United States Court of Appeals
For the First Circuit
No. 09-2411
JACQUES GAUTIER,
Petitioner, Appellant,
v.
ASHBEL T. WALL, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Jacques Gautier, Memorandum in Support of a Certificate of
Appealability pro se.
September 16, 2010
Per Curiam. Jacques Gautier could have filed one habeas
petition raising all of his claims after "exhaust[ing] the remedies
available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).
Instead, he "twice brought claims contesting the same custody
imposed by the same judgment of a state court." Burton v. Stewart,
549 U.S. 147, 154 (2007) (per curiam). His second such petition
was "second or successive" under 28 U.S.C. § 2244(b). It should
not have been filed without our authorization. For the reasons
explained below, we direct the district court to dismiss the
petition for lack of jurisdiction.
I
Gautier was charged with, among other offenses, first-degree
murder and burglary. Before trial, he moved to dismiss the murder
count, claiming that the State of Rhode Island was collaterally
estopped from bringing the charge. The motion was denied. The
state supreme court affirmed the ruling, clearing the way for the
murder prosecution. State v. Gautier, 871 A.2d 347, 349 (R.I.
2005).
Gautier was convicted of the lesser-included offenses of
second-degree murder and breaking and entering. In January 2006,
he received a life sentence for the former and a concurrent ten-
year sentence for the latter. Two months later, as his appeal to
the state supreme court was about to be docketed, Gautier filed a
28 U.S.C. § 2254 petition raising a claim of collateral estoppel.
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It was the first and only claim he had exhausted. At the State's
motion, the district court adjudicated the petition and dismissed
it with prejudice. This court denied a certificate of
appealability.
In June 2008, the state supreme court affirmed the
convictions. State v. Gautier, 950 A.2d 400 (R.I. 2008). Gautier
filed a second habeas petition rehashing the adjudicated claim and
raising several claims of error within the trial itself, some of
them newly exhausted. The State moved to dismiss the entire filing
as an unauthorized "second or successive" petition; the district
court agreed only as to the rehashed claim. "[T]he other grounds
presented in the Petition," it stated, "were not ripe for
consideration when the 2006 Petition was filed . . . . Because the
procedural posture of Gautier's state court case has substantially
changed between 2006 and 2008, the pending Petition is not an
impermissible 'second or successive' Petition." The court denied
seven of the new grounds and dismissed the eighth without
prejudice, finding it unexhausted. Gautier asks this court for a
certificate of appealability. The real issue is, as it were,
petitionability.
II
The phrase "second or successive" "takes its full meaning from
[the Supreme Court's] case law, including decisions predating the
enactment of the Antiterrorism and Effective Death Penalty Act of
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1996 (AEDPA)." Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007).
Ever since Rose v. Lundy, 455 U.S. 509, 520 (1982), habeas
petitioners have been encouraged to take each of their claims to
state court before bringing any claims to federal court. Those
with unexhausted as well as exhausted claims "may proceed with only
the exhausted claims, but doing so risks subjecting later petitions
that raise new claims to rigorous procedural obstacles." Burton,
549 U.S. at 154 (citing Lundy, 455 U.S. at 520-21 (plurality
opinion)). In AEDPA terms, a later petition may be second or
successive, and so face restrictions under the "modified res
judicata rule" in § 2244(b), Felker v. Turpin, 518 U.S. 651, 664
(1996), if it advances claims that could have been properly raised
and decided in a previous petition. Cf. United States v. Barrett,
178 F.3d 34, 42-45 (1st Cir. 1999).
Gautier's new petition is second or successive. Our remarks
are brief: the Supreme Court has explained the "precise practice"
(and legal analysis) that "gover[n] in circumstances such as
[these]." Burton, 549 U.S. at 153. Burton challenged his
conviction while state review of his revised sentence was pending.
At the conclusion of direct review, he filed a second petition
attacking the sentence. The Supreme Court found "no basis in our
cases for supposing, as the Ninth Circuit did, that a petitioner
with unexhausted claims . . . who elects to proceed to adjudication
of his exhausted claims[,] may later assert that a subsequent
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petition is not 'second or successive' precisely because his new
claims were unexhausted at the time he filed his first petition."
Id. at 154. "This reasoning conflicts with both Lundy and
§ 2244(b) and would allow prisoners to file separate habeas
petitions in the not uncommon situation where a conviction is
upheld but a sentence is reversed." Id. (It, we might add, would
allow claim-splitting whenever the claims have been exhausted in
different stages, e.g., some after direct review and others at the
conclusion of post-conviction proceedings.) "Such a result would
be inconsistent with both the exhaustion requirement, with its
purpose of reducing 'piecemeal litigation,' and AEDPA, with its
goal of 'streamlining federal habeas proceedings.'" Id. (citations
omitted).
Burton casts a long shadow over repeat petitioners who, with
better timing, could have consolidated their claims in one fully
exhausted petition. Gautier falls into this camp. Once his
criminal "judgment became final by the conclusion of direct
review," § 2244(d)(1)(A), he could have filed one petition raising
all of his claims. Burton, 549 U.S. at 156-57; cf. Mathis v.
Thaler, ___ F.3d ___, 2010 WL 3278609, at *7-8 (5th Cir. Aug. 20,
2010) (consolidation in one petition possible with post-conviction
tolling under 28 U.S.C. § 2244(d)(2)); In re Davis, 565 F.3d 810,
820-21 (11th Cir. 2009) (similar). He instead split his claims
between petitions.
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"The prisoner's principal interest, of course, is in obtaining
speedy federal relief on his claims." Lundy, 455 U.S. at 520
(plurality opinion). If the first-exhausted claims are strong and
the sentence short, who can gainsay a decision to proceed? For the
typical petitioner, however, the lesson of Burton is to avoid
filing two petitions where one would do.1
III
The district court lacked jurisdiction to consider Gautier's
second or successive petition without our authorization. See
Burton, 549 U.S. at 152; 28 U.S.C. § 2244(b)(3)(A). Treated as a
motion for an order so authorizing the district court, the
application for a COA must be denied. Not one of Gautier's claims
meets the gatekeeping requirements of § 2244(b).2 The entire
1
We do not deal here with claims that "are not ripe until
after the time has run to file a first federal habeas petition."
Panetti v. Quarterman, 551 U.S. 930, 943 (2007). Cf. id. at 947
(recognizing an "exceptio[n]" to AEDPA's "second or successive" bar
for an application raising a Ford competency-to-be-executed claim
that would have been unripe had the petitioner presented it in his
first application); Leal Garcia v. Quarterman, 573 F.3d 214, 222
(5th Cir. 2009) (if "the purported defect did not arise, or the
claim did not ripen, until after the conclusion of the previous
petition, the later petition based on that defect may be
non-successive"). Nor do we address the case where state court
delay in deciding the unexhausted claim threatens to deprive the
petitioner of meaningful habeas review.
2
See 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or
successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.");
§ 2244(b)(2) ("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 unless--(A) the applicant
shows that the claim relies on a new rule of constitutional law,
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second petition would have to be dismissed.
The judgment of the district court is vacated. In its place,
the court shall enter a judgment of dismissal for lack of
jurisdiction. This appeal is terminated.
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 evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.").
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