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Long v. United States

Court of Appeals of Columbia District

July 20, 2017

Colie L. Long, Appellant,
v.
United States, Appellee.

          Submitted September 15, 2015

         Appeals 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 appellant. [1]

          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. [2]

          Before Beckwith and Easterly, Associate Judges, and Belson, Senior Judge.

          Easterly, Associate Judge

         A D.C. 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.

         In 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.

         Separately, 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.

         I. Facts and Procedural History[3]

         Mr. Long was convicted in 1998 of first-degree murder while armed[4] 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[5] 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.

         Mr. 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).[6] 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, 378-79.

         Shortly 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.

         Meanwhile, 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.

         One 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, [7] 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.

         Mr. 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 28, 2014.

         The 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."[8] 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.

         II. Mr. Long's Collateral Challenges to His Convictions

         We 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, [9] contained language virtually identical to D.C. Code § 23-110.[10] 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."

         That 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).[11] 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[12] and the meaning of the bar on "second or successive" motions, in particular.[13] 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.

         The 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.

         The 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.[14]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 ...


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