Colie L. Long, Appellant,
United States, Appellee.
Submitted September 15, 2015
from the Superior Court of the District of Columbia
(FEL-2346-96) (Hon. Judith A. Smith & Hon. Lynn
Leibovitz, Trial Judges)
Vincent A. Jankoski was on the supplemental briefs for
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman, John P. Mannarino, Jeffrey Ragsdale, Patricia A.
Riley, and Ann K. H. Simon, Assistant United States
Attorneys, were on the supplemental briefs, for appellee.
Beckwith and Easterly, Associate Judges, and Belson, Senior
Easterly, Associate Judge
prisoner seeking to collaterally attack his conviction or
sentence may request relief under D.C. Code §23-110
(2013 Repl.), but if his petition is "second or
successive, " he must overcome additional procedural
hurdles to obtain review on the merits of his claims. D.C.
Code § 23- 110 (e). Mr. Long was convicted of murder and
other charges in 1998 and was sentenced to life without
parole. This court affirmed his convictions, but subsequently
granted a motion to recall the mandate and remanded his case
for resentencing. In the meantime, over the course of 13
years, Mr. Long filed three motions for collateral review of
his 1998 convictions under D.C. Code § 23-110; the third
motion was filed in 2016 after the trial court resentenced
him on remand. In this consolidated appeal, Mr. Long seeks
review of the denial of his second and third § 23-110
motions challenging his convictions. The government claims
both motions are procedurally barred as second or successive.
As to the 2016 § 23-110 motion, we disagree.
Magwood v. Patterson, the Supreme Court considered
what constitutes a "second or successive" habeas
petition under 28 U.S.C. § 2254 (2012) and clarified
that the dispositive inquiry is not whether the prisoner was
raising the same claims in multiple habeas petitions, but
rather whether he was challenging the same
"judgment." 561 U.S. 320, 331 (2010). The Court
then concluded that "where . . . there is a new judgment
intervening between two habeas petitions, an application
challenging the resulting new judgment is not 'second or
successive' at all." Id. at 341-42
(citation and internal quotation marks omitted). In
Magwood, the habeas petitioner had been
resentenced-resulting in a new judgment-and was only seeking
to collaterally attack his new sentence (not his underlying
conviction); but applying the analysis of Magwood, a
majority of the federal circuits that have considered the
question have concluded that when a habeas petitioner (under
§ 2254 or 28 U.S.C. §2255 (2012)) has been
resentenced and received a new judgment, a subsequent habeas
petition challenging his underlying conviction
and/or his sentence will not be procedurally barred
as "second or successive." Persuaded by this
analysis, we follow the majority rule. Thus we vacate the
denial of Mr. Long's 2016 § 23-110 motion and remand
for consideration on the merits.
Mr. Long seeks review, on direct appeal, of his new sentence
post-remand. For first-degree murder while armed, the trial
court sentenced Mr. Long to a term of incarceration of
thirty-five years to life, but under the sentencing scheme in
place at the time of Mr. Long's offense, the trial court
was only authorized to give Mr. Long a life sentence, leaving
the decision-making about his parole eligibility entirely to
the paroling authority (which in turn was authorized to
consider whether to release Mr. Long after thirty years
imprisonment). Accordingly, we vacate Mr. Long's sentence
for first-degree murder and remand for resentencing.
Facts and Procedural History
Long was convicted in 1998 of first-degree murder while
armed and a number of lesser offenses. After
finding three statutory aggravating factors, D.C. Code §
22-2404.1 (1996 Repl.) (listing "aggravating
circumstances"), the trial court sentenced Mr. Long to
life in prison without the possibility of parole (LWOP) on
the first-degree murder while armed charge. Mr. Long appealed
his conviction to this court. In that direct appeal, his
court-appointed counsel alleged violations of his Sixth
Amendment right to a speedy trial and denial of his right to
a fair trial based on an allegedly improper closing argument
by the government. See Long I, 910 A.2d at 302-06.
Mr. Long's appellate counsel also filed, in 2003, a
motion to vacate his conviction under § 23-110, alleging
that he had received ineffective assistance of
counsel at trial. Id. at 301, 306.
After the Superior Court denied his 2003 § 23-110 motion
without a hearing, this court consolidated that appeal with
his direct appeal. Id. at 301, 307. In Long
I, this court affirmed Mr. Long's conviction on
direct appeal, but vacated the denial of Mr. Long's 2003
§ 23-110 motion and remanded for a hearing. Id.
at 308-11. The Superior Court subsequently held a hearing,
rejected Mr. Long's ineffective assistance claim, and
again denied Mr. Long's 2003 § 23-110 motion.
See Long II, 36 A.3d at 365-66.
Long, represented by new counsel, again appealed the denial
of his § 23-110 motion on the merits as well as the
denial of a Rule 35 motion (initially filed pro se) to
correct his sentence in light of the Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). A divided panel of this court
affirmed, concluding, inter alia, that Mr.
Long's Apprendi challenge was procedurally
barred because he had failed to raise it during the pendency
of his direct appeal. Long II, 36 A.3d at 366,
after Long II was decided, Mr. Long filed a motion
to recall the mandate that issued after Long I,
arguing that he had received ineffective assistance of
counsel on his direct appeal because his appellate counsel
had failed to raise an Apprendi challenge to his
LWOP sentence. Long III, 83 A.3d at 373-75. This
court granted Mr. Long's motion to recall the mandate,
reopened his direct appeal, and concluded that Mr. Long had
been prejudiced by appellate counsel's failure to raise a
meritorious Apprendi challenge. Id. at 384.
The court vacated Mr. Long's sentence, and remanded the
case to the trial court for resentencing. Id.
in 2012, about the same time Mr. Long filed his motion to
recall the mandate that led to this court's opinion in
Long III, Mr. Long filed a § 23-110 motion, pro
se, in Superior Court. In that motion, Mr. Long raised
challenges to his conviction based on allegations of
prosecutorial vindictiveness and the knowing presentation of
perjured testimony, in violation of the due process
protections of the Fifth Amendment. In April 2014, the trial
court (Smith, J.), without requesting a response from the
government and without holding a hearing, denied Mr.
Long's 2012 pro se motion on the merits.
month later, on May 28, 2014, the trial court (Leibovitz,
J.), pursuant to the decision of this court in Long
III, held a sentencing hearing,  after which it
issued a new judgment and commitment order, nunc pro
tunc to September 4, 1998, the date of Mr. Long's
original sentencing. The court imposed a new sentence of
thirty-five years to life for Mr. Long's first-degree
murder conviction and lesser terms of years, set to run
concurrently, for his other convictions.
Long filed pro se notices of appeal from both the denial of
his 2012 pro se § 23-110 motion and from his
resentencing in his direct appeal, and these appeals were
consolidated. Both Mr. Long and the government filed briefs
with the court. This division of the court then appointed Mr.
Long new counsel, and the parties submitted supplemental
briefs. In addition, Mr. Long's new counsel, in response
to the government's assertion in its initial and
supplemental briefs that Mr. Long's 2012 § 23-110
motion was procedurally barred as "second or successive,
" filed another § 23-110 motion in 2016. In this
motion counsel renewed the claims Mr. Long had made in his
2012 pro se motion, but, citing the Supreme Court's
decision in Magwood v. Patterson, counsel argued
that these claims were not procedurally barred because they
were collateral challenges to a new judgment, i.e., Mr.
Long's judgment and commitment order that issued on May
trial court (Leibovitz, J.) denied this 2016 § 23-110
motion without a hearing, ruling that Mr. Long's
"re-sentenc[ing] does not convert a motion that
presented a successive claim regarding his trial into a fresh
claim." Mr. Long appealed the denial of his
2016 motion, that appeal was consolidated with Mr. Long's
appeal of his 2012 pro se motion and his direct appeal from
his sentence, and the parties filed a second set of
supplemental briefs focusing on the import of the Supreme
Court's decision in Magwood.
Long's Collateral Challenges to His Convictions
first address Mr. Long's efforts to challenge his
conviction via a § 23-110 motion and specifically
examine whether his 2016 motion was procedurally barred. D.C.
Code § 23-110 (e) provides "[t]he [Superior]
[C]ourt shall not be required to entertain a second or
successive motion for similar relief on behalf of the same
prisoner." This bar on second or successive motions
originated with 28 U.S.C. § 2255 (affording habeas
relief to federal prisoners), see Magwood, 561 U.S.
at 337, which, prior to its revision in 1996,  contained
language virtually identical to D.C. Code §
23-110. This procedural bar was extended to
28 U.S.C. § 2254 (affording habeas relief to state
prisoners) with the passage of AEDPA. See 28 U.S.C.
§ 2244 (2012); Magwood, 561 U.S. at 337-38
(acknowledging the extension). But none of these statutes
defines the phrase "second or successive."
said, it is "well settled, " in this court and the
federal courts "that the phrase ['second or
successive'] does not simply refer to all [habeas
petitions] filed second or successively in time."
Magwood, 561 U.S. at 332 (alterations and internal
quotation marks omitted) (citing examples). Instead,
it is understood that "[t]he phrase 'second or
successive petition' is a term of art." Slack v.
McDaniel, 529 U.S. 473, 486 (2010). This court has long
looked to federal habeas case law to interpret parallel
provisions of § 23-110 and the meaning of the
bar on "second or successive" motions, in
particular. See, e.g., Peoples, 669
A.2d at 703 (citing Sanders v. United States, 373
U.S. 1, 15-16 (1963)); Vaughn v. United States, 600
A.2d 96, 97 (D.C. 1991) (citing Sanders and
Salinger v. Loisel, 265 U.S. 224, 231 (1924));
Hurt v. St. Elizabeths Hosp., 366 A.2d 780, 781
(D.C. 1976) (citing Sanders). We continue to do so
in this case.
Supreme Court recently clarified what constitutes a
"second or successive" habeas petition in
Magwood v. Patterson, 561 U.S. 329 (2010). In
Magwood, a state prisoner filed a § 2254
petition challenging his conviction and death sentence. A
federal district court granted him partial, conditional
relief, directing that he be resentenced. Upon resentencing,
he again received a death sentence, and thereafter he filed
another habeas petition. This petition was rejected by the
U.S. Court of Appeals for the Eleventh Circuit as
"second or successive, " because Mr. Magwood had
previously filed an earlier-in-time motion, in which he
"could have mounted the same challenge to his original
death sentence." Id. at 323-24. The Supreme
Court, however, reversed. Id. In so doing, the Court
considered and rejected the government's argument that
the "second or successive" procedural bar was
"claim-focused" and was meant to limit habeas
petitioners to "one, but only one, full and fair
opportunity to wage a collateral attack." Id.
at 331. Instead, the Court explained, because the
"second or successive" bar is
judgment-based, a prisoner may, under certain
circumstances, file more than one habeas petition in the life
of a case, without a later-in-time petition being barred as
"second or successive." Id. at 339.
Court looked to the text of § 2254 (b), which authorizes
courts to consider "applications for a writ of habeas
corpus pursuant to a judgment of the State
court" and which allows for the corresponding
invalidation of the judgment.Id. at 332-33
(quoting 28 U.S.C. § 2254 (b)(1)). The Court concluded
that, where a "new judgment" intervenes between the
first petition and one filed later in time, the later-in-time
petition cannot be called "second or successive."
Id. at 338, 342. Applying this analysis to Mr.
Magwood's case, the Court further concluded that, by
virtue of being resentenced, albeit again to death, Mr.
Magwood received a new judgment such that his federal habeas
petition filed after resentencing was the first petition
alleging constitutional infirmities with that
judgment. Id. at 331. The fact that the judgment