Lacey Sivak v. Jay Christensen ( 2022 )


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  •                                                                               FILED
    NOT FOR PUBLICATION
    JAN 12 2022
    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LACEY MARK SIVAK,                                No.    19-35713
    Petitioner-Appellant,              D.C. No. 1:16-cv-00189-BLW
    v.
    MEMORANDUM*
    JAY CHRISTENSEN,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the District of Idaho
    B. Lynn Winmill, Chief District Judge, Presiding
    Argued and Submitted November 9, 2021
    Portland, Oregon
    Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS,** District
    Judge.
    Concurrence by Judge CHRISTEN
    Petitioner Lacey Sivak, an Idaho state prisoner, appeals the district court’s
    dismissal of his petition for habeas corpus brought under 
    28 U.S.C. § 2254
    .
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Raner C. Collins, United States District Judge for the
    District of Arizona, sitting by designation.
    Reviewing de novo questions of law, Rhoades v. Henry, 
    638 F.3d 1027
    , 1034 (9th
    Cir. 2011), we reverse and remand.
    1. The issues were adequately preserved. See Kamen v. Kemper Fin.
    Servs., Inc., 
    500 U.S. 90
    , 99 (1991); United States v. Ullah, 
    976 F.2d 509
    , 514 (9th
    Cir. 1992).
    2. The district court erred when it required Petitioner’s claims to be
    exhausted again because of the imposition of a different sentence. When it comes
    to exhaustion, the default rule is that a claim must be presented to the state court
    once. See O’Sullivan v. Boerckel, 
    526 U.S. 839
    , 844 (1999); Castille v. Peoples,
    
    489 U.S. 346
    , 350 (1989). Thus, to the extent that Petitioner’s guilt-phase claims
    have been exhausted already, the new sentence did not require Petitioner to exhaust
    the very same guilt-phase claims again.
    Magwood v. Patterson, 
    561 U.S. 320
     (2010), is not to the contrary for two
    reasons. First, Magwood pertains to a different procedural rule. See 
    id.
     at 341–42
    (“[W]here . . . there is a new judgment intervening between the two habeas
    petitions, an application challenging the resulting new judgment is not second or
    successive at all.” (internal quotation marks and citation omitted)); see also
    Gonzalez v. Sherman, 
    873 F.3d 763
    , 774 (9th Cir. 2017) (recognizing Magwood’s
    2
    holding “that an intervening amended sentence starts an entirely new petition cycle
    for purposes of second or successive petitions” (emphasis added)).
    Second, Magwood held that “the phrase ‘second or successive’ must be
    interpreted with respect to the judgment challenged.” 
    561 U.S. at
    332–33. That
    explanation arose from the text of the statute, which connects the petitions to the
    judgments. See 
    28 U.S.C. § 2254
    (b)(1) (“An application for a writ of habeas
    corpus on behalf of a person in custody pursuant to the judgment of a State court
    shall not be granted unless it appears that—(A) the applicant has exhausted the
    remedies available in the courts of the State . . . .” (emphasis added)). The text
    makes plain that a second or successive application pertains to the judgment,
    whereas exhaustion does not; exhaustion depends on available remedies. See
    O’Sullivan, 526 U.S. at 842 (“Before a federal court may grant habeas relief to a
    state prisoner, the prisoner must exhaust his remedies in state court. In other
    words, the state prisoner must give the state courts an opportunity to act on his
    claims before he presents those claims to a federal court in a habeas petition.”
    (emphasis added)). Applying the analysis in Magwood thus makes clear that the
    judgment is relevant to analyzing whether an application is “second or successive,”
    but is not relevant to an exhaustion analysis.
    3
    We reject Respondent’s argument that focuses on one sentence from
    Magwood: “A petitioner may not raise in federal court an error that he failed to
    raise properly in state court in a challenge to the judgment reflecting the error.”
    Magwood, 
    561 U.S. at 340
     (emphasis added). According to Respondent, this
    means that exhaustion relates to the judgment. But that reading is a strained one
    because the sentence connects exhaustion to the challenge; it does not connect
    exhaustion to the judgment.
    3. The district court denied relief without having before it any record of the
    claims from the first federal petition. Thus, we do not—and cannot—know
    whether any of the guilt-phase claims had ever been raised in state court. In other
    words, we do not know whether Petitioner has exhausted any of the claims in this
    case.
    Respondent concedes that the record is inadequate for us to determine what
    claims were exhausted in state court. Accordingly, we remand this case to the
    district court to make the following determinations. First, did Petitioner raise any
    guilt-phase claims in state court? Any claims alleged here that were not previously
    raised are defaulted and must be dismissed. Second, as to any guilt-phase claims
    that Petitioner raised in state court, the district court should determine the
    appropriate disposition of such claims.
    4
    We reverse the dismissal and remand for further proceedings consistent with
    this disposition. All pending motions are denied.
    REVERSED AND REMANDED.
    5
    FILED
    JAN 12 2022
    Sivak v. Christensen, No. 19-35713
    CHRISTEN, Circuit Judge, concurring in the judgment.                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    I concur with my colleagues’ decision to reverse and remand the district
    court’s ruling that Sivak was required to re-exhaust his guilt-phase claims after the
    imposition of a new sentence. I write separately because I question our circuit’s
    interpretation of Magwood v. Patterson, 
    561 U.S. 320
     (2010), in Wentzell v. Neven,
    
    674 F.3d 1124
    , 1127 (9th Cir. 2012).
    The district court held that Sivak’s second-in-time habeas petition, filed after
    an amended judgment, was not “second or successive” for purposes of 
    28 U.S.C. § 2244
    (b). In Wentzell, our court interpreted Magwood and determined that, “where
    a first habeas petition results in an amended judgment, a subsequent petition is not
    successive, even if its claims could have been raised in a prior petition or the
    petitioner effectively challenges an unamended component of the judgment.” 
    674 F.3d at 1127
     (internal quotation marks omitted). The petitioner in Wentzell
    received conviction and sentencing relief after filing a habeas petition in state
    court. 
    Id. at 1125
    . Wentzell then filed a second federal habeas petition with guilt-
    phase and sentencing-phase claims challenging unaltered components of his
    original judgment. 
    Id. at 1126-27
    . While the State argued that Wentzell’s petition
    was still “second or successive” because the amended judgment did not alter the
    other convictions and sentences that he now challenged, our court held that his
    claims were not “second or successive.” 
    Id. at 1127
     (“[W]e must interpret
    successive applications with respect to the judgment challenged and not with
    respect to particular components of that judgment.” (citation omitted)). The district
    court in our case understood Wentzell’s holding to extend to Sivak’s guilt-phase
    claims even though the new judgment in his case imposed only a new sentence.
    Other circuits have also read Magwood broadly. See Johnson v. United
    States, 
    623 F.3d 41
    , 46 (2d Cir. 2010); In re Brown, 594 F. App’x 726, 729 (3d
    Cir. 2014) (per curiam); In re Gray, 
    850 F.3d 139
    , 142 (4th Cir. 2017); King v.
    Morgan, 
    807 F.3d 154
    , 158 (6th Cir. 2015); Insignares v. Sec’y, Fla. Dep’t of
    Corr., 
    755 F.3d 1273
    , 1281 (11th Cir. 2014) (per curiam). But in Magwood, the
    Supreme Court made clear that it did not reach whether a petitioner who only
    receives sentencing relief may challenge his underlying conviction in a
    subsequently filed habeas petition. 
    561 U.S. at 342
     (“This case gives us no
    occasion to address that question, because Magwood has not attempted to
    challenge his underlying conviction.” (footnote omitted)).
    Magwood was sentenced to death and he filed a federal habeas petition that
    raised both guilt- and sentencing-phase claims. 
    Id. at 323
    . Only the sentencing
    claim was successful. 
    Id.
     After the trial court reimposed the death sentence,
    Magwood filed another habeas petition challenging the new sentence. 
    Id.
     The
    2
    district court again found sentencing error but the Eleventh Circuit reversed,
    concluding the district court lacked jurisdiction because the subsequently filed
    habeas petition was “second or successive” pursuant to 
    28 U.S.C. § 2244
    (b). 
    Id.
    In a split decision, the Supreme Court disagreed. 
    Id.
     at 323–24. The Magwood
    plurality explained that the phrase “second or successive” in § 2244(b) “must be
    interpreted with respect to the judgment challenged,” id. at 333, and held that,
    because Magwood had not yet challenged the new judgment, his petition was not
    second or successive, see id. at 331–33.
    The district court concluded that Wentzell forecloses holding that Sivak’s
    petition is “second or successive” pursuant to its interpretation of Magwood, 
    674 F.3d at 1127
    . But I question whether Magwood requires that a second-in-time
    habeas petition may include guilt-phase claims where a new judgment offers only
    sentencing relief. Neither Magwood nor Wentzell presented that scenario. In
    Wentzell, petitioner received guilt-phase and sentencing-phase relief. 
    674 F.3d at 1127
    . And the Magwood plurality was careful to assuage worries that the
    Court’s decision would allow future petitioners who receive only sentencing relief
    to raise “any challenge to the guilt phase of the criminal judgment against [them] in
    . . . second application[s],” 
    561 U.S. at 352
     (Kennedy, J., dissenting). Rather than
    signaling that a complete do-over must be allowed whenever a new judgment is
    3
    entered, my read is that Magwood stands for the limited proposition that a habeas
    petition filed in response to a new judgment is not “second or successive,” and that
    the outcome of the claims asserted in such a petition must satisfy the usual rules to
    avoid procedural default. 
    Id. at 340
     (“If a petitioner does not satisfy the procedural
    requirements for bringing an error to the state court’s attention — whether in trial,
    appellate or habeas proceedings, as state law may require — procedural default
    will bar federal review.” (citing Coleman v. Thompson, 
    501 U.S. 722
    , 729–30
    (1991)); see also Wentzell, 
    674 F.3d at 1127
     (“[P]rocedural default rules—rather
    than the rules governing “second or successive” petitions—are the more
    appropriate tools for sorting out new claims from the old.” (citing Magwood, 
    561 U.S. at
    339–41)).
    Magwood stops short of allowing all exhausted claims to be pursued in a
    subsequently filed habeas petition, 
    561 U.S. at 340
    , but Wentzell suggests
    otherwise, 
    674 F.3d at
    1127–28. I am not persuaded that there is a basis for
    allowing petitioners to raise guilt-phase claims in second-in-time petitions when a
    new judgment only affects the petitioner’s sentence, nor is it clear to me that
    Wentzell goes that far. But because Magwood holds a petition challenging a new
    intervening judgment is not second or successive, 
    561 U.S. at
    340–42, I concur in
    the majority’s decision.
    4