                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 15a0283p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 DELAWRENCE KING,                                        ┐
                                Petitioner-Appellant,    │
                                                         │
                                                         │       No. 13-4189
        v.                                               │
                                                          >
                                                         │
 DONALD MORGAN, Warden,                                  │
                               Respondent-Appellee.      │
                                                         ┘
                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                   No. 1:12-cv-02000—Patricia A. Gaughan, District Judge.
                                   Argued: October 6, 2015
                             Decided and Filed: December 1, 2015

                       Before: BOGGS, SUTTON, and WHITE, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: Erin E. Murphy, BANCROFT PLLC, Washington, D.C., for Appellant. M. Scott
Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON
BRIEF: Erin E. Murphy, Paul D. Clement, Raymond P. Tolentino, BANCROFT PLLC,
Washington, D.C., for Appellant. Gregory T. Hartke, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.

                                      _________________

                                           OPINION
                                      _________________

       SUTTON, Circuit Judge. The Anti-Terrorism and Effective Death Penalty Act does not
take kindly to repeat requests for habeas relief. It mandates that, if an inmate has already lost
one such request, he may not file a “second or successive” petition without satisfying several




                                                1
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stringent requirements. What happens, however, if the inmate wins a state-court collateral
challenge, obtaining some relief (e.g., a new trial or a new sentence) but not a release from
custody? Does the “second or successive” rule apply to federal habeas challenges to the new
state-court judgment? In one setting, the answer is easy. If the inmate challenges a new feature
of the proceeding that ended with a second conviction and sentence, the petition is not “second
or successive.” It is a new challenge to a new error. Application of the rule becomes more
complicated if the second petition challenges the inmate’s custody on grounds that could have
been raised in his first petition. In that setting, may the claimant challenge a new sentence on
grounds that could have been raised in the first petition? And, after a new sentence is issued,
may the claimant do the same with an unchanged and reinstated conviction?

       Magwood v. Patterson answered the first question. 561 U.S. 320 (2010). It held that a
petition challenging a new sentence imposed after a full resentencing and leading to a new
judgment does not count as second or successive—even if the claimant previously filed petitions
that challenged the original sentence and even if he raised or could have raised the same claims
in those earlier petitions. We answer the second question today, holding that a habeas petitioner,
after a full resentencing and the new judgment that goes with it, may challenge his undisturbed
conviction without triggering the “second or successive” requirements.

                                                I.

       In 2004, an Ohio jury found DeLawrence King guilty of two counts of murder and one
count of felonious assault, with a firearm specification on each count. State v. King, No.
04CA008577, 2005 WL 1962967, at *1 (Ohio Ct. App. Aug. 17, 2005).                  The state court
sentenced King to fifteen years to life on each of the murder counts, three years on the assault
count, and three years on each of the firearm specifications. The court merged the firearm
specifications and directed the sentences on the two murder convictions to be served
concurrently but consecutively as to the other two sentences. The resulting sentence totaled
twenty-one years to life. The convictions and sentence were affirmed on direct appeal. Id. at
*10, appeal denied, 840 N.E.2d 205 (Ohio 2005) (mem.).

       In 2006, King filed a habeas petition in federal court. The district court denied relief, and
we denied a certificate of appealability. In 2009, King asked the state trial court to vacate his
No. 13-4189                              King v. Morgan                           Page 3

sentence because it failed to include mandatory post-release control. See State v. Singleton,
920 N.E.2d 958, 964 (Ohio 2009). The court complied and resentenced King. But the court’s
action did not lead to the hoped-for result. The new sentence totaled thirty-three years to life,
mainly because the court imposed consecutive sentences on the murder counts after previously
imposing concurrent sentences on them.         The court entered a new “Judgment Entry of
Conviction and Sentence,” reinstating the underlying convictions and imposing the new
sentence. R. 4-10 at 2.

       After further challenges in state court failed, King filed another federal habeas petition.
This one raised seven claims. The district court rejected the two claims stemming from the new
sentence, one as procedurally defaulted, the other as raising a non-cognizable state law
challenge. We denied a certificate of appealability on those claims and have no need to address
them further. See 28 U.S.C. § 2253(c)(1), (3). The other five claims attacked the original
convictions. The district court held that those claims were second or successive and dismissed
them. See id. § 2244(b). We granted a certificate of appealability to determine if the five
challenges to King’s conviction should be considered second or successive claims. King v.
Morgan, No. 13-4189 (6th Cir. Oct. 14, 2014) (unpublished order). At that point, we appointed
Erin Murphy to represent King, and we are grateful for her service in doing so.

                                                II.

       AEDPA limits a prisoner’s right to file a “second or successive” habeas petition in
federal court. If the inmate is “in custody pursuant to the judgment of a State court,” 28 U.S.C.
§ 2254(a), as King is, a federal court of appeals may “authoriz[e] the district court to consider a
second or successive application” only with respect to claims “not presented in a prior
application” and not previously available because they rest on new law (“a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable”) or new facts (“the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence . . . [and] would be sufficient to
establish . . . that, but for constitutional error, no reasonable factfinder would have found the
applicant guilty”). Id. § 2244(b). The same strictures apply to prisoners in federal custody.
See id. § 2255(h).
No. 13-4189                               King v. Morgan                           Page 4

         The words “second or successive” are not hard to grasp by themselves. What is difficult
is distinguishing first from second petitions when the claimant obtains relief between the two
petitions.   Magwood v. Patterson, 561 U.S. 320 (2010), fills in some of the gap by
focusing on whether the inmate challenges an intervening judgment. In the Court’s words:
“[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.” Id. at
341–42 (quotation omitted). Because petitions seek the “invalidation (in whole or in part) of the
judgment authorizing the prisoner’s confinement,” Magwood tells us, no part of the petition
counts as second or successive as long as it is the first to challenge the new judgment. Id. at 332.
That means that, if an initial federal habeas petition (or state-court collateral challenge) leads to
an amended judgment, the first petition that follows the entry of the new judgment is not second
or successive, even if it raises claims that the inmate could have raised in the first petition. Id. at
328–29, 331.

         Magwood’s judgment-based approach takes us a good way down the road of resolving
today’s question. King’s petition, like Magwood’s, is the first to challenge a new judgment. The
wrinkle is that the petition in Magwood limited its claims to the sentence entered after
resentencing. See id. at 342. That leaves today’s question: Does the “second or successive”
count begin anew if the new petition challenges the original, undisturbed conviction?

         Yes, the count begins anew for several reasons.

         Magwood’s reasoning as an initial matter favors this approach. “Because Magwood’s
habeas application challenges a new judgment for the first time,” the Court explained, that
“intervening” development resets the application count and prevents it from being “second or
successive.” Id. at 323–24, 339. This judgment-based reasoning naturally applies to all new
judgments, whether they capture new sentences or new convictions or merely reinstate one or the
other.

         Strengthening that inference is the reality that Magwood could have adopted a claims-
based approach to the problem before it. The Court could have applied the second-petition rule
on a claim-by-claim basis, “separat[ing]” the claims within a petition and deeming some
successive and others not. See id. at 329, 331. But it declined. It reasoned that such an
No. 13-4189                                King v. Morgan                        Page 5

approach would not respect the language of the statute and thus would “elide the difference
between an ‘application’ and a ‘claim,’” a distinction that the statute makes important because
“AEDPA uses the phrase ‘second or successive’ to modify ‘application.’” Id. at 334 (quotation
omitted). The same reasoning applies to convictions.

        As a matter of custom and usage, moreover, a judgment in a criminal case “includes both
the adjudication of guilt and the sentence.” Deal v. United States, 508 U.S. 129, 132 (1993); see
also Rashad v. Lafler, 675 F.3d 564, 568 (6th Cir. 2012) (the federal habeas statute “speaks of
one ‘judgment[]’”); Fed. R. Crim. P. 32(k)(1); Ohio R. Crim. P. 32(C). Even when the only
change in the state-court proceeding relates to the sentence, the new judgment will reinstate the
conviction and the modified sentence. If “the existence of a new judgment is dispositive” in
resetting the “second or successive” count, Magwood, 561 U.S. at 338, and if the count applies to
petitions, not claims, id. at 334–35, the existence of a new judgment permits a new application to
attack the sentence, the conviction, or both.

        A few practical considerations support this approach as well. Some claims within a
habeas application, it turns out, will apply to the underlying conviction and the new sentence.
What then? Would the second-petition rule apply to one claim but not the other? That would
make little sense and would be difficult to implement as well. Nor is this possibility merely
theoretical. If the same judge presided over the original conviction and handled the resentencing,
any challenge to the judge as adjudicator (e.g., for bias) would cover both proceedings. If the
trial jury found facts applicable to the conviction and sentence, see, e.g., Apprendi v. New Jersey,
530 U.S. 466 (2000), any challenge to the jury as adjudicator (e.g., voir dire problems, a Batson
challenge, juror misconduct, consideration of improper evidence) would cover both. And if the
government withheld exculpatory evidence until after the resentencing, a claim under Brady v.
Maryland, 373 U.S. 83 (1963), could apply to both. Cf., e.g., Blanco v. Sec’y, Fla. Dep’t of
Corr., 688 F.3d 1211, 1221 & n.37, 1240 (11th Cir. 2012) (raising a Brady claim relevant to an
earlier trial and a later resentencing).

        Even when courts could separate claims related to the conviction from those related to the
new sentencing, that effort would require district courts to transfer the conviction claims to the
court of appeals for pre-authorization as second or successive while holding onto the sentencing
No. 13-4189                              King v. Morgan                           Page 6

claims. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). Making that task more
complicated is the reality that many habeas petitioners are not represented (and, even when
represented, are not always well represented).       Figuring out whether a claim relates to a
conviction, sentence, or both may be no easy feat for the litigants, to say nothing of the courts,
clerk’s offices, and staff attorneys that must review these filings. If habeas petitions made up a
small part of each court’s docket, any such complication could be overlooked. But that is hardly
the world in which we live.

       A contrary approach also would shortchange some prisoners whose incentives to
challenge a conviction may differ after being resentenced. Suppose a defendant is convicted on
two counts, and just one of them involves a constitutional error. If the defendant receives five-
year concurrent sentences on both convictions, his incentives to challenge the defective
conviction in his first habeas application is low; success on that challenge alone will not change
his time in jail. If resentencing makes those five-year sentences consecutive, however, his
incentives change considerably, because success now decreases his sentence by half. Someone
in King’s position could indeed face this precise problem. He may have every reason to focus on
the sentencing issues in his first petition (when facing concurrent murder sentences), while he
has every reason in his second petition to focus on each murder conviction (when facing
consecutive sentences on them). Magwood’s judgment-based rule ensures that a court’s choice
to reenter a different judgment does not leave a petitioner unable to raise a now-more-critical
challenge free from the “second or successive” limits.

       Our approach also lines up with nearly every court of appeals. Since Magwood, every
circuit but one has agreed that a new judgment after a resentencing permits the inmate to
challenge the original conviction without clearing the second-or-successive hurdles.
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); Wentzell v. Neven, 674 F.3d 1124, 1127–28 (9th Cir. 2012);
Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (per curiam).
The one circuit to take a different approach did so based on on-point, pre-Magwood circuit
precedent, see Suggs v. United States, 705 F.3d 279, 284–85 (7th Cir. 2013), and even that did
not satisfy one member of the panel, see id. at 285–89 (Sykes, J., dissenting).
No. 13-4189                              King v. Morgan                           Page 7

       The State responds that this approach cannot be reconciled with the “animating” purpose
of AEDPA: to cut back on successive habeas challenges. Appellee’s Br. 38. True, AEDPA
“codifies some of the pre-existing limits on successive petitions” and adds “new restrictions on”
those petitions that “further restrict[] the availability of relief to habeas petitioners.” Felker v.
Turpin, 518 U.S. 651, 664 (1996). True also, pre-AEDPA caselaw may have barred King’s
claim. Because he could have brought the same challenges to his undisturbed conviction in his
first petition and (with one exception) did not, there is a chance that his petition would have been
barred by the pre-AEDPA “abuse of the writ” doctrine. See McCleskey v. Zant, 499 U.S. 467,
493–95 (1991). But neither point necessarily leads to the conclusion the State advances.

       The purpose of a statute may not so “animate”—so enliven—its text that the words are
given a meaning they cannot bear. The text of AEDPA, as Magwood explains, focuses on the
inmate’s “application,” not claims, and the state court’s “judgments,” not sentences or
convictions. 561 U.S. at 332–33. However moving the spirit of a law may be, however much
Congress may have wished to cut back on habeas claims, that purpose may not substitute for the
letter of what Congress enacted when those words speak to the issue at hand.

       The same animating-purpose argument, moreover, could have been made in Magwood,
and indeed it was. See 561 U.S. at 344–48, 356 (Kennedy, J., dissenting). Yet the Court ruled
for the inmate all the same. It noted that pre-AEDPA decisions had not settled whether “abuse-
of-the-writ rules . . . apply at all to an application challenging a new judgment.” Id. at 336
(majority opinion). The Court also noted it could not “replace the actual text [of AEDPA] with
speculation as to Congress’ intent.” Id. at 334.

       It is not clear at any rate what the net effect of our decision will be on habeas practice in
this circuit. Yes, if a new judgment resets the “second or successive” count with respect to all
claims, that may allow more habeas petitions than would have been the case under the State’s
approach. And, yes, many tools for addressing repeat claims may not be available in this setting:
(1) The entry of a new judgment normally resets the statute-of-limitations clock, 28 U.S.C.
§ 2244(d)(1)(A); Rashad, 675 F.3d at 567–68; (2) res judicata generally does not apply to habeas
challenges even when a petitioner raises the same claim after resentencing as he had in an earlier
petition, see Felker, 518 U.S. at 664; McCleskey, 499 U.S. at 480–81; and (3) the law-of-the-case
No. 13-4189                              King v. Morgan                          Page 8

doctrine likely would not apply due to the intervening judgment, cf. Rosales-Garcia v. Holland,
322 F.3d 386, 398 n.11 (6th Cir. 2003) (en banc). But other obstacles remain. All habeas
petitioners, including King on remand, must show that they did not procedurally default each
claim and that they exhausted each claim. And if the federal courts previously addressed the
merits of the claim, that likely will not be difficult to sort out. “It will not take . . . long to
dispose of such claims where the court has already analyzed the legal issues.” Magwood,
561 U.S. at 340 n.15. It thus is fair to say, as Magwood has said, that any concern that our
decision will set off a flood of “abusive claims” is “greatly exaggerated.” Id. at 340.

       The State raises one other point. Because Magwood left the precise question in this case
open, id. at 342, the State maintains that we should follow pre-Magwood circuit precedent that (it
maintains) makes King’s challenges to his convictions second or successive. But no such
binding precedents exist. The State points to two unpublished orders and Lang v. United States,
474 F.3d 348 (6th Cir. 2007). The unpublished orders bind only the parties to those cases, not
future parties and future claims. And Lang helps King. It held that claims that originate at a
resentencing cannot be second or successive. Id. at 353. Magwood, it is true, noted that Lang
“cit[ed] [pre-Magwood] decisions” that supported the State’s interpretation, but that is all Lang
did and indeed it cited decisions from other courts in doing so. Magwood, 561 U.S. at 342 n.16;
see Lang, 474 F.3d at 351–52.

       For these reasons, we reverse the determination that King’s conviction-related claims are
“second or successive” and remand the petition for further proceedings.
