United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1937
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Frederick Pennington, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas
Larry Norris, Director, Arkansas *
Department of Correction, *
*
Appellee. *
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Submitted: April 11, 2001
Filed: July 24, 2001
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Before BYE and BEAM, Circuit Judges, and MELLOY,1 District Judge.
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BYE, Circuit Judge.
Frederick Pennington, Jr., brought a petition under 28 U.S.C. § 2254 claiming,
in part, that he had been improperly denied parole. He included a claim that he had
been improperly denied statutory executive clemency and/or commutation of sentence,
as well as several claims that he had raised in three prior petitions challenging his
conviction. The district court dismissed the petition on the ground that it was "second
1
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
or successive" and required authorization from this court, see 28 U.S.C. § 2244(b),
before it could be filed in the district court.
Subsequent to the district court's dismissal of Pennington's petition, we decided
that a habeas petition challenging the execution of a sentence (like the parole denial
claim involved here), rather than the validity of a conviction, is not "second or
successive" merely because the petitioner had previously filed a petition challenging
his conviction. Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001). Applying
Crouch, we conclude that Pennington's parole denial claim isn't "second or successive,"
and that Pennington doesn't require authorization from this court before proceeding in
district court with that claim.2
This case adds a wrinkle not present in Crouch: Pennington brought his parole
denial claim in a petition that included other claims raised in prior petitions challenging
his conviction. Those claims are considered "second or successive" under § 2244(b),
and would therefore require authorization from this court to permit proceedings in
district court. The district court dismissed the petition without prejudice, but left
Pennington with the option of obtaining authorization from this court before refiling.
Respondent suggests that Pennington's petition is a new breed of "mixed"
petition brought about as the result of the gatekeeping provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). We agree. Before AEDPA, the
only type of "mixed" petitions the federal courts faced were those with claims that had
been exhausted in state court, mixed with unexhausted claims. After AEDPA's
2
We need not address whether Pennington needed authorization to proceed in
district court with his statutory executive clemency and/or commutation of sentence
claim, because that claim is not cognizable in federal habeas proceedings in any event.
See Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir. 1994).
-2-
passage, we face the possibility that prisoners will file habeas petitions raising claims
that require § 2244(b) authorization, mixed with claims that do not. Respondent further
suggests that the same analysis used for traditional "mixed" petitions should apply to
this new breed of "mixed" petition. As explained below, we agree with that suggestion
as well. But finally, respondent suggests that the district court properly dismissed
Pennington's petition under the analysis applied to traditional "mixed" petitions. There
we disagree, since the district court's dismissal left Pennington with no choice but to
obtain authorization from this court before proceeding in district court with any of his
claims.
When dealing with traditional "mixed" petitions, we have stated that "[w]e
believe the petitioner should make the choice whether to amend his petition and delete
the unexhausted claims or to proceed in state court on the unexhausted claims."
Stewart v. Parratt, 682 F.2d 757, 758 (8th Cir. 1982). Thus, "[w]hen presented with
a petition containing both exhausted and unexhausted claims, a district court must either
dismiss the entire claim without prejudice or permit the petitioner to dismiss the
unexhausted claims." Murray v. Wood, 107 F.3d 629, 632 (8th Cir. 1997) (emphasis
added).
We think the choice available to petitioners who file a traditional "mixed"
petition ought to be afforded to those who file this new breed of "mixed" petition. At
least, we can think of no good reason to refuse prisoners the choice. In the traditional
"mixed" petition situation, we allow a prisoner to go forward with exhausted claims
sooner rather than later, despite the risk that unexhausted claims will be forever barred.
A prisoner who files a parole denial claim mixed with "second or successive" claims
may have the same desire to go forward with the claim that doesn't require
authorization, and he does so at less risk given the strictures of obtaining § 2244(b)
authorization for his "second or successive" claims.
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In sum, a prisoner who raises habeas claims that require § 2244(b) authorization,
mixed with claims that do not, should be given the option of seeking authorization from
the court of appeals for his "second or successive" claims, or of amending his petition
to delete those claims so he can proceed with the claims that require no authorization.
We reverse and remand this action to the district court for further proceedings
consistent with this opinion.3
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
Respondent's brief intimates that Pennington's parole denial claim has not been
exhausted in state court proceedings. We can't tell from the record whether that is true,
and the district court did not address exhaustion prior to dismissing the petition. We
therefore leave that issue to be addressed in the first instance by the district court on
remand.
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