Jurisdictional Limits on Mixed Habes Petitions

Burton v. Stewart

After being convicted of rape, robbery, and burglary Burton was sentenced to within-guidelines sentences for each count, totaling 562. The total was calculated at various times either as an independent 562 month sentence for rape (to run concurrently), or by ordering that all three guideline-based sentences run consecutively (determined to be “exceptional” under Washington law).

Burton’s case worked its way up to a denial of review by the Washington Supreme Court on the issue of sentencing. He filed a petition for habeas corpus in the District court challenging the constitutionality of his convictions, omitting his sentencing claims because they were on direct review. Three years later Burton filed a second habeas petition, this time attacking the constitutionality of his sentencing. Under the AEDPA, before a court can have jurisdiction over a “second or successive” habeas application, the applicant must receive an authorizing order from the court of appeals, and as Burton’s second application challenged the same basis for his custody, this second application counted as a “second or successive” petition. The Ninth Circuit allowed the second petition without the authorization of the appeals court because, it held, Burton had a “legitimate excuse” for not including the sentencing issues in his original petition – those issues were on direct appeal and would have been dismissed for ripeness.

Rose v. Lundy held that for “mixed” petitions, which present both exhausted and unexhausted claims, a petitioner may (1) withdraw the petition, exhaust his remedies, and then refile; or (2) continue with the mixed petition, have the unexhausted claims ruled on, and face substantial procedural obstacles to their reconsideration, obstacles of which Burton’s habeas petition form explicitly warned. The Court had held in Martinez-Villareal) that when a habeas petition is dismissed as unripe, then becomes ripe, and is resubmitted, it is not “second or successive,” but here the claim was not raised in Burton’s first petition. Another case (Slack) held that when a habeas petition is dismissed as unripe before any claim is adjudicated on the merits, its resubmission is not to be considered “second or successive,” but here the court had reached the merits of Burton’s first petition. Finally, the Court finds that both of Burton’s habeas petitions challenged the same judgment because, although he only referred to the first judgment in his first petition, the second judgment was entered before he filed his first petition.

Finally, Burton argues that he had to file his first petition when he did to avoid the AEDPA’s one year limitation. The one year limitation, however, begins when judgment becomes final, defining judgment to include the sentence, and therefore would only have begun upon conclusion of direct review or expiration of the time to seek direct review, which occurred after he filed his first petition. This did not divest the court of jurisdiction over Burton’s first petition, which jurisdiction is allowed where “a person [is] in custody pursuant to the judgment of a State court” because Burton was in custody pursuant to such a judgment, even though that judgment was not final.