Henderson v. Lampert ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN K. HENDERSON,  No. 03-35738
Petitioner-Appellant,
v.  D.C. No.
CV-01-00042-TMC
ROBERT O. LAMPERT,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, District Judge, Presiding
Argued and Submitted
September 13, 2004—Portland, Oregon
Filed January 28, 2005
Before: J. Clifford Wallace, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Wallace
1211
1214 HENDERSON v. LAMPERT
COUNSEL
Barbara L. Creel, Assistant Federal Public Defender, Port-
land, Oregon, for the petitioner-appellant.
Hardy Myers, Attorney General for Oregon, Mary H. Wil-
liams, Solicitor General for Oregon, and Timothy A. Syl-
wester, Assistant Attorney General, Salem, Oregon, for the
respondent-appellee.
OPINION
WALLACE, Senior Circuit Judge:
State prisoner Henderson appeals from the district court’s
judgment denying his habeas petition. The district court had
jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction
over this timely appeal pursuant to 28 U.S.C. § 2253. Because
the petition raises the same claims Henderson raised in an ear-
lier petition that was dismissed on grounds of state procedural
default, and because he cannot now challenge the grounds on
which the first petition was dismissed, the current petition is
a “second or successive” petition barred by 28 U.S.C.
§ 2244(b)(1). We therefore affirm.
I.
In 1990, Henderson pled guilty to murder in Oregon state
court. Believing that it was without discretion to do otherwise,
the state court sentenced Henderson to 121 months in accor-
dance with his plea agreement. However, after conducting
further research, the state court judge concluded that he could
have imposed a higher sentence. He therefore, on his own
motion, ordered Henderson and the prosecutor back into
court, vacated the sentence, and reassigned the case to another
judge for resentencing.
HENDERSON v. LAMPERT 1215
Henderson filed a motion seeking reinstatement of the 121-
month sentence. The court (with a new judge presiding)
rejected Henderson’s arguments, affirmed the order vacating
the sentence, explained that Henderson could be sentenced to
up to 25 years, and gave him the option to withdraw his plea.
Henderson reaffirmed his guilty plea, and the court scheduled
a new sentencing hearing. The court subsequently sentenced
Henderson to life in prison with a mandatory minimum of 25
years, to be followed by a lifetime of post-prison supervision.
Henderson appealed.
The Oregon Court of Appeals affirmed the conviction but
remanded the case for resentencing. State v. Henderson, 843
P.2d 459 (Or. Ct. App. 1992). On the state’s motion for recon-
sideration, the court of appeals determined that it was without
authority to review Henderson’s claim “that the court erred in
sentencing him,” vacated the remand order, and affirmed the
sentence. State v. Henderson, 861 P.2d 406, 407 (Or. Ct. App.
1993) (per curiam). On Henderson’s petition for state post-
conviction relief, the court held that Henderson’s sentence
exceeded the maximum allowed by law and remanded for
resentencing, but otherwise denied all of Henderson’s claims.
Henderson appealed from the post-conviction judgment, but
the Oregon Court of Appeals dismissed the appeal because he
failed to file a brief.
The parties returned to the court for sentencing in accor-
dance with the post-conviction remand order. Henderson was
resentenced to a 25-year prison sentence with a lifetime of
post-prison supervision (which was the same sentence he
received in the first resentencing, minus the indeterminate life
prison term). Henderson appealed from this second resentenc-
ing (Resentencing Appeal), but the court of appeals affirmed.
State v. Henderson, 932 P.2d 577 (Or. Ct. App. 1997).
Throughout these various state proceedings, Henderson
never raised any claim pursuant to the Double Jeopardy
Clause.
1216 HENDERSON v. LAMPERT
In 1996, while the Resentencing Appeal was still pending,
Henderson filed his first section 2254 federal habeas petition
(First Petition). It alleged that Henderson’s rights under the
Double Jeopardy Clause were violated when his original 121-
month sentence was vacated and he was resentenced to 25
years to life. In the First Petition, Henderson answered “yes”
to a question asking whether he had “any petition or appeal
now pending in any court, either state or federal, as to the
judgment under attack.” No description of this proceeding
was included in the First Petition, so it is unclear whether he
was referring to the appeal from the post-conviction judgment
(which had been dismissed for failure to file a brief), the
Resentencing Appeal, or some other proceeding.
The magistrate judge’s 1996 order required the state to
include, in its answer to the First Petition, a “statement as to
whether petitioner has exhausted all available state remedies,”
as required by Rule 5 of the Rules Governing Section 2254
Cases. The state did so and moved to deny habeas corpus
relief, arguing that Henderson had procedurally defaulted all
his claims. The state outlined most of the proceedings dis-
cussed above, with one exception: the state did not mention
the Resentencing Appeal, which was still pending at that time.
Nothing in the record, however, suggests that the state’s omis-
sion was intentional. Henderson’s filings in opposition to the
state’s motion to deny habeas relief also did not mention the
Resentencing Appeal.
The magistrate judge then issued an order permitting addi-
tional briefing because “[i]t appear[ed] from the record that
petitioner has procedurally defaulted on his claims” and Hen-
derson had not addressed the issue of procedural default. In
his supplemental brief, Henderson again failed to mention the
Resentencing Appeal. Rather, citing the state’s answer to the
First Petition, he stated that he “has no remaining state reme-
dies on the issues he raises in this habeas corpus proceeding,”
but contended that cause and prejudice existed to excuse the
procedural default. The magistrate judge recommended that
HENDERSON v. LAMPERT 1217
the First Petition be denied because Henderson had procedur-
ally defaulted on his claims and had failed to establish cause
for the procedural default. Henderson’s objections to the mag-
istrate’s findings and recommendation again did not mention
the Resentencing Appeal. The district court adopted the mag-
istrate judge’s findings and recommendation and denied the
First Petition. Henderson did not appeal the district court’s
decision.
Henderson then filed a petition for habeas corpus relief in
the Oregon state court alleging, among other things, that the
state violated the Double Jeopardy Clause. The state court dis-
missed the petition, and the court of appeals affirmed, Hen-
derson v. Lampert, 4 P.3d 776 (Or. Ct. App. 2000), both
without opinion. Henderson then filed the current federal
habeas petition, again asserting the same violation of his
rights under the Double Jeopardy Clause (Current Petition)
and arguing that he had exhausted that claim by asserting it
in the state habeas petition. The state moved to deny federal
habeas corpus relief, contending, among other things, that
because the First Petition was dismissed on grounds of state
procedural default, the Current Petition was a successive peti-
tion barred by 28 U.S.C. § 2244(b). The district court agreed,
dismissed the Current Petition, and issued a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2) on the ques-
tion of “whether [the Current Petition] is a ‘second or succes-
sive petition.’ ”
II.
We review de novo a district court’s determination that a
habeas petition is “second or successive” for purposes of the
Antiterrorism and Effective Death Penalty Act (AEDPA). See
Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en
banc); McIver v. United States, 307 F.3d 1327, 1329 (11th
Cir. 2002); United States v. Orozco-Ramirez, 211 F.3d 862,
865 (5th Cir. 2000).
1218 HENDERSON v. LAMPERT
[1] Pursuant to 28 U.S.C. § 2244(b)(1), “[a] claim pres-
ented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application
shall be dismissed.” In challenging the district court’s deter-
mination that the Current Petition is barred by section
2244(b)(1), Henderson makes two primary arguments. First,
he contends that the Current Petition should not be treated as
successive because the district court did not reach the merits
of the claims in the First Petition. Second, he argues that even
if a dismissal on grounds of state procedural default renders
a later petition successive, we should consider the First Peti-
tion as having been dismissed as unexhausted in deciding
whether the Current Petition is successive. He points out that
the district court addressing the First Petition was unaware
that the Resentencing Appeal was still pending at the time the
First Petition was filed, and he argues that the First Petition
should have been dismissed as unexhausted rather than proce-
durally defaulted because he (supposedly) still had state reme-
dies available. His argument continues that if the First Petition
had in fact been dismissed as unexhausted, section 2244(b)(1)
would not bar the Current Petition, because “[a] habeas peti-
tion filed in the district court after an initial habeas petition
was unadjudicated on its merits and dismissed for failure to
exhaust state remedies is not a second or successive petition.”
Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
Thus, in order to resolve this appeal, we answer two ques-
tions. First, does the dismissal of a first petition on grounds
of state procedural default render a later petition raising the
same claims “second or successive” for purposes of AEDPA?
If so, we must next consider whether a petitioner — who did
not appeal the first dismissal — can nonetheless challenge the
grounds for the first dismissal when bringing a second peti-
tion, in order to avoid the second petition being deemed suc-
cessive.
A.
[2] We first address whether a habeas petition filed after a
previous petition is dismissed for state procedural default is
HENDERSON v. LAMPERT 1219
“second or successive” for purposes of AEDPA. “AEDPA
does not define the terms ‘second or successive.’ ” Hill v.
Alaska, 297 F.3d 895, 897 (9th Cir. 2002). “That a prisoner
has previously filed a federal habeas petition does not neces-
sarily render a subsequent petition ‘second or successive.’ ”
Id. at 898. Rather, the phrase “is a term of art given substance
in . . . prior habeas corpus cases.” Slack, 529 U.S. at 486. See
Barapind v. Reno, 225 F.3d 1100, 1111-12 (9th Cir. 2000)
(stating that not all “multiple collateral attacks [are] ‘second
or successive’ ” and discussing the case law).
[3] In the pre-AEDPA decision of Howard v. Lewis, 905
F.2d 1318 (9th Cir. 1990), we held “that the dismissal of a
federal habeas petition on the ground of state procedural
default is a determination ‘on the merits’ for the purposes of
the successive petition doctrine.” Id. at 1323. We stated that
“[w]hile a court, in dismissing a petition because of state pro-
cedural default (and a failure to show cause and prejudice), is
not determining the merits of the underlying claims, it is mak-
ing a determination on the merits that the underlying claims
will not be considered by a federal court for reasons of comi-
ty.” Id. at 1322. We further explained why “a dismissal for
failure to exhaust state remedies is distinguishable from a dis-
missal for state procedural default”:
[When a claim is dismissed as unexhausted], the
state courts have not rendered a decision regarding
the merits of defendant’s claims, but the opportunity
is still open for the defendant to obtain a disposition
on the merits of his or her claims in the state courts.
After exhausting state court remedies, a subsequent
federal petition for habeas corpus could be enter-
tained while preserving the principles of federal-state
comity. In the case of state procedural default, a state
court has not rendered a decision regarding the mer-
its of the defendant’s claims, but the defendant has
no further opportunity to obtain a disposition on the
merits of his or her claims in the state courts. In a
1220 HENDERSON v. LAMPERT
subsequent petition raising the same claims that were
dismissed previously on the basis of state procedural
default, the interest underlying the dismissal of the
first petition, i.e., federal-state comity, is still pres-
ent.
Id. at 1322-23.
[4] We may look to pre-AEDPA decisions involving the
successive petition doctrine to interpret AEDPA’s provisions
on successive petitions. See Slack, 529 U.S. at 486 (analyzing
whether petition was “second or successive” under pre-
AEDPA law, but stating that Court did “not suggest the defi-
nition of second or successive would be different under
AEDPA”). There is no reason why Howard should be any
less valid post-AEDPA, especially because, as the Second
Circuit has stated, AEDPA has only “strengthened” the
“petition-limiting rules” interpreted in Howard and similar
pre-AEDPA decisions. Carter v. United States, 150 F.3d 202,
205 (2d Cir. 1998) (per curiam). We therefore reaffirm How-
ard and join the Second Circuit in holding that “a denial on
grounds of procedural default constitutes a disposition on the
merits and thus renders a subsequent § 2254 petition or
§ 2255 motion ‘second or successive’ for purposes of the
AEDPA.” Id. at 205-06.
B.
We next consider Henderson’s contention that the Current
Petition is not successive because the First Petition should
have been dismissed as unexhausted rather than procedurally
defaulted.
[5] In a similar appeal, we rejected the argument that a peti-
tion should not be deemed successive because the district
court that dismissed an earlier petition “should have” done
something other than it actually did, and the petitioner had not
appealed in the earlier proceedings. In Cooper v. Calderon,
HENDERSON v. LAMPERT 1221
274 F.3d 1270 (9th Cir. 2001) (per curiam), the appellant
argued that a claim was not successive because he had raised
it in motions for reconsideration of the denial of an earlier
petition, and that the district court had “erroneously” denied
those motions as “ambiguous.” Id. at 1274. That is, he argued
that the district court should have addressed the claim because
it was properly presented in the motions, and that the district
court’s failure to do so should not count against him in deter-
mining whether his later petition was successive. We dis-
agreed, stating that “[e]ven assuming that the district court
misconstrued his motions for reconsideration, . . . Cooper did
not appeal the denial of these motions.” Id.
[6] Decisions from other circuits, both pre- and post-
AEDPA, also suggest that Henderson’s failure to appeal the
dismissal of the First Petition precludes him from challenging
that dismissal now. In Hawkins v. Evans, 64 F.3d 543 (10th
Cir. 1995), the petitioner’s first petition had been dismissed
on the ground of state procedural default, but the petitioner
did not appeal from the judgment. Id. at 545. After his second
petition was dismissed as successive, the petitioner appealed
and argued, among other things, that “the ineffective assis-
tance of his trial counsel constituted sufficient cause to excuse
his procedural default in state court.” Id. at 546 n.2. The
Tenth Circuit disagreed, stating:
Petitioner did not appeal the district court’s dismissal
of his first federal habeas petition. By so doing, Peti-
tioner did not challenge the district court’s ruling
that he procedurally defaulted in state court without
cause when he failed to directly appeal his convic-
tion. Because Petitioner did not appeal the federal
district court’s ruling of state procedural default, we
reject his attempts to collaterally attack that unap-
pealed final order in this proceeding by arguing that
he had cause to excuse the state procedural default.
Id. (emphasis added). See also Harvey v. Horan, 278 F.3d
370, 380 (4th Cir. 2002) (court would not consider whether
1222 HENDERSON v. LAMPERT
denial of relief would cause petitioner prejudice because “the
issue of prejudice has already been adjudicated by the district
court’s dismissal of [petitioner’s] first habeas petition as pro-
cedurally defaulted [and petitioner] has never appealed this”;
AEDPA bar on successive petitions therefore applied); Van-
cleave v. Norris, 150 F.3d 926, 928-29 (8th Cir. 1998) (where
first petition was dismissed after counsel amended petition to
drop all pro se claims, and petitioner did not appeal the dis-
missal of the first petition, later petition including some of the
previously abandoned claims was “second or successive”
even though petitioner argued that the claims were improperly
abandoned without his consent); Bannister v. Delo, 100 F.3d
610, 624 (8th Cir. 1996) (following Hawkins). These authori-
ties aptly state the rule that a petitioner who fails to appeal the
dismissal of an earlier petition cannot evade the rules govern-
ing successive petitions by seeking to relitigate the earlier dis-
missal.
This rule is not necessarily absolute, as our own decision
in Howard demonstrates. There, Howard’s first petition had
been dismissed on grounds of state procedural default, and
Howard had not appealed that dismissal. 905 F.2d at 1320.
However, he claimed that state officials “prevented” his
attempts to mail a response to the state’s motion to dismiss
the first petition, and that he had not received timely notice of
the dismissal of that petition. Id. at 1323. We held that if
Howard could prove these allegations on remand, his “succes-
sive petition should not be dismissed.” Id. at 1324.
Howard will not help Henderson. He was not “prevented”
from responding to the state’s arguments that the claims in the
First Petition were procedurally defaulted. On the contrary,
the magistrate judge allowed Henderson to submit a supple-
mental brief on that very question. In effect, Henderson asks
us to hold that the state “prevents” a petitioner’s response
when it fails to inform the district court accurately of the peti-
tioner’s state proceedings. See Rule 5, Rules Governing Sec-
tion 2254 Cases, 28 U.S.C. foll. § 2254 (requiring answer to
HENDERSON v. LAMPERT 1223
a habeas petition to “state whether any claim in the petition
is barred by a failure to exhaust state remedies”); Granberry
v. Greer, 481 U.S. 129, 134 (1987) (“When the State answers
a habeas corpus petition, it has a duty to advise the district
court whether the prisoner has, in fact, exhausted all available
state remedies”). Whether Howard should apply where a state
intentionally misleads the district court about the petitioner’s
state remedies (a question we do not decide), we will not
apply it where, as here, there is nothing in the record to sug-
gest an intentional Rule 5 violation, and the petitioner had the
opportunity to correct the state’s error but failed to do so.
[7] In this case, we will not look beyond the stated basis for
the dismissal of the First Petition in deciding whether the Cur-
rent Petition is second or successive. “Because [Henderson]
did not appeal the federal district court’s ruling of state proce-
dural default, we reject his attempts to collaterally attack that
unappealed final order in this proceeding by arguing that” the
claims in the First Petition were actually unexhausted rather
than procedurally defaulted. Hawkins, 64 F.3d at 546 n.2. We
therefore do not reach the state’s argument that the First Peti-
tion was properly dismissed for state procedural default even
though the Resentencing Appeal was still pending at the time
Henderson filed the First Petition.
III.
Henderson also offers two additional arguments why the
Current Petition should not be classified as “second or succes-
sive.” First, he contends that “the district court [addressing the
First Petition] was obligated to inform him, as a pro se liti-
gant, of his options with respect to his unexhausted claims,”
even though it did not have any reason to think they were
unexhausted. Neither of the two decisions upon which he
relies support that novel argument. The first, Ford v. Hub-
bard, 330 F.3d 1086 (9th Cir. 2003), held that a district court
erred by failing to inform a petitioner of his options with
respect to a petition containing both exhausted and unex-
1224 HENDERSON v. LAMPERT
hausted claims. Id. at 1097-1100. Our decision in Ford, how-
ever, was vacated by the Supreme Court. See Pliler v. Ford,
124 S. Ct. 2441, 2446 (2004) (holding that “district judges are
not required to give pro se litigants” the warnings prescribed
in the Ninth Circuit’s decision). Nor does Castro v. United
States, 540 U.S. 375 (2003), help Henderson, as it holds only
that a district court must give certain warnings to a pro se liti-
gant before “recharacteriz[ing]” a motion as a section 2255
petition. Id. at 377. Here, Henderson himself “characterized”
the First Petition as a section 2254 petition.
Henderson’s second argument is that the state should be
equitably estopped from relying on AEDPA’s bar on succes-
sive petitions because it failed to inform the district court of
the Resentencing Appeal in the proceedings related to the
First Petition. However, a party claiming estoppel must show,
among other things, that his reliance on his adversary’s con-
duct was “reasonable in that the party claiming the estoppel
did not know nor should it have known that its adversary’s
conduct was misleading.” Heckler v. Cmty. Health Servs., 467
U.S. 51, 59 (1984) (emphasis added). Here, Henderson should
have known that his own Resentencing Appeal was still pend-
ing when the First Petition was filed.
AFFIRMED.