AuthorCothern, Patrick

Habeas corpus petitioners must navigate the procedural barriers of the Antiterrorism and Effective Death Penalty Act ("AEDPA") before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on "second or successive" habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a "new judgment." Magwood and AEDPA, however, left the term "new judgment" undefined. This Note summarizes the history of habeas corpus in the United States, the passage of AEDPA, and the Magwood decision. It contends that the interpretation of "new judgment" adopted by some circuits is impermissibly restrictive of the implied right to petition for habeas relief. Thus, it proposes a simplified interpretation: any judicial change to the original judgment renders a "new judgment," achieving a better balance between the interests of the petitioner and the state.

Table of Contents Introduction I. A Short History of Habeas, AEDPA, and the Debate A. AEDPA, Amended Sentences, and the "Second or Successive" Provision B. Magwood, Patterson II, and the Shape of the Debate II. Circuit Inconsistencies and the Origin of the problem A. Circuit Inconsistencies 1. What is a "Judgment"? 2. What is a "New" Judgment? B. The Scope of the Problem 1. Promoting Federal Review of Federal Law 2. Potential Constitutional Implications III. A Simpler Interpretation of New Judgment: Compare What Is Claimed as New with What Came Before Conclusion INTRODUCTION

Habeas corpus is a writ for which a prisoner may petition to challenge the legality of their confinement. (1) Recently, courts and Congress have weakened this protection by limiting a prisoner's access to habeas review. A significant restriction of access to habeas corpus came from a 2017 en banc decision by the Eleventh Circuit. In Patterson v. Secretary, Florida Department of Corrections (Patterson II), the Eleventh Circuit held in a 6-5 ruling that an order preventing the chemical castration portion of the petitioner's sentence was not an amended sentence. (2) Thus, the window for filing a habeas challenge was not "reset." (3) Beyond its disregard of the Supreme Court's holding in Magwood v. Patterson (4) and divergence from other circuit decisions, (5) Patterson II illustrates fundamental problems with the Antiterrorism and Effective Death Penalty Act ("AEDPA") (6)--especially its "second or successive" provision. (7) AEDPA is the oft-maligned (8) act that imposes a host of procedural requirements on prisoners seeking post-conviction habeas re view. (9) The lack of clarity in AEDPA makes it difficult to determine when the statute's limitation on second or successive petitions applies in the case of a "new judgment." (10) Prisoners are left to navigate a system that places obstacles at every step in the name of judicial efficiency, finality, and state comity. (11) These goals are worthy of consideration but have led to excessive limitation of second or successive habeas petitions. This Note identifies the point at which the application of the second or successive provision of AEDPA crosses from efficiency and comity to inconsistency and unconstitutionality. It concludes with a solution to this AEDPA conundrum by proposing an interpretation that simply compares the judgment a petitioner claims is "new" with the judgment as originally entered, such that any judicially created change constitutes a new judgment.

Part I explores the history and legal background of habeas petitions and successive claims under AEDPA. Part II analyzes recent cases and concludes that there are serious inconsistencies in recent interpretations of the second or successive provision of AEDPA. These inconsistencies threaten the federal check on state courts' power to review issues of federal law and potentially violate petitioners' due process rights. Part III proposes a rule for when an amended sentence constitutes a "new judgment" that would correct inconsistencies and bring greater predictability to second-in-time habeas petitions.


    Habeas corpus ad subjiciendum is a tool that a petitioner may use to test the legality of their detention. (12) Dating back to at least 1679, (13) the evolution of "the Great Writ" (14) has been called the "history of the ever-greater manifestation of ideals of fairness, due process, and humanitarianism." (15) The United States ingrained access to habeas corpus in Article I, Section IX of the Constitution, which states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (16) But despite the broad sentiments of the Constitution, state prisoners were not permitted to seek habeas relief in federal courts until the Habeas Corpus Act of 1867. (17) In the years since, the reach of the writ has expanded. For example, it now extends to extraterritorial jurisdiction and applies to noncitizens, like detainees in Guantanamo Bay. (18) As the scope of the writ expanded, however, procedural barriers to obtaining habeas review increased.

    1. AEDPA, Amended Sentences, and the "Second or Successive" Provision (19)

      A major development in recent habeas corpus jurisprudence was the 1996 passage of the Antiterrorism and Effective Death Penalty Act. (20) The relevant parts of this Act apply to state prisoners who submit habeas petitions in federal court (21) and were intended to expedite federal review of habeas petitions. (22) AEDPA has been widely criticized as ambiguous (23) and confusing. (24) The ambiguities in AEDPA could be explained by its inclusion of antiterrorism legislation; the Act was proposed and expediently passed (25) in the wake of the Oklahoma City bombings. (26) Another possible explanation is Congress's interest in preserving state courts' authority, (27) as "AEDPA was intended more broadly 'to further the principles of comity, finality, and federalism.'" (28) Regardless of the explanation, AEDPA now governs federal habeas review. It has become an integral part of habeas doctrine, and prisoners must reckon with its procedural twists and turns.

      One of the significant changes that AEDPA brought to habeas analysis was a greater restriction on second or successive motions. Specifically, a court of appeals must certify that any "second or successive" petitions contain either: (1) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable!,]" or (2) newly discovered evidence which, if proven, would "establish by clear and convincing evidence that ... no reasonable factfinder would have found the movant guilty." (29) If the court of appeals finds that these requirements are not satisfied, the petition is deemed "second or successive" and must be dismissed. (30)

      This change presents a linguistic ambiguity. "Second or successive" is a term of art (31) left undefined by AEDPA (32) that refers to any habeas petition challenging the same judgment for which the petitioner had previously filed a petition. (33) In other words, it refers to habeas petition Y that challenges judgment A when the petitioner had previously filed habeas petition X also challenging judgment A. It does not necessarily refer to the second-in-time habeas petition. (34) "Second in time" is another term of art referring to any numerically second habeas petition. For example, it refers to any habeas petition Y when the same petitioner previously filed habeas petition X, regardless of the claims present in either petition. All "second or successive" petitions are also "second in time," but not all second-in-time petitions are second or successive. Without a certification that a habeas petition is not second or successive, the district court does not have jurisdiction to hear the case. (35) Prisoners seeking habeas review are thus severely limited in their ability to bring multiple habeas petitions, (36) as their successive petition must raise a claim that could not have been raised in their initial petition. (37)

      Crucially for this discussion, if a petitioner has received a "new judgment" after filing an initial habeas petition, a second-in-time habeas petition raising claims based on the new judgment will not be deemed second or successive. (38) The term "new judgment" is also undefined and is a point of contention among the circuit courts. (39)

    2. Magwood, Patterson II, and the Shape of the Debate

      Magwood v. Patterson is the Supreme Court case that interprets the second or successive provision in the context of new judgments. (40) Billy Joe Magwood was sentenced to death for murdering an Alabama sheriff in 1979. (41) Just days before his execution, Magwood's application for a writ of habeas corpus was granted. (42) The district court upheld Magwood's conviction but vacated his sentence because the trial court failed to find mitigating circumstances relating to Magwood's mental state. (43) The trial court held a new sentencing hearing in 1986, and Magwood was again sentenced to death. (44) One year after AEDPA was passed, Magwood sought leave to file a habeas petition challenging his new death sentence, which the district court conditionally granted. (45) The district court first asked whether the application was barred as successive for the purposes of AEDPA and concluded that it was not. (46) The Eleventh Circuit reversed, finding that the new claims raised in his second-in-time habeas petition could have been brought at the time of the first habeas petition. (47) Because Magwood did not argue for one of the statutory exceptions available for "second or successive" provisions, the circuit court dismissed his claim. (48) The Supreme Court agreed with the district court and...

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