Brown v. Atchley

76 F.4th 862

Gregory L. BROWN, Petitioner-Appellant, v. M. ATCHLEY, Warden, Respondent-Appellee.

No. 20-16290

No. 21-15922

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 30, 2023 San Francisco, California

Filed August 3, 2023

Appeal from the United States District Court for the Northern District of California, Yvonne Gonzalez Rogers, District Judge, Presiding, D.C. Nos. 4:20-cv-03405-YGR 4:21-cv-02649-YGR

Yevgeniy M. Parkman (argued), Assistant Federal Public Defender; Jodi Linker, Federal Public Defender; Federal Public Defender's Office; San Francisco, California; for Petitioner-Appellant.

Gregory A. Ott (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Rob Bonta, Attorney General of California; Office of the California Attorney General; San Francisco, California; for Respondent-Appellee.

Before: M. Margaret McKeown, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Ikuta

OPINION

IKUTA, Circuit Judge:

Gregory Brown, a prisoner serving a sentence of 56 years to life, brought two federal habeas petitions challenging the state court's denial of his application for resentencing under section 1170.95 of the California Penal Code.¹ The district court dismissed his petitions as second or successive under 28 U.S.C. § 2244(b). Under the circumstances of this case, Brown's petitions raise claims that "were not ripe for adjudication" when he brought his prior habeas petitions, and so should not be dismissed as second or successive. United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (per curiam). Therefore, we reverse and remand.

I

A

We begin with the applicable legal framework. A federal court "shall entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Because Brown filed his federal habeas petitions after 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this case. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, courts are limited in their ability to consider claims brought in successive habeas petitions. See 28 U.S.C. § 2244(b).² "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" a statutory exception applies.³ Id. § 2244(b)(2). In addition, § 2244(b)(3)(A) provides that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Id.

"Although Congress did not define the phrase 'second or successive,' as used to modify 'habeas corpus application under section 2254,' §§ 2244(b)(1)-(2), it is well settled that the phrase does not simply 'refe[r] to all § 2254 applications filed second or successively in time.' " Magwood, 561 U.S. at 331-32, 130 S.Ct. 2788 (quoting Panetti v. Quarterman, 551 U.S. 930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (alteration in original)). Rather, "[t]he phrase 'second or successive petition' is a term of art," Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), that follows from the history of the writ.

Historically, "[a]t common law, res judicata did not attach to a court's denial of habeas relief," and courts allowed "endless successive petitions" after a court's initial denial of habeas relief. McCleskey v. Zant, 499 U.S. 467, 479, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In 1924, after courts began allowing appellate review of denied habeas claims, the Supreme Court clarified that courts had discretion to dismiss a petition based on a prior denial of the same claim in an earlier petition. See id. at 480-82, 111 S.Ct. 1454 (discussing Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924) and Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924)). Courts continued to expand upon the rule that repetitive petitions could constitute an abuse of the writ and a ground for dismissal through judicial decision-making. See generally McCleskey, 499 U.S. at 479-89, 111 S.Ct. 1454 (detailing the origins and development of the common law abuse of the writ doctrine). Accordingly, the Supreme Court has held that, under certain circumstances, the failure to bring a claim in a prior petition (if the claim had been available at the time) constituted an abuse of the writ. See, e.g., Delo v. Stokes, 495 U.S. 320, 321-22, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990) (per curiam) (holding that the petitioner's fourth habeas petition was an abuse of the writ where two claims "could have been raised in his first petition for federal habeas corpus" and that "[t]he equal protection principles asserted by [petitioner] are not novel and could have been developed long before this last minute application for stay of execution."); see also Wong Doo, 265 U.S. at 241, 44 S.Ct. 524 (concluding that the petitioner's second habeas petition was an abuse of the writ where the petitioner had a "full opportunity to offer proof" of the same claim in his first habeas application).

AEDPA incorporated some of these judge-made principles, Slack, 529 U.S. at 483, 120 S.Ct. 1595, for dismissing petitions that were claimed to be an abuse of the writ in § 2244(b)(2). This section indicates that a petition could escape dismissal as second or successive where "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" (and "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense"), 28 U.S.C. § 2244(b)(2). This language echoed—and toughened—the common law view that a petitioner had to bring any available claims at the earliest opportunity. See United States v. Lopez, 577 F.3d 1053, 1060-61 (9th Cir. 2009) ("Congress enacted AEDPA, codifying the judicially established principles reflected in the abuse-of-the-writ doctrine and further restricting the availability of relief to habeas petitioners.")

Following the enactment of AEDPA, the Supreme Court has continued to use "pre-AEDPA law to interpret AEDPA's provision governing 'second or successive habeas applications.' " Slack, 529 U.S. at 486, 120 S.Ct. 1595 (quoting Stewart v. Martinez-Villareal, 523 U.S. 637, 641-42, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998)); see also Buenrostro, 638 F.3d at 724 (stating that in Magwood, 561 U.S. at 332, 130 S.Ct. 2788, "seven justices agreed that second or successive is a habeas 'term of art' that incorporates the pre-AEDPA abuse-of-the-writ doctrine").

B

Notwithstanding the prohibition of second or successive petitions in most cases, not every petition filed after an initial petition has been adjudicated is considered second or successive. The Supreme Court has identified two situations where a second-in-time petition is not analyzed under the rules governing second or successive petitions.

First, in Magwood, the Supreme Court explained that the limitations imposed by § 2244(b) applied only to habeas petitions that relate to a specific "judgment of a State court" under § 2254(b)(1). 561 U.S. at 332, 130 S.Ct. 2788 (emphasis omitted). Because "the phrase 'second or successive' must be interpreted with respect to the judgment challenged," id. at 333, 130 S.Ct. 2788, a habeas petition is second or successive only if it challenges the same judgment as the prior petition, see id. at 339, 130 S.Ct. 2788. Magwood applied this rule and concluded that because the petitioner's new sentence, imposed after a resentencing proceeding, qualified as a new judgment, his "first application challenging that new judgment" was not "second or successive." Id. at 331, 130 S.Ct. 2788.

Second, even if a petitioner's second petition is challenging the same judgment as an earlier petition, it is not second or successive if it raises a claim "brought in an application filed when the claim is first ripe." Panetti, 551 U.S. at 947, 127 S.Ct. 2842. The Court has clarified that a petitioner does not run afoul of the abuse of the writ doctrine by raising a new claim in a successive petition that could not have been raised in a prior petition. Martinez-Villareal, 523 U.S. at 645, 118 S.Ct. 1618; McCleskey, 499 U.S. at 497, 111 S.Ct. 1454.

The Supreme Court applied these abuse-of-the-writ principles, post-AEDPA, for the first time in Panetti. There, the petitioner, a capital defendant, raised a mental incompetence claim about his ability to stand trial in his first federal habeas petition, which was denied. 551 U.S. at 937, 127 S.Ct. 2842. After the state trial court set the execution date, the petitioner filed a second habeas petition based on his claim that he was incompetent to be executed, pursuant to Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Id. at 938-39, 127 S.Ct. 2842. The district court stayed the petitioner's execution to allow him to exhaust this claim in state court. Id. The state court rejected this claim after various evidentiary proceedings. Id. at 939-40, 127 S.Ct. 2842. The petitioner then returned to federal district court raising his now exhausted mental competence claim. Id. at 941, 127 S.Ct. 2842. The court denied the petitioner's claim on the merits, and the appellate court affirmed. Id. at 941-42, 127 S.Ct. 2842.

The Supreme Court first considered whether it had jurisdiction to consider the petitioner's appeal. Id. at 942, 127 S.Ct. 2842. Although the second petition was...