Magwood v. Patterson

(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
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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.
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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”).
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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.
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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).
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.”
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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
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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,
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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
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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.