Habeas Law: How to Count to Two

The Anti-Terrorism and Effective Death Penalty Act, passed in the wake of the bombing of the Murrah Federal Building in Oklahoma City, imposes a labyrinthine set of rules that must be followed by those seeking federal habeas relief.  In particular, these rules strongly disfavor the filing of "second" or "successive" habeas petitions.  Ordinarily, an inmate who files a second or successive petition must first seek the permission of a court of appeals to do so, and the appellate court may give its permission only under limited circumstances.

Things get hairier, though, when an inmate files a habeas petition, the petition is fully litigated, the state court subsequently enters some new judgment, and the inmate seeks to file another petition.  Is this new petition, premised on the new judgment but raising claims directed at the original conviction, a first or second petition?

That's what today's decision in King v. Morgan seeks to answer.

In 2004, DeLawrence King was convicted of two counts of murder and one count of felonious assault.  After exhausting his state court remedies, he ultimately sought federal habeas relief, which was denied.  (The Sixth Circuit affirmed that denial.)  King then filed a motion for resentencing in the state trial court, arguing that in imposing its sentence, that court had erred in the imposition of post-release control.  The state court granted the motion and re-sentenced King, creating a new judgment.  So King filed a new habeas petition, challenging both the new sentence and the original conviction.

In an opinion by Judge Sutton {joined by Judges Boggs and White), the Sixth Circuit holds that King's claims regarding his original conviction should be treated as being part of a first petition for habeas relief.   The panel notes that in so holding, it joins the majority of circuit courts to consider the issue.  (The lone outlier is the Seventh Circuit, which reached the opposite conclusion in a 2-1 decision.)  The Supreme Court's 2010 decision in Magwood v. Patterson, which requires that a petition that challenges only the new judgment in circumstances similar to King's be treated as a first petition, weighs heavily in the Sixth Circuit's reasoning; the Magwood court took a "judgment-based approach" rather than a "claims-based approach" to figure out the first-or-second question.  Also, Judge Sutton recounts several practical concerns that favor treating such petitions as first petitions.

One other nugget:  the opinion specifically praises King's appointed counsel, Erin Murphy, for her work on the case.  According to her bio, Murphy was a law clerk to Judge Sykes (7th Circuit) and Chief Justice Roberts following her magna cum graduation from Georgetown Law.  (The name may be familiar to SCOTUS-watchers, as she successfully argued on behalf of the RNC in McCutcheon v. FEC.)  It's not often that a pro se habeas litigant lucks into such high-powered appellate counsel.

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