JOHN K. HENDERSON, Petitioner-Appellant, v. ROBERT O. LAMPERT, Respondent-Appellee.
No. 03-35738
D.C. No. CV-01-00042-TMC
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed January 28, 2005
396 F.3d 1049
Before: J. Clifford Wallace, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges.
Appeal from the United States District Court for the District of Oregon Thomas M. Coffin, District Judge, Presiding
Argued and Submitted September 13, 2004—Portland, Oregon
Opinion by Judge Wallace
COUNSEL
Hardy Myers, Attorney General for Oregon, Mary H. Williams, Solicitor General for Oregon, and Timothy A. Sylvester, Assistant Attorney General, Salem, Oregon, for the respondent-appellee.
OPINION
WALLACE, Senior Circuit Judge:
State prisoner Henderson appeals from the district court‘s judgment denying his habeas petition. The district court had jurisdiction under
I.
In 1990, Henderson pled guilty to murder in Oregon state court. Believing that it was without discretion to do otherwise, the state court sentenced Henderson to 121 months in accordance with his plea agreement. However, after conducting further research, the state court judge concluded that he could have imposed a higher sentence. He therefore, on his own motion, ordered Henderson and the prosecutor back into court, vacated the sentence, and reassigned the case to another judge for resentencing.
Henderson filed a motion seeking reinstatement of the 121-month sentence. The court (with a new judge presiding) rejected Henderson‘s arguments, affirmed the order vacating the sentence, explained that Henderson could be sentenced to up to 25 years, and gave him the option to withdraw his plea. Henderson reaffirmed his guilty plea, and the court scheduled a new sentencing hearing. The court subsequently sentenced Henderson to life in prison with a mandatory minimum of 25 years, to be followed by a lifetime of post-prison supervision. Henderson appealed.
The Oregon Court of Appeals affirmed the conviction but remanded the case for resentencing. State v. Henderson, 843 P.2d 459 (Or. Ct. App. 1992). On the state‘s motion for reconsideration, the court of appeals determined that it was without authority to review Henderson‘s claim “that the court erred in sentencing
The parties returned to the court for sentencing in accordance with the post-conviction remand order. Henderson was resentenced to a 25-year prison sentence with a lifetime of post-prison supervision (which was the same sentence he received in the first resentencing, minus the indeterminate life prison term). Henderson appealed from this second resentencing (Resentencing Appeal), but the court of appeals affirmed. State v. Henderson, 932 P.2d 577 (Or. Ct. App. 1997).
Throughout these various state proceedings, Henderson never raised any claim pursuant to the Double Jeopardy Clause.
In 1996, while the Resentencing Appeal was still pending, Henderson filed his first
The magistrate judge‘s 1996 order required the state to include, in its answer to the First Petition, a “statement as to whether petitioner has exhausted all available state remedies,” as required by Rule 5 of the Rules Governing Section 2254 Cases. The state did so and moved to deny habeas corpus relief, arguing that Henderson had procedurally defaulted all his claims. The state outlined most of the proceedings discussed above, with one exception: the state did not mention the Resentencing Appeal, which was still pending at that time. Nothing in the record, however, suggests that the state‘s omission was intentional. Henderson‘s filings in opposition to the state‘s motion to deny habeas relief also did not mention the Resentencing Appeal.
The magistrate judge then issued an order permitting additional briefing because “[i]t appear[ed] from the record that petitioner has procedurally defaulted on his claims” and Henderson had not addressed the issue of procedural default. In his supplemental brief, Henderson again failed to mention the Resentencing Appeal. Rather, citing the state‘s answer to the First Petition, he stated that he “has no remaining state remedies on the issues he raises in this habeas corpus proceeding,” but contended that cause and prejudice existed to excuse the procedural default. The magistrate judge recommended that
the First Petition be denied because Henderson had procedurally defaulted on his claims and had failed to establish cause for the procedural default. Henderson‘s objections to the magistrate‘s findings and recommendation again did not mention the Resentencing Appeal. The district court adopted the magistrate judge‘s findings and recommendation and denied the First Petition. Henderson did not appeal the district court‘s decision.
II.
We review de novo a district court‘s determination that a habeas petition is “second or successive” for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA). See Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc); McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002); United States v. Orozco-Ramirez, 211 F.3d 862, 865 (5th Cir. 2000).
[1] Pursuant to
Thus, in order to resolve this appeal, we answer two questions. First, does the dismissal of a first petition on grounds of state procedural default render a later petition raising the same claims “second or successive” for purposes of AEDPA? If so, we must next consider whether a petitioner — who did not appeal the first dismissal — can nonetheless challenge the grounds for the first dismissal when bringing a second petition, in order to avoid the second petition being deemed successive.
A.
[2] We first address whether a habeas petition filed after a previous petition is
“second or successive” for purposes of AEDPA. “AEDPA does not define the terms ‘second or successive.’ ” Hill v. Alaska, 297 F.3d 895, 897 (9th Cir. 2002). “That a prisoner has previously filed a federal habeas petition does not necessarily render a subsequent petition ‘second or successive.’ ” Id. at 898. Rather, the phrase “is a term of art given substance in . . . prior habeas corpus cases.” Slack, 529 U.S. at 486. See Barapind v. Reno, 225 F.3d 1100, 1111-12 (9th Cir. 2000) (stating that not all “multiple collateral attacks [are] ‘second or successive’ ” and discussing the case law).
[3] In the pre-AEDPA decision of Howard v. Lewis, 905 F.2d 1318 (9th Cir. 1990), we held “that the dismissal of a federal habeas petition on the ground of state procedural default is a determination ‘on the merits’ for the purposes of the successive petition doctrine.” Id. at 1323. We stated that “[w]hile a court, in dismissing a petition because of state procedural default (and a failure to show cause and prejudice), is not determining the merits of the underlying claims, it is making a determination on the merits that the underlying claims will not be considered by a federal court for reasons of comity.” Id. at 1322. We further explained why “a dismissal for failure to exhaust state remedies is distinguishable from a dismissal for state procedural default“:
[When a claim is dismissed as unexhausted], the state courts have not rendered a decision regarding the merits of defendant‘s claims, but the opportunity is still open for the defendant to obtain a disposition on the merits of his or her claims in the state courts. After exhausting state court remedies, a subsequent federal petition for habeas corpus could be entertained while preserving the principles of federal-state comity. In the case of state procedural default, a state court has not rendered a decision regarding the merits of the defendant‘s claims, but the defendant has no further opportunity to obtain a disposition on the merits of his or her claims in the state courts. In a
subsequent petition raising the same claims that were dismissed previously on the basis of state procedural default, the interest underlying the dismissal of the first petition, i.e., federal-state comity, is still present.
[4] We may look to pre-AEDPA decisions involving the successive petition doctrine to interpret AEDPA‘s provisions on successive petitions. See Slack, 529 U.S. at 486 (analyzing whether petition was “second or successive” under pre-AEDPA law, but stating that Court did “not suggest the definition of second or successive would be different under AEDPA“). There is no reason why Howard should be any less valid post-AEDPA, especially because, as the Second Circuit has stated, AEDPA has only “strengthened” the “petition-limiting rules” interpreted in Howard and similar pre-AEDPA decisions. Carter v. United States, 150 F.3d 202, 205 (2d Cir. 1998) (per curiam). We therefore reaffirm Howard and join the Second Circuit in holding that “a denial on grounds of procedural default constitutes a disposition on the merits and thus renders a subsequent
B.
We next consider Henderson‘s contention that the Current Petition is not successive because the First Petition should have been dismissed as unexhausted rather than procedurally defaulted.
274 F.3d 1270 (9th Cir. 2001) (per curiam), the appellant argued that a claim was not successive because he had raised it in motions for reconsideration of the denial of an earlier petition, and that the district court had “erroneously” denied those motions as “ambiguous.” Id. at 1274. That is, he argued that the district court should have addressed the claim because it was properly presented in the motions, and that the district court‘s failure to do so should not count against him in determining whether his later petition was successive. We disagreed, stating that “[e]ven assuming that the district court misconstrued his motions for reconsideration, . . . Cooper did not appeal the denial of these motions.” Id.
[6] Decisions from other circuits, both pre- and post-AEDPA, also suggest that Henderson‘s failure to appeal the dismissal of the First Petition precludes him from challenging that dismissal now. In Hawkins v. Evans, 64 F.3d 543 (10th Cir. 1995), the petitioner‘s first petition had been dismissed on the ground of state procedural default, but the petitioner did not appeal from the judgment. Id. at 545. After his second petition was dismissed as successive, the petitioner appealed and argued, among other things, that “the ineffective assistance of his trial counsel constituted sufficient cause to excuse his procedural default in state court.” Id. at 546 n.2. The Tenth Circuit disagreed, stating:
Petitioner did not appeal the district court‘s dismissal of his first federal habeas petition. By so doing, Petitioner did not challenge the district court‘s ruling that he procedurally defaulted in state court without cause when he failed to directly appeal his conviction. Because Petitioner did not appeal the federal district court‘s ruling of state procedural default, we reject his attempts to collaterally attack that unappealed final order in this proceeding by arguing that he had cause to excuse the state procedural default.
Id. (emphasis added). See also Harvey v. Horan, 278 F.3d 370, 380 (4th Cir. 2002) (court would not consider whether
denial of relief would cause petitioner prejudice because “the issue of prejudice has already been adjudicated by the district court‘s dismissal of [petitioner‘s] first habeas petition as procedurally defaulted [and petitioner] has never appealed this“; AEDPA bar on successive petitions therefore applied); Vancleave v. Norris, 150 F.3d 926, 928-29 (8th Cir. 1998) (where first petition was dismissed after counsel amended petition to drop all pro se claims, and petitioner did not appeal the dismissal of the first petition, later petition including some of the previously abandoned claims was “second or successive” even though petitioner argued that the claims were improperly abandoned without his consent); Bannister v. Delo, 100 F.3d 610, 624 (8th Cir. 1996) (following Hawkins). These authorities aptly state the rule that a petitioner who fails to appeal the dismissal of an earlier petition cannot evade the rules governing successive petitions by seeking to relitigate the earlier dismissal.
This rule is not necessarily absolute, as our own decision in Howard demonstrates. There, Howard‘s first petition had been dismissed on grounds of state procedural default, and Howard had not appealed that dismissal. 905 F.2d at 1320. However, he claimed that state officials “prevented” his attempts to mail a response to the state‘s motion to dismiss the first petition, and
Howard will not help Henderson. He was not “prevented” from responding to the state‘s arguments that the claims in the First Petition were procedurally defaulted. On the contrary, the magistrate judge allowed Henderson to submit a supplemental brief on that very question. In effect, Henderson asks us to hold that the state “prevents” a petitioner‘s response when it fails to inform the district court accurately of the petitioner‘s state proceedings. See Rule 5, Rules Governing Section 2254 Cases,
a habeas petition to “state whether any claim in the petition is barred by a failure to exhaust state remedies“); Granberry v. Greer, 481 U.S. 129, 134 (1987) (“When the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies“). Whether Howard should apply where a state intentionally misleads the district court about the petitioner‘s state remedies (a question we do not decide), we will not apply it where, as here, there is nothing in the record to suggest an intentional Rule 5 violation, and the petitioner had the opportunity to correct the state‘s error but failed to do so.
[7] In this case, we will not look beyond the stated basis for the dismissal of the First Petition in deciding whether the Current Petition is second or successive. “Because [Henderson] did not appeal the federal district court‘s ruling of state procedural default, we reject his attempts to collaterally attack that unappealed final order in this proceeding by arguing that” the claims in the First Petition were actually unexhausted rather than procedurally defaulted. Hawkins, 64 F.3d at 546 n.2. We therefore do not reach the state‘s argument that the First Petition was properly dismissed for state procedural default even though the Resentencing Appeal was still pending at the time Henderson filed the First Petition.
III.
Henderson also offers two additional arguments why the Current Petition should not be classified as “second or successive.” First, he contends that “the district court [addressing the First Petition] was obligated to inform him, as a pro se litigant, of his options with respect to his unexhausted claims,” even though it did not have any reason to think they were unexhausted. Neither of the two decisions upon which he relies support that novel argument. The first, Ford v. Hubbard, 330 F.3d 1086, 1097-1100 (9th Cir. 2003), held that a district court erred by failing to inform a petitioner of his options with respect to a petition containing both exhausted and unex-
hausted claims. Id. Our decision in Ford, however, was vacated by the Supreme Court. See Pliler v. Ford, 124 S. Ct. 2441, 2446 (2004) (holding that “district judges are not required to give pro se litigants” the warnings prescribed in the Ninth Circuit‘s decision). Nor does Castro v. United States, 540 U.S. 375 (2003), help Henderson, as it holds only that a district court must give certain warnings to a pro se litigant before “recharacteriz[ing]” a motion as a
Henderson‘s second argument is that the state should be equitably estopped
AFFIRMED.
J. CLIFFORD WALLACE
SENIOR CIRCUIT JUDGE