Lacey Sivak v. Jay Christensen

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NOT FOR PUBLICATION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