Magwood v. Patterson , 130 S. Ct. 2788 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U. S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    MAGWOOD v. PATTERSON, WARDEN, ET AL.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
    THE ELEVENTH CIRCUIT
    No. 09–158.      Argued March 24, 2010—Decided June 24, 2010
    Petitioner Magwood was sentenced to death for murder. After the Ala
    bama courts denied relief on direct appeal and in postconviction pro
    ceedings, he sought federal habeas relief. The District Court condi
    tionally granted the writ as to his sentence, mandating that he be
    released or resentenced. The state trial court sentenced him to death
    a second time. He filed another federal habeas application, challeng
    ing this new sentence on the grounds that he did not have fair warn
    ing at the time of his offense that his conduct would permit a death
    sentence under Alabama law, and that his attorney rendered ineffec
    tive assistance during the resentencing proceeding. The District
    Court once again conditionally granted the writ. The Eleventh Cir
    cuit reversed, holding in relevant part that Magwood’s challenge to
    his new death sentence was an unreviewable “second or successive”
    challenge under 
    28 U. S. C. §2244
    (b) because he could have raised his
    fair-warning claim in his earlier habeas application.
    Held: The judgment is reversed and the case is remanded.
    
    555 F. 3d 968
    , reversed and remanded.
    JUSTICE THOMAS delivered the opinion of the Court, except as to
    Part IV–B, concluding that because Magwood’s habeas application
    challenges a new judgment for the first time, it is not “second or suc
    cessive” under §2244(b). Pp. 8–15, 17–22.
    (a) This case turns on when a claim should be deemed to arise in a
    “second or successive habeas corpus application.” §§2244(b)(1), (2).
    The State contends that §2244(b), as amended by the Antiterrorism
    and Effective Death Penalty Act of 1996 (AEDPA), should be read to
    bar claims that a prisoner had a prior opportunity to present. Under
    this “one opportunity” rule, Magwood’s fair-warning claim was “sec
    2                       MAGWOOD v. PATTERSON
    Syllabus
    ond and successive” because he had an opportunity to raise it in his
    first application but did not. Magwood counters that §2244(b) should
    not apply to a first application challenging a new judgment interven
    ing between habeas applications. This Court agrees. The phrase
    “second or successive” is not defined by AEDPA and it is a “term of
    art.” Slack v. McDaniel, 
    529 U. S. 473
    , 486. To determine its mean
    ing, the Court looks first to the statutory context. Section 2244(b)’s
    limitations apply only to a “habeas corpus application under §2254,”
    i.e., an application on “behalf of a person in custody pursuant to the
    judgment of a State court,” §2254(b)(1). Both §2254(b)’s text and the
    relief it provides indicate that “second or successive” must be inter
    preted with respect to the judgment challenged. A §2254 petitioner
    “seeks invalidation . . . of the judgment authorizing [his] confine
    ment,” Wilkinson v. Dotson, 
    544 U. S. 74
    , 83. If a conditional writ is
    granted, “the State may seek a new judgment (through a new trial or
    a new sentencing proceeding).” 
    Ibid.
     The State errs in contending
    that, if §2254 is relevant at all, “custody” and not “judgment,” is the
    proper reference because unlawful “custody” is the “substance” re
    quirement for habeas relief. This argument is unpersuasive. Section
    2254 articulates the kind of custody that may be challenged under
    §2254. Because §2254 applies only to custody pursuant to a state
    court judgment, that “judgment” is inextricable and essential to re
    lief. It is a requirement that distinguishes §2254 from other statutes
    permitting constitutional relief. See, e.g., §§2255, 2241. The State’s
    “custody”-based rule is also difficult to justify because applying “sec
    ond or successive” to any subsequent application filed before a pris
    oner’s release would require a prisoner who remains in continuous
    custody for an unrelated conviction to satisfy §2244(b)’s strict rules to
    challenge the unrelated conviction for the first time. Nothing in the
    statutory text or context supports such an anomalous result. Pp. 8–
    13.
    (b) This Court is also not convinced by the State’s argument that a
    “one opportunity” rule would be consistent with the statute and
    should be adopted because it better reflects AEDPA’s purpose of pre
    venting piecemeal litigation and gamesmanship. AEDPA uses “sec
    ond or successive” to modify “application,” not “claim” as the State
    contends, and this Court has refused to adopt an interpretation of
    §2244(b) that would “elid[e] the difference between an ‘application’
    and a ‘claim,’ ” Artuz v. Bennett, 
    531 U. S. 4
    , 9. The State’s reading
    also reflects a more fundamental error. It would undermine or ren
    der superfluous much of §2244(b)(2). In some circumstances, it would
    increase the restrictions on review by applying pre-AEDPA abuse-of
    the-writ rules where §2244(b)(2) imposes no restrictions. In others, it
    would decrease the restrictions on review by applying more lenient
    Cite as: 561 U. S. ____ (2010)                     3
    Syllabus
    pre-AEDPA abuse-of-the-writ rules where §2244(b) mandates stricter
    requirements. Pp. 13–15.
    (c) This Court’s interpretation of §2244(b) is consistent with its
    precedents. Because none of the pre-AEDPA cases that the State in
    vokes, e.g., Wong Doo v. United States, 
    265 U. S. 239
    , applies “second
    or successive” to an application challenging a new judgment, these
    cases shed no light on the question presented here. Nor do post-
    AEDPA cases contradict the approach adopted here. Only Burton v.
    Stewart, 
    549 U. S. 147
    , comes close to addressing the threshold ques
    tion whether an application is “second or successive” if it challenges a
    new judgment, and that decision confirms that the existence of a new
    judgment is dispositive. In holding that both of the petitioner’s ha
    beas petitions had challenged the same judgment, this Court in Bur
    ton expressly recognized that had there been a new judgment inter
    vening between the habeas petitions, the result might have been
    different. Here, there is such an intervening judgment. This is Mag
    wood’s first application challenging that intervening judgment.
    Magwood challenges not the trial court’s error in his first sentencing,
    but the court’s new error when it conducted a full resentencing and
    reviewed the aggravating evidence afresh. Pp. 15, 17–21.
    (d) Because Magwood has not attempted to challenge his underly
    ing conviction, the Court has no occasion to address the State’s objec
    tion that this reading of §2244(b) allows a petitioner who obtains a
    conditional writ as to his sentence to file a subsequent application
    challenging not only his resulting, new sentence, but also his original,
    undisturbed conviction. Nor does the Court address whether Mag
    wood’s fair-warning claim is procedurally defaulted or whether the
    Eleventh Circuit erred in rejecting his ineffective-assistance-of
    counsel claim. Pp. 21–22.
    THOMAS, J., delivered the opinion of the Court, except as to Part IV–
    B. SCALIA, J., joined in full, and STEVENS, BREYER, and SOTOMAYOR,
    JJ., joined, except as to Part IV–B. BREYER, J., filed an opinion concur
    ring in part and concurring in the judgment, in which STEVENS and SO-
    TOMAYOR, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which
    ROBERTS, C. J., and GINSBURG and ALITO, JJ., joined.
    Cite as: 561 U. S. ____ (2010)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–158
    _________________
    BILLY JOE MAGWOOD, PETITIONER v. TONY
    PATTERSON, WARDEN, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE ELEVENTH CIRCUIT
    [June 24, 2010]
    JUSTICE THOMAS delivered the opinion of the Court,
    except as to Part IV–B.
    Petitioner Billy Joe Magwood was sentenced to death for
    murdering a sheriff. After the Alabama courts denied
    relief on direct appeal and in postconviction proceedings,
    Magwood filed an application for a writ of habeas corpus
    in Federal District Court, challenging both his conviction
    and his sentence. The District Court conditionally granted
    the writ as to the sentence, mandating that Magwood
    either be released or resentenced. The state trial court
    conducted a new sentencing hearing and again sentenced
    Magwood to death. Magwood filed an application for a
    writ of habeas corpus in federal court challenging this new
    sentence. The District Court once again conditionally
    granted the writ, finding constitutional defects in the new
    sentence. The Court of Appeals for the Eleventh Circuit
    reversed, holding in relevant part that Magwood’s chal
    lenge to his new death sentence was an unreviewable
    “second or successive” challenge under 
    28 U. S. C. §2244
    (b) because he could have mounted the same chal
    lenge to his original death sentence. We granted certio
    2                     MAGWOOD v. PATTERSON
    Opinion of the Court
    rari, and now reverse. Because Magwood’s habeas appli
    cation1 challenges a new judgment for the first time, it is
    not “second or successive” under §2244(b).
    I
    After a conviction for a drug offense, Magwood served
    several years in the Coffee County Jail in Elba, Alabama,
    under the watch of Sheriff C. F. “Neil” Grantham. During
    his incarceration, Magwood, who had a long history of
    mental illness, became convinced that Grantham had
    imprisoned him without cause, and vowed to get even
    upon his release. Magwood followed through on his
    threat. On the morning of March 1, 1979, shortly after his
    release, he parked outside the jail and awaited the sher
    iff’s arrival. When Grantham exited his car, Magwood
    shot him and fled the scene.
    Magwood was indicted by a grand jury for the murder of
    an on-duty sheriff, a capital offense under Alabama Code
    §13–11–2(a)(5) (1975).2 He was tried in 1981. The prose
    cution asked the jury to find Magwood guilty of aggra
    vated murder as charged in the indictment, and sought
    the death penalty. Magwood pleaded not guilty by reason
    of insanity; however, the jury found him guilty of capital
    murder under §13–11–2(a)(5), and imposed the sentence of
    death based on the aggravation charged in the indictment.
    ——————
    1 Although 
    28 U. S. C. §2244
    (b) refers to a habeas “application,” we
    use the word “petition” interchangeably with the word “application,” as
    we have in our prior cases.
    2 At the time of the murder, Alabama Code §13–11–2(a) provided: “If
    the jury finds the defendant guilty, it shall fix the punishment at death
    when the defendant is charged by indictment with any of the following
    offenses and with aggravation, which must also be averred in the
    indictment . . . .” The offenses included “murder of any . . . sheriff . . .
    while . . . on duty or because of some official or job-related act.” §13–
    11–2(a)(5). The same statute set forth a list of “aggravating circum
    stances,” §13–11–6, but the trial court found that none existed in
    Magwood’s case.
    Cite as: 561 U. S. ____ (2010)                   3
    Opinion of the Court
    In accordance with Alabama law, the trial court reviewed
    the basis for the jury’s decision. See §§13–11–3, 13–11–4.
    Although the court did not find the existence of any statu
    tory “aggravating circumstance” under §13–11–6, the
    court relied on Ex parte Kyzer, 
    399 So. 2d 330
     (Ala. 1981),
    to find that murder of a sheriff while “on duty or because
    of some official or job-related acts,” §13–11–2(a)(5), is a
    capital felony that, by definition, involves aggravation
    sufficient for a death sentence.3 The trial court found that
    Magwood’s young age (27 at the time of the offense) and
    lack of significant criminal history qualified as mitigating
    factors, but found no mitigation related to Magwood’s
    mental state. Weighing the aggravation against the two
    mitigating factors, the court approved the sentence of
    death. The Alabama courts affirmed. See Magwood v.
    State, 
    426 So. 2d 918
    , 929 (Ala. Crim. App. 1982); Ex parte
    Magwood, 
    426 So. 2d 929
    , 932 (Ala. 1983). We denied
    certiorari. Magwood v. Alabama, 
    462 U. S. 1124
     (1983).
    After the Alabama Supreme Court set an execution date of
    ——————
    3 As relevant here, Kyzer did away with the prior Alabama rule that
    an aggravating component of a capital felony could not double as an
    aggravating factor supporting a capital sentence. In Kyzer, the defen
    dant had been sentenced to death for the intentional murder of “two or
    more human beings” under §13–11–2(a)(10). See 
    399 So. 2d, at 332
    .
    The crime of murder, so defined, was aggravated by its serial nature,
    just as Magwood’s crime of murder, as defined under §13–11–2(a)(5),
    was aggravated by the fact that he killed an on-duty sheriff because of
    the sheriff’s job-related acts. In Kyzer, the Alabama Supreme Court
    ultimately remanded for a new trial, but in order to guide the lower
    court on remand, addressed whether the aggravation in the charged
    crime, see §13–11–2(a)(10), was sufficient to impose a sentence of death
    even without a finding of any “aggravating circumstance” enumerated
    in §13–11–6. See id., at 337. The court ruled that if the defendant was
    convicted under §13–11–2(a)(10), “the jury and the trial judge at the
    sentencing hearing [may] find the aggravation averred in the indict
    ment as the aggravating circumstance, even though the aggravation is
    not listed in §13–11–6 as an aggravating circumstance.” Id., at 339
    (internal quotation marks omitted).
    4                     MAGWOOD v. PATTERSON
    Opinion of the Court
    July 22, 1983, Magwood filed a coram nobis petition and
    an application for a stay of execution. The trial court held
    a hearing on the petition and denied relief on July 18,
    1983.4
    Eight days before his scheduled execution, Magwood
    filed an application for a writ of habeas corpus under 
    28 U. S. C. §2254
    , and the District Court granted a stay of
    execution. After briefing by the parties, the District Court
    upheld Magwood’s conviction but vacated his sentence and
    conditionally granted the writ based on the trial court’s
    failure to find statutory mitigating circumstances relating
    to Magwood’s mental state.5 See Magwood v. Smith, 
    608 F. Supp. 218
    , 225–226, 229 (MD Ala. 1985). The Court of
    Appeals affirmed. See Magwood v. Smith, 
    791 F. 2d 1438
    ,
    1450 (CA11 1986).
    In response to the conditional writ, the state trial court
    held a new sentencing proceeding in September 1986.
    This time, the judge found that Magwood’s mental state,
    as well as his age and lack of criminal history, qualified as
    statutory mitigating circumstances. As before, the court
    found that Magwood’s capital felony under §13–11–2(a)(5)
    included sufficient aggravation to render him death eligi
    ble. In his proposed findings, Magwood’s attorney agreed
    that Magwood’s offense rendered him death eligible, but
    argued that a death sentence would be inappropriate in
    light of the mitigating factors. The trial court imposed a
    ——————
    4 The  Alabama Court of Criminal Appeals subsequently affirmed the
    denial of Magwood’s coram nobis petition, see Magwood v. State, 
    449 So. 2d 1267
     (1984), and the Alabama Supreme Court denied Magwood’s
    motion to file an out-of-time appeal from that decision, see Ex parte
    Magwood, 
    453 So. 2d 1349
     (1984).
    5 See 
    Ala. Code §13
    –11–7 (“Mitigating circumstances shall be the
    following: . . . (2) The capital felony was committed while the defendant
    was under the influence of extreme mental or emotional disturbance
    . . . . (6) The capacity of the defendant to appreciate the criminality of
    his conduct or to conform his conduct to the requirements of law was
    substantially impaired”).
    Cite as: 561 U. S. ____ (2010)           5
    Opinion of the Court
    penalty of death, stating on the record that the new
    “judgment and sentence [were] the result of a complete
    and new assessment of all of the evidence, arguments of
    counsel, and law.” Sentencing Tr., R. Tab 1, p. R–25. The
    Alabama courts affirmed, see Magwood v. State, 
    548 So. 2d 512
    , 516 (Ala. Crim. App. 1988); Ex parte Magwood,
    
    548 So. 2d 516
    , 516 (Ala. 1988), and this Court denied
    certiorari, see Magwood v. Alabama, 
    493 U. S. 923
     (1989).
    Magwood filed a petition for relief under Alabama’s
    former Temporary Rule of Criminal Procedure 20 (1987)
    (now Ala. Rule Crim. Proc. 32) (Rule 20 petition) claiming,
    inter alia, that his death sentence exceeded the maximum
    sentence authorized by statute; that his death sentence
    violated the Fifth, Eighth, and Fourteenth Amendments
    because it rested upon an unforeseeable interpretation of
    the capital sentencing statute; and that his attorney ren
    dered ineffective assistance of counsel during resentenc
    ing. The trial court denied relief. It held that the statu
    tory basis for Magwood’s death sentence had been
    affirmed on direct appeal and could not be relitigated. The
    trial court also held that Magwood’s attorney played no
    substantive role in the resentencing and had no obligation
    to dispute the aggravation, given that the District Court
    had required only that the trial court consider additional
    mitigating factors.
    Magwood appealed the denial of his Rule 20 petition,
    arguing, inter alia, that his sentence was unconstitutional
    because he did not have fair warning that his offense could
    be punished by death, and that he received constitution
    ally ineffective assistance of counsel at resentencing. See
    Record in Appeal No. 92–843 (Ala. Crim. App.), Tab 25,
    pp. 23–24, 53–61.
    The Alabama Court of Criminal Appeals affirmed, citing
    its decision on direct appeal as to the propriety of the
    death sentence. See Magwood v. State, 
    689 So. 2d 959
    ,
    965 (1996) (citing Kyzer, 
    399 So. 2d 330
    , and Jackson v.
    6                  MAGWOOD v. PATTERSON
    Opinion of the Court
    State, 
    501 So. 2d 542
     (Ala. Crim. App. 1986)).6 The Ala
    bama Supreme Court denied certiorari, see 
    689 So. 2d, at 959
    , as did this Court, see Magwood v. Alabama, 
    522 U. S. 836
     (1997).
    In April 1997, Magwood sought leave to file a second or
    successive application for a writ of habeas corpus challeng
    ing his 1981 judgment of conviction. See §2244(b)(3)(A)
    (requiring authorization from the Court of Appeals to file a
    second or successive application). The Court of Appeals
    denied his request. See In re Magwood, 
    113 F. 3d 1544
    (CA11 1997). He simultaneously filed a petition for a writ
    of habeas corpus challenging his new death sentence,
    which the District Court conditionally granted. See Mag
    wood v. Culliver, 
    481 F. Supp. 2d 1262
    , 1295 (MD Ala.
    2007). In that petition, Magwood again argued that his
    sentence was unconstitutional because he did not have fair
    warning at the time of his offense that his conduct would
    be sufficient to warrant a death sentence under Alabama
    law, and that his attorney rendered ineffective assistance
    during the resentencing proceeding.
    Before addressing the merits of Magwood’s fair-warning
    claim, the District Court sua sponte considered whether
    the application was barred as a “successive petition” under
    §2244, and concluded that it was not. Id., at 1283–1284
    (“[H]abeas petitions challenging the constitutionality of a
    resentencing proceeding are not successive to petitions
    that challenge the underlying conviction and original
    sentence” (citing 2 R. Hertz & J. Liebman, Federal Habeas
    Corpus Practice & Procedure §28.3b(i), p. 1412 (5th ed.
    2005) (“When a petitioner files a second or subsequent
    petition to challenge a criminal judgment other than the
    ——————
    6 In
    Jackson v. State, the Alabama Court of Criminal Appeals held
    that Kyzer supported a death sentence for a defendant who was con
    victed for an offense committed before Kyzer was decided but was
    resentenced after that decision. 
    501 So. 2d 542
    , 544 (1986).
    Cite as: 561 U. S. ____ (2010)            7
    Opinion of the Court
    one attacked in an earlier petition, it cannot be said that
    the two petitions are ‘successive’ ” (emphasis in original))).
    The District Court rejected the State’s argument that
    Magwood had procedurally defaulted the fair-warning
    claim by failing to present it adequately to the state
    courts, noting that Magwood had presented the claim both
    in his Rule 20 petition and on appeal from the denial of
    that petition. See 
    481 F. Supp. 2d, at
    1285–1286; supra,
    at 5. Addressing the merits, the District Court ruled that
    Magwood’s death sentence was unconstitutional because
    “at the time of the offense conduct, Magwood did not have
    fair notice that he could be sentenced to death absent at
    least one aggravating circumstance enumerated in former
    1975 
    Ala. Code §13
    –11–6.” 
    481 F. Supp. 2d, at 1285
    . The
    District Court also found the state court’s grounds for
    rejecting Magwood’s ineffective-assistance claim unrea
    sonable in light of clearly established federal law, noting
    that Magwood’s attorney in fact had engaged substan
    tively in the “complete and new” resentencing, and al
    though the attorney could not be expected to object on
    state-law grounds foreclosed by precedent, he was clearly
    ineffective for failing to raise the federal fair-warning
    claim. 
    Id., at 1294
     (internal quotation marks omitted).
    The Court of Appeals reversed in relevant part. See 
    555 F. 3d 968
     (CA11 2009). It concluded that the first step in
    determining whether §2244(b) applies is to “separate the
    new claims challenging the resentencing from the old
    claims that were or should have been presented in the
    prior application.” Id., at 975 (internal quotation marks
    omitted). Under the Court of Appeals’ approach, any
    claim that “challenge[s] the new, amended component of
    the sentence” should be “regarded as part of a first peti
    tion,” and any claim that “challenge[s] any component of
    the original sentence that was not amended” should be
    “regarded as part of a second petition.” Ibid. Applying
    this test, the court held that because Magwood’s fair
    8                    MAGWOOD v. PATTERSON
    Opinion of the Court
    warning claim challenged the trial court’s reliance on the
    same (allegedly improper) aggravating factor that the trial
    court had relied upon for Magwood’s original sentence, his
    claim was governed by §2244(b)’s restrictions on “second
    or successive” habeas applications. Id., at 975–976. The
    Court of Appeals then dismissed the claim because Mag
    wood did not argue that it was reviewable under one of the
    exceptions to §2244(b)’s general rule requiring dismissal of
    claims first presented in a successive application.7 See id.,
    at 976.
    We granted certiorari to determine whether Magwood’s
    application challenging his 1986 death sentence, imposed
    as part of resentencing in response to a conditional writ
    from the District Court, is subject to the constraints that
    §2244(b) imposes on the review of “second or successive”
    habeas applications. 558 U. S. ___ (2009).
    II
    As amended by the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA), 
    28 U. S. C. §2244
    (b) pro
    vides in relevant part:
    “(1) A claim presented in a second or successive ha
    beas corpus application under section 2254 that was
    presented in a prior application shall be dismissed.
    “(2) A claim presented in a second or successive ha
    beas corpus application under section 2254 that was
    not presented in a prior application shall be dismissed
    unless—
    ——————
    7 Thecourt treated Magwood’s ineffective-assistance claim as new
    and free of the restrictions of §2244(b)(2), but reversed on the merits:
    “While there was a possible objection, Alabama’s highest court had said
    in Kyzer that a §13–11–2 aggravating factor could be used as an aggra
    vating circumstance. We are not prepared to require counsel to raise
    an argument that has already been decided adversely to his client’s
    position by a state’s highest court in order to avoid being found ineffec
    tive.” 
    555 F. 3d, at
    977–978.
    Cite as: 561 U. S. ____ (2010)            9
    Opinion of the Court
    “(A) the applicant shows that the claim relies on a
    new rule of constitutional law, made retroactive to
    cases on collateral review by the Supreme Court, that
    was previously unavailable; or
    “(B)(i) the factual predicate for the claim could not
    have been discovered previously through the exercise
    of due diligence; and
    “(ii) 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 evi
    dence that, but for constitutional error, no reasonable
    factfinder would have found the applicant guilty of the
    underlying offense.”
    This case turns on the meaning of the phrase “second or
    successive” in §2244(b). More specifically, it turns on
    when a claim should be deemed to arise in a “second or
    successive habeas corpus application.” §§2244(b)(1), (2).
    If an application is “second or successive,” the petitioner
    must obtain leave from the Court of Appeals before filing
    it with the district court. See §2244(b)(3)(A). The district
    court must dismiss any claim presented in an authorized
    second or successive application unless the applicant
    shows that the claim satisfies certain statutory require
    ments. See §2244(b)(4). Thus, if Magwood’s application
    was “second or successive,” the District Court should have
    dismissed it in its entirety because he failed to obtain the
    requisite authorization from the Court of Appeals. If,
    however, Magwood’s application was not second or succes
    sive, it was not subject to §2244(b) at all, and his fair
    warning claim was reviewable (absent procedural default).
    The State contends that although §2244(b), as amended
    by AEDPA, applies the phrase “second or successive” to
    “application[s],” it “is a claim-focused statute,” Brief for
    Respondents 22–24, and “[c]laims, not applications, are
    barred by §2244(b),” id., at 24 (citing Artuz v. Bennett, 531
    10                   MAGWOOD v. PATTERSON
    Opinion of the Court
    U. S. 4, 9 (2000)). According to the State, the phrase
    should be read to reflect a principle that “a prisoner is
    entitled to one, but only one, full and fair opportunity to
    wage a collateral attack.” See Brief for Respondents
    25–26 (citing Beyer v. Litscher, 
    306 F. 3d 504
    , 508 (CA7
    2002); internal quotation marks omitted). The State
    asserts that under this “one opportunity” rule, Magwood’s
    fair-warning claim was successive because he had an
    opportunity to raise it in his first application, but did not
    do so. See Brief for Respondents 25–26.
    Magwood, in contrast, reads §2244(b) to apply only to a
    “second or successive” application challenging the same
    state-court judgment. According to Magwood, his 1986
    resentencing led to a new judgment, and his first applica
    tion challenging that new judgment cannot be “second or
    successive” such that §2244(b) would apply. We agree.
    We begin with the text. 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,” Panetti v. Quarterman, 
    551 U. S. 930
    , 944 (2007); see 
    id., at 947
     (creating an “exceptio[n]” to
    §2244(b) for a second application raising a claim that
    would have been unripe had the petitioner presented it in
    his first application); Stewart v. Martinez-Villareal, 
    523 U. S. 637
    , 643 (1998) (treating a second application as part
    of a first application where it was premised on a newly
    ripened claim that had been dismissed from the first
    application “as premature”); Slack v. McDaniel, 
    529 U. S. 473
    , 478, 487 (2000) (declining to apply §2244(b) to a
    second application where the District Court dismissed the
    first application for lack of exhaustion).8
    ——————
    8 In Slack v. McDaniel, we applied pre-AEDPA law, but “d[id] not
    suggest the definition of second or successive would be different under
    Cite as: 561 U. S. ____ (2010)                11
    Opinion of the Court
    We have described the phrase “second or successive” as
    a “term of art.” Id., at 486. To determine its meaning, we
    look first to the statutory context. The limitations im
    posed by §2244(b) apply only to a “habeas corpus applica
    tion under §2254,” that is, an “application for a writ of
    habeas corpus on behalf of a person in custody pursuant to
    the judgment of a State court,” §2254(b)(1) (emphasis
    added). The reference to a state-court judgment in
    §2254(b) is significant because the term “application”
    cannot be defined in a vacuum. A §2254 petitioner is
    applying for something: His petition “seeks invalidation
    (in whole or in part) of the judgment authorizing the pris
    oner’s confinement,” Wilkinson v. Dotson, 
    544 U. S. 74
    , 83
    (2005) (emphasis added). If his petition results in a dis
    trict court’s granting of the writ, “the State may seek a
    new judgment (through a new trial or a new sentencing
    proceeding).” 
    Ibid.
     (emphasis in original). Thus, both
    §2254(b)’s text and the relief it provides indicate that the
    phrase “second or successive” must be interpreted with
    respect to the judgment challenged.
    The State disagrees, contending that if the cross
    reference to §2254 is relevant, we should focus not on the
    statute’s reference to a “judgment” but on its reference to
    “custody,” Brief for Respondents 53; compare §§2254(a),
    (b) (establishing rules for review of “an application for a
    writ of habeas corpus” on “behalf of a person in custody
    pursuant to the judgment of a State court” (emphasis
    added)) with §2254(a) (specifying that an application may
    be entertained “only on the ground that [the petitioner] is
    in custody in violation of the Constitution or laws or trea
    ties of the United States” (emphasis added)). The State
    explains that unlawful “custody” is the key “ ‘substance
    ——————
    AEDPA.” 
    529 U. S., at 473, 486
    . Courts have followed Slack in post-
    AEDPA cases, and the State agrees it is relevant to the question
    presented here. See Brief for Respondents 36, n. 13.
    12                MAGWOOD v. PATTERSON
    Opinion of the Court
    requirement’ ” of §2254, whereas being held pursuant to a
    state-court “judgment” is merely a “ ‘status requirement.’ ”
    Brief for Respondents 53 (quoting Liebman & Hertz,
    Federal Habeas Corpus Practice and Procedure §8.1,
    p. 391).
    We find this argument unpersuasive. Section 2254
    articulates the kind of confinement that may be chal
    lenged on the ground that the petitioner is being held “in
    violation of the Constitution or laws or treaties of the
    United States.” §2254(a). The requirement of custody
    pursuant to a state-court judgment distinguishes §2254
    from other statutory provisions authorizing relief from
    constitutional violations—such as §2255, which allows
    challenges to the judgments of federal courts, or 
    42 U. S. C. §1983
    , which allows federal-court suits against
    state and local officials. Custody is crucial for §2254
    purposes, but it is inextricable from the judgment that
    authorizes it.
    The State’s “custody”-based rule is difficult to justify for
    another reason. Under the State’s approach, applying the
    phrase “second or successive” to any subsequent applica
    tion filed before a prisoner’s release would mean that a
    prisoner who remains in continuous custody for a com
    pletely unrelated conviction would have to satisfy the
    strict rules for review under §2244(b) to challenge his
    unrelated conviction for the first time. Nothing in the
    statutory text or context supports, much less requires,
    such an anomalous result. See, e.g., Beyer, 
    306 F. 3d, at 507
     (“[A] prisoner is entitled to one free-standing collateral
    attack per judgment, rather than one attack per stretch of
    imprisonment”); cf. Dotson, 
    supra, at 85
     (SCALIA, J., con
    curring) (“[W]hen a habeas petitioner challenges only one
    of several consecutive sentences, the court may invalidate
    the challenged sentence even though the prisoner remains
    Cite as: 561 U. S. ____ (2010)                   13
    Opinion of the Court
    in custody to serve the others”).9
    III
    Appearing to recognize that Magwood has the stronger
    textual argument, the State argues that we should rule
    based on the statutory purpose. According to the State, a
    “one opportunity” rule is consistent with the statutory
    text, and better reflects AEDPA’s purpose of preventing
    piecemeal litigation and gamesmanship.
    We are not persuaded. AEDPA uses the phrase “second
    or successive” to modify “application.” See §§2244(b)(1),
    (2). The State reads the phrase to modify “claims.” See,
    e.g., Brief for Respondents 51 (“Congress’ intent for
    AEDPA was to eradicate successive claims”). We cannot
    replace the actual text with speculation as to Congress’
    intent. We have previously found Congress’ use of the
    word “application” significant, and have refused to adopt
    an interpretation of §2244(b) that would “elid[e] the differ
    ence between an ‘application’ and a ‘claim,’ ” Artuz, 
    531 U. S., at 9
    ; see also Gonzalez v. Crosby, 
    545 U. S. 524
    , 530
    (2005) (“[F]or purposes of §2244(b), an ‘application’ for
    habeas relief is a filing that contains one or more
    ‘claims’ ”). Therefore, although we agree with the State
    that many of the rules under §2244(b) focus on claims,
    that does not entitle us to rewrite the statute to make the
    phrase “second or successive” modify claims as well.10
    The State’s reading leads to a second, more fundamental
    ——————
    9 Our focus on the judgment accords with current filing requirements.
    See Habeas Corpus Rule 2(b) (requiring any petitioner to “ask for relief
    from the state-court judgment being contested”); Rule 2(e) (prescribing
    that any “petitioner who seeks relief from judgments of more than one
    state court must file a separate petition covering the judgment or
    judgments of each court”).
    10 The dissent recognizes that the phrase “second or successive” ap
    plies to an application as a whole, see post, at 2–4 (opinion of KENNEDY,
    J.), but departs in other significant ways from the statutory text, see
    infra, at 14–15.
    14                   MAGWOOD v. PATTERSON
    Opinion of the Court
    error. Under the State’s “one opportunity” rule, the
    phrase “second or successive” would apply to any claim
    that the petitioner had a full and fair opportunity to raise
    in a prior application. And the phrase “second or succes
    sive” would not apply to a claim that the petitioner did not
    have a full and fair opportunity to raise previously.
    This reading of §2244(b) would considerably under
    mine—if not render superfluous—the exceptions to dis
    missal set forth in §2244(b)(2). That section describes
    circumstances when a claim not presented earlier may be
    considered: intervening and retroactive case law, or newly
    discovered facts suggesting “that . . . no reasonable fact
    finder would have found the applicant guilty of the under
    lying offense.” §2244(b)(2)(B)(ii). In either circumstance,
    a petitioner cannot be said to have had a prior opportunity
    to raise the claim, so under the State’s rule the claim
    would not be successive and §2244(b)(2) would not apply to
    it at all. This would be true even if the claim were raised
    in a second application challenging the same judgment.11
    In addition to duplicating the exceptions under §2244(b)
    in some circumstances, the State’s rule would dilute them
    in others. Whereas the exception to dismissal of fact
    based claims not presented in a prior application applies
    only if the facts provide clear and convincing evidence
    ——————
    11 This case does not require us to determine whether §2244(b) ap
    plies to every application filed by a prisoner in custody pursuant to a
    state-court judgment if the prisoner challenged the same state-court
    judgment once before. Three times we have held otherwise. See Slack
    v. McDaniel, 
    529 U. S. 475
    , 487 (2000); Stewart v. Martinez-Villareal,
    
    523 U. S. 637
    , 643 (1998); Panetti v. Quarterman, 
    551 U. S. 930
    , 945
    (2007).
    The dissent’s claim that our reading of §2244(b) calls one of those
    decisions, Panetti, into doubt, see post, at 7–8, is unfounded. The
    question in this case is whether a first application challenging a new
    sentence in an intervening judgment is second or successive. It is not
    whether an application challenging the same state-court judgment
    must always be second or successive.
    Cite as: 561 U. S. ____ (2010)           15
    Opinion of the Court
    “that, but for constitutional error, no reasonable factfinder
    would have found the applicant guilty of the underlying
    offense,” §2244(b)(2)(B)(ii), under the State’s rule, all that
    matters is that the facts “could not have been discovered
    previously through the exercise of due diligence,”
    §2244(b)(2)(B)(i). We decline to adopt a reading that
    would thus truncate §2244(b)(2)’s requirements.
    IV
    A
    We are not persuaded by the State or the dissent that
    the approach we take here contradicts our precedents.
    The State invokes several pre-AEDPA cases denying
    review of claims in second or successive applications
    where the petitioners did not avail themselves of prior
    opportunities to present the claims. See Wong Doo v.
    United States, 
    265 U. S. 239
     (1924); Antone v. Dugger, 
    465 U. S. 200
     (1984) (per curiam); Woodard v. Hutchins, 
    464 U. S. 377
     (1984) (per curiam); Delo v. Stokes, 
    495 U. S. 320
    (1990) (per curiam); McCleskey v. Zant, 
    499 U. S. 467
    (1991). These cases, the State contends, show that Mag
    wood’s fair-warning claim should be dismissed as second
    or successive because he could have raised—but did not
    raise—the claim in his first application.
    But none of these pre-AEDPA decisions applies the
    phrase “second or successive” to an application challenging
    a new judgment. Therefore, the decisions cast no light on
    the question before the Court today: whether abuse-of-the
    writ rules, as modified by AEDPA under §2244(b)(2), apply
    at all to an application challenging a new judgment. The
    State’s misplaced reliance on those cases stems from its
    failure to distinguish between §2244(b)’s threshold inquiry
    into whether an application is “second or successive,” and
    its subsequent inquiry into whether claims in a successive
    application must be dismissed.
    16                MAGWOOD v. PATTERSON
    Opinion of the Court
    Opinion of THOMAS, J.
    B
    The dissent similarly errs by interpreting the phrase
    “second or successive” by reference to our longstanding
    doctrine governing abuse of the writ. AEDPA modifies
    those abuse-of-the-writ principles and creates new statu
    tory rules under §2244(b). These rules apply only to “sec
    ond or successive” applications. The dissent contends that
    this reading renders AEDPA inapplicable to a broad range
    of abusive claims that would have been barred under prior
    rules. Yet, the dissent fails to cite any case in which this
    Court has dismissed a claim as successive or abusive if the
    petitioner raised it in an application challenging a new
    judgment.
    The dissent’s conclusion that our reading of §2254 “un
    moor[s] the phrase ‘second or successive’ from its textual
    and historical underpinnings,” post, at 8, is unwarranted.
    Pre-AEDPA usage of the phrase “second or successive” is
    consistent with our reading. A review of our habeas
    precedents shows that pre-AEDPA cases cannot affirma
    tively define the phrase “second or successive” as it ap
    pears in AEDPA. Congress did not even apply the phrase
    “second or successive” to applications filed by state prison
    ers until it enacted AEDPA. The phrase originally arose
    in the federal context, see §2255 (1946 ed., Supp. II), and
    applied only to applications raising previously adjudicated
    claims, see Sanders v. United States, 
    373 U. S. 1
    , 12
    (1963). After this Court interpreted the law to permit
    dismissal of “abusive” claims—as distinguished from
    “successive” claims, see ibid.—Congress codified restric
    tions on both types of claims in §2244(b), but still without
    using the phrase “second or successive.” See §2244(b)
    (1964 ed., Supp. IV) (providing rules governing applica
    tions filed by state as well as federal prisoners). It was not
    until 1996 that AEDPA incorporated the phrase “second or
    successive” into §2244(b). In light of this complex history
    of the phrase “second or successive,” we must rely upon
    Cite as: 561 U. S. ____ (2010)                  17
    Opinion of the Court
    the current text to determine when the phrase applies,
    rather than pre-AEDPA precedents or superseded statu
    tory formulations.12
    C
    Nor do our post-AEDPA cases contradict our approach.
    Only one, Burton v. Stewart, 
    549 U. S. 147
     (2007) (per
    curiam), comes close to addressing the threshold question
    whether an application is “second or successive” if it chal
    lenges a new judgment. And that case confirms that the
    existence of a new judgment is dispositive. In Burton, the
    petitioner had been convicted and sentenced in state court
    in 1994. See 
    id., at 149
    . He successfully moved for resen
    tencing based on vacatur of an unrelated prior conviction.
    
    Id., at 150
    . The state appellate court affirmed the convic
    tion but remanded for a second resentencing. 
    Ibid.
     In
    March 1998, the trial court entered an amended judgment
    and new sentence. 
    Id., at 151
    . In December 1998, with
    state review of his new sentence still pending, the peti
    tioner filed a §2254 application challenging his 1994 con
    viction. The District Court denied it on the merits, the
    Court of Appeals affirmed, and we denied certiorari. Ibid.
    In 2002, after exhausting his state sentencing appeal,
    the petitioner filed a §2254 petition challenging only his
    1998 sentence. The District Court denied relief on the
    merits and the Court of Appeals affirmed. We reversed,
    holding that the petition challenging the sentence should
    have been dismissed as an unauthorized “second or suc
    cessive” application. Id., at 153; see §2244(b)(3)(A). We
    ——————
    12 The dissent speculates about issues far beyond the question before
    the Court. See, e.g., post, at 8–9 (suggesting that our judgment-based
    reading of §2244(b) calls into question precedents recognizing habeas
    petitions challenging the denial of good-time credits or parole). We
    address only an application challenging a new state-court judgment for
    the first time. We do not purport to constrain the scope of §2254 as we
    have previously defined it.
    18                   MAGWOOD v. PATTERSON
    Opinion of the Court
    rejected the petitioner’s argument “that his 1998 and 2002
    petitions challenged different judgments.” Id., at 155; see
    id., at 156–157. Although petitioner had styled his first
    petition as a challenge to the 1994 conviction and his
    second petition as a challenge to the 1998 sentence, we
    concluded that both attacked the same “judgment” be
    cause the 1998 sentence was already in place when the
    petitioner filed his first application for federal habeas
    relief. See id., at 156. In other words, the judgment he
    challenged in his 1998 application was “the same one
    challenged in the subsequent 2002 petition”; it “was the
    judgment pursuant to which [the petitioner] was being
    detained.” Ibid. (emphasis added). We expressly recog
    nized that the case might have been different had there
    been a “new judgment intervening between the two ha
    beas petitions.” Ibid. There was no such judgment in
    Burton, but there is such an intervening judgment here.
    This is Magwood’s first application challenging that
    intervening judgment. The errors he alleges are new. It is
    obvious to us—and the State does not dispute—that his
    claim of ineffective assistance at resentencing turns upon
    new errors. But, according to the State, his fair-warning
    claim does not, because the state court made the same
    mistake before. We disagree. An error made a second
    time is still a new error. That is especially clear here,
    where the state court conducted a full resentencing and
    reviewed the aggravating evidence afresh. See Sentencing
    Tr., R. Tab 1, at R–25 (“The Court in f[or]mulating the
    present judgment has considered the original record of the
    trial and sentence. . . . The present judgment and sentence
    has been the result of a complete and new assessment of all
    of the evidence, arguments of counsel, and law” (emphasis
    added)).13
    ——————
    13 Cf. Walker v. Roth, 
    133 F. 3d 454
    , 455 (CA7 1997) (“None of these
    new claims were raised in his first petition, nor could they have been;
    Cite as: 561 U. S. ____ (2010)                  19
    Opinion of the Court
    D
    The dissent’s concern that our rule will allow “petition
    ers to bring abusive claims so long as they have won any
    victory pursuant to a prior federal habeas petition,” post,
    at 14, is greatly exaggerated. A petitioner may not raise
    in federal court an error that he failed to raise properly in
    state court in a challenge to the judgment reflecting the
    error. If a petitioner does not satisfy the procedural re
    quirements for bringing an error to the state court’s atten
    tion—whether in trial, appellate, or habeas proceedings,
    as state law may require—procedural default will bar
    federal review. See Coleman v. Thompson, 
    501 U. S. 722
    ,
    729–730 (1991); O’Sullivan v. Boerckel, 
    526 U. S. 838
    , 848
    (1999) (stating that the petitioner’s “failure to present
    three of his federal habeas claims to the [state court] in a
    timely fashion has resulted in a procedural default of
    those claims”). In this case, the State argued that Mag
    wood procedurally defaulted his fair-warning claim by
    failing to raise it properly in his collateral challenge to the
    1986 judgment, and sought dismissal on that ground.
    Only after ruling that Magwood did not procedurally
    default the claim did the District Court sua sponte con
    sider whether §2244(b) barred review.14 We leave that
    procedural-default ruling to the Court of Appeals to review
    in the first instance. Here, we underscore only that proce
    dural-default rules continue to constrain review of claims
    in all applications, whether the applications are “second or
    ——————
    [the petitioner] is attempting to challenge the constitutionality of a
    proceeding which obviously occurred after he filed, and obtained relief,
    in his first habeas petition”).
    14 See 
    481 F. Supp. 2d 1262
    , 1267 (MD Ala. 2007) (“This court split
    the proceedings on the current petition into two stages: Stage I (deter
    mining whether the claims were procedurally defaulted) and Stage II
    (considering the merits of the claims that were not procedurally de
    faulted)”). Few of Magwood’s claims survived the initial cut.
    20                    MAGWOOD v. PATTERSON
    Opinion of the Court
    successive” or not.15
    Ironically, in an effort to effectuate what they believe is
    Congress’ intent not to give any unfair benefit to habeas
    petitioners, the State and the dissent propose an alterna
    tive rule that would “close our doors to a class of habeas
    petitioners seeking review without any clear indication
    that such was Congress’ intent.” Castro v. United States,
    
    540 U. S. 375
    , 381 (2003). Many examples can be given,
    but one suffices to illustrate this point. Suppose that a
    petitioner files an application raising 10 meritorious
    claims challenging his conviction. The district court
    grants a conditional writ based on one of them, without
    reaching the remaining nine. Upon retrial, the state court
    commits the same 10 legal mistakes. (These are new
    errors, but no more new than the sentencing error in
    Magwood’s case.) Is an application presenting those same
    10 claims—now based on the errors in the new judg
    ment—“second or successive”? Under the opportunity
    based rule advanced by the State and the dissent, the
    answer must be yes. All 10 claims would have to be dis
    missed. See §2244(b)(1) (requiring dismissal of any claim
    presented in a prior application). The State attempts to
    avoid this “procedural anomal[y],” Castro, 
    supra, at 380
    ,
    by suggesting that we treat the nine unadjudicated claims
    as part of a first application, because they were never
    adjudicated on the merits. Cf. Slack, 
    529 U. S., at
    478–481; Martinez-Villareal, 
    523 U. S., at
    643–645. As for
    the adjudicated claim, “[r]espondents assume that state
    judges will follow instructions imposed by federal courts,”
    and if not, “that federal courts will consider a petitioner’s
    claim that the state court violated due process by failing to
    ——————
    15 The dissent’s concern that such a petitioner may “reraise every
    argument against a sentence that was rejected by the federal courts
    during the first round of federal habeas review,” post, at 12, is similarly
    hyperbolic. It will not take a court long to dispose of such claims where
    the court has already analyzed the legal issues.
    Cite as: 561 U. S. ____ (2010)                    21
    Opinion of the Court
    honor the federal court’s mandate.” Brief for Respondents
    42. We see no need to engage in such novel and complex
    rationalizations.    AEDPA’s text commands a more
    straightforward rule: where, unlike in Burton, there is a
    “new judgment intervening between the two habeas peti
    tions,” 
    549 U. S., at 156
    , an application challenging the
    resulting new judgment is not “second or successive” at all.
    V
    The State objects that our reading of §2244(b) would
    allow a petitioner who obtains a conditional writ as to his
    sentence to file a subsequent application challenging not
    only his resulting, new sentence, but also his original,
    undisturbed conviction. The State believes this result
    follows because a sentence and conviction form a single
    “judgment” for purposes of habeas review. This case gives
    us no occasion to address that question, because Magwood
    has not attempted to challenge his underlying conviction.16
    We base our conclusion on the text, and that text is not
    altered by consequences the State speculates will follow in
    another case.17
    *    *    *
    For these reasons, we conclude that Magwood’s first
    application challenging his new sentence under the 1986
    judgment is not “second or successive” under §2244(b).
    ——————
    16 Several Courts of Appeals have held that a petitioner who succeeds
    on a first habeas application and is resentenced may challenge only the
    “portion of a judgment that arose as a result of a previous successful
    action.” Lang v. United States, 
    474 F. 3d 348
    , 351 (CA6 2007) (citing
    decisions); see also Walker, 
    133 F. 3d, at 455
    ; United States v. Esposito,
    
    135 F. 3d 111
    , 113–114 (CA2 1997).
    17 In any case, we cannot agree with the dissent that our reading of
    §2244(b) gives a windfall to “a defendant who succeeds on even the
    most minor and discrete issue.” Post, at 12. AEDPA permits relief
    “only on the ground that [the petitioner] is in custody in violation of the
    Constitution or laws or treaties of the United States.” §2254(a).
    22                MAGWOOD v. PATTERSON
    Opinion of the Court
    The Court of Appeals erred by reading §2244(b) to bar
    review of the fair-warning claim Magwood presented in
    that application. We do not address whether the fair
    warning claim is procedurally defaulted. Nor do we ad
    dress Magwood’s contention that the Court of Appeals
    erred in rejecting his ineffective-assistance claim by not
    addressing whether his attorney should have objected
    under federal law.
    The judgment of the Court of Appeals is reversed, and
    the case is remanded for further proceedings consistent
    with this opinion.
    It is so ordered.
    Cite as: 561 U. S. ____ (2010)            1
    Opinion of BREYER, J.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–158
    _________________
    BILLY JOE MAGWOOD, PETITIONER v. TONY
    PATTERSON, WARDEN, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE ELEVENTH CIRCUIT
    [June 24, 2010]
    JUSTICE BREYER, with whom JUSTICE STEVENS and
    JUSTICE SOTOMAYOR join, concurring in part and concur
    ring in the judgment.
    I join the Court’s well-reasoned opinion with the excep
    tion of Part IV–B. The Court neither purports to alter nor
    does alter our holding in Panetti v. Quarterman, 
    551 U. S. 930
     (2007). See ante, at 14, n. 11. In Panetti, we “declined
    to interpret ‘second or successive’ as referring to all §2254
    applications filed second or successively in time, even
    when the later filings address a state-court judgment
    already challenged in a prior §2254 application.” 
    551 U. S. at 944
     (emphasis added). In this case, by contrast, we
    determine how 
    28 U. S. C. §2244
    (b) applies to a habeas
    petition that is the first petition to address a new “state
    court judgment” that has not “already [been] challenged in
    a prior §2254 application.” And, for the reasons provided
    by the Court, such a “first” petition is not “second or suc
    cessive.” Of course, as the dissent correctly states, if
    Magwood were challenging an undisturbed state-court
    judgment for the second time, abuse-of-the-writ principles
    would apply, including Panetti’s holding that an “applica
    tion” containing a “claim” that “the petitioner had no fair
    opportunity to raise” in his first habeas petition is not a
    “second or successive” application. Post, at 3 (opinion of
    KENNEDY, J.). Contrary to the dissent’s assertion, post, at
    6–8, the Court’s decision today and our decision in Panetti
    fit comfortably together.
    Cite as: 561 U. S. ____ (2010)            1
    KENNEDY, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–158
    _________________
    BILLY JOE MAGWOOD, PETITIONER v. TONY
    PATTERSON, WARDEN, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE ELEVENTH CIRCUIT
    [June 24, 2010]
    JUSTICE KENNEDY, with whom THE CHIEF JUSTICE,
    JUSTICE GINSBURG, and JUSTICE ALITO join, dissenting.
    The Court today decides that a state prisoner who suc
    ceeds in his first federal habeas petition on a discrete
    sentencing claim may later file a second petition raising
    numerous previously unraised claims, even if that petition
    is an abuse of the writ of habeas corpus. The Court, in my
    respectful submission, reaches this conclusion by misread
    ing precedents on the meaning of the phrase “second or
    successive” in the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA). The Court then rewrites
    AEDPA’s text but refuses to grapple with the logical con
    sequences of its own editorial judgment. A straightfor
    ward application of the principles articulated in Panetti v.
    Quarterman, 
    551 U. S. 930
     (2007), consistent with the
    conclusions of all of the Courts of Appeals that have con
    sidered this issue, dictates the opposite result. The design
    and purpose of AEDPA is to avoid abuses of the writ of
    habeas corpus, in recognition of the potential for the writ’s
    intrusive effect on state criminal justice systems. But
    today’s opinion, with considerable irony, is not only a step
    back from AEDPA protection for States but also a step
    back even from abuse-of-the-writ principles that were in
    place before AEDPA. So this respectful dissent becomes
    necessary.
    2                 MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    I
    Absent two exceptions that are inapplicable here, the
    relevant statutory provision in AEDPA provides:
    “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
    . . . .” 
    28 U. S. C. §2244
    (b)(2).
    The question before the Court is whether petitioner Billy
    Joe Magwood filed “a second or successive” application by
    raising a claim in his second habeas petition that he had
    available and yet failed to raise in his first petition.
    The term “second or successive” is a habeas “term of
    art.” Slack v. McDaniel, 
    529 U. S. 473
    , 486 (2000). It
    incorporates the pre-AEDPA abuse-of-the-writ doctrine.
    Panetti, 
    551 U. S., at 947
    . Before today, that legal princi
    ple was established by the decisions of this Court. See,
    e.g., ibid.; Slack, 
    529 U. S., at 486
    . Under that rule, to
    determine whether an application is “second or succes
    sive,” a court must look to the substance of the claim the
    application raises and decide whether the petitioner had a
    full and fair opportunity to raise the claim in the prior
    application. Panetti, 
    551 U. S., at 947
    . Applying this
    analytical framework puts applications into one of three
    categories.
    First, if the petitioner had a full and fair opportunity to
    raise the claim in the prior application, a second-in-time
    application that seeks to raise the same claim is barred as
    “second or successive.” This is consistent with pre-AEDPA
    cases applying the abuse-of-the-writ doctrine and the bar
    on “second or successive” applications. See, e.g., Wong Doo
    v. United States, 
    265 U. S. 239
    , 241 (1924) (second applica
    tion barred where petitioner had a “full opportunity to
    offer proof” of the same claim in his first habeas applica
    tion); Woodard v. Hutchins, 
    464 U. S. 377
    , 379 (1984)
    (Powell, J., concurring, writing for a majority of the Court)
    Cite as: 561 U. S. ____ (2010)            3
    KENNEDY, J., dissenting
    (second application barred for claims that “could and
    should have been raised in [the] first petition”); Delo v.
    Stokes, 
    495 U. S. 320
    , 321 (1990) (per curiam) (subsequent
    application barred for a claim that “could have been raised
    in his first petition for federal habeas corpus”). As
    McCleskey v. Zant, 
    499 U. S. 467
    , 489 (1991), explained, “a
    petitioner can abuse the writ by raising a claim in a sub
    sequent petition that he could have raised in his first,
    regardless of whether the failure to raise it earlier
    stemmed from a deliberate choice.” See also Habeas Cor
    pus Rule 2(c) (instructing habeas petitioners to “specify all
    the grounds for relief available to [them]” and to “state the
    facts supporting each ground”); Schlup v. Delo, 
    513 U. S. 298
    , 317–323 (1995) (describing adoption in habeas,
    through legislation and judicial decision, of modified res
    judicata (claim preclusion) doctrine); 18 C. Wright, A.
    Miller, & E. Cooper, Federal Practice and Procedure
    §4406, p. 138 (2d ed. 2002) (claim preclusion aspect of res
    judicata doctrine bars “matters that [were not, but] ought
    to have been raised” in prior litigation).
    Second, if the petitioner had no fair opportunity to raise
    the claim in the prior application, a subsequent applica
    tion raising that claim is not “second or successive,” and
    §2244(b)(2)’s bar does not apply. This can occur where the
    claim was not yet ripe at the time of the first petition, see,
    e.g., Panetti, 
    supra, at 947
    , or where the alleged violation
    occurred only after the denial of the first petition, such as
    the State’s failure to grant the prisoner parole as required
    by state law, see, e.g., Hill v. Alaska, 
    297 F. 3d 895
    , 898–
    899 (CA9 2002); Crouch v. Norris, 
    251 F. 3d 720
    , 723–725
    (CA8 2001); In re Cain, 
    137 F. 3d 234
    , 236 (CA5 1998).
    And to respond to the Court’s concern, see ante, at 20, if
    the applicant in his second petition raises a claim that he
    raised in his first petition but the District Court left unad
    dressed at its own discretion, the second application would
    not be “second or successive.” Reraising a previously
    4                 MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    unaddressed claim is not abusive by any definition. If the
    Court believes there are “[m]any examples” where abuse
    of-the-writ principles unfairly close the door to state pris
    oners seeking federal habeas review, ibid., one would
    think the Court would be able to come up with an exam
    ple. It does not do so.
    Third, a “mixed petition”—raising both abusive and
    nonabusive claims—would be “second or successive.” In
    that circumstance the petitioner would have to obtain
    authorization from the court of appeals to proceed with the
    nonabusive claims. See §2244(b)(3); see also 28 J. Moore
    et al., Federal Practice §671.10[2][b] (3d ed. 2010). After
    the court of appeals makes its determination, a district
    court may consider nonabusive claims that the petitioner
    had no fair opportunity to present in his first petition and
    dismiss the abusive claims. See §2244(b)(4).
    The operation of the above rule is exemplified by the
    Court’s decision in Panetti. Panetti’s claim that he was
    mentally incompetent to be executed under Ford v. Wain
    wright, 
    477 U. S. 399
     (1986), did not become ripe until
    after the denial of his first habeas petition. When the
    Ford claim became ripe, Panetti filed a second habeas
    petition, raising his Ford claim for the first time. In con
    cluding that this second habeas petition was not a “second
    or successive” application, this Court explained that “sec
    ond or successive” did not “refe[r] to all §2254 applications
    filed second or successively in time,” but was rather a
    term-of-art that “takes its full meaning from our case law,
    including decisions predating the enactment of [AEDPA].”
    
    551 U. S., at
    943–944. The Court relied on AEDPA’s
    purpose of “ ‘further[ing] the principles of comity, finality,
    and federalism,’ ” 
    id., at 945
     (quoting Miller-El v. Cockrell,
    
    537 U. S. 322
    , 337 (2003)), an aversion to the “empty
    formality requiring prisoners to file unripe” claims, 
    551 U. S., at 946
    , and this Court’s pre-AEDPA cases regarding
    the abuse-of-the-writ doctrine, 
    id., at 947
    . Panetti thus
    Cite as: 561 U. S. ____ (2010)           5
    KENNEDY, J., dissenting
    looked to the nature of the claim raised in the second-in
    time habeas petition to determine that the application was
    not “second or successive.” 
    Ibid.
    The above principles apply to a situation, like the pre
    sent one, where the petitioner in his first habeas proceed
    ing succeeds in obtaining a conditional grant of relief,
    which allows the state court to correct an error that oc
    curred at the original sentencing. Assume, as alleged
    here, that in correcting the error in a new sentencing
    proceeding, the state court duplicates a different mistake
    that also occurred at the first sentencing. The second
    application is “second or successive” with respect to that
    claim because the alleged error “could and should have”
    been raised in the first petition. Woodard, 
    464 U. S., at 379
     (opinion of Powell, J.). Put another way, under abuse
    of-the-writ principles, a petitioner loses his right to chal
    lenge the error by not raising a claim at the first opportu
    nity after his claim becomes ripe. On the other hand, if
    the petitioner raises a claim in his second habeas petition
    that could not have been raised in the earlier petition—
    perhaps because the error occurred for the first time dur
    ing resentencing—then the application raising the claim is
    not “second or successive” and §2244(b)(2)’s bar does not
    apply.
    Although the above-cited authorities are adequate to
    show that the application in this case is “second or succes
    sive,” it must be noted that no previous case from this
    Court has dealt with the precise sequence of events here:
    A petitioner attempts to bring a previously unraised claim
    after a second resentencing proceeding that followed a
    grant of federal habeas relief. The conclusion that such an
    application is barred as “second or successive” unless the
    claim was previously unavailable is consistent with the
    approach of every court of appeals that has considered the
    issue, although some of those cases highlight subtleties
    that are not relevant under abuse-of-the-writ principles.
    6                MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    See, e.g., Pratt v. United States, 
    129 F. 3d 54
    , 62–63 (CA1
    1997); Galtieri v. United States, 
    128 F. 3d 33
    , 37–38 (CA2
    1997); United States v. Orozco-Ramirez, 
    211 F. 3d 862
    , 871
    (CA5 2000); Lang v. United States, 
    474 F. 3d 348
    , 351−353
    (CA6 2007). While most of these cases arose in the context
    of federal prisoners’ challenges to their convictions or
    sentences under 
    28 U. S. C. §2255
    , the “second or succes
    sive” bar under §2244(b) applies to §2255 motions. See
    §2255(h) (2006 ed., Supp. II).
    In the present case the Court should conclude that
    Magwood has filed a “second or successive habeas corpus
    application.” In 1983, he filed a first federal habeas peti
    tion raising nine claims, including that the trial court
    improperly failed to consider two mitigating factors when
    it imposed Magwood’s death sentence. The District Court
    granted Magwood’s petition and ordered relief only on the
    mitigating factor claim. The state trial court then held a
    new sentencing proceeding, in which it considered all of
    the mitigating factors and reimposed the death penalty.
    In 1997, Magwood brought a second habeas petition, this
    time raising an argument that could have been, but was
    not, raised in his first petition. The argument was that he
    was not eligible for the death penalty because he did not
    have fair notice that his crime rendered him death eligi
    ble. There is no reason that Magwood could not have
    raised the identical argument in his first habeas petition.
    Because Magwood had a full and fair opportunity to adju
    dicate his death-eligibility claim in his first petition in
    1983, his 1997 petition raising this claim is barred as
    “second or successive.”
    II
    The Court reaches the opposite result by creating an ill
    defined exception to the “second or successive” application
    bar. The Court, in my respectful view, makes two critical
    errors. First, it errs in rejecting Panetti’s claim-based
    Cite as: 561 U. S. ____ (2010)            7
    KENNEDY, J., dissenting
    approach to determining whether an application is “second
    or successive.” Second, it imposes an atextual exception to
    §2244(b)’s bar against “second or successive” applications,
    requiring that the second-in-time application be brought
    against the same judgment. This second error is under
    scored by the fact that the Court refuses to deal with the
    logical implications of its newly created rule.
    A
    The Court concludes that because AEDPA refers to
    “second or successive” applications rather than “second or
    successive” claims, the nature of the claims raised in the
    second application is irrelevant. See ante, at 13 (“[A]l
    though we agree with the State that many of the rules
    under §2244(b) focus on claims, that does not entitle us to
    rewrite the statute to make the phrase ‘second or succes
    sive’ modify claims as well”). This is incorrect. As ex
    plained above, Panetti establishes that deciding whether
    an application itself is “second or successive” requires
    looking to the nature of the claim that the application
    raises to determine whether the petitioner had a full and
    fair opportunity to raise that claim in his earlier petition.
    Indeed, the only way Panetti could have concluded that
    the application there was not “second or successive” was to
    look at the underlying claim the application raised. 
    551 U. S., at 947
    .
    While the Court asserts it is not calling Panetti into
    doubt, see ante, at 14, n. 11, it does not even attempt to
    explain how its analysis is consistent with that opinion, cf.
    Panetti, 
    551 U. S., at 964
     (THOMAS, J., dissenting) (“Before
    AEDPA’s enactment, the phrase ‘second or successive’
    meant the same thing it does today—any subsequent
    federal habeas application challenging a state-court judg
    ment”). The best that can be said is the Court is limiting
    its new doctrine so it has no applicability to previously
    unexhausted Ford claims, confining the holding of Panetti
    8                 MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    to the facts of that case. 
    551 U. S., at 968
     (THOMAS, J.,
    dissenting) (“Today’s decision thus stands only for the
    proposition that Ford claims somehow deserve a special
    (and unjustified) exemption from the statute’s plain
    import”).
    Failing to consider the nature of the claim when decid
    ing whether an application is barred as “second or succes
    sive” raises other difficulties. Consider a second-in-time
    habeas petition challenging an alleged violation that
    occurred entirely after the denial of the first petition; for
    example, a failure to grant a prisoner parole at the time
    promised him by state law or the unlawful withdrawal of
    good-time credits. See supra, at 3. Under the Court’s
    rule, it would appear that a habeas application challeng
    ing those alleged violations would be barred as “second or
    successive” because it would be a second-in-time applica
    tion challenging custody pursuant to the same judgment.
    That result would be inconsistent with abuse-of-the-writ
    principles and might work a suspension of the writ of
    habeas corpus.
    B
    Having unmoored the phrase “second or successive”
    from its textual and historical underpinnings, the Court
    creates a new puzzle for itself: If the nature of the claim is
    not what makes an application “second or successive,”
    then to what should a court look? Finding no reference
    point in §2244(b)’s text, the Court searches in AEDPA for
    a different peg.
    The Court believes that it finds its peg in a different
    provision:
    “[A] district court shall entertain an application for a
    writ of habeas corpus in behalf of a person in custody
    pursuant to the judgment of a State court only on the
    ground that he is in custody in violation of the Consti
    tution or laws or treaties of the United States.”
    Cite as: 561 U. S. ____ (2010)            9
    KENNEDY, J., dissenting
    §2254(a).
    But this provision does not purport to create any prerequi
    sites to §2244(b)’s bar against “second or successive” appli
    cations. The accepted reading of the quoted language is
    that this is a mere “status requirement.” See 1 R. Hertz &
    J. Liebman, Federal Habeas Corpus Practice and Proce
    dure §8.1, p. 391 (5th ed. 2005). The provision stands for
    the simple proposition that a petitioner must be held
    “pursuant to the judgment of a State court” to be able to
    file any §2254(b) petition in the first place. That reading
    also explains why federal habeas petitions can attack not
    only the judgment pursuant to which the petitioner is
    being held but also “the duration of sentence . . . and . . .
    the conditions under which that sentence is being served,”
    including rules such as “the basis of parole” and “good
    time” credits. Id., §9.1, at 475–481.
    The Court’s reading of the phrase “pursuant to the
    judgment of a State court” as a limitation on §2244(b)(2)’s
    “second or successive” application bar is artificial. The
    Court would amend §2244(b)(2) to read: “A claim pre
    sented in a second or successive habeas corpus application
    under section 2254 that was not presented in a prior
    application [against the same judgment] shall be dis
    missed.” This is not what §2244(b)(2) says.
    The Court wholly glosses over another significant prob
    lem with its atextual analysis. The Court relies upon the
    notion that “[a]n error made a second time is still a new
    error.” Ante, at 18. But in making this statement, the
    Court can mean one of two very different things:
    First, it could mean that any error logically encom
    passed in a reentered judgment is a “new” error. A crimi
    nal “judgment” generally includes both the conviction and
    the sentence. See, e.g., Fed. Rule Crim. Proc. 32(k)(1) (a
    criminal judgment “must set forth the plea, the jury ver
    dict or the court’s findings, the adjudication, and the
    10               MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    sentence”); Teague v. Lane, 
    489 U. S. 288
    , 314, n. 2 (1989)
    (“As we have often stated, a criminal judgment necessarily
    includes the sentence imposed upon the defendant”). This
    well-established principle applies in the federal habeas
    context, where petitioner is “in custody pursuant to the
    judgment.” §2254(b). A person cannot be held in custody
    “pursuant to” a sentence, but only pursuant to “the” (e.g.,
    one) judgment, which includes both the conviction and
    sentence. See Burton v. Stewart, 
    549 U. S. 147
    , 156–157
    (2007) (per curiam) (explaining that AEDPA’s statute of
    limitations did not run until the judgment—“both his
    conviction and sentence became final” (internal quotation
    marks omitted)).
    Under this principle, the Court’s holding today would
    allow a challenger in Magwood’s position to raise any
    challenge to the guilt phase of the criminal judgment
    against him in his second application, since a “new” judg
    ment—consisting of both the conviction and sentence—has
    now been reentered and all of the errors have (apparently)
    occurred anew. As an illustration, the state trial court
    here reentered the following judgment after resentencing:
    “IT IS, THEREFORE, ORDERED AND ADJUDGED BY
    THE COURT that Billy Joe Magwood is guilty of the
    offense of aggravated murder . . . and that Billy Joe Mag
    wood is sentenced to death.” App. to Pet. for Cert. 106a.
    This would mean that Magwood’s attorney could dig
    through anything that occurred from voir dire to the cross
    examination of witnesses to the jury’s guilty verdict, and
    raise any alleged errors for the first time in his second
    habeas application, all because the trial court did not
    properly consider two mitigating factors during Magwood’s
    first sentencing proceeding.
    Second, and alternatively, the Court could retreat even
    further from the statutory text and conclude that only
    some parts of the reentered judgment are open to chal
    lenge by way of a second habeas application. Magwood,
    Cite as: 561 U. S. ____ (2010)           11
    KENNEDY, J., dissenting
    for example, argues that he can only challenge previously
    unraised errors made during sentencing. Brief for Peti
    tioner 21, n. 8. Indeed, Magwood goes further and sug
    gests that even the sentencing would not be reopened in a
    case where a court’s order leads the trial court to revise
    only the defendant’s term of supervised release. Id., at 28,
    n. 11. If the Court is adopting this some-parts-of-the
    criminal-judgment exception to the “second or successive”
    application bar, it is unclear why the error that Magwood
    now raises is a “new error” at all. After all, Magwood did
    not challenge his death eligibility in his first habeas peti
    tion but only disputed that he should not get the death
    penalty, as a matter of discretion, if the trial court prop
    erly weighed all of the aggravating and mitigating factors.
    The state trial court conducted this reweighing and had no
    reason to reconsider the uncontested finding that Mag
    wood is death eligible. It is hard to see how the trial
    court’s failure to reconsider sua sponte its previous death
    eligibility finding is a “new error,” any more than its fail
    ure to reconsider the various errors that may have taken
    place at the guilt phase would have been new errors.
    The Court contends the approach dictated by Panetti
    “considerably undermine[s]—if not render[s] superfluous,”
    ante, at 14, the exceptions in §2244(b)(2), which allow a
    petitioner to bring a claim in a “second or successive”
    application based on certain factual discoveries or based
    on a new Supreme Court precedent that has been applied
    retroactively. The Court seems to be saying that applying
    Panetti’s rule would make the exceptions superfluous,
    because any claim that would satisfy the exceptions would
    necessarily satisfy the more general rule derived from the
    abuse-of-the-writ doctrine. But the Court misconceives
    the scope of the rule that an application is only “second or
    successive” if it raises for the first time a claim that could
    have been raised before. A second petition raising a claim
    that could have been raised in a prior petition, even
    12                MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    though strengthened by a new decision from this Court or
    based upon newly discovered evidence, is still “second or
    successive.” Thus this subsequent application would only
    be permitted if it qualified under the pertinent subsection
    (b)(2) exception. In fact, it is the Court’s approach that
    limits the relevance of the subsection (b)(2) exceptions.
    Under the Court’s theory, the “second or successive” bar
    does not apply at all to applications filed by petitioners in
    Magwood’s situation, and thus the subsection (b)(2) excep
    tions would have no operation in that context.
    III
    The Court’s approach disregards AEDPA’s “ ‘principles
    of comity, finality, and federalism.’ ” Panetti, 
    551 U. S., at 945
     (quoting Miller-El, 
    537 U. S., at 337
    ). Under the
    Court’s newly created exception to the “second or succes
    sive” application bar, a defendant who succeeds on even
    the most minor and discrete issue relating to his sentenc
    ing would be able to raise 25 or 50 new sentencing claims
    in his second habeas petition, all based on arguments he
    failed to raise in his first petition. “[I]f reexamination of
    [a] convictio[n] in the first round of habeas offends federal
    ism and comity, the offense increases when a State must
    defend its conviction in a second or subsequent habeas
    proceeding on grounds not even raised in the first peti
    tion.” McCleskey, 
    499 U. S., at 492
    .
    The Court’s novel exception would also allow the once
    successful petitioner to reraise every argument against a
    sentence that was rejected by the federal courts during the
    first round of federal habeas review. As respondents
    explain, under the Court’s theory, “a post-resentencing
    petitioner could simply staple a new cover page with the
    words, ‘§2254 Petition Attacking New Judgment,’ to his
    previously adjudicated petition.” Brief for Respondents
    47. Because traditional res judicata principles do not
    apply to federal habeas proceedings, see Salinger v. Loisel,
    Cite as: 561 U. S. ____ (2010)           13
    KENNEDY, J., dissenting
    
    265 U. S. 224
    , 230 (1924), this would force federal courts
    to address twice (or thrice, or more) the same claims of
    error. The State and the victims would have to bear anew
    the “ significant costs of federal habeas corpus review,”
    McCleskey, 
    supra,
     at 490–491, all because the petitioner
    previously succeeded on a wholly different, discrete, and
    possibly unrelated claim.
    The Court’s suggestion that “[i]t will not take a court
    long to dispose of such claims where the court has already
    analyzed the legal issues,” ante, at 20, n. 15, misses the
    point. This reassurance will be cold comfort to overworked
    state district attorneys, who will now have to waste time
    and resources writing briefs analyzing dozens of claims
    that should be barred by abuse-of-the-writ principles. It is
    difficult to motivate even the most dedicated professionals
    to do their best work, day after day, when they have to
    deal with the dispiriting task of responding to previously
    rejected or otherwise abusive claims. But that is exactly
    what the Court is mandating, under a statute that was
    designed to require just the opposite result. If the analy
    sis in this dissent is sound it is to be hoped that the States
    will document the ill effects of the Court’s opinion so that
    its costs and deficiencies are better understood if this
    issue, or a related one, can again come before the Court.
    The Court’s new exception will apply not only to death
    penalty cases like the present one, where the newly raised
    claim appears arguably meritorious. It will apply to all
    federal habeas petitions following a prior successful peti
    tion, most of which will not be in death cases and where
    the abusive claims the Court now permits will wholly lack
    merit. And, in this vein, it is striking that the Court’s
    decision means that States subject to federal habeas re
    view henceforth receive less recognition of a finality inter
    est than the Federal Government does on direct review of
    federal criminal convictions. See United States v. Parker,
    
    101 F. 3d 527
    , 528 (CA7 1996) (Posner, C. J.) (“A party
    14                MAGWOOD v. PATTERSON
    KENNEDY, J., dissenting
    cannot use the accident of a remand to raise in a second
    appeal an issue that he could just as well have raised in
    the first appeal because the remand did not affect it”).
    The Court’s approach also turns AEDPA’s bar against
    “second or successive” applications into a one-way ratchet
    that favors habeas petitioners. Unless today’s decision is
    read to unduly limit Panetti, see supra, at 7–8, AEDPA
    still incorporates recognized exceptions to the abuse-of
    the-writ doctrine to allow petitioners to bring their previ
    ously unavailable and unripe claims, see ante, at 1
    (BREYER, J., concurring in part and concurring in judg
    ment). But after today’s holding, AEDPA now “modi
    fie[s],” ante, at 15, abuse-of-the-writ principles and allows
    petitioners to bring abusive claims so long as they have
    won any victory pursuant to a prior federal habeas peti
    tion. The Court thus reads AEDPA as creating a new
    loophole that habeas petitioners can exploit to challenge
    their sentences based on grounds they previously ne
    glected to raise. This is inconsistent with the understand
    ing that AEDPA adds “new restrictions on successive
    petitions” and “further restricts the availability of relief to
    habeas petitioners.” Felker v. Turpin, 
    518 U. S. 651
    , 664
    (1996).
    *    *     *
    Had Magwood been unsuccessful in his first petition, all
    agree that claims then available, but not raised, would be
    barred. But because he prevailed in his attack on one part
    of his sentencing proceeding the first time around, the
    Court rules that he is free, postsentencing, to pursue
    claims on federal habeas review that might have been
    raised earlier. The Court is mistaken in concluding that
    Congress, in enacting a statute aimed at placing new
    restrictions on successive petitions, would have intended
    this irrational result.
    Magwood had every chance to raise his death-eligibility
    Cite as: 561 U. S. ____ (2010)           15
    KENNEDY, J., dissenting
    claim in his first habeas petition. He has abused the writ
    by raising this claim for the first time in his second peti
    tion. His application is therefore “second or successive.” I
    would affirm the judgment of the Court of Appeals.
    

Document Info

Docket Number: 09-158

Citation Numbers: 177 L. Ed. 2d 592, 130 S. Ct. 2788, 561 U.S. 320, 2010 U.S. LEXIS 5258

Judges: Alito, Breyer, Ginsburg, Kennedy, Part IV, Scalia, Sotomayor, Stevens, Thomas

Filed Date: 6/24/2010

Precedential Status: Precedential

Modified Date: 8/3/2023

Authorities (47)

Ex Parte Magwood , 426 So. 2d 929 ( 1983 )

Ex Parte Kyzer , 399 So. 2d 330 ( 1981 )

Magwood v. State , 689 So. 2d 959 ( 1996 )

Ex Parte Magwood , 548 So. 2d 516 ( 1988 )

Magwood v. State , 548 So. 2d 512 ( 1988 )

Jackson v. State , 501 So. 2d 542 ( 1986 )

Pratt v. United States , 129 F.3d 54 ( 1997 )

In Re: Billy Joe Magwood , 113 F.3d 1544 ( 1997 )

Magwood v. Culliver , 555 F.3d 968 ( 2009 )

billy-joe-magwood-cross-appellee-v-fred-smith-commissioner-alabama , 791 F.2d 1438 ( 1986 )

Magwood v. State , 426 So. 2d 918 ( 1982 )

Magwood v. State , 449 So. 2d 1267 ( 1984 )

Magwood v. Smith , 608 F. Supp. 218 ( 1985 )

Magwood v. Culliver , 481 F. Supp. 2d 1262 ( 2007 )

Clarence Walker v. Thomas P. Roth , 133 F.3d 454 ( 1997 )

Anthony Esposito v. United States , 135 F.3d 111 ( 1997 )

United States v. Orozco-Ramirez , 211 F.3d 862 ( 2000 )

Gennaro Galtieri v. United States , 128 F.3d 33 ( 1997 )

In Re: Shane McClaine Cain, Movant , 137 F.3d 234 ( 1998 )

Brett Lang v. United States , 474 F.3d 348 ( 2007 )

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