RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0024p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re AMIRA SALEM,
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Movant-Petitioner.
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No. 09-1819
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 09-12157—Marianne O. Battani, District Judge.
Decided and Filed: February 1, 2011
Before: SILER, CLAY, and GIBBONS, Circuit Judges.
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OPINION
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SILER, Circuit Judge. Petitioner Amira Salem, a pro se Michigan prisoner, filed
a second habeas petition, asserting that the state court’s third entrapment hearing was
unconstitutional and that she was entrapped as a matter of law in violation of due
process. The district court deemed the petition “second or successive” and transferred
the case to this court. Now pending before the court is Salem’s motion to remand, or
alternatively, to authorize the district court to consider a “second or successive” habeas
petition. The state declined to file a response. Because Salem’s application is not
“second or successive” within the meaning of § 2244 with respect to the entrapment
claim, we remand this claim to the district court.
I.
Salem was convicted of conspiracy to deliver and delivery of heroin. The
convictions arose out of the sale of 250 grams of heroin to an undercover police officer.
This drug sale was the culmination of efforts by a confidential government informant,
1
No. 09-1819 In re Salem Page 2
Joe Issa. Before her trial, Salem sought to have the charges dismissed on the basis of
entrapment. An entrapment hearing was held, but Issa did not testify based on the state’s
assertion of an informant’s privilege. Instead, the trial court conducted an in camera
examination of Issa and concluded that Salem was not entrapped. The Michigan Court
of Appeals held that this procedure was a Confrontation Clause violation and remanded
for a new entrapment hearing. People v. Salem, Nos. 206323, 205746, 2001 WL 789538
(Mich. Ct. App. Jan. 12, 2001) (per curiam).
A second entrapment hearing was held, during which Issa was permitted to
testify in a closed courtroom. The trial court again found that Salem was not entrapped.
On appeal, Salem alleged, inter alia, that the entrapment hearing violated her right to a
public trial, that she was entrapped, and that her counsel was ineffective. The Michigan
Court of Appeals denied Salem’s claims, People v. Salem, Nos. 205746, 206323, 2001
WL 1029650 (Mich. Ct. App. Sept. 7, 2001) (per curiam), and the Michigan Supreme
Court denied Salem’s delayed application for leave to appeal, People v. Salem, 649
N.W.2d 80 (Mich. 2002) (table).
Salem filed a habeas petition in the United States District Court for the Eastern
District of Michigan, asserting that the closed courtroom violated her right to a public
trial, that she was entrapped as a matter of law in violation of due process, and that her
counsel was ineffective. The district court denied Salem’s ineffective assistance of
counsel claim, but found that Salem’s right to a public trial was violated by the closed
courtroom during her second entrapment hearing. Salem v. Yukins, 414 F. Supp. 2d 687
(E.D. Mich. 2006). Thus, the district court conditionally granted the petition for habeas
corpus, directing the state court to conduct a new, public entrapment hearing within 90
days. Id. at 700. It also provided that Salem “may petition th[e] Court for issuance of
an unconditional writ” if “the trial court fails to conduct an entrapment hearing or, if
necessary, fails to afford Petitioner a new trial.” Id. With respect to Salem’s entrapment
claim, the district court declined to address the claim “at this time” based upon its
conclusion that a “new entrapment hearing is necessary” and “the possibility that
No. 09-1819 In re Salem Page 3
additional or different testimony relevant to the entrapment claim may be adduced at the
hearing.” Id. at 698.
The trial court conducted a third entrapment hearing. Over Salem’s objections,
the trial court permitted only Issa to testify, and it relied on the transcripts from the
previous hearing for the other witnesses. Again it found that Salem was not entrapped.
Subsequently, Salem filed a motion for issuance of an unconditional writ of
habeas corpus, seeking release because the trial court did not comply with the
requirements of the conditional writ and did not afford Salem a “new” entrapment
hearing. The district court concluded that the trial court “complied substantially with
the Court’s Conditional Writ” and denied the motion. Salem v. Yukins, No. 03-74315,
2006 WL 3500629, at *3 (E.D. Mich. Dec. 4, 2006).
In 2008, the Michigan Court of Appeals denied Salem’s delayed application for
leave to appeal “for lack of merit in the grounds presented,” and the Michigan Supreme
Court also denied Salem’s application for leave to appeal.
In 2009, Salem filed the habeas petition that is now at issue, alleging two claims:
(1) the procedure in the third entrapment hearing violated her constitutional rights and
(2) she was entrapped as a matter of law. The district court construed the petition as
“second or successive” and transferred the case to this court. It reasoned that Salem’s
claim challenging the constitutionality of the third entrapment hearing was raised and
adjudicated in the first petition and thus the instant petition was successive. Regarding
Salem’s entrapment claim, the district court recognized that it was not previously
adjudicated on the merits, but nonetheless found that it was successive because it was
“presented” in the first petition.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Congress established a “stringent set of procedures” that a habeas petitioner “must
follow if he wishes to file a ‘second or successive’ habeas corpus application.” Burton
v. Stewart, 549 U.S. 147, 152 (2007) (citing 28 U.S.C. § 2244(b)(1)). This “gatekeeping
No. 09-1819 In re Salem Page 4
mechanism” requires a state prisoner seeking to file a “second or successive” application
to move “in the appropriate court of appeals for an order directing the district court to
consider his application.” Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998)
(internal quotation marks omitted); In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006)
(citing 28 U.S.C. § 2244(b)(3)(A)). A claim “presented” in a prior application will be
dismissed. 28 U.S.C. § 2244(b)(1). A claim not “presented” in a prior application will
be dismissed unless:
(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 evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2).
“The phrase ‘second or successive’ is not self-defining.” Panetti v. Quarterman,
551 U.S. 930, 943 (2007). Instead, it is a “term of art” that is “given substance” by the
Supreme Court’s habeas cases. Slack v. McDaniel, 529 U.S. 473, 486 (2000). The
Supreme Court “has 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.”
Panetti, 551 U.S. at 944 (citing Slack, 529 U.S. at 487); see also In re Bowen, 436 F.3d
at 704 (“The Supreme Court has made clear that not every numerically second petition
is ‘second or successive’ for purposes of AEDPA.”); In re Cook, 215 F.3d 606, 607 (6th
Cir. 2000) (“[T]he fact that he has already filed one § 2254 application is not necessarily
determinative of whether the current attempt is a ‘second or successive’ application.”
(internal punctuation omitted)).
No. 09-1819 In re Salem Page 5
For instance, in Stewart v. Martinez-Villareal, the Supreme Court held that a
subsequent petition was not “second or successive” when the claim had been raised in
the initial petition but dismissed as unripe, even though the other claims presented in the
initial petition were decided on the merits. 523 U.S. at 643-46. Martinez-Villareal filed
a habeas petition raising a series of claims, including a Ford claim alleging that he was
not competent to be executed. Id. at 640. The district court dismissed the Ford claim
as premature because his execution had not been scheduled, but the district court decided
the merits of the remaining claims. Id. When a warrant was issued for his execution,
which ripened his Ford claim, he initiated a state proceeding and then moved to reopen
his Ford claim. Id. The Court concluded that his “Ford claim was not a ‘second or
successive’ petition under § 2244(b),” reasoning:
This may have been the second time that respondent had asked the
federal courts to provide relief on his Ford claim, but this does not mean
that there were two separate applications, the second of which was
necessarily subject to § 2244(b). There was only one application for
habeas relief, and the District Court ruled (or should have ruled) on each
claim at the time it became ripe. Respondent was entitled to an
adjudication of all of the claims presented in his earlier, undoubtedly
reviewable, application for federal habeas relief. The Court of Appeals
was therefore correct in holding that respondent was not required to get
authorization to file a “second or successive” application before his Ford
claim could be heard.
Id. at 643-44. The Court analogized the petitioner’s Ford claim to a claim that was
previously dismissed for failure to exhaust because “in both situations, the habeas
petitioner does not receive an adjudication of his claim.” Id. at 645. It was concerned
that a contrary conclusion “would mean that a dismissal of a first habeas petition for
technical procedural reasons would bar the prisoner from ever obtaining federal habeas
review.” Id.
Salem’s entrapment claim is similar to Martinez-Villareal’s Ford claim because
both were presented in the initial habeas petition, yet neither was ripe for review. The
entrapment claim could only be properly assessed based on evidence from a
constitutional hearing, which had yet to occur. Because the district court found that the
No. 09-1819 In re Salem Page 6
prior entrapment hearing violated the Constitution and there was a possibility that
additional evidence would be adduced at the new hearing, it declined to address the
entrapment claim “at this time.” Salem, 414 F. Supp. 2d at 698. By entering a
conditional writ, which was a final order, see Gentry v. Deuth, 456 F.3d 687, 692 (6th
Cir. 2006), and not ruling on the entrapment claim, it in essence dismissed that claim
without prejudice because it was not ripe. Like Martinez-Villareal, Salem never
received an adjudication of her claim.
After the third entrapment hearing, Salem’s entrapment claim was no longer
premature from a factual standpoint, but it was still not exhausted. When Salem
exhausted her state court remedies, she returned to federal court. Although this was
Salem’s second time seeking relief from the federal courts on her entrapment claim, “this
does not mean that there were two separate applications, the second of which was
necessarily subject to § 2244(b).” Martinez-Villareal, 523 U.S. at 643. Based on the
reasoning in Martinez-Villareal, there “was only one application for habeas relief” and
the district court should rule on the claim when it is no longer premature. Id. Salem’s
claim was not ripe and exhausted until she returned to federal court with the instant
petition. It should therefore be treated as a continuation of her “earlier, undoubtedly
reviewable, application for federal habeas relief.” Id. Accordingly, Salem is not
required to get authorization to file a “second or successive” application before her
entrapment claim can be heard.
The fact that Salem filed a motion for an unconditional writ does not alter the
result. Her entrapment claim was not properly before the district court when she filed
the motion for an unconditional writ as she had not exhausted this claim. See Pitchess
v. Davis, 421 U.S. 482 (1975) (per curiam). It could be argued that, by seeking the
unconditional writ solely on the public trial claim, she was subjecting her entrapment
claim to the “second or successive” analysis, similar to the subsequent claims of a
petitioner who files a mixed petition and then decides to proceed only with exhausted
claims. See Burton, 549 U.S. at 154. However, this situation is different. Salem was
merely complying with the district court’s conditional writ, which stated that Salem
No. 09-1819 In re Salem Page 7
“may petition this Court for issuance of an unconditional writ” in two circumstances:
(1) the state failed to conduct an entrapment hearing or (2) the state failed to afford her
a new trial, if necessary. Salem, 414 F. Supp. 2d at 700. After issuance of the
conditional writ, the district court’s jurisdiction was limited to ascertaining whether the
state complied. See Gentry, 456 F.3d at 692. Moreover, it would be inefficient to
require Salem to wait a year and a half to seek an unconditional writ while her
entrapment claims were being considered by the state courts, only to potentially find out
later that the district court determined that the third entrapment hearing did not pass
muster.
In finding that the entrapment claim was presented in a “second or successive”
application, the district court relied on Wainwright v. Norris, 121 F.3d 339 (8th Cir.
1997). There, the petitioner brought a Dawson claim and a due process claim. Id. at
340. The district court granted petitioner relief on the Dawson claim and did not review
petitioner’s due process claim. Id. On appeal, the Eighth Circuit reversed the district
court’s grant of relief on the Dawson claim. Id. The petitioner then filed a second
habeas petition again bringing the due process claim and sought an order of
authorization from the Eighth Circuit. Id. The Eighth Circuit concluded that, because
the petitioner presented this claim in his first habeas petition, § 2244(b)(1) prevented him
from bringing it again in his second petition. Id. The court noted that AEDPA
“precludes any claim ‘presented’ in the first action, rather than ‘adjudicated’ ‘on the
merits’ in the first action, as the pre-Act version of § 2244(b) provided.” Id. The court
also referenced the “familiar rule of trial practice” that places on the litigant’s shoulders
“the responsibility to obtain a ruling on any issue left unaddressed by the district court”
and faulted the petitioner for not bringing the “overlooked” due process claim to the
appellate court’s attention. Id. at 340-41. Thus, the court denied his motion for
authorization. Id. at 341.
Salem’s entrapment claim is different than Wainwright’s due process claim. The
district court did not overlook Salem’s claim, but instead decided it was premature
because it was intertwined with the public trial claim on which it was granting relief.
No. 09-1819 In re Salem Page 8
Wainwright’s due process claim, on the other hand, was not premature. Moreover,
unlike Wainwright, who could have petitioned the court to render a decision on his due
process claim, it would have been futile for Salem to have asserted her entrapment claim
in her motion for an unconditional writ. More fundamentally, the Wainwright court was
interpreting AEDPA in January 2007, soon after it became law. While the Wainwright
court’s interpretation of § 2244 was certainly reasonable at the time, the plain meaning
of the statute did not carry the day at the Supreme Court. Martinez-Villareal, 523 U.S.
at 646 (Scalia, J., dissenting) (“And it is impossible to conceive of language that more
clearly precludes respondent’s renewed competency-to-be-executed claim than the
written law before us here: a ‘claim presented in a second or successive habeas corpus
application . . . that was presented in a prior application shall be dismissed.’” (quoting
28 U.S.C. § 2244(b)(1)); id. at 649 (Thomas, J., dissenting) (stating that the “reasons
offered by the Court for disregarding the plain language of the statute are
unpersuasive”). Subsequent Supreme Court decisions have further defined what it
means for an application to be “second or successive.” Salem’s application does not fall
within the Supreme Court’s definition of “second or successive” because the entrapment
claim was raised in the initial petition, yet not decided because it was premature. Id.
(majority opinion).
Regarding Salem’s claim challenging the third entrapment hearing, it is in
essence the claim that the district court decided when denying her motion for an
unconditional writ. Pursuant to § 2244(b)(1), we deny her request for an order of
authorization as to this claim.
III.
Salem’s motion to remand is GRANTED as to her entrapment claim. Salem’s
motion is DENIED with respect to her claim challenging the constitutionality of her
third entrapment hearing. This case is REMANDED to the district court for further
proceedings in light of this decision.