Clarence WALKER, Petitioner, v. Thomas P. ROTH, Respondent

United States Court of Appeals for the Seventh Circuit1997-12-24No. No. 97-9127

133 F.3d 454

Summary · law.co

Holding. A federal habeas petition challenging the constitutionality of a newly imposed sentence is not a second or successive petition under 28 U.S.C. § 2244 when it raises for the first time claims about a proceeding that postdates the petitioner's first habeas filing, even if an earlier habeas petition challenged the conviction. The application for authorization to file was dismissed, and the case was remanded with instructions for the district court to accept Walker's petition.

Clarence Walker, convicted in 1966 and resentenced in 1992 after his first federal habeas petition succeeded, sought to file a second federal habeas petition challenging the constitutionality of his resentencing proceeding. The district court dismissed the petition as a second or successive filing under federal statute, which ordinarily requires prior appellate court authorization. Walker then applied to this court for permission to file the successive petition.

The court held that Walker's new petition should not be classified as successive under the governing statute because, although it followed his first habeas petition chronologically, it challenged a different legal proceeding—the resentencing—rather than his original conviction. Since no claims in the new petition could have been raised in the first petition (the resentencing had not yet occurred), the filing constituted Walker's first federal collateral attack on the resentencing proceedings specifically. Accordingly, prior authorization was unnecessary.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a habeas petition attacking a resentencing is a successive petition when a prior habeas petition challenged the original conviction
Proper interpretation and application of the successive petition bar under 28 U.S.C. § 2244
Temporal and substantive scope of what constitutes a successive collateral attack on a different sentencing proceeding

Procedural posture

Walker appealed the district court's dismissal of his habeas petition as successive by filing an application for leave to file a second or successive petition in the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

The district court dismissed Clarence Walker’s petition for a writ of habeas corpus, 28 U.S.C. § 2254, on the ground that it was a second or successive petition that could not be filed without prior authorization from this court. See, 28 U.S.C. § 2244. Mr. Walker therefore filed an application for leave to file a second or successive petition for habeas relief in this court. We dismiss the application as unnecessary, and instruct the district court to accept Walker’s petition.

In 1966, an Illinois jury convicted Walker of rape, armed robbery and attempted murder. The state court imposed an aggregate sentence of 219 to 312 years’ imprisonment. In 1988, after exhausting his state court remedies, Walker filed his first petition for a writ of habeas corpus. The district court granted Walker’s petition after finding that the state had violated Walker’s due process rights at sentencing. We affirmed. United States ex rel. Walker v. O’Leary, 973 F.2d 521 (7th Cir.1992). In November 1992, Walker was resentenced.

In November 1996, Walker filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, challenging various aspects of the resentencing hearing. The district court summarily dismissed the petition. Relying on Nunez v. United States, 96 F.3d 990 (7th Cir.1996), the district court reasoned that this filing was Walker’s second habeas petition, and concluded that it was without jurisdiction to hear the case absent authorization from this court. See 28 U.S.C. § 2244(b)(3)(A).

Walker then filed the application at issue here. He argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of § 2244; rather, he argues, it is his first collateral attack on the second sentencing proceeding. He contends, therefore, that the prior-approval mechanism of § 2244 is inapplicable. We agree.

The claims Walker seeks to bring in his new petition challenge aspects of his resentencing; he does not present any claims challenging his conviction. None of these new claims were raised in his first petition, nor could they have been; Walker is attempting to challenge the constitutionality of a proceeding which obviously occurred after he filed, and obtained relief, in his first habe-as petition. Therefore, although Walker had filed an earlier habeas petition in 1988, the petition that he now wishes to file cannot be considered a second or successive petition to the earlier one for purposes of § 2244 because it constitutes Walker’s first federal challenge to the proceedings that resulted in his current state custody. We hold that a second habeas petition attacking for the first time the constitutionality of a newly imposed sentence is not a second or successive petition within the meaning of § 2244.

Because the petition Walker seeks to file is his first collateral attack on the resentencing proceedings, authorization from this court is unnecessary. Therefore, the application for authorization is DISMISSED. We instruct the district court to accept filing of Walker’s petition for a writ of habeas corpus nunc pro tune to the date he originally filed the petition. See Batanic v. Immigration and Naturalization Serv., 12 F.3d 662, 667-68 (7th Cir.1993). We express no opinion on the procedural or substantive issues presented by this case.

APPLICATION PETITION DISMISSED; CASE REMANDED.

. Of course, had Walker sought to challenge aspects of his conviction the district court would have been correct in dismissing his petition as successive. Nunez, 96 F.3d at 991.