Metropolitan News-Enterprise


Monday, January 31, 2005


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Failure to Meet Procedural Requirements Foreclosed Subsequent Habeas Petition, Appellate Court Rules


By PATSY MOORE, Staff Writer/Appellate Courts


A defendant whose federal habeas corpus petition was dismissed on grounds of state procedural default cannot raise the same claims in a new petition, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Such a renewed petition is a “second or successive” petition barred by 28 U.S.C. Sec. 2244(b)(1), a provision of the Antiterrorism and Effective Death Penalty Act, Senior Judge J. Clifford Wallace wrote for the court. His opinion was joined by Judges Ronald M. Gould and Marsha S. Berzon.

The court affirmed an order by U.S. District Judge Thomas Coffin of the District of Oregon, denying a petition by John K. Henderson.

Henderson pled guilty to murder in Oregon state court in 1990. The judge sentenced Henderson to 121 months in prison based on the plea agreement, but later learned he could have increased the sentence. As a result, the trial judge vacated the sentence and reassigned the case to another judge for resentencing.

Henderson filed a motion to re-institute the original sentence, which was rejected by the court. The judge told Henderson he could get up to 25 years and offered to let him withdraw the plea agreement. Instead, Henderson reaffirmed the guilty plea and was sentenced to 25 years to life.

Henderson appealed that sentence, and while the Court of Appeals affirmed the conviction, the case was remanded for resentencing. The state appealed that decision and the Court of Appeals then determined it did not have the authority to review a claim that the court erred in sentencing. As a result, the court vacated the remand and affirmed the sentence of 25 years to life.

At that point, Henderson filed a state petition for post-conviction relief and the court held that the sentence exceeded the maximum, remanding the matter for re-sentencing and denying other claims. Henderson filed an appeal of this ruling, which was dismissed for failure to file a brief.

At resentencing, Henderson was sentenced to 25 years, followed by lifetime supervision. He appealed this sentence, which was affirmed by the Court of Appeals.

In 1996, Henderson filed his first federal habeas petition under 28 U.S.C. 2244, alleging for the first time that he was subjected to double jeopardy when he was resentenced. Neither Henderson nor the state mentioned Henderson’s resentencing appeal that was in progress.

The U.S. District Court denied this petition on the basis of procedural default since Henderson had never raised the double jeopardy claim in state court and could not demonstrate good cause for his failure.

Henderson then filed a state habeas petition raising his claim of double jeopardy, which was dismissed. The Court of Appeals affirmed that dismissal.

A second federal habeas petition was filed by Henderson, once again asserting his double jeopardy claim and stating that he had now exhausted his state claims. The district judge dismissed this petition and issued a certificate of appealability regarding whether this was a second of successive petition.

Sec. 2244 states that a claim presented in a second or successive habeas corpus application, which was presented in prior application, shall be dismissed. Henderson argued that since his first petition was denied on procedural issues and not the merits, it did not apply as a first petition.

The issues raised by a dismissal for procedural default impact comity between state and federal court, Wallace said, and this was not changed by passage of the AEDPA. “AEDPA has only strengthened the petition-limiting rules” of earlier cases, Wallace added.

Thus, the court reaffirmed earlier cases and held that a dismissal for procedural default is “a disposition on the merits and thus renders a subsequent section 2244 petition or 2255 motion second or successive for purposes of the AEDPA,” Wallace opined.

Henderson’s claim that the petition should have been dismissed as unexhausted instead of procedurally defaulted could not save the second petition because Henderson did not appeal that judgment, Wallace noted.

The court rejected Henderson’s collateral attack on the unappealed final judgment. Wallace noted that Henderson had ample opportunity to respond, and that judges requested additional briefing on occasion, but Henderson failed to adequately respond and could not now use his own failures to attack the dismissals, the judge said.

 The case is Henderson v. Lampert, 03-357.


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