In the Antiterrorism and Effective Death Penalty Act of 1996, Congress clamped down hard on repeated habeas corpus petitions by prisoners. Under 28 U.S.C. \u00a72244(b), “second or successive” petitions are only allowed under very narrow circumstances.<\/p>\n
But what happens if a prisoner obtains partial relief from his judgment and a new judgment is entered? Does that reset the petition counter to zero, giving him full range to attack the judgment on any ground?<\/p>\n
<\/p>\n
The Supreme Court partially answered that question in Magwood<\/em> v. Patterson<\/em>, 561 U.S. 320 (2010). Magwood was resentenced after a successful attack on the first judgment, and the high court allowed him to file a new attack on the new judgment. However, the court emphasized that “[t]he errors he alleges are new<\/em>,” committed in the resentencing proceeding, not the original trial. One of them was a repeat, but it was still a new event, alleged to be erroneous.<\/p>\n Does the Magwood<\/em> rule apply when a prisoner obtains partial relief but wants to file a new petition challenging the undisturbed part of the original case? The Supreme Court did not reach that question, and the Courts of Appeals are divided on it.<\/p>\n In Wentzell<\/em> v. Neven<\/em>, 674 F.3d 1124 (2012), the Ninth Circuit held that a petition challenging a new, intervening judgment is \u201cnot second or successive even if the petition challenges only undisturbed portions of the original judgment.\u201d The Seventh Circuit disagreed in Suggs<\/em> v. United States<\/em>, 705 F.3d 279 (2013). A prisoner who challenged his sentence and obtained a new sentencing proceeding was not allowed to file a new petition challenging his conviction.<\/p>\n Today, a Ninth Circuit panel decided Morales<\/em> v. Sherman<\/em>, No. 17-56304. Morales was convicted of attempted robbery, a count of grand theft, two counts of petty theft, and other crimes. As a third-striker, he got 35-to-life for the robbery and far shorter, concurrent sentences for the thefts. In other words, in reality his time in prison depended only on the robbery.<\/p>\n Under California’s Proposition 47, Morales got his grand theft count reduce to petty, and he was resentenced with the robbery three-strikes sentence undisturbed. The resentencing was a nothingburger in practice, but does it reopen the robbery conviction to attacks previously barred?<\/p>\n Bound by the Wentzell<\/em> precedent, the three-judge panel says yes. In a footnote, they note that the state has asked them to reconsider Wentzell<\/em>, but only the court en banc<\/em> can do that.<\/p>\n I’m glad to see that the California Attorney General’s Office made the effort. Now they need to follow up with a petition for rehearing en banc<\/em> and, if turned down, take it to the Supreme Court. This result makes no sense and is contrary to purpose of AEDPA.<\/p>\n","protected":false},"excerpt":{"rendered":" In the Antiterrorism and Effective Death Penalty Act of 1996, Congress clamped down hard on repeated habeas corpus petitions by prisoners. Under 28 U.S.C. \u00a72244(b), “second or successive” petitions are only allowed under very narrow circumstances. But what happens if a prisoner obtains partial relief from his judgment and a new judgment is entered? Does that reset the petition counter to zero, giving him full range to attack the judgment on any ground?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24],"tags":[],"class_list":["post-491","post","type-post","status-publish","format-standard","hentry","category-habeas-corpus"],"yoast_head":"\n