John K. Henderson v. Robert O. Lampert

Citations: 396 F.3d 1049; 2005 U.S. App. LEXIS 1413; 2005 WL 181879Docket: 03-35738

Court: Court of Appeals for the Ninth Circuit; January 28, 2005; Federal Appellate Court

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Henderson, a state prisoner, appeals the denial of his habeas petition by the district court, which had jurisdiction under 28 U.S.C. § 2254. The appeal is timely under 28 U.S.C. § 2253. The Ninth Circuit affirms the lower court's decision, determining that Henderson's current petition is a "second or successive" petition barred by 28 U.S.C. § 2244(b)(1) since it raises the same claims as a prior petition dismissed due to state procedural default.

In 1990, Henderson pleaded guilty to murder and was initially sentenced to 121 months. The sentencing judge later vacated this sentence upon realizing he had discretion to impose a longer term, subsequently reassigning the case for resentencing. Henderson sought to reinstate the original sentence, but the new judge rejected his motion, explaining that he could be sentenced up to 25 years and offering him the option to withdraw his plea. Henderson chose to reaffirm his plea, leading to a new sentence of life in prison with a minimum of 25 years and lifetime post-prison supervision.

The Oregon Court of Appeals initially affirmed the conviction but later remanded for resentencing. After reconsideration, the court affirmed the sentence without remanding. In a post-conviction relief petition, Henderson's sentence was found to exceed legal limits, resulting in a remand for resentencing, but his other claims were denied. After resentence proceedings, he received a 25-year term with lifetime supervision, the same as before the indeterminate life term. Henderson did not raise any claims related to the Double Jeopardy Clause during these proceedings.

In 1996, Henderson filed his first federal habeas petition under section 2254, claiming a violation of his Double Jeopardy rights when his original 121-month sentence was vacated and he was resentenced to 25 years to life. In this petition, he indicated that he had a pending appeal without detailing which proceeding he was referring to. The magistrate judge ordered the state to confirm whether Henderson had exhausted all state remedies. The state replied, asserting that Henderson had procedurally defaulted his claims but did not mention the pending Resentencing Appeal. Henderson's subsequent filings also omitted any reference to this appeal.

The magistrate recommended denying the First Petition due to procedural default and lack of established cause for it. The district court adopted this recommendation, leading to the denial of the First Petition, which Henderson did not appeal. Following this, he filed a state habeas petition, again claiming a Double Jeopardy violation. This petition was dismissed, and the dismissal was affirmed by the state court of appeals without opinion.

Henderson then filed a new federal habeas petition (Current Petition), reiterating the Double Jeopardy claim and asserting that he had exhausted this issue in the state court. The state moved to dismiss the Current Petition as a successive petition barred by 28 U.S.C. 2244(b), pointing out that the First Petition was dismissed based on procedural default. The district court agreed, dismissing the Current Petition and issuing a certificate of appealability regarding its status as "second or successive." The standard for reviewing such determinations is de novo under the Antiterrorism and Effective Death Penalty Act (AEDPA).

Under 28 U.S.C. § 2244(b)(1), a claim in a second or successive habeas corpus application under § 2254 that was previously presented must be dismissed. Henderson argues against the district court's ruling that his Current Petition is barred, asserting two main points: (1) the Current Petition should not be classified as successive since the district court did not address the merits of the First Petition, and (2) if the First Petition's dismissal due to state procedural default renders the Current Petition successive, it should instead be considered unexhausted, as state remedies were still available at the time of the First Petition. He claims that the district court was unaware of the pending Resentencing Appeal when the First Petition was filed and contends that had the First Petition been deemed unexhausted, the Current Petition would not be barred by § 2244(b)(1), referencing Slack v. McDaniel.

To resolve the appeal, two questions must be answered: whether a first petition dismissed for state procedural default qualifies a later petition as "second or successive" under the Antiterrorism and Effective Death Penalty Act (AEDPA), and if a petitioner can challenge the grounds for the first dismissal in a second petition without appealing the first dismissal. It is noted that AEDPA does not define "second or successive," but prior case law suggests that not all subsequent petitions are necessarily categorized as such. In the case of Howard v. Lewis, it was determined that a dismissal on state procedural default grounds constitutes a "determination on the merits" regarding the claims, establishing that such a dismissal differs from one based on failure to exhaust state remedies.

When a claim is dismissed as unexhausted, state courts have not evaluated the merits of the defendant's claims, leaving the possibility for the defendant to pursue those claims in state court. Upon exhausting state remedies, the defendant may file a federal habeas corpus petition, adhering to federal-state comity principles. Conversely, a claim dismissed due to state procedural default means the state court has not addressed the merits, but the defendant can no longer seek a resolution on those claims in state court. If a subsequent petition raises previously dismissed claims based on procedural default, the principles of federal-state comity remain applicable. 

Pre-AEDPA case law can guide the interpretation of AEDPA regarding successive petitions, reaffirming the validity of the Howard decision post-AEDPA. A denial based on procedural default is treated as a merits disposition, making any subsequent 2254 or 2255 petition "second or successive" under AEDPA. Henderson's argument that his current petition isn’t successive because the first should have been dismissed as unexhausted rather than procedurally defaulted was rejected. Similar to the Cooper v. Calderon case, the court maintained that the nature of the previous dismissal stands regardless of the appellant’s claims about errors in the prior proceedings, especially since there was no appeal from the denial of earlier motions.

Henderson's failure to appeal the dismissal of his First Petition prevents him from challenging that dismissal now. Precedents from multiple circuits demonstrate that a petitioner who does not appeal a dismissal cannot later contest that ruling in a successive petition. In Hawkins v. Evans, the Tenth Circuit noted that the petitioner’s failure to appeal the first petition's dismissal for procedural default barred him from later arguing that ineffective assistance of counsel excused the default. Similarly, in Harvey v. Horan, the Fourth Circuit ruled that once the district court dismissed the first habeas petition as procedurally defaulted without an appeal, the petitioner could not later claim prejudice from that dismissal. The Eighth Circuit cases, including Vancleave v. Norris and Bannister v. Delo, reinforced that an unappealed dismissal prevents relitigation of those claims in subsequent petitions.

While there are exceptions, as illustrated in Howard, where the petitioner claimed he was prevented from responding to the state's dismissal motion, Henderson's situation differs. He was not hindered in responding to claims of procedural default; in fact, he was permitted to submit a supplemental brief. The court emphasized that the state’s obligation to accurately inform the court about the exhaustion of state remedies does not apply here, as there is no evidence of an intentional violation of this duty by the state. Thus, without any indication of a deliberate misrepresentation, and given Henderson’s opportunity to address the procedural issues, the precedent does not favor his case.

The dismissal of Henderson's First Petition is deemed final and unappealable, as he did not challenge the federal district court's ruling on state procedural default. Attempts to argue that the claims in the First Petition were unexhausted rather than procedurally defaulted are rejected. Henderson's assertion that the district court failed to inform him of his options regarding unexhausted claims is unsupported, as relevant precedents do not mandate such warnings. Additionally, Henderson's claim that the state should be equitably estopped from invoking the AEDPA's bar on successive petitions is dismissed because he could not demonstrate reasonable reliance on the state's actions, having been aware of his pending Resentencing Appeal. The court affirms the decision.