In Re Salem, 2011 U.S. App. LEXIS 1990

Amira Salem, a pro se Michigan prisoner, filed a second habeas petition challenging the third entrapment hearing as unconstitutional.
The district court deemed Salem's petition second or successive under AEDPA and transferred it to the Sixth Circuit.
Historical entrapment proceedings: initial in-camera hearing led to a finding of no entrapment; Michigan Court of Appeals remanded for a public hearing; a second entrapment hearing allowed Issa to testify in a closed courtroom and again found no entrapment.
Salem asserted claims of public-trial violation, entrapment as a matter of law, and ineffective assistance; the district court granted relief only on the public-trial issue and directed a new entrapment hearing.
After a third entrapment hearing, Salem sought an unconditional writ; the district court found substantial compliance with the conditional writ and denied relief.
Salem later filed the instant petition raising two claims: (i) procedural validity of the third entrapment hearing and (ii) entrapment as a matter of law; the district court treated the entrapment claim as second or successive and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the entrapment claim is a 'second or successive' petition under AEDPA	Salem contends the entrapment claim was not ripe or presented in a prior adjudication.	Salem's entrapment claim was raised/presented in the initial petition and thus barred as second or successive.	Not second or successive; remanded for consideration on the merits.
Whether the district court correctly handled the third entrapment hearing claim on remand	Entitlement to relief on the third hearing claim remained viable after exhaustion and ripe review.	District court appropriately treated the claim as barred or not ripe at the time of the conditional writ.	Denied authorization as to the third hearing claim.

Stewart v. Martinez-Villareal, 523 U.S. 637 (U.S. 1998) (second or successive AEDPA analysis depends on ripeness and adjudication of claims)
Panetti v. Quarterman, 551 U.S. 930 (U.S. 2007) (definition of 'second or successive' under AEDPA)
Slack v. McDaniel, 529 U.S. 473 (U.S. 2000) (where 'second or successive' designation is derived from AEDPA)
In re Bowen, 436 F.3d 699 (6th Cir. 2006) (guidance on when petitions are 'second or successive' under AEDPA)
Wainwright v. Norris, 121 F.3d 339 (8th Cir. 1997) (illustrates misclassification of claims in second petitions)
Pitchess v. Davis, 421 U.S. 482 (U.S. 1975) (prematurity and exhaustion principles for habeas petitions)
Gentry v. Deuth, 456 F.3d 687 (6th Cir. 2006) (jurisdictional limits of conditional writs and review)
Burton v. Stewart, 549 U.S. 147 (U.S. 2007) (AEDPA gatekeeping mechanics for second or successive petitions)