In re: Mark Brown v.
594 F. App'x 726
3rd Cir.2014Background
- In 1990 Mark Anthony Brown was convicted in Pennsylvania of first-degree murder, arson, and a PACOA (corrupt organization) offense; he received life without parole for murder and a consecutive term for PACOA.
- In 2008 Brown filed a § 2254 habeas petition raising prosecutorial-misconduct claims (dismissed as untimely) and a PACOA challenge; the District Court granted relief on the PACOA claim and ordered vacatur and resentencing unless the Commonwealth acted within 90 days.
- On remand the state trial court initially vacated the PACOA finding; the Pennsylvania Superior Court held Brown had a right to counsel at resentencing, vacated the order, and remanded for appointment of counsel.
- After counsel was appointed the trial court conducted a full resentencing, rejected Brown’s request for a new trial on remaining counts, and resentenced him to life without parole for murder; Pennsylvania’s highest court denied review.
- Brown then filed a new § 2254 petition raising claims that his murder and arson convictions were inextricably intertwined with the vacated PACOA conviction and several new claims; the District Court treated the petition as second or successive and transferred it to the Third Circuit for authorization.
- The Third Circuit held Magwood controls: because Brown’s earlier habeas litigation produced an intervening, amended judgment (the resentencing), the new § 2254 petition is not “second or successive” and must be returned to the District Court for consideration as a first petition attacking the new judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown’s post-remand § 2254 petition is “second or successive” under 28 U.S.C. § 2244(b) | Brown contends he may challenge his murder/arson convictions (intertwined with vacated PACOA) and new claims in a new petition | Respondent says Magwood doesn’t apply because Brown challenges guilt-phase convictions, not resentencing, so petition is successive | Petition is not "second or successive" because an intervening judgment (resentencing) occurred; transfer back to District Court |
| Whether an amended/resentenced judgment makes subsequent habeas petitions initial rather than successive | Brown argues the resentencing produced a new judgment that can be attacked in a new § 2254 petition | Respondent argues the underlying conviction remained unchanged, so gatekeeping applies | Court follows Magwood: the existence of a new judgment is dispositive; subsequent petition is not successive |
| Whether the scope of attack (conviction vs. sentence) matters for successive-treatment | Brown argues attacks on conviction or sentence after an intervening judgment are permissible without authorization | Respondent contends the nature of the claims (guilt-phase) controls succession analysis | Held that succession is judged by which judgment is challenged, not by which component (conviction or sentence) of the judgment is attacked |
| Whether the Third Circuit should reach merits or procedural defenses | Brown seeks authorization and merits consideration | Respondent preserved procedural defenses and urged denial of authorization | Court declined on merits; directed transfer and allowed respondents to raise procedural defenses in District Court |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (Sup. Ct. 2010) (an application challenging a new judgment after resentencing is not “second or successive”)
- Deal v. United States, 508 U.S. 129 (Sup. Ct. 1993) (judgment of conviction includes both guilt adjudication and sentence)
- Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) (if habeas petition resulted in amended judgment, subsequent petition is not successive regardless of whether it attacks conviction or sentence)
- Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012) (same holding regarding intervening judgment and non-successive status)
- Blanco v. Secretary, Florida Department of Corrections, 688 F.3d 1211 (11th Cir. 2012) (§ 2254 petition attacking new sentence after resentencing was not successive)
- Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996) (state precedent invalidating PACOA conviction for wholly illegitimate enterprises)