a state

prisoner under § 2254. Thus, for both state and federal

prisoners, it’s now clear that a collateral attack is

either initial or successive in relation to the judgment

it challenges.

But Magwood specifically rejected a key aspect of Dahler

that affects how the “one challenge per judgment” rule

applies. In Dahler we distinguished “between challenges

to events that are novel to the resentencing (and will

be treated as initial collateral attacks) and events that

2

As my colleagues have explained, see Majority Op. p. 6-7 n.1,

although Magwood involved a § 2254 petition by a state prisoner,

the limits imposed by § 2244 apply to § 2255 petitions by federal

prisoners as well, see 28 U.S.C. §§ 2244(a), 2255(h), so the

Supreme Court’s interpretation of § 2244(b) applies here.

16 No. 10-3944

predate[] the resentencing (and will be treated as succes-

sive collateral attacks).” Id. at 765. Thus, under Dahler a

first habeas petition attacking a new judgment will be

deemed “initial” or “successive” based on the nature

and genesis of the claims that it makes. In his § 2255

petition challenging the new judgment, Dahler raised

an Apprendi error 3 that dated to his trial and original

sentencing and could have been raised in his earlier

§ 2255 petition. We held that “a belated challenge to

events that precede a resentencing must be treated as a

collateral attack on the original conviction and

sentence, rather than as an initial challenge to the latest

sentence.” Id. In other words, when a subsequent habeas

petition challenges an aspect of the new judgment that

is simply a carryover from the previously challenged

judgment, the court “look[s] straight through” the “nomi-

nal” new judgment and treats the petition as a succes-

sive collateral attack on the original judgment. Id.

Magwood specifically rejected the distinction we drew

in Dahler between claims that are novel to the pro-

ceeding that produced the new judgment and claims

that predate it. Instead, the Supreme Court applied the

“one challenge per judgment” principle more formally,

holding that when a prisoner wins a habeas writ and a

new judgment is thereafter entered, his subsequent

habeas application seeks relief from the new judgment and

is categorically not second or successive. Magwood, 130

S. Ct. at 2800. Thus, “where . . . there is a new judgment

3

See Apprendi v. New Jersey, 530 U.S. 466 (2000).

No. 10-3944 17

intervening between the two habeas petitions, an ap-

plication challenging the resulting new judgment is

not ‘second or successive’ at all.” Id. at 2802 (internal

quotation marks and citation omitted).

Importantly here, the State had argued in Magwood

that the prisoner’s new habeas petition should be

deemed successive because he raised a claim of error—

lack of fair warning that his crime made him death

eligible—that he could have raised in his first petition

but did not. The State insisted that “although § 2244(b),

as amended by AEDPA, applies the phrase ‘second or

successive’ to ‘application[s],’ it ‘is a claim-focused stat-

ute.’ ” Id. at 2796 (alteration in original). The Supreme

Court rejected this interpretation, again emphasizing

that a new judgment resets the habeas counter. Id. at 2801

(“This is Magwood’s first application challenging th[e]

intervening judgment.” (emphasis in original)). The

Court relied in part on the fact that the fair-notice

error was necessarily embedded in the proceedings held

on resentencing and therefore could be characterized as

a “new error.” Id. (“An error made a second time is still

a new error.”). But the repetition of the error was not

the justification for the Court’s decision, which rested

instead on the text of §§ 2244(b) and 2254. The Court

explained that the State’s “claim-focused” interpretation

“fail[ed] to distinguish between § 2244(b)’s threshold

inquiry into whether an application is ‘second or succes-

sive[]’ and its subsequent inquiry into whether claims in

a successive application must be dismissed.” Id. at 2799.

It is true, as my colleagues have noted, that Magwood

declined to address the precise question present here:

18 No. 10-3944

whether § 2244 “allow[s] 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.” Id.

at 2802. The State had warned that “this result

[would] follow[] because a sentence and conviction form

a single ‘judgment’ for purposes of habeas review.” Id.

In response the Court said it had “no occasion to

address that question[] because Magwood has not at-

tempted to challenge his underlying conviction.” Id.

I understand this to be a reservation of the question, not

a limitation on the Court’s reasoning or its interpretation

of § 2244(b). Indeed, in declining to address the question,

the Court specifically reiterated that its holding was

based on the text of §§ 2244(b) and 2254, and “that text

is not altered by consequences the State speculates will

follow in another case.” Id. at 2802-03.

And as the Court reads that text, a habeas petition is

deemed initial or successive by reference to the judg-

ment it attacks—not which component of the judgment

it attacks or the nature or genesis of the claims it raises. It

is well understood that “[a] judgment of conviction

includes both the adjudication of guilt and the sentence.”

Deal v. United States, 508 U.S. 129, 132 (1993) (emphasis

added). Nothing in the Court’s opinion suggests that the

second-or-successive inquiry turns on which part of the

judgment is challenged. Instead, the Court’s reasoning

was categorical: “[T]he existence of a new judgment is

dispositive.” Magwood, 130 S. Ct. at 2800. Accordingly,

when a first habeas petition results in a new judgment, a

subsequent habeas petition seeking relief from that judg-

No. 10-3944 19

ment is not second or successive under § 2244(b), and

this is so regardless of whether it challenges the

amended or unamended part of the judgment.

Other circuits agree. See Wentzell v. Neven, 674 F.3d

1124, 1127 (9th Cir. 2012); Johnson v. United States, 623 F.3d

41, 45-46 (2d Cir. 2010) (“It follows [from Magwood]

that, where a first habeas petition results in an amended

judgment, a subsequent petition is not successive re-

gardless of whether it challenges the conviction, the

sentence, or both.”). In Johnson the Second Circuit

expressly recognized that its circuit precedent, which

interpreted § 2244(b) as we did in Dahler, could not be

reconciled with Magwood. 623 F.3d at 42 (recognizing

the partial abrogation of Galtieri v. United States, 128 F.3d

33 (2d Cir. 1997), in light of Magwood).4

4

The Fifth Circuit split with the Second Circuit based on a

different view of remedial practice specific to double-jeopardy

claims. See In re Lampton, 667 F.3d 585, 589 (5th Cir. 2012). Both

Lampton and the Second Circuit’s decision in Johnson v. United

States, 623 F.3d 41, 45-46 (2d Cir. 2010), involved defendants

who asserted double-jeopardy claims in their first round of

habeas review under 28 U.S.C. § 2255 and won. In each case

the conviction and sentence on the duplicative count was

vacated, leaving the conviction and sentence on the other count

in place, and the prisoner subsequently filed a new § 2255

petition raising other claims. In Lampton the Fifth Circuit

concluded that under these circumstances “there is no new,

intervening judgment to trigger the operation of Magwood,

and . . . Lampton’s instant petition is ‘second or successive’

(continued...)

20 No. 10-3944

Like the Second Circuit, I cannot reconcile our circuit

precedent with Magwood. Unlike my colleagues, I’m

satisfied that Magwood’s interpretation of § 2244(b) is

clear enough to require a departure from circuit

precedent that directly conflicts. See Majority Op. p. 11

(“Here, however, where we have clear circuit precedent

directing us otherwise, we do not find Magwood’s guidance

to be clear enough to depart from our precedent.”). I

would hold that Magwood’s interpretation of § 2244(b)

has abrogated Dahler’s claims-based approach to the

second-or-successive habeas inquiry.

Finally, a word about the concerns my colleagues raise

regarding “comity, finality, and federalism” and “the odd

4

(...continued)

within the meaning of § 2255(h).” 667 F.3d at 589. In contrast,

in Johnson the Second Circuit viewed the modified judgment

as a new, amended judgment. Applying Magwood, the court

held that the prisoner’s § 2255 challenge to the amended

judgment was not second or successive. See id. at 45-46.

In another nuance, the Tenth Circuit has held, albeit in an

unpublished order, that Magwood is inapplicable when the

court enters an amended judgment merely to correct a clerical

error rather than as a result of “new proceedings.” In re Martin,

398 F. App’x 326, 327 (10th Cir. 2010) (“In comparison [to

Magwood ], in this case there were no new proceedings resulting

in a new judgment. Rather, the amended judgment merely

corrected a clerical error . . . .” (emphasis added)). This, too,

contrasts with the Second Circuit’s approach to Magwood in

Johnson, which involved an amended judgment to remedy a

double-jeopardy violation but no formal resentencing or

other “new proceeding.”

No. 10-3944 21

effect of interpreting AEDPA to relax limits on successive

claims beyond the pre-AEDPA standards.” Majority Op.

pp. 11-12. These concerns are valid, but they were raised

and fully argued in Magwood itself, and indeed occupied

much of the dissent. See Magwood, 130 S. Ct. at 2804-11

(Kennedy, J., dissenting). The Court was not persuaded.

Alonzo Suggs won a new sentencing hearing on his

first § 2255 petition and after resentencing timely filed a

§ 2255 petition attacking the new judgment and raising

a claim under Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972). Applying

Magwood, the second petition is Suggs’s first collateral

challenge to the new judgment, not a second or successive

collateral challenge to the original judgment. The gov-

ernment concedes that if the present petition is not prop-

erly classified as second or successive under § 2244(b),

then Suggs has presented enough in his petition to

require an evidentiary hearing. I would reverse and

remand for further proceedings.

1-17-13