Colie L. Long v. United States , 163 A.3d 777 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 14-CO-0453, 14-CO-0641, 16-CO-1152
COLIE L. LONG, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(FEL-2346-96)
(Hon. Judith A. Smith & Hon. Lynn Leibovitz, Trial Judges)
(Submitted September 15, 2015 Decided July 20, 2017)
Vincent A. Jankoski was on the supplemental briefs for appellant.1
Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, Jeffrey Ragsdale, Patricia A. Riley, and Ann K. H. Simon, Assistant
United States Attorneys, were on the supplemental briefs, for appellee.2
1
Mr. Long initiated this appeal pro se; his court-appointed counsel, Mr.
Jankoski, filed supplemental briefs on his behalf.
2
Ronald C. Machen Jr., United States Attorney at the time that brief was
filed, and Elizabeth Trosman, Elizabeth H. Danello, Jeffrey Ragsdale, Patricia
Riley, and Jay Apperson, Assistant United States Attorneys, were on the initial
brief (responding to Mr. Long‘s pro se filings) for appellee.
2
Before BECKWITH and EASTERLY, Associate Judges, and BELSON, Senior
Judge.
EASTERLY, Associate Judge: A D.C. prisoner seeking to collaterally attack
his conviction or sentence may request relief under D.C. Code § 23-110 (2013
Repl.), but if his petition is ―second or successive,‖ he must overcome additional
procedural hurdles to obtain review on the merits of his claims. D.C. Code § 23-
110 (e). Mr. Long was convicted of murder and other charges in 1998 and was
sentenced to life without parole. This court affirmed his convictions, but
subsequently granted a motion to recall the mandate and remanded his case for
resentencing. In the meantime, over the course of 13 years, Mr. Long filed three
motions for collateral review of his 1998 convictions under D.C. Code § 23-110;
the third motion was filed in 2016 after the trial court resentenced him on remand.
In this consolidated appeal, Mr. Long seeks review of the denial of his second and
third § 23-110 motions challenging his convictions. The government claims both
motions are procedurally barred as second or successive. As to the 2016 § 23-110
motion, we disagree.
In Magwood v. Patterson, the Supreme Court considered what constitutes a
―second or successive‖ habeas petition under 28 U.S.C. § 2254 (2012) and clarified
that the dispositive inquiry is not whether the prisoner was raising the same claims
in multiple habeas petitions, but rather whether he was challenging the same
3
―judgment.‖ 561 U.S. 320, 331 (2010). The Court then concluded that ―where . . .
there is a new judgment intervening between two habeas petitions, an application
challenging the resulting new judgment is not ‗second or successive‘ at all.‖ Id. at
341–42 (citation and internal quotation marks omitted). In Magwood, the habeas
petitioner had been resentenced—resulting in a new judgment—and was only
seeking to collaterally attack his new sentence (not his underlying conviction); but
applying the analysis of Magwood, a majority of the federal circuits that have
considered the question have concluded that when a habeas petitioner (under §
2254 or 28 U.S.C. § 2255 (2012)) has been resentenced and received a new
judgment, a subsequent habeas petition challenging his underlying conviction
and/or his sentence will not be procedurally barred as ―second or successive.‖
Persuaded by this analysis, we follow the majority rule. Thus we vacate the denial
of Mr. Long‘s 2016 § 23-110 motion and remand for consideration on the merits.
Separately, Mr. Long seeks review, on direct appeal, of his new sentence
post-remand. For first-degree murder while armed, the trial court sentenced Mr.
Long to a term of incarceration of thirty-five years to life, but under the sentencing
scheme in place at the time of Mr. Long‘s offense, the trial court was only
authorized to give Mr. Long a life sentence, leaving the decision-making about his
parole eligibility entirely to the paroling authority (which in turn was authorized to
4
consider whether to release Mr. Long after thirty years imprisonment).
Accordingly, we vacate Mr. Long‘s sentence for first-degree murder and remand
for resentencing.
I. Facts and Procedural History3
Mr. Long was convicted in 1998 of first-degree murder while armed4 and a
number of lesser offenses. After finding three statutory aggravating factors, D.C.
Code § 22-2404.1 (1996 Repl.) (listing ―aggravating circumstances‖), the trial
court sentenced Mr. Long to life in prison without the possibility of parole
(LWOP) on the first-degree murder while armed charge. Mr. Long appealed his
conviction to this court. In that direct appeal, his court-appointed counsel alleged
violations of his Sixth Amendment right to a speedy trial and denial of his right to
3
As we have summarized the facts of this case in prior decisions, Long v.
United States (Long I), 910 A.2d 298, 301–02 (D.C. 2006); Long v. United States
(Long II), 36 A.3d 363, 365–72 (D.C. 2010); id. at 380–87 (Schwelb, J.,
dissenting); Long v. United States (Long III), 83 A.3d 369, 372–75 (D.C. 2013),
we detail only so much of the facts and procedural history as is necessary to put the
legal issues in their proper context. Moreover, although a number of Superior
Court judges have made rulings in Mr. Long‘s case, we identify by name only the
judges that made the rulings currently being reviewed. Lastly, the identities of
counsel who represented Mr. Long prior to the instant case are noted in Long III,
83 A.3d at 376 n.12.
4
D.C. Code §§ 22-2401, -3202 (1996 Repl.).
5
a fair trial based on an allegedly improper closing argument by the government.
See Long I, 910 A.2d at 302–06. Mr. Long‘s appellate counsel also filed, in 2003,
a motion to vacate his conviction under § 23-110, alleging that he had received
ineffective assistance of counsel5 at trial. Id. at 301, 306. After the Superior Court
denied his 2003 § 23-110 motion without a hearing, this court consolidated that
appeal with his direct appeal. Id. at 301, 307. In Long I, this court affirmed Mr.
Long‘s conviction on direct appeal, but vacated the denial of Mr. Long‘s 2003
§ 23-110 motion and remanded for a hearing. Id. at 308–11. The Superior Court
subsequently held a hearing, rejected Mr. Long‘s ineffective assistance claim, and
again denied Mr. Long‘s 2003 § 23-110 motion. See Long II, 36 A.3d at 365–66.
Mr. Long, represented by new counsel, again appealed the denial of his
§ 23-110 motion on the merits as well as the denial of a Rule 35 motion (initially
filed pro se) to correct his sentence in light of the Supreme Court‘s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000).6 A divided panel of this court
affirmed, concluding, inter alia, that Mr. Long‘s Apprendi challenge was
5
See Strickland v. Washington, 466 U.S. 668 (1984).
6
Mr. Long argued that his initial sentence was unconstitutional because the
trial court had relied on three aggravating factors that had not been found by a jury
in order to sentence him to LWOP. Long II, 36 A.3d at 376.
6
procedurally barred because he had failed to raise it during the pendency of his
direct appeal. Long II, 36 A.3d at 366, 378–79.
Shortly after Long II was decided, Mr. Long filed a motion to recall the
mandate that issued after Long I, arguing that he had received ineffective
assistance of counsel on his direct appeal because his appellate counsel had failed
to raise an Apprendi challenge to his LWOP sentence. Long III, 83 A.3d at 373–
75. This court granted Mr. Long‘s motion to recall the mandate, reopened his
direct appeal, and concluded that Mr. Long had been prejudiced by appellate
counsel‘s failure to raise a meritorious Apprendi challenge. Id. at 384. The court
vacated Mr. Long‘s sentence, and remanded the case to the trial court for
resentencing. Id.
Meanwhile, in 2012, about the same time Mr. Long filed his motion to recall
the mandate that led to this court‘s opinion in Long III, Mr. Long filed a § 23-110
motion, pro se, in Superior Court. In that motion, Mr. Long raised challenges to
his conviction based on allegations of prosecutorial vindictiveness and the
knowing presentation of perjured testimony, in violation of the due process
protections of the Fifth Amendment. In April 2014, the trial court (Smith, J.),
7
without requesting a response from the government and without holding a hearing,
denied Mr. Long‘s 2012 pro se motion on the merits.
One month later, on May 28, 2014, the trial court (Leibovitz, J.), pursuant to
the decision of this court in Long III, held a sentencing hearing,7 after which it
issued a new judgment and commitment order, nunc pro tunc to September 4,
1998, the date of Mr. Long‘s original sentencing. The court imposed a new
sentence of thirty-five years to life for Mr. Long‘s first-degree murder conviction
and lesser terms of years, set to run concurrently, for his other convictions.
Mr. Long filed pro se notices of appeal from both the denial of his 2012 pro
se § 23-110 motion and from his resentencing in his direct appeal, and these
7
It was undisputed at this proceeding that Mr. Long‘s sentences had been
vacated and that the trial court was sentencing Mr. Long anew. Prior to the hearing
the court received sentencing memoranda from the government and Mr. Long, and
a number of letters submitted on Mr. Long‘s behalf. And at the hearing, the court
heard argument from counsel and gave Mr. Long an opportunity to speak. In
announcing its sentence, the court made clear that it was sentencing Mr. Long
based on its own assessment of these materials and the facts in the case, that it did
not feel bound by the decision-making of the original sentencing judge, and indeed
that, even if it had the discretion to do so, it would not find that the offense
satisfied any of the three sentencing enhancements that the original trial court
found under § 22-2404.1 (b) (―(4) The murder was especially heinous, atrocious, or
cruel; . . . (10) The murder victim was especially vulnerable . . .; [and] (11) The
murder [wa]s committed after substantial planning . . . .‖).
8
appeals were consolidated. Both Mr. Long and the government filed briefs with
the court. This division of the court then appointed Mr. Long new counsel, and the
parties submitted supplemental briefs. In addition, Mr. Long‘s new counsel, in
response to the government‘s assertion in its initial and supplemental briefs that
Mr. Long‘s 2012 § 23-110 motion was procedurally barred as ―second or
successive,‖ filed another § 23-110 motion in 2016. In this motion counsel
renewed the claims Mr. Long had made in his 2012 pro se motion, but, citing the
Supreme Court‘s decision in Magwood v. Patterson, counsel argued that these
claims were not procedurally barred because they were collateral challenges to a
new judgment, i.e., Mr. Long‘s judgment and commitment order that issued on
May 28, 2014.
The trial court (Leibovitz, J.) denied this 2016 § 23-110 motion without a
hearing, ruling that Mr. Long‘s ―re-sentenc[ing] does not convert a motion that
presented a successive claim regarding his trial into a fresh claim.‖8 Mr. Long
appealed the denial of his 2016 motion, that appeal was consolidated with Mr.
Long‘s appeal of his 2012 pro se motion and his direct appeal from his sentence,
8
The trial court also noted that arguments in the 2016 § 23-110 motion had
been ―addressed‖ in the order denying Mr. Long‘s 2012 pro se motion and were
the subject of a pending appeal. But see infra note 23.
9
and the parties filed a second set of supplemental briefs focusing on the import of
the Supreme Court‘s decision in Magwood.
II. Mr. Long’s Collateral Challenges to His Convictions
We first address Mr. Long‘s efforts to challenge his conviction via a § 23-
110 motion and specifically examine whether his 2016 motion was procedurally
barred. D.C. Code § 23-110 (e) provides ―[t]he [Superior] [C]ourt shall not be
required to entertain a second or successive motion for similar relief on behalf of
the same prisoner.‖ This bar on second or successive motions originated with 28
U.S.C. § 2255 (affording habeas relief to federal prisoners), see Magwood, 561
U.S. at 337, which, prior to its revision in 1996,9 contained language virtually
identical to D.C. Code § 23-110.10 This procedural bar was extended to 28 U.S.C.
9
28 U.S.C. § 2255 was amended in 1996 by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214 (codified, as amended, in scattered sections of the U.S. Code, including 28
U.S.C §§ 2244–55).
10
Compare D.C. Code § 23-110 (e) (―The [Superior] [C]ourt shall not be
required to entertain a second or successive motion for similar relief on behalf of
the same prisoner.‖), with 28 U.S.C. § 2255 (1996) (―The sentencing court shall
not be required to entertain a second or successive motion for similar relief on
behalf of the same prisoner.‖). See also Head v. United States, 489 A.2d 450, 451
n.4 (D.C. 1985) (acknowledging that § 23-110 and § 2255 are ―nearly identical and
(continued…)
10
§ 2254 (affording habeas relief to state prisoners) with the passage of AEDPA. See
28 U.S.C. § 2244 (2012); Magwood, 561 U.S. at 337–38 (acknowledging the
extension). But none of these statutes defines the phrase ―second or successive.‖
That said, it is ―well settled,‖ in this court and the federal courts ―that the
phrase [‗second or successive‘] does not simply refer to all [habeas petitions] filed
second or successively in time.‖ Magwood, 561 U.S. at 332 (alterations and
internal quotation marks omitted) (citing examples).11 Instead, it is understood that
―[t]he phrase ‗second or successive petition‘ is a term of art.‖ Slack v. McDaniel,
529 U.S. 473, 486 (2010). This court has long looked to federal habeas case law to
(…continued)
functionally equivalent‖ (quoting Streater v. United States, 429 A.2d 173, 174
(D.C. 1980)).
11
For cases from this court, see, for example, Strozier v. United States, 991
A.2d 778, 788–89 (D.C. 2010) (disagreeing with the trial court‘s assessment that
the second petition could be denied on procedural grounds because it supplemented
the first and was filed during the pendency of the direct appeal); Peoples v. Roach,
669 A.2d 700, 702 n.5 (D.C. 1995) (acknowledging that a § 23-110 motion might
be reviewed in ―special circumstances‖ even if it raised the same grounds
previously rejected in an earlier § 23-110); Brown v. United States, 656 A.2d 1133,
1136 (D.C. 1995) (concluding that where defendant received ineffective assistance
of counsel at his first § 23-110 hearing, ―the first hearing was a nullity and may not
serve as a bar to a successive § 23-110 petition‖); Pettaway v. United States, 390
A.2d 981, 985 (D.C. 1978) (affirming the denial of a § 23-110 motion as vague and
conclusory but ―mak[ing] clear‖ that, under those circumstances, the court‘s
decision ―does not bar a new application by appellant to the trial court‖).
11
interpret parallel provisions of § 23-11012 and the meaning of the bar on ―second or
successive‖ motions, in particular.13 See, e.g., Peoples, 669 A.2d at 703 (citing
Sanders v. United States, 373 U.S. 1, 15–16 (1963)); Vaughn v. United States, 600
A.2d 96, 97 (D.C. 1991) (citing Sanders and Salinger v. Loisel, 265 U.S. 224, 231
(1924)); Hurt v. St. Elizabeths Hosp., 366 A.2d 780, 781 (D.C. 1976) (citing
Sanders). We continue to do so in this case.
The Supreme Court recently clarified what constitutes a ―second or
successive‖ habeas petition in Magwood v. Patterson, 561 U.S. 329 (2010). In
Magwood, a state prisoner filed a § 2254 petition challenging his conviction and
death sentence. A federal district court granted him partial, conditional relief,
directing that he be resentenced. Upon resentencing, he again received a death
12
See Head, 489 A.2d at 451 n.4 (explaining this court ―rel[ies] on federal
court interpretations of § 2255 in construing § 23-110,‖ because the former was the
model for the latter); see also Carl S. Rauh & Earl J. Silbert, Criminal Law and
Procedure: D.C. Court Reform and Criminal Procedure Act of 1970, 20 Am. U.L.
Rev. 252, 339 (1970–1971) (―Inasmuch as the provisions of . . . D.C. Code § [23-
]110 are virtually identical to the provisions of 28 U.S.C. § 2255, there is a vast
body of judicial opinion construing the statutory language and defining the scope
of the remedy.‖).
13
We do not rely, however, on federal case law interpreting additional
restrictions imposed by AEDPA on post-conviction relief under §§ 2244, 2254 and
2255. AEDPA did not alter § 23-110, and thus these restrictions ―are not
applicable at all in the District of Columbia courts,‖ Graham v. United States, 895
A2d 305, 307 (D.C. 2006).
12
sentence, and thereafter he filed another habeas petition. This petition was rejected
by the U.S. Court of Appeals for the Eleventh Circuit as ―second or successive,‖
because Mr. Magwood had previously filed an earlier-in-time motion, in which he
―could have mounted the same challenge to his original death sentence.‖ Id. at
323–24. The Supreme Court, however, reversed. Id. In so doing, the Court
considered and rejected the government‘s argument that the ―second or successive‖
procedural bar was ―claim-focused‖ and was meant to limit habeas petitioners to
―one, but only one, full and fair opportunity to wage a collateral attack.‖ Id. at
331. Instead, the Court explained, because the ―second or successive‖ bar is
judgment-based, a prisoner may, under certain circumstances, file more than one
habeas petition in the life of a case, without a later-in-time petition being barred as
―second or successive.‖ Id. at 339.
The Court looked to the text of § 2254 (b), which authorizes courts to
consider ―applications for a writ of habeas corpus pursuant to a judgment of the
State court‖ and which allows for the corresponding invalidation of the judgment.14
Id. at 332–33 (quoting 28 U.S.C. § 2254 (b)(1)). The Court concluded that, where
14
The Court concluded that the text of § 2254 controlled, although the court
also determined that a judgment-based understanding of the second or successive
bar was consistent with its precedents, 561 U.S. at 336–37, and the ―historical
underpinnings‖ of the phrase, id. at 337.
 13
a ―new judgment‖ intervenes between the first petition and one filed later in time,
the later-in-time petition cannot be called ―second or successive.‖ Id. at 338, 342.
Applying this analysis to Mr. Magwood‘s case, the Court further concluded that,
by virtue of being resentenced, albeit again to death, Mr. Magwood received a new
judgment such that his federal habeas petition filed after resentencing was the first
petition alleging constitutional infirmities with that judgment. Id. at 331. The fact
that the judgment incorporated an earlier error that could have been challenged in
the habeas petition filed before he was resentenced was immaterial: ―An error
made a second time is still a new error.‖ Id. at 339.
The Supreme Court in Magwood left open whether the second or successive
bar would nonetheless apply if a defendant had previously sought habeas relief,
had been resentenced and obtained a new judgment, and then sought to challenge
his underlying conviction in addition to (or instead of) his new sentence. See id. at
342 (explaining that ―[t]his case gives us no occasion to address that question,
because [Mr.] Magwood has not attempted to challenge his underlying
conviction‖). But of the eight federal appellate courts that have addressed this
issue, six (the Second, Third, Fourth, Sixth, Ninth and Eleventh Circuits) have held
that the judgment-based analysis of Magwood compels the conclusion that a
habeas petition filed after resentencing and the corresponding issuance of a new
14
judgment may not be barred as second or successive, whether the petitioner is
challenging his new sentence or the constitutionality of his original, undisturbed
conviction.15 Another federal appeals court (the Fifth Circuit), while taking a more
limited view under its precedent of what constitutes a new judgment, appears to
agree that if a habeas petitioner has received a new judgment, a subsequent habeas
petition challenging the conviction or sentence would not be second or
successive.16 Only one federal appellate court (the Seventh Circuit) has declined to
endorse this understanding of the reach of the second or successive bar, and its
decision is primarily attributable to its adherence to its own contrary precedent
which the Supreme Court had not clearly overruled—not a rejection of the analysis
of the majority of other circuits.17
15
See Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010); In re
Brown, 594 F. App‘x 726, 729 (3d Cir. 2014); In re Gray, 850 F.3d 139, 142–43
(4th Cir. 2017); King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015); Wentzell v.
Neven, 674 F.3d 1124, 1126–28 (9th Cir. 2012); Insignares v. Sec’y, Fla. Dep’t of
Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (per curiam).
16
In re Lampton, 667 F.3d 585, 587–90 (5th Cir. 2012); see also In re
Parker, 575 F. App‘x 415, 417–19 (5th Cir. 2014) (per curiam) (denying habeas
relief under Lampton; citing Johnson and Wetzell approvingly as distinguishable
examples of cases where ―courts have found . . . a new, intervening judgment‖
(emphasis added)).
17
Suggs v. United States, 705 F.3d 279, 284 (7th Cir. 2013) (―Because the
question before us is settled in our circuit and the Supreme Court considered the
question but expressly declined to answer it, we follow our circuit‘s precedents and
hold that Suggs‘ motion is second or successive. Even if the Court‘s reasoning in
Magwood could extend to the facts here, we believe it would be premature to
(continued…)
15
The rationale underlying the majority rule is clearly and comprehensively set
forth in an opinion by Judge Sutton, writing on behalf of a unanimous panel of the
Sixth Circuit in King:
In the [Supreme] Court‘s words: Where there is a new
judgment intervening between the two habeas petitions,
an application challenging the resulting new judgment is
not ―second or successive‖ at all. Because petitions seek
the invalidation (in whole or in part) of the judgment
authorizing the prisoner‘s confinement, Magwood tells
us, no part of the petition counts as second or successive
as long as it is the first to challenge the new judgment.
That means that, if an initial federal habeas petition (or
state-court collateral challenge) leads to an amended
judgment, the first petition that follows the entry of the
new judgment is not second or successive, even if it
raises claims that the inmate could have raised in the first
petition. . . . This judgment-based reasoning naturally
applies to all new judgments, whether they capture new
sentences or new convictions or merely reinstate one or
the other.
Strengthening that inference is the reality that Magwood
could have adopted a claims-based approach to the
(…continued)
depart from our precedent where the Court has not asked us to.‖); see also id. at
284–85 (―We recognize that our reading of Magwood differs from the approach
taken by other circuits . . . [which] found Magwood‘s teaching sufficiently clear to
extend it to the circumstances before them. Here, however, where we have clear
circuit precedent directing us otherwise, we do not find Magwood‘s guidance to be
clear enough to depart from our precedent.‖). But see id. at 288 (Sykes, J.,
dissenting) (opining ―that Magwood‘s interpretation of § 2244 (b) is clear enough
to require a departure from circuit precedent that directly conflicts‖).
16
problem before it. The Court could have applied the
second-petition rule on a claim-by-claim basis, separating
the claims within a petition and deeming some successive
and others not. But it declined. It reasoned that such an
approach would not respect the language of the statute
and thus would elide the difference between an
―application‖ and a ―claim,‖ a distinction that the statute
makes important because AEDPA uses the phrase
―second or successive‖ to modify ―application.‖ The
same reasoning applies to convictions.
As a matter of custom and usage, moreover, a judgment
in a criminal case includes both the adjudication of guilt
and the sentence. Even when the only change in the
state-court proceeding relates to the sentence, the new
judgment will reinstate the conviction and the modified
sentence. If the existence of a new judgment is
dispositive in resetting the “second or successive” count,
and if the count applies to petitions, not claims, the
existence of a new judgment permits a new application to
attack the sentence, the conviction, or both.
807 F.3d at 157–58 (internal quotation marks, emphases, citations, and alterations
omitted) (emphases added).
Judge Sutton also observed that allowing a new judgment to wipe the slate
clean in this manner makes sense for practical reasons:
Some claims within a habeas application, it turns out,
will apply to the underlying conviction and the new
sentence. What then? Would the second-petition rule
apply to one claim but not the other? That would make
little sense and would be difficult to implement as well.
Nor is this possibility merely theoretical. If the same
judge presided over the original conviction and handled
the resentencing, any challenge to the judge as
17
adjudicator (e.g., for bias) would cover both proceedings.
If the trial jury found facts applicable to the conviction
and sentence, any challenge to the jury as adjudicator
(e.g., voir dire problems, a Batson challenge, juror
misconduct, consideration of improper evidence) would
cover both. And if the government withheld exculpatory
evidence until after the resentencing, a claim under Brady
v. Maryland, could apply to both. . . .
[Meanwhile, a] contrary approach . . . would shortchange
some prisoners whose incentives to challenge a
conviction may differ after being resentenced. Suppose a
defendant is convicted on two counts, and just one of
them involves a constitutional error. If the defendant
receives five-year concurrent sentences on both
convictions, his incentives to challenge the defective
conviction in his first habeas application [are] low;
success on that challenge alone will not change his time
in jail. If resentencing makes those five-year sentences
consecutive, however, his incentives change
considerably, because success now decreases his
sentence by half. Someone in King's position could
indeed face this precise problem. He may have every
reason to focus on the sentencing issues in his first
petition (when facing concurrent murder sentences),
while he has every reason in his second petition to focus
on each murder conviction (when facing consecutive
sentences on them). Magwood‘s judgment-based rule
ensures that a court‘s choice to reenter a different
judgment does not leave a petitioner unable to raise a
now-more-critical challenge free from the ―second or
successive‖ limits.
807 F.3d at 158–59 (internal quotation marks, emphases, citations, and alterations
omitted).
18
Having reviewed the landscape of federal case law post-Magwood and
discerned the majority view that a habeas petition filed post-resentencing may
attack the sentence or underlying conviction without running afoul of the bar on
second or successive petitions,18 we turn our attention to D.C. Code § 23-110,
18
The government‘s briefing does not acknowledge this majority view and
instead implies that the weight of authority limits the holding of Magwood to its
facts. The government asserts that ―as the Supreme Court noted in Magwood,
federal appellate courts that had considered this issue had rejected the argument
that [Mr. Long] makes‖—i.e., that his new judgment wipes the slate clean for a
post-conviction challenge to his conviction as well as his sentence—―and they
continue to do so.‖ For this latter proposition, the government cites In re Hensley,
836 F.3d 504, 506 (5th Cir. 2016), and Suggs, 705 F.3d at 282–284, as well as
what it characterizes as a ―cogent, closely reasoned dissent‖ in Patterson v. Sec’y,
Fla. Dep’t of Corr., 812 F.3d 885, 888–889 (11th Cir. 2016).
The government‘s reliance on decisions of ―federal appellate courts that had
considered this issue‖ before Magwood is unavailing; save in the Seventh Circuit,
see supra note 17, these decisions have been overturned by the post-Magwood
decisions cited above, see supra note 15. Equally unhelpful is the government‘s
citation to In re Hensley, 836 F.3d at 506–07, which is an extension of Lampton,
see supra note 16; both Hensley and Lampton address only what constitutes a new
judgment and appear not to take issue with the majority understanding that a new
judgment wipes the slate clean for the purpose of the second or successive bar.
Similarly, Patterson (which has now been reversed by the Eleventh Circuit sitting
en banc) concerns what constitutes a new judgment—not the effect of a new
judgment under Magwood. Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321
(11th Cir. 2017) (en banc) (reaffirming Insignares, cited supra note 15, but holding
that prisoner does not receive a new judgment when state court issues an order
removing a chemical castration requirement). This leaves the government with
only one decision, Suggs, that (relying on binding circuit precedent that does not
bind us) has read Magwood so narrowly.
19
which, as noted above, similarly includes a bar on ―second or successive‖
motions.19
We acknowledge at the outset that the precise text interpreted by the
Supreme Court in Magwood—―applications for a writ of habeas corpus pursuant to
a judgment of the state court,‖ 28 U.S.C. § 2254 (b)—does not appear in § 23-110,
which refers instead to ―motions‖ by a prisoner ―attacking a sentence.‖ But 28
U.S.C. § 2255, upon which § 23-110 was modeled, see supra note 12, likewise
does not contain the same text, and yet every federal court to consider the issue has
held that Magwood prescribes how the second or successive bar applies to requests
for post-conviction relief by federal as well as state prisoners.20 As the Second
19
Our consideration of this question as a division is not barred by M.A.P. v.
Ryan, 285 A.2d 310, 312 (D.C. 1971). Although a number of our cases suggest a
claims-based application of the bar on second or successive petitions, see, e.g.,
Hurt, 366 A.2d at 781 (citing Sanders for the proposition that ―to the extent the
allegations in the motion merely repeat the previously rejected contentions in the
habeas corpus petition, they need not have been considered by the trial court
judge‖), in no case have we considered the question before us and held that a
habeas petition filed after the issuance of a new judgment is a second or successive
petition. See Magwood, 561 U.S. at 336 (acknowledging prior decisions where the
Court upheld the denial of habeas relief because the ―petitioners did not avail
themselves of prior opportunities to present the claims‖ but explaining that none of
the decisions ―applies the phrase ‗second or successive‘ to an application
challenging a new judgment‖).
20
See Johnson, 623 F.3d at 45; Zavala v. Attorney Gen. of the United
States, 655 F. App‘x 927, 930 (3d Cir. 2016) (per curiam); In re Gray, 850 F.3d at
(continued…)
20
Circuit explained in Johnson, ―[t]he term ‗sentence‘ in § 2255 (a) . . . does not
have a materially different meaning than the term ‗judgment‘ in § 2254 (b). These
two terms are often used interchangeably.‖ 623 F.3d at 45 (quoting Burton v.
Stewart, 549 U.S. 147, 156 (2007) (―Final judgment in a criminal case means
sentence. The sentence is the judgment.‖) and Black‘s Law Dictionary (8th ed.
2004) (defining ―sentence‖ as ―[t]he judgment that a court formally pronounces
after finding a criminal defendant guilty‖)). And, ―[a]s a practical matter, courts
routinely allow federal prisoners to challenge their conviction, in addition to their
sentence, under § 2255 (a). For that purpose, the word ‗sentence‘ in § 2255 (a) is
understood to encompass both the conviction and the sentence.‖ Id. Likewise,
D.C. prisoners are permitted to use § 23-110 motions to challenge both
components of a judgment—the sentence and the underlying conviction.
Additionally, just as ―nothing in the AEDPA indicates that Congress
intended the ‗second or successive‘ rules to operate differently with regard to state
and federal prisoners,‖ Johnson, 623 F.3d at 45 (quoting Urinyi v. United States,
(…continued)
141 n.1 (4th Cir. 2017); In re Lampton, 667 F.3d at 588; Ajan v. United States, 731
F.3d 629, 631 (6th Cir. 2013); Suggs, 705 F.3d at 283 n.1; United States v.
Ailsworth, 513 F. App‘x 720, 722 (10th Cir. 2013); Betzner v. United States, 470 F.
App‘x 744, 746 n.3 (11th Cir. 2012).
21
607 F.3d 318, 321 (2d Cir. 2010))—to the contrary, as noted above, the second or
successive bar on § 2254 petitions originated in § 2255—there is nothing in § 23-
110 or its history that indicates that Congress intended the ―second or successive‖
rules to operate differently with regard to District of Columbia prisoners. Nor does
the passage of AEDPA, which altered the federal habeas statutes but not D.C.
Code § 23-110, give us a reason to distinguish federal cases interpreting the bar on
second or successive habeas petitions. Although that procedural bar, as it applies
to petitions under §§ 2254 and 2255, is now located in § 2244, its meaning has not
changed.21
Lastly, § 23-110 contains other language that naturally supports our
adherence to the Court‘s judgment-based interpretation of the bar on second or
successive habeas petitions in Magwood. In particular, § 23-110 (c) sets forth the
circumstances when a trial court may grant relief, including if ―the judgment was
rendered without jurisdiction‖ or if the prisoner‘s constitutional rights have been
infringed upon in such a way ―as to render the judgment vulnerable to collateral
21
See Magwood, 561 U.S. at 337 (explaining that pre-AEDPA precedent ―is
consistent with our reading‖ of the bar on second or successive habeas petitions);
see also Goodrum v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016) (―[C]ourts have
naturally assumed that the term [second or successive] carries the same meaning it
did under the pre-AEDPA . . . doctrine.‖).
22
attack.‖ Id. (emphases added). And it ties the relief available to the judgment:
―the court shall vacate and set the judgment aside and shall discharge the prisoner,
resentence him, grant a new trial, or correct the sentence, as may appear
appropriate.‖ Id. (emphasis added); cf. Junior v. United States, 634 A.2d 411,
417–18 (D.C. 1993) (holding that it was error to construe a resentencing motion as
a § 23-110 motion because a judgment had not yet been entered; without a
judgment, no collateral attack was yet possible).
For all of these reasons, we conclude that the bar on second or successive
motions under D.C. Code § 23-110, like the bar on second or successive petitions
filed under 28 U.S.C. §§ 2254 and 2255, is judgment-based. Further, we follow
the majority of the federal appellate courts in applying this judgment-based
understanding to the full extent of its logic, and hold that, after being resentenced
and receiving a new judgment, a prisoner may file a § 23-110 motion attacking
either his sentence or underlying conviction without running afoul of the bar on
second or successive motions. Applying our holding to this case, we conclude
that, although Mr. Long‘s 2016 § 23-110 motion was chronologically his third
such motion, because he filed it after he was resentenced and received a new
23
judgment,22 it was not second or successive23 and it should not have been
dismissed as procedurally barred.24
22
In a footnote in its first supplemental brief, the government argued,
without citation to any authority, that Mr. Long‘s resentencing did not result in a
new judgment. The government did not renew that argument in its second
supplemental brief addressing whether Mr. Long‘s 2016 § 23-110 petition was
procedurally barred. But even if this argument has not been abandoned or waived,
it has no merit. As detailed above, the trial court held a full hearing to resentence
Mr. Long, see supra note 7 & accompanying text. And the trial court subsequently
issued a new judgment and commitment order, nunc pro tunc to September 4,
1998, the date of Mr. Long‘s original sentencing. In this jurisdiction, as in the
federal courts, a sentence is an integral part of a judgment. Compare Super. Ct.
Crim. R. 32 (f) (―[T]he judgment of conviction . . . [includes] the sentence.‖), with
Fed. R. Crim. P. 32 (k)(1) (same); see also Deal v. United States, 508 U.S. 129,
132 (1993) (―[T]he entry of a final judgment of conviction . . . includes both the
adjudication of guilt and the sentence.‖). And a resentencing such as occurred in
Mr. Long‘s case results in a new judgment. See, e.g., Magwood, 561 U.S. at 326
(leaving his convictions undisturbed, the trial court at the resentencing hearing
―imposed a penalty of death, stating on the record that the new ‗judgment and
sentence were the result of a complete and new assessment of all the evidence,
arguments of counsel, and law‘‖ (brackets omitted)); id. at 339 (contrasting the
case with an earlier decision in which the Court had recognized that the outcome
might have been different ―had there been a new judgment intervening between the
two habeas petitions‖ and then observing that ―there is such an intervening
judgment here‖).
23
Under this reasoning, Mr. Long‘s 2012 § 23-110 petition, also a subject
of this appeal, is directed to a judgment that no longer exists. Accordingly we have
no cause address it.
24
We decline the government‘s invitation to affirm the trial court‘s
procedural bar ruling on alternative grounds, namely that Mr. Long‘s post-
conviction claims were considered and rejected on direct appeal. See Doepel v.
United States, 510 A.2d 1044, 1045–46 (D.C. 1986) (explaining ―that where an
appellate court has disposed of an issue on appeal, it will not be considered afresh
on collateral attack in a trial court of the same judicial system, absent special
circumstances‖). Mr. Long seeks post-conviction relief on the grounds that (1) the
(continued…)
24
III. Mr. Long’s Challenge on Direct Appeal to His Sentence Post-
Resentencing
Mr. Long also challenges (on direct appeal) the trial court‘s imposition, upon
resentencing, of a term of incarceration of thirty-five years to life for his first-
degree murder conviction.25 He argues that the trial court mistakenly failed to
apply the law in effect at the time of his offense, which required imposition of a
life sentence with ―eligibil[ity] for parole . . . after . . . 30 years,‖ D.C. Code § 22-
2404 (b) (1996 Repl.) (now codified, as amended, at D.C. Code § 22-2104.01
(2013 Repl.)), and did not authorize the imposition of a minimum sentence or a
sentencing range. The government does not respond to this argument.26
(…continued)
government vindictively decided to charge him with conspiracy after the jury at his
first trial hung on the most serious charges and the government was forced to retry
him; and (2) the government improperly relied on perjured testimony to obtain a
superseding indictment. Neither of these claims was the subject of his direct
appeal, see Long I, 910 A.2d at 304 & n.3, 306 (rejecting Mr. Long‘s speedy trial
(under the Fifth and Sixth Amendments) and improper closing argument claims).
25
In his initial pro se briefs, Mr. Long indicated some concern that the trial
court had imposed a second $400 fee to be paid to the victims of violent crime
fund. The record reflects however that the court, sentencing Mr. Long anew,
imposed one $400 fee. If Mr. Long has already paid this fee, as he indicates, no
further payment will be necessary.
26
Instead, the government mistakenly addresses a different argument raised
in Mr. Long‘s pro se brief to this court.
25
Reviewing this claim of legal error de novo,27 we agree that the trial court
erred. The law governing sentencing for first-degree murder at the time Mr. Long
committed this offense gave one directive to the trial court: that ―[t]he punishment
for murder in the first degree shall be life imprisonment,‖ D.C. Code § 22-2404 (a)
(1996 Repl.) (now codified, as amended, at D.C. Code § 22-2104 (a) (2013 Repl.));
and one directive to the paroling authority (before August 1998, the D.C. Board of
Parole; thereafter, the United States Parole Commission): that ―[a] person
convicted of murder in the first degree and upon whom a sentence of life
imprisonment is imposed shall be eligible for parole only after the expiration of 30
years from the date of the commencement of the sentence,‖ D.C. Code § 22-2404
(b) (1996 Repl.) (now codified, as amended, at § 22-2104 (b) (2013 Repl.)). As we
explained in Beale v. United States, Congress ―specifically determined the
punishment for first[-]degree murder to be mandatory life imprisonment and barred
release on parole for such a defendant until he ha[d] served 20 years[28] of his
sentence.‖ 465 A.2d 796, 806 (D.C. 1983), overruled on other grounds by
Winfield v. United States, 676 A.2d 1 (D.C. 1996). In other words, under § 22-
27
The government, focused on Mr. Long‘s pro se argument, see supra note
26, argues that we should review for plain error. But Mr. Long‘s claim that he
should be resentenced under § 22-2404 to life imprisonment was preserved in the
memorandum prior counsel submitted to the court before Mr. Long‘s resentencing.
28
This had been raised to thirty years by the time Mr. Long committed the
instant crime. See D.C. Code § 22-2404 (b) (1996 Repl.).
26
2404 (a) and (b), ―a trial judge ha[d] no discretion when passing sentence on a
first-degree murder conviction.‖ Garris v. United States, 491 A.2d 511, 514 (D.C.
1985).
The plain language of the statute, in conjunction with Beale and Garris,
makes it clear that the trial court was without authority to impose a minimum
sentence; it could only impose a life sentence. And the court was likewise without
authority to dictate when Mr. Long would become eligible for parole; by statute he
will become eligible after thirty years.
IV. Conclusion
For the reasons set forth in this opinion, we vacate the denial of Mr. Long‘s
2016 § 23-110 motion and remand for consideration on the merits. Additionally,
we vacate Mr. Long‘s sentence for first-degree murder and remand for the
imposition of the proper sentence.
So ordered.