In Re: Gregory Greenwood

Case: 19-60884 Document: 00516208994 Page: 1 Date Filed: 02/18/2022

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
February 18, 2022
No. 19-60884
Lyle W. Cayce
Clerk
In re: Gregory Greenwood,

Petitioner.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CV-598

Before Dennis, Elrod, and Duncan, Circuit Judges.
Per Curiam:*
In 1998, Gregory Greenwood, Mississippi prisoner # 63128, was
convicted of murder and sentenced to life imprisonment. See Greenwood v.
State, 747 So. 2d 273, 274–75 (Miss. Ct. App. 1999). In 2002, Greenwood
filed a previous 28 U.S.C. § 2254 petition, which the district court dismissed
as untimely, and this court denied a certificate of appealability.
Greenwood, 16 years old at the time of the murder, was originally
sentenced to life without the possibility of parole. Following the decisions in
Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577
U.S. 190 (2016), Greenwood challenged his sentence in state court. The

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60884

State agreed that Greenwood should be resentenced to life with the
possibility of parole. In February 2019, the state court entered an “Agreed
Order & Judgment” to that effect, vacating Greenwood’s original sentence
and resentencing him to life with eligibility for parole.
In August 2019, Greenwood again filed a § 2254 petition in the district
court. The district court concluded that Greenwood’s petition was an
unauthorized successive petition and transferred it to this court.
I.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA),
a prisoner must obtain authorization from a federal court of appeals prior to
filing a “second or successive” habeas petition in federal district court. 28
U.S.C. § 2244(b)(3)(A). The phrase “second or successive” is a term of art
that does not apply to all petitions subsequent to an initial petition. Magwood
v. Patterson, 561 U.S. 320, 331–32 (2010). Instead, the phrase “only applies
to a later-in-time petition that challenges the same state-court judgment as an
earlier-in-time petition.” In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012).
Accordingly, the first petition to challenge a new judgment intervening
between two habeas petitions is “not ‘second or successive’ at all.”
Magwood, 561 U.S. at 341–42. “[T]he existence of a new judgment is
dispositive.” Id. at 338. Greenwood argues that the state court’s “Agreed
Order & Judgment” constitutes a “new judgment” under Magwood, and that
therefore his current habeas petition is not “second or successive.” We
agree.
“Whether a new judgment has intervened between two habeas
petitions, such that the second petition can be filed without this Court’s
permission, depends on whether a new sentence has been imposed.”
Lampton, 667 F.3d at 588 (citing Burton v. Stewart, 549 U.S. 147, 156 (2007)
(“Final judgment in a criminal case means sentence. The sentence is the

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judgment.”)). Greenwood’s § 2254 petition filed in 2002 challenged his
conviction and life-without-parole sentence imposed in 1998. His current
petition challenges the life-with-parole sentence imposed by the 2019 state
court order. By its plain language, the effect of the order is clear. First, the
order explicitly vacates Greenwood’s prior sentence; it does not purport to
merely modify an existing sentence. Cf. United States v. Jones, 796 F.3d 483,
485–86 (5th Cir. 2015) (holding that a sentence modification pursuant to 18
U.S.C. § 3582(c)(2) did not constitute a new sentence under Magwood).
Second, the order imposes an entirely new sentence upon Greenwood; it
does not reinstate a previous sentence. Cf. In re Hensley, 836 F.3d 504, 506–
07 (5th Cir. 2016) (per curiam) (holding that a reinstated prior sentence did
not constitute a new sentence and was therefore not a new judgment under
Magwood). Third, the order does not leave the sentence for any count of
conviction undisturbed; it imposes a new sentence for Greenwood’s sole
charge of conviction. Cf. Lampton, 667 F.3d at 589 (finding no new judgment
where an order vacated the sentence and conviction of only one count in a
multi-count conviction, leaving the sentences of the remaining counts
undisturbed).
The dissenting opinion reads Magwood and Lampton to say that a “new
judgment” may arise only from “a successful federal habeas petition.” Post
at 8. This misunderstands both cases. Magwood turned on the meaning of
the words “second or successive” vis-à-vis the petitioner’s judgment: a new
judgment breaks the “second or successive” chain such that a petition
challenging a new judgment is not “‘second or successive’ at all.” Magwood,
561 U.S. at 341–42. This is irrespective of how the new judgment comes
about. The Court’s occasional references to a new judgment’s resulting from
a prior habeas petition—references which primarily occur in the majority’s
responses to counterarguments—are only accidents of the facts of that case

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and the reality that “second or successive” questions only arise when prior
federal habeas petitions have been filed.
The dissenting opinion similarly misunderstands Lampton by
emphasizing the wrong half of its statement that Magwood’s rule “applies
only when a new sentence was imposed as a result of the first habeas
proceeding.” Lampton, 667 F.3d at 589. The context of this quotation
clarifies it. Lampton was sentenced to two life sentences for two separate
convictions. Id. at 587. Lampton’s first habeas petition yielded the vacatur
of one of those convictions, but the district court left the other intact. Id.
Lampton attempted to file a second habeas petition challenging this latter
conviction, but this court rightly concluded that because the “sentence on
the [conviction] remained intact after the initial § 2255 proceeding was
completed,” the second petition challenged the same judgment of conviction
as the first. Id. at 589. Thus, the court emphasized that “the rule announced
in Magwood applies only when a new sentence was imposed as a result of the first
habeas proceeding.” Id. (emphasis added).
Even if the context were not clear, Lampton explains that Magwood
encompasses new judgments generated by other types of post-conviction
relief. As an example of a “new judgment,” Lampton favorably discusses a
case from this circuit, In re Barnes, in which this court held that a petitioner’s
second habeas petition was not “second or successive” after the petitioner
successfully moved in state court for post-conviction relief. Id. at 588 (quoting
In re Barnes, No. 11-30319, slip op. at 2–3 (5th Cir. June 23, 2011)). Following
Magwood, Lampton, and Barnes, then, it does not matter how Greenwood’s
new judgment was obtained.
For the foregoing reasons, we hold that the new sentence imposed by
the 2019 “Agreed Order & Judgment” constitutes a new judgment under

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Magwood. See Lampton, 667 F.3d at 588. 1 Because Greenwood’s instant
§ 2254 petition is his first challenging the new judgment, it is “not ‘second
or successive’ at all.” Magwood, 561 U.S. at 341–42. Therefore, Greenwood
does not require this court’s authorization to proceed. Id.
II.
The State argues that, notwithstanding the intervening judgment,
Greenwood’s petition is successive because the petition challenges the
original conviction rather than the new sentence. 2 We rejected a nearly
identical argument in Scott v. Hubert, 635 F.3d 659, 665–66 (5th Cir. 2011).
In Scott, the State similarly proposed a component-based interpretation of the
term “judgment” within the context of AEDPA finality, arguing that the

1
This is indeed a new sentence. The dissenting opinion would apparently concede
that Greenwood would have a new sentence if only his parole eligibility were written into
the statute of conviction. Post at 9–12. But it makes little difference whether the
unavailability of parole is written into the statute of conviction or merely cross-referenced
in a parole statute. Compare Miller v. Alabama, 567 U.S. 460, 466 (2012) (quoting Ark. Code
Ann. § 5-4-104(b) (1997) as follows: “A defendant convicted of capital murder or treason
shall be sentenced to death or life imprisonment without parole.”), with Lester Parker v.
State, 119 So. 3d 987, 996 (Miss. 2013) (quoting the then-in-effect parole statute as follows:
“[N]o person shall be eligible for parole who is convicted except that an offender convicted
of only nonviolent crimes [may be eligible] . . . ‘nonviolent crimes’ means a felony other
than homicide . . . .”). Furthermore, constitutional challenges to a petitioner’s sentence—
whether on direct or collateral appeal—encompass challenges to the application and effect
of state parole statutes. See, e.g., Lester Parker, 119 So. 3d at 997 (analyzing the “statutory
scheme” of the statute of conviction and the applicable parole statute and holding that the
inmate was unconstitutionally sentenced to life without parole in violation of Miller).
Moreover, the state court here vacated Greenwood’s “mandatory life-without-
parole sentence” and “re-sentenced [him] to life imprisonment with eligibility for parole.”
(emphasis added). In doing so, it followed the lead of the Supreme Court of Mississippi,
which instructed that the proper remedy for Miller violations is to vacate the sentence and
resentence for either “life imprisonment” or “life imprisonment with eligibility for parole
notwithstanding [the applicable parole statute].” Lester Parker, 119 So. 3d at 999–1000.
2
To the extent that circuits have split over this question, the split pre-exists this
decision and the answer here is compelled by our precedents.

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No. 19-60884

term referred to both a “conviction judgment” and a “sentence judgment.”
Id. We determined that this interpretation ran afoul of the Supreme Court’s
statement in Burton: “[F]inal judgment in a criminal case means sentence.
The sentence is the judgment.” Id. (quoting Burton, 549 U.S. at 156).
Applying Burton, we instead held that “the judgment of conviction does not
become final within the meaning of [AEDPA] until both the conviction and
the sentence have become final . . . .” Id. at 666. We treat the conviction and
sentence as a single unit.
The State argues that Scott is distinguishable because it concerned the
term “judgment” within the context of AEDPA finality. We disagree. We
generally interpret “identical words used in different parts of the same act
. . . to have the same meaning.” Horton v. Bank One, N.A., 387 F.3d 426, 435
(5th Cir. 2004) (emphasis omitted). We thus interpret “judgment”
consistently as it relates to both finality and successiveness and therefore
hold that a conviction and sentence form a single judgment for the purpose
of determining successiveness under AEDPA. E.g., Lampton, 667 F.3d at 588
(“Whether a new judgment has intervened between two habeas petitions . . .
depends on whether a new sentence has been imposed.” (citing Burton, 549
U.S. at 156 (“Final judgment in a criminal case means sentence. The
sentence is the judgment.”))). Accordingly, Greenwood’s petition is not
“second or successive” because it challenges a new, intervening judgment.
Magwood, 561 U.S. at 341–42.
III.
For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND for further proceedings consistent with this opinion.

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Stuart Kyle Duncan, Circuit Judge, dissenting:
Greenwood has filed two federal habeas petitions, seventeen years
apart, raising identical challenges to his 1998 murder conviction. Yet the
majority holds the second petition is not “second or successive” and so
Greenwood can file it without our permission. Why? Because, between the
two petitions, Greenwood became eligible for parole under Miller v. Alabama,
567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). In
the majority’s view, this means Greenwood has a “new judgment” under
Magwood v. Patterson, 561 U.S. 320 (2010), which saves his second petition
from being successive. Ante at 4–5.
I respectfully dissent because Magwood does not apply here.
I.
In Magwood, a prisoner filed a second-in-time habeas petition
challenging his “sentence, [which was] imposed as part of a resentencing in
response to a conditional writ from the District Court.” 561 U.S. at 330. The
Supreme Court held the second petition was not successive. Id. at 331. Why?
Because the “resentencing led to a new judgment” and this was “his first
application challenging that new judgment.” Ibid. So, where “there is a ‘new
judgment intervening between the two habeas petitions,’ an application
challenging the resulting new judgment is not ‘second or successive.’” Id. at
341–42 (quoting Burton v. Stewart, 549 U.S. 147, 156 (2010)). Applying
Magwood, we have held that “[w]hether a new judgment has intervened
between two habeas petitions . . . depends on whether a new sentence has
been imposed.” In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012) (citing
Burton, 549 U.S. at 156).
Magwood does not apply here for two reasons.

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A.
First, even assuming Greenwood’s parole eligibility means he now has
a “new sentence,” that state of affairs did not result from his prior federal
habeas petition. This forecloses applying Magwood under our case law. In
Lampton, we held “Magwood applies only when a new sentence was imposed
as a result of the first habeas proceeding.” Id. at 589 (emphasis added); see also
id. at 587–88. 1 But Greenwood’s parole eligibility did not come about this
way—“as a result of [his] first habeas proceeding.” Id. at 589. To the
contrary, following Miller and Montgomery, Greenwood moved in state court
for post-conviction relief. The State had no objection and so the court
entered an “Agreed Order & Judgment,” which, as explained infra, merely
nullified application of the Mississippi parole-ineligibility statute. Because
this change in circumstances did not arise from a successful federal habeas
petition, Greenwood does not have a “new judgment” under Magwood and
his second petition is therefore successive.

1
Other courts have recognized Lampton’s restriction on Magwood, as well as a
leading habeas treatise. See Harper v. Sanders, 503 F. App’x 564, 568 (10th Cir. 2012)
(discussing Lampton and observing “all the cases cited in support of [Magwood’s] holding
involved habeas applicants whose first petition was granted”); Hermansen v. White, No. 13-
103-HRW, 2014 WL 4182453, at *6 (E.D. Ky. Aug. 21, 2014); Myers v. Cain, No. 10–4496,
2012 WL 5450046, at *6 (E.D. La. Nov. 7, 2012); Brian R. Means, Federal
Habeas Manual [Means] §§ 9A:18, 11:47, 27:10 Westlaw (database updated May
2021).
The majority’s reference to In re Barnes, No. 11-30319, 2011 U.S. App. LEXIS
26753 (5th Cir. June 23, 2011), an unpublished decision that predates Lampton, is
unavailing. Ante at 4. Having observed the new sentence in Barnes arose from a state-court
motion, Lampton clearly intended to limit Magwood’s reach. See Lampton, 667 F.3d at 587–
90. After Lampton, we have never permitted a second petition that resulted from a
proceeding other than a prior, successful habeas petition. See In re Graves, 678 F. App’x
217 (5th Cir. 2017) (per curiam); In re Hickman, No. 16-40640 (5th Cir. Aug. 12, 2016) (per
curiam); In re Sherrick, No. 16-30535 (5th Cir. June 13, 2016) (per curiam).

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B.
Second, Greenwood’s newfound parole eligibility does not equate to
a “new sentence,” so he cannot have a “new judgment” under Magwood.
Contrary to the majority’s view, Greenwood was originally sentenced to “life
imprisonment,” not “life without the possibility of parole.” Ante at 1. Green-
wood’s murder conviction, see Miss. Code Ann. § 97-3-19(1), carries a
mandatory sentence of “imprisonment for life,” id. § 97-3-21(1). 2 “Section
97–3–21 neither mandates, nor makes any provision allowing for, a sentence
of ‘life without the possibility of parole.’” Lester Parker v. State, 119 So.3d
987, 996–97 (Miss. 2013). 3 Rather, state parole statutes determine parole el-
igibility. See Miss. Code Ann. § 47-7-3(f); Lester Parker, 119 So.3d at 997.
Those statutes “appl[y] only to the internal operating procedures of the De-
partment of Corrections and the prisons and do[] not affect a judge’s sen-
tencing prerogative under the criminal statutes.” Fernando Parker v. State, 30
So.3d 1222, 1228 (Miss. 2010). Thus, however “[t]he legislative mandates”

2
See also Greenwood v. State, 747 So.2d 273, 2775 (Miss. Ct. App. 1999) (emphasis
added) (“Greenwood was sentenced to serve a life term in the custody of the Mississippi
Department of Corrections.”); Greenwood v. Johnson, No. 3:02-cv-64, slip op. at 1 (S.D.
Miss. Apr. 1, 2002) (emphasis added) (noting sentence of “life imprisonment in the custody
of the Mississippi Department of Corrections”); 28 U.S.C. § 2254 Petition at 1, Greenwood,
No. 3:02-cv-64 (Jan. 22, 2002), ECF No. 1 [hereinafter Petition] (petition: “Length of
sentence LIFE”); id. at 10 (emphasis added) (supporting brief: “sentenced to a term of life
imprisonment”); id. at 27 (state-court docket sheet: sentence of “LIFE”); id. at 31 (state-
court sentencing form: “sentenced to serve a term of: LIFE in the custody of . . . the MS
Department of Corrections”); see also O.A. Rec. at 14:25–15:06, available at
https://www.ca5.uscourts.gov/OralArgRecordings/19/19-60884_2-4-2021.mp3.
3
See ibid. (explaining Mississippi “courts have not been empowered by the
Legislature to sentence a [murder] defendant to life without parole”); Fernando Parker v.
State, 30 So.3d 1222, 1227–28 (Miss. 2010) (reversing sentence of “life imprisonment
without parole” for murder conviction as “exceed[ing] the statutory maximum” because
section 97-3-21(1) permits “a sentence of only imprisonment for life”).

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applied to Greenwood’s parole eligibility, Lester Parker, 119 So.3d at 997, no
court sentenced him to “life without parole.” He was sentenced to life, period.
And that same mandatory life sentence was reimposed on Greenwood
in the “Agreed Order & Judgment.” To be sure, the order also recognizes
that Greenwood is now eligible for parole “notwithstanding” the parole stat-
utes. But he still has the same “sentence” under Mississippi law. Because
Greenwood’s original life sentence was never invalidated and no new sen-
tence was imposed, Magwood is inapposite. 4
It is true that the agreed order says the State “VACATED” Green-
wood’s original sentence and “RE-SENTENCED” him. But we are not
bound by those labels. 5 Instead, we “consider the impetus and effect of the
[agreed order].” United States v. Emeary, 773 F.3d 619, 622 (5th Cir. 2014)
(citation omitted). Its impetus and effect were to impose the same life sen-
tence while making Greenwood eligible for parole under the parole statutes.
And that was merely “a stopgap mechanism to annul application of Section
47–7–3(1)([f])” because the legislature had not yet amended the statute to
comport with Miller and Montgomery. Lester Parker, 119 So.3d at 998–99. 6

4
See In re Hensley, 836 F.3d 504, 506–07 (5th Cir. 2016) (per curiam) (finding no
new sentence where “the court vacated [the prisoner’s] habitual-offender life sentence
while simultaneously reimposing [his] original sixty-year sentence,” “which ha[d] never
been invalidated”); see also Lampton, 667 F.3d at 589–90 (finding Magwood inapplicable
where the court entered a new judgment vacating life sentence on one count but left life
sentence on second count undisturbed because the prisoner was “still serving the same life
sentence” and “[n]o new sentence was imposed”).
5
See, e.g., La. Envt’l Action Network v. City of Baton Rouge, 677 F.3d 737, 744 (5th
Cir. 2012); Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074, 1077
(5th Cir. 1978); cf. Carpenter v. Shaw, 280 U.S. 363, 367–68 (1930); Bath v. United States,
480 F.2d 289, 292 (5th Cir. 1973).
6 Indeed, after the agreed order in this case, the Mississippi Supreme Court held
that “it is error for our trial courts to vacate a juvenile’s original life-without-parole

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Thus, the agreed order’s effect bears no kinship to the “resentenc-
ing” that results in a “new judgment” under Magwood. The state court in
Magwood “conducted a full resentencing” and a “complete and new assess-
ment of all of the evidence, arguments of counsel, and law.” 561 U.S. at 326,
339. That did not happen here. The State merely “conferred” with Green-
wood, “ha[d] no objection” to his requested relief, and, along with his coun-
sel, signed the agreed order. “This procedure does not in any way resemble
a full resentencing.” United States v. Jones, 796 F.3d 483, 486 (5th Cir.
2015). 7
That procedure was also entirely consistent with Montgomery itself.
Montgomery recognized states need not “relitigate sentences . . . in every case
where a juvenile offender received mandatory life without parole” and “may
remedy a Miller violation by permitting juvenile homicide offenders to be
considered for parole, rather than by resentencing them.” 577 U.S. at 212
(citation omitted). That is precisely what the agreed order did here, and it
means Greenwood does not now have a “new judgment” under Magwood.

sentence (or life sentence) before conducting a Miller hearing. Neither Miller nor
Montgomery mandate this.” Wharton v. State, 298 So.3d 921, 928 (Miss. 2019).
7
See also Hensley, 836 F.3d at 506–07 (finding no new sentence where “the
reinstatement of [the prisoner’s] original sentence . . . did not result in anything that
‘resemble[d] a full resentencing’” (quoting Jones, 796 F.3d at 486)); United States v. Garza,
624 F. App’x 208, 212 (5th Cir. 2015) (per curiam) (finding “ministerial task” of reentering
judgment after permitting an out-of-time appeal “did not constitute a resentencing or new
sentence”); Jones, 796 F.3d at 484, 486 (finding sentence “modification” under 18 U.S.C.
§ 3582(c)(2) pursuant to an “Agreed Motion for Reduction of Sentence” was not a new
sentence because, inter alia, the district court left “undisturbed the findings and
calculations that formed the recommended sentencing range”); In re Parker, 575 F. App’x
415, 419 (5th Cir. 2014) (per curiam) (holding amended judgment to “correct[]” and
shorten terms of supervised release did not trigger Magwood because, inter alia, “[t]here
was no need for the district court to make any reassessment of the sentencing evidence or
law” and “[t]he amended judgment [wa]s not the result of a new proceeding or
resentencing”).

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In short, the majority errs by finding Greenwood has a “new sentence
and a new judgment” under Magwood. I would instead conclude that
Greenwood’s latest section 2254 petition, which challenges his conviction on
the same grounds as his first petition, is successive. See 28 U.S.C. § 2244(b).
II.
Because Magwood does not apply, we need not decide whether it
permits Greenwood to challenge his original conviction. Magwood expressly
avoided deciding that question. See 561 U.S. at 342 (declining to decide
whether its “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”). Yet the majority, silently taking sides in a developing circuit
split, decides Greenwood may do so. 8
This is likely an unwarranted extension of Magwood. Unlike the
second petition in Magwood, Greenwood’s second petition raises the same
claim as his first and is therefore an abuse of the writ. 9 Magwood itself stressed

8
See Means § 9A:18 (“Lower courts have split over this unanswered question.”).
Compare In re Gray, 850 F.3d 139, 144 (4th Cir. 2017), and King v. Morgan, 807 F.3d 154,
156 (6th Cir. 2015), and Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th
Cir. 2014), and In re Brown, 594 F. App’x 726, 729 (3d Cir. 2014) (per curiam), and Wentzell
v. Neven, 674 F.3d 1124, 1127–28 (9th Cir. 2012), and Johnson v. United States, 623 F.3d 41,
46 (2d Cir. 2010) (holding “where a first habeas petition results in an amended judgment,
a subsequent petition is not successive regardless of whether it challenges the conviction,
the sentence, or both”), with Burks v. Raemisch, 680 F. App’x 686, 691 (10th Cir. 2017),
and Suggs v. United States, 705 F.3d 279, 280 (7th Cir. 2013) (holding “a second-in-time
motion filed under 28 U.S.C. § 2255 is barred as ‘second or successive’ when a prisoner
has been resentenced pursuant to a successful first section 2255 motion, and the new
motion challenges only the underlying conviction, not the resentencing”).
9
See Beras v. Johnson, 978 F.3d 246, 252 (5th Cir. 2020); 2 Randy Hertz &
James S. Liebman, Federal Habeas Corpus Practice and Procedure
§§ 28.1, 28.2[b], 28.4, LexisNexis (database updated Dec. 2020).

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that the errors the prisoner alleged in his second petition were “new.” 561
U.S. at 339. And seven justices agreed that the term “second or successive”
incorporates the pre-AEDPA abuse-of-the-writ doctrine. United States v.
Buenrostro, 638 F.3d 720, 724 (9th Cir. 2011) (per curiam) (citations
omitted). 10 So, I doubt Magwood saves Greenwood’s abusive petition from
being successive. See Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273,
1285 (11th Cir. 2014) (Fay, J., concurring).
Instead of grappling with this problem, the majority cites Scott v.
Hubert, 635 F.3d 659 (5th Cir. 2011), for the proposition that a “sentence”
and “judgment” cannot be analytically separate under AEDPA. Ante at 5–6.
I am not persuaded. Scott concerned finality; there is no reason to apply it to
this different area of AEDPA. The majority invokes the presumption of
consistent usage, ante at 6, but that presumption “readily yields to context,
and a statutory term may mean different things in different places.” King v.
Burwell, 576 U.S. 473, 493 n.3 (2015) (internal quotation marks and citation
omitted). 11 Context rebuts any presumption here. In assessing “what
qualifies as second or successive,” the Supreme Court “look[s] for

10
Compare Magwood, 561 U.S. at 337–38 (Part IV.B, plurality opinion) (arguing the
dissent “errs by interpreting the phrase ‘second or successive’ by reference to our
longstanding doctrine governing abuse of the writ”), with id. at 343 (Breyer, J., concurring)
(explaining Magwood’s “new judgment” holding is consistent with abuse-of-the-writ
doctrine), and id. at 344–45 (Kennedy, J., dissenting) (arguing “a second-in-time
application that seeks to raise the same claim [raised in a prior application] is barred as
‘second or successive’ . . . consistent with pre-AEDPA cases applying the abuse-of-the-
writ doctrine”).
11
Besides, section 2244(b) does not even contain the word “judgment.” Rather,
“judgment” in section 2254(b)(1) informs the meaning of “second or successive” and
“application” in section 2244(b). See Magwood, 561 U.S. at 332 (“The limitations imposed
by § 2244(b) apply only to a ‘habeas corpus application under section 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.’” (quoting 28 U.S.C. § 2254(b)(1))).

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guidance” in abuse-of-the-writ doctrine. Banister v. Davis, 140 S. Ct. 1698,
1705–06 (2020). A later-in-time petition is successive if it “would have
constituted an abuse of the writ, as that concept is explained in [the Court’s]
pre-AEDPA cases.” Ibid. (cleaned up). “Congress passed AEDPA against
th[e] [abuse-of-the-writ] legal backdrop, and did nothing to change it.” Id. at
1707 (rejecting the notion that AEDPA “redefine[d] what qualifies as a
successive petition”).
In sum, the majority’s extension of Magwood has “the odd effect of
interpreting AEDPA to relax limits on successive claims beyond the pre-
AEDPA [abuse-of-the-writ] standards.” Suggs v. United States, 705 F.3d 279,
285 (7th Cir. 2013). But it is unlikely “Congress, in enacting a statute aimed
at placing new restrictions on successive petitions, would have intended this
irrational result.” Magwood, 561 U.S. at 356 (Kennedy, J., dissenting).
I respectfully dissent.

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