Raising previously available claims in new death penalty habeas petitions

By Anna Christensen
on Mar 17, 2010 at 1:35 pm

Here, Harvard Law School’s Jay Rapaport previews Magwood v. Patterson, one of two cases to be argued before the Court on Wednesday, March 24. Check the Magwood v. Patterson (09-198) SCOTUSwiki page for additional updates. [NOTE: Although Akin Gump and Howe & Russell represented the petitioner, Jay was not involved in the case.]

Under federal law, an individual in custody “pursuant to the judgment of a state court” may seek habeas relief – that is, he can challenge the state court’s judgment as illegal under the Constitution or federal law.  In 1996, Congress restricted the availability of habeas relief in the Antiterrorism and Effective Death Penalty Act (AEDPA).  In relevant part, AEDPA directs federal courts to reject a “claim presented in a second or successive habeas corpus application . . .  that was not presented in a prior application . . . .”  On March 24, in No. 09-158, Magwood v. Patterson, the Court will address whether a habeas petitioner may challenge his re-sentencing on grounds that were available but not raised in the petition that vacated his original sentence.

In March 1979, petitioner Billy Joe Magwood shot and killed a sheriff outside an Alabama jail.  Under the state law in effect at the time of the killing, Magwood could be subject to the death penalty only if two conditions were met:  (1) a jury found that he had committed one of fourteen “aggravated offenses” listed in the statute; and (2) the trial judge found that the killing involved one of eight “aggravating circumstances.”  In Magwood’s case, although the murder of an on-duty law enforcement officer was an aggravated offense for purposes of the statute, the trial judge found that none of the eight aggravating circumstances were present.

Notwithstanding that he did not meet the criteria for the death penalty, Magwood was sentenced to death in 1981.  In sentencing Magwood, the trial judge relied on Ex Parte Kyzer, in which the Alabama Supreme Court had held – two years after Magwood’s crime – that, even if none of the aggravating circumstances listed in the statute were present, trial judges could treat the commission of an “aggravated offense” as an “aggravating circumstance.”  The Alabama courts affirmed Magwood’s sentence.

In 1985, Magwood sought federal habeas relief.  The district court refused to overturn Magwood’s conviction, but it vacated his sentence on the ground that the trial court had not found any mitigating circumstances despite Magwood’s severe mental illness.  The following year, after conducting a “complete and new” sentencing hearing, the state court again sentenced Magwood to death.

While appealing his re-sentencing in the Alabama courts, Magwood raised a constitutional challenge that would also have been applicable to his original sentencing – specifically, that the retroactive application of Kyzer to his case violated the Fourteenth Amendment’s Due Process Clause.  After the Alabama courts again rejected Magwood’s appeals, he filed another habeas petition in federal district court.  The district court agreed that the retroactive application of Kyzer violated the Due Process Clause.  While acknowledging that Magwood could have raised his due process claim in his first habeas petition, the district court concluded that Magwood’s current petition was not a prohibited “second or successive” petition because it challenged his re-sentencing, “a separate judgment” from the original sentence.

The Eleventh Circuit reversed. After the case was briefed but before argument, the Alabama Supreme Court repudiated Kyzer, confirming that Magwood’s crime was not a death penalty-eligible offense.  However, the circuit court did not reach the merits of Magwood’s due process claim, instead holding that AEDPA barred Magwood from even raising that constitutional challenge.  In the circuit court’s view, treating every habeas petition after re-sentencing as a first petition “would permit every defendant who succeeds in having any component of his sentence modified to bring a renewed challenge . . . to the unamended components of his original sentence, raising grounds that were either available for presentation on the first petition or even specifically rejected on that petition.”  In this case, the circuit court continued, Magwood’s petition was successive under AEDPA because he was not challenging the “new, amended component of his sentence” but rather had raised a due process claim that  “was available at his original sentencing.”

Magwood filed a petition for certiorari, which the Supreme Court granted on November 16, 2009.

In his brief on the merits, Magwood argues that the Eleventh Circuit ignored a “basic principle” of habeas corpus procedure: a petition (also known as an application) is successive under AEDPA only if it challenges the same state court judgment as the first petition. The circuit court erred by conflating the concept of a petition with that of a claim.  A petition is a procedural attack on a specific judgment, while claims provide the substantive basis for those challenges.  Under AEDPA, courts must first decide whether a petition is successive by determining what judgment the application challenges before looking to the merits of a claim.  Thus, Magwood’s failure to raise his due process claim earlier does not render his current petition successive.  Indeed, the constitutionality of his new sentence is irrelevant to the question of what judgment he is challenging.  In this case, Magwood challenges his re-sentencing, a distinct judgment from the original sentencing he challenged.

This approach, Magwood continues, is entirely consistent with the goals of AEDPA, which was enacted to curb “abuse of the writ” – needlessly repetitive, piecemeal litigation of the same judgment.  If a petition succeeds in having a sentence vacated, the next petition will challenge a judgment that did not exist when the first petition was filed.  Thus, there is no re-litigation of the same ruling.  Nor would this approach, he argues, encourage petitioners to “sleep on their claims,” as a petitioner could only raise new claims if he obtained habeas relief on the original sentence.  If a petitioner failed to obtain relief in the first place, a petition raising new claims would be barred as successive because he would still be seeking to challenge his original sentence.  By contrast, the Eleventh Circuit’s interpretation of AEDPA strays from congressional intent by treating petitioners unfairly.  For example, the Eleventh Circuit would deny relief even when a re-sentencing contained the exact same constitutional error as the original sentencing because the same ground for relief was available for both petitions.

The State’s principal argument is that under AEDPA, state prisoners have one opportunity to litigate a claim on federal habeas.   According to the State, AEDPA is a “claim-focused” statute.  Both the Supreme Court and the courts of appeals have repeatedly focused on whether a habeas petitioner has already had a prior opportunity to raise the claim at issue, rather than on whether the petition challenges a new judgment.  Such an approach comports with historical practice under the “abuse of the writ” doctrine, which AEDPA was intended to codify.  Moreover, the “one opportunity” rule balances the interest of habeas petitioners in obtaining relief with the states’ interest in the finality of judgments, while also giving effect to AEDPA’s core principle that federal courts should not second-guess state courts on issues that could have been litigated at an earlier stage.  This case illustrates the wasteful, repetitive litigation that Magwood’s rule would invite: the current round of appeals arises from a claim that could have been raised in 1985.

The State also contends that its reading will not allow state courts to unfairly deny habeas relief.  For example, if a court repeated a constitutional error in re-sentencing, the error would create a new claim that could not have been raised earlier and thus would not be barred under AEDPA.  The State further argues that other hypothetical scenarios posed by Magwood are either implausible or superseded by Congress’s ability to limit the writ of habeas corpus.