                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0153p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                                 ┐
 In re: MICHAEL STANSELL,                                        │
                                                                 │
                                                    Movant.>       No. 15-4244
                                                          │
                                                          ┘
                           On Motion to Authorize the Filing of a Second or
                          Successive Application for Habeas Corpus Relief.
                       No. 1:15-cv-01303—Patricia A. Gaughan, District Judge.

                                     Decided and Filed: July 1, 2016

               Before: SUTTON and COOK, Circuit Judges; HOOD, District Judge.*
                                   _________________

                                                 COUNSEL

ON RESPONSE: Paul Kerridge, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Respondent. ON MOTION: Michael Stansell, Grafton, Ohio, pro se.
                                            _________________

                                                  OPINION
                                            _________________

        SUTTON, Circuit Judge. Federal law generally gives habeas petitioners one shot to
pursue their claims in federal court.            For petitions filed after the first one—“second or
successive” petitions in the language of the statute—applicants must overcome strict limits
before federal courts will permit them to seek habeas relief. 28 U.S.C. § 2244(b)(3)(A). At issue
in today’s case is whether Michael Stansell’s habeas petition—filed after the State added a post-
release control requirement to his judgment of conviction—is “second or successive” and thus
subject to those limits. We hold that it is not and transfer it to the district court for consideration
as an initial petition.

        *
         The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.




                                                       1
No. 15-4244                             In re Stansell                                 Page 2


                                                I.

       In 1998, Stansell pleaded guilty in the Cuyahoga County Court of Common Pleas to
multiple sex-related felonies. See Ohio Rev. Code §§ 2907.02(A)–(B), 2907.04, 2907.05(A)–
(C), 2907.322–.323. The trial court sentenced him to twenty years to life in prison, and his
attempts to obtain relief on direct appeal fell short. See State v. Stansell, 747 N.E.2d 252 (Ohio
2001) (unpublished table disposition); State v. Stansell, No. 75889, 2000 WL 426547, at *1, *6
(Ohio Ct. App. Apr. 20, 2000). He fared no better in federal court, where a district court denied
his habeas petition in 2002. See 28 U.S.C. § 2254.

       In 2013, Stansell returned to state court, seeking to vacate the portion of his sentence that
designated him a “sexually violent predator.” Resp’t App. 109 (Ex. 17); see Ohio Rev. Code
§§ 2971.01(H)(1), 2971.03(A)(3). The trial court denied his motion. A state appeals court
affirmed. But, in doing so, it ruled that the trial court had erred when, as part of Stansell’s
original sentencing in 1998, it failed to impose a term of post-release control. State v. Stansell,
10 N.E.3d 795, 798–99 (Ohio Ct. App. 2014); see also Ohio Rev. Code §§ 2929.19(B)(2)(c), (e),
2967.28(B)(1).

       (Post-release control under Ohio law is similar to supervised release under federal law. It
is “a period of supervision by the adult parole authority after a prisoner’s release from
imprisonment” during which the individual must comply with certain conditions. Ohio Rev.
Code § 2967.01(N). As a few examples, the individual might have to undergo random drug
testing, live in a halfway house, or maintain employment.            E.g., id. §§ 2929.16(A)(4),
2929.17(H), (J).)

       The state appeals court remanded Stansell’s case “for the limited purpose of properly
advising and imposing upon Stansell the requisite period of postrelease control.” Stansell,
10 N.E.3d at 799. The trial court did just that, telling Stansell that he would be subject to five
years of post-release control after his prison term and that the parole authority could sanction
him, in some cases by sending him back to prison, if he violated the conditions of post-release
control.
No. 15-4244                             In re Stansell                                 Page 3


       This new judgment prompted Stansell to return to federal court, seeking authorization to
file a second or successive habeas petition. His petition contains one claim for relief, a claim
that he also raised in his first petition—that the state trial court violated his due process rights
when it classified him as a sexually violent predator during his original sentencing in 1998.

                                                II.

       The Antiterrorism and Effective Death Penalty Act limits the authority of the federal
courts to grant relief to individuals who previously filed a habeas petition. 28 U.S.C. § 2244(b);
see Felker v. Turpin, 518 U.S. 651, 664 (1996). The Act requires petitioners challenging state
court judgments to seek authorization in a federal appeals court before filing a “second or
successive application” in district court. 28 U.S.C. § 2244(b)(3)(A). “A claim presented in a
second or successive habeas corpus application . . . that was presented in a prior application,” the
statute says, “shall be dismissed.” Id. § 2244(b)(1). And “[a] claim presented in a second or
successive habeas corpus application . . . that was not presented in a prior application,” the
statute adds, “shall be dismissed unless” one of two conditions applies.          Id. § 2244(b)(2)
(emphasis added). The first condition covers claims based on “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” Id. § 2244(b)(2)(A). The second covers claims based on new facts that “could not
have been discovered previously through the exercise of due diligence” and that “establish by
clear and convincing evidence that, but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.” Id. § 2244(b)(2)(B). Individuals who
seek to vacate their federal sentences must meet similar requirements before filing a second or
successive motion. Id. § 2255(h).

       Magwood v. Patterson explains the meaning of the phrase “second or successive” in the
federal habeas statute. 561 U.S. 320 (2010). An Alabama court had sentenced Magwood to
death, but a federal district court granted him a conditional writ of habeas corpus based on an
error that occurred during his sentencing. Id. at 324–26. The state court then held another
sentencing proceeding and re-imposed the death penalty, which triggered a second federal
habeas petition from Magwood. Id. at 326, 328. The Supreme Court held that he could file this
No. 15-4244                             In re Stansell                                 Page 4


petition, which challenged his new capital sentence but not his underlying conviction, without
clearing the “second or successive” hurdles. Id. at 331, 342.

       One part of the inquiry, the Court showed, is easy: The phrase “second or successive”
modifies “habeas corpus application.” Id. at 331–32; see 28 U.S.C. § 2244(b)(1)–(2). But what,
the Court asked, is a “habeas corpus application”? 561 U.S. at 332. It found the answer in
§ 2254, which directs federal courts to “entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a) (emphasis added); see id. § 2254(b)(1); 561 U.S. at 332. Habeas petitioners,
Magwood recognized, “seek[] invalidation (in whole or in part) of the judgment authorizing
[their] confinement,” which means “the phrase ‘second or successive’ must be interpreted with
respect to the judgment challenged.” 561 U.S. at 332–33 (quotation omitted). If an individual’s
petition is the first to challenge a particular state judgment—even if the applicant has previously
filed other petitions challenging other judgments—the petition is not “second or successive.” Id.
at 331–33. Because Magwood had been resentenced since filing his first habeas petition, he had
received a new judgment, which meant he could challenge his resentencing proceedings without
having to worry about overcoming the “second or successive” bar. Id. at 331, 339, 342.

       In adopting a judgment-focused interpretation of the phrase “second or successive,”
Magwood rejected the claim-by-claim approach advanced by the State and the dissent. Id. at
331; see id. at 349–50 (Kennedy, J., dissenting). That approach would have required courts to
look at each claim raised in a habeas petition and determine whether the applicant had a “full and
fair opportunity” to raise that claim in a prior petition. Id. at 335 (majority opinion); see id. at
349 (Kennedy, J., dissenting).      But because “second or successive” modifies the word
“application,” not “claim,” courts need not assess the nature of the petitioner’s claims so long as
he challenges a new judgment. Id. at 330–36 (majority opinion).

       King v. Morgan extended Magwood to challenges to a conviction. 807 F.3d 154 (6th Cir.
2015). After his conviction in an Ohio court, King unsuccessfully sought federal habeas relief.
Id. at 156. The trial court subsequently vacated his sentence, but when he received a higher
minimum prison term after resentencing, he turned to the federal courts once more. Id. Like
No. 15-4244                             In re Stansell                                Page 5


Magwood, King had obtained an intervening judgment between his two habeas petitions. But
unlike Magwood, his second-in-time petition raised challenges to his sentence and his
conviction, even though he had received only a new sentence (rather than a new trial) in the
interim. Id. at 157. King’s petition, we held, was not second or successive under Magwood’s
“judgment-based” approach, prohibiting us from slicing King’s “application” into distinct
“claims” and thus from assessing whether each one challenged his conviction or his sentence.
Id.; see Magwood, 561 U.S. at 331; see also Askew v. Bradshaw, 636 F. App’x 342, 346–50 (6th
Cir. 2016). Instead, we treated King’s application—his entire application—as the first one to
challenge his new judgment, which meant he did not have to meet the second or successive
requirements.

       Stansell asks us to take Magwood and King one step further. The common thread in
Magwood and King is that both cases involved petitioners whose entire sentences were
invalidated and who received full resentencing proceedings. See Magwood, 561 U.S. at 326;
King, 807 F.3d at 156. Yet Stansell’s sentence was only partially vacated (to the extent it did not
include a term of post-release control), and he was only partially resentenced (to impose that
term). Does this partial resentencing create an intervening judgment that permits Stansell to
raise challenges to his (undisturbed) conviction, his (undisturbed) term of incarceration, and his
(new) term of post-release control? Yes.

       “Final judgment in a criminal case means sentence. The sentence is the judgment.”
Berman v. United States, 302 U.S. 211, 212 (1937); see Burton v. Stewart, 549 U.S. 147, 156
(2007). The sentence that matters in a habeas case, Magwood tells us, is the one “pursuant to”
which an individual is held “in custody.” 561 U.S. at 332 (quotation omitted); see 28 U.S.C.
§ 2254(a), (b)(1). And an individual is “in custody” for habeas purposes when he is “in actual,
physical custody in prison or jail” or when he is subject to “significant” post-release “restraints
on [his] liberty” that are “not shared by the public generally.” Jones v. Cunningham, 371 U.S.
236, 238, 240, 242 (1963); see Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Individuals
subject to post-release control, like individuals subject to supervised release in the federal
system, satisfy the “in custody” requirement. See, e.g., United States v. Sandles, 469 F.3d 508,
517–18 (6th Cir. 2006); Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995).
No. 15-4244                             In re Stansell                                Page 6


       Before his resentencing, the judgment that kept Stansell “in custody” was a term of
imprisonment ranging from twenty years to life. After his resentencing, the judgment that kept
Stansell “in custody” was a term of imprisonment ranging from twenty years to life plus five
years of post-release control. See Jones, 371 U.S. at 238–43. Because a new custodial sentence
means a new judgment for purposes of § 2254, Stansell’s partial resentencing restarted the
second or successive count.

       As we see it, there are three plausible alternatives to this approach, but none comports
with Magwood or King. One possibility, urged by the State, is that only a full resentencing
results in a new judgment. This theory would require those who are partially resentenced to
meet the second or successive requirements. But the Court has told us that the sentence is the
judgment in a criminal case, see Burton, 549 U.S. at 798–99, meaning that any change to the
custodial sentence necessarily changes the judgment “pursuant to” which an individual is held
“in custody,” see 28 U.S.C. § 2254(a), (b)(1). We said as much in King, noting that Magwood’s
“judgment-based reasoning naturally applies to all new judgments, whether they capture new
sentences or new convictions or merely reinstate one or the other.” 807 F.3d at 157. Stansell’s
revised custodial sentence “capture[s]” his newly imposed period of post-release control, along
with his “reinstate[d]” term of imprisonment and his underlying conviction. Id. That means it is
a new judgment, which reopens challenges to any aspect of that judgment, whether related to the
conviction, the sentence, or both.

       A second alternative would characterize the imposition of post-release control as a
technical amendment, the sort of ministerial change that does not alter the substance of Stansell’s
sentence and thus does not create a new judgment. But calling post-release control a technical
correction does not make it so. If an individual’s sentence does not include post-release control,
he is free from the State’s oversight when his term of imprisonment expires. See State v.
Holdcroft, 1 N.E.3d 382, 389 (Ohio 2013). A sentence with post-release control, by contrast,
“significantly confine[s] and restrain[s] his freedom” upon his release. Jones, 371 U.S. at 243.
The parole board may tell him where to live (in “a community-based correctional facility” or “a
halfway house”), restrict his movement (by placing him under “house arrest” or imposing “a
term of electronic monitoring”), subject him to “drug and alcohol use monitoring, including
No. 15-4244                             In re Stansell                                Page 7


random drug testing,” or require him to participate in “education or training” programs. Ohio
Rev. Code §§ 2929.16–.17; see id. §§ 2967.01(N)–(O), 2967.28(D)(1). The parole authority
may sanction individuals who violate conditions of post-release control, in some cases by
sending them back to prison for up to nine months per violation (and for up to one-half of their
original prison terms in total, which, for someone like Stansell, could mean ten years of
additional prison time). Id. § 2967.28(D)(1), (F)(3).

       The centrality of post-release control to Ohio’s sentencing scheme may explain why the
General Assembly has ordered courts to inform defendants of their term of post-release control at
sentencing. Id. § 2929.19(B)(2)(c)–(e). It may explain why, for a time, the Ohio Supreme Court
vacated defendants’ entire sentences and ordered complete resentencing if the trial court failed to
comply with that legislative mandate. E.g., State v. Bezak, 868 N.E.2d 961, 963–64 (Ohio 2007),
overruled in relevant part by State v. Fischer, 942 N.E.2d 332 (Ohio 2010). And it may explain
why the Ohio Supreme Court has held that a sentence that incorrectly omits post-release control
may be corrected at any time during the inmate’s prison term, even if the standard appeal period
has run. Fischer, 942 N.E.2d at 339–41; see Holdcroft, 1 N.E.3d at 387–89. That court has
summed up its holdings in this area by noting that “[t]he failure to impose a statutorily mandated
period of postrelease control is more than [an] administrative or clerical error. It is an act that
lacks both statutory and constitutional authority.” Fischer, 942 N.E.2d at 339–40. Given the
significant restraints that come with this period of state supervision, we agree. When a court
alters a sentence to include post-release control, it substantially and substantively changes the
terms under which an individual is held “in custody.” 28 U.S.C. § 2254(a), (b)(1). That means it
has created a new judgment for purposes of the second or successive assessment.

       That leaves a third way to think about this case. Perhaps we could divide Stansell’s
sentence into segments. The trial court imposed his term of imprisonment in 1998 and never
vacated it. To the extent he challenges his imprisonment, we might say he is challenging the
same judgment that he contested in his first habeas petition, meaning he must meet the second or
successive requirements. To the extent he challenges his term of post-release control, however,
he is challenging a new judgment imposed in 2014, meaning the second or successive strictures
do not come into play. In the context of a statute of limitations, we adopted this approach in
No. 15-4244                            In re Stansell                                Page 8


Bachman v. Bagley, 487 F.3d 979 (6th Cir. 2007), where we interpreted a section of the federal
habeas statute that provides for the limitations period to begin running when the state “judgment
bec[o]me[s] final.” 28 U.S.C. § 2244(d)(1)(A); see Mackey v. Warden, 525 F. App’x 357, 362–
63 (6th Cir. 2013) (per curiam). We held that most of the petitioner’s judgment became final in
1997, but a 2004 amendment to his sentence reopened the limitations period for challenges to the
amended portion. 487 F.3d at 983–85.

       The problem is, the federal habeas statute speaks of one “judgment,” not many, per term
of custody. 28 U.S.C. § 2254(a), (b)(1); cf. Rashad v. Lafler, 675 F.3d 564, 568 (6th Cir. 2012).
That singular noun is consistent with Magwood’s understanding of the word “application,”
which suggests that each habeas application corresponds to one, just one, judgment, namely the
judgment that authorizes the petitioner’s current custody. See 561 U.S. at 330–36. Extending
Bachman to this case would require us to split a single judgment into multiple mini-judgments,
each of which would serve as a distinct baseline for purposes of the second or successive inquiry.
We then would have to assess each claim in a habeas petition separately, determining whether it
attacked the reinstated portion of the judgment or the newly imposed portion, and we would have
to subject the former claims to the second or successive requirements while exempting the latter
from them. (We might have to split habeas petitions even more finely, dividing a single claim
that attacks both parts of the judgment into two distinct claims, only one of which would have to
overcome the second or successive bar. See King, 807 F.3d at 158.) This is the sort of claim-by-
claim analysis that Magwood condemns. See 561 U.S. at 330–36. Because we must apply the
term “second or successive” to the application as a whole, not to the individual claims within it,
Magwood precludes us from adopting Bachman’s approach in the second or successive context.
None of this should be taken to call Bachman into doubt. All that this decision and all that King
attempt to do is try to apply Magwood faithfully in the second-or-successive context. These
decisions, and most importantly Magwood, do not answer the distinct statute-of-limitations
question raised in Bachman.

       One might wonder whether our holding is consistent with the purposes of the
Antiterrorism and Effective Death Penalty Act, which “codifie[d] some of the pre-existing limits
on successive petitions” and added new ones that “further restrict[] the availability of relief to
No. 15-4244                              In re Stansell                                   Page 9


habeas petitioners.” Felker, 518 U.S. at 664. If Stansell’s petition would have been dismissed as
second or successive based on the “abuse of the writ” principles that governed before the
1996 law took effect, and if a judgment-based approach permits him to file it, haven’t we
interpreted the federal habeas statute to lessen the burden on some successive applicants? See
McCleskey v. Zant, 499 U.S. 467, 479–89 (1991). In a word, yes. But Magwood rejected this
same argument when it permitted the applicant to file his petition without meeting the second or
successive requirements. 561 U.S. at 334–35, 337. So did King. 807 F.3d at 159–60. While the
statute might have made it more difficult across the board for applicants to file successive
petitions, that does not mean that every petition barred as an abuse of the writ must also be
barred by the new requirements. The statute might have lowered the barrier for a few applicants
(those challenging new judgments) and raised it for many others (those challenging old ones),
resulting in fewer successive applications overall. That is the conclusion to which the statute’s
text leads, and that is the conclusion the Supreme Court reached in Magwood. 561 U.S. at 334–
35, 341–42.

       Any fear of “abusive claims,” moreover, “is greatly exaggerated” given the number of
other procedural obstacles that limit habeas relief. Id. at 340 (quotation omitted). Petitioners
will still have to comply with procedural default and exhaustion requirements. Id.; see 28 U.S.C.
§ 2254(b). And if, after the entry of an intervening judgment, they bring the same claims they
raised in an earlier petition, “[i]t will not take a court long to dispose of [those] claims where [it]
has already analyzed the legal issues” in an earlier decision. 561 U.S. at 340 n.15.

       We close with a few caveats. First, we do not imply that any change to a petitioner’s
sentence reopens the door to successive habeas filings; we hold only that a partial resentencing
that results in the imposition of post-release control is the type of change that creates a new
judgment for purposes of the second or successive bar. That is because this type of change alters
the sentence “pursuant to” which the petitioner is “in custody.” 28 U.S.C. § 2254(a), (b)(1); see
Magwood, 561 U.S. at 332. We need not decide what happens if a state court alters the non-
custodial aspects of the petitioner’s sentence (by vacating a restitution obligation or imposing a
fine, for example); or if it vacates the sentence on one of the petitioner’s counts but continues to
hold him in custody under the sentence imposed on another; or if, assuming that the same second
No. 15-4244                              In re Stansell                                  Page 10


or successive rules apply in the federal context, a court grants a motion to reduce an applicant’s
sentence due to a guidelines amendment or substantial assistance. Compare Kramer v. United
States, 797 F.3d 493, 501–02 (7th Cir. 2015) (vacating conviction on one count of a multi-count
indictment does not reset § 2255’s second or successive count with respect to the other
convictions and sentences), and In re Lampton, 667 F.3d 585, 588–90 (5th Cir. 2012) (same),
with Wentzell v. Neven, 674 F.3d 1124, 1127–28 (9th Cir. 2012) (reaching the opposite result in a
§ 2254 case), and Johnson v. United States, 623 F.3d 41, 44–46 (2d Cir. 2010) (same, in the
§ 2255 context); see also 18 U.S.C. § 3582(b), (c) (permitting courts to “modify a term of
imprisonment” in certain circumstances, including guidelines amendments and substantial
assistance motions, but noting that the original “judgment of conviction . . . constitutes a final
judgment for all other purposes”); Fed. R. Crim. P. 35(b); United States v. Jones, 796 F.3d 483,
485–87 (5th Cir. 2015); White v. United States, 745 F.3d 834, 836–37 (7th Cir. 2014);
cf. Patterson v. Sec’y, Fla. Dep’t of Corr., 812 F.3d 885, 887–92 (11th Cir. 2016) (§ 2254 habeas
application was not second or successive where state court had vacated a portion of the
petitioner’s sentence but left the term of imprisonment intact); Insignares v. Sec’y, Fla. Dep’t of
Corr., 755 F.3d 1273, 1278–81 (11th Cir. 2014) (per curiam) (§ 2254 habeas application was not
second or successive where state court had reduced the mandatory minimum prison term for
petitioner’s offense but had maintained the same overall term of imprisonment).

       Second, we note that Stansell says, in his motion to file a second or successive
application, that he has been “resentenced twice since” his first habeas petition was denied. Pet’r
Motion 5.     His theory seems to stem from the trial court’s statement, during the original
sentencing hearing in 1998, that Stansell would not have to pay any costs. Yet the judgment
entered after the 1998 hearing, as well as the one entered after the 2014 partial resentencing,
contradicted this statement, ordering Stansell to pay costs. When he brought the discrepancy to
the trial court’s attention, it corrected the clerical error by issuing a new journal entry (the
document that memorializes final judgments in Ohio) in July 2015. See Ohio R. Crim. P. 32(C),
36. The court also designated the new document as a “nunc pro tunc” entry, Resp’t App. 223
(Ex. 36), indicating it had “retroactive legal effect” and was to be treated as if it had been entered
at the time of the 2014 resentencing, Black’s Law Dictionary 1237 (10th ed. 2014).
No. 15-4244                            In re Stansell                                Page 11


       Stansell regards the July 2015 journal entry as a new judgment, but we disagree. That
entry simply corrected the court’s records to correspond to the sentence announced at the
1998 hearing. The court used the nunc pro tunc designation to clarify that it was not altering the
judgment in Stansell’s case and to indicate that this judgment had remained the same ever since
his partial resentencing to impose post-release control. When courts use nunc pro tunc entries in
this manner—to correct clerical errors that result in a discrepancy between the court’s oral
pronouncements and its paper records—we do not regard the corrected entries as new judgments
for purposes of the second or successive requirements. To hold otherwise would turn those
requirements into a game of “I Spy,” where the petitioner best able to catch the court’s technical
errors will earn himself a free pass (maybe many free passes) into federal court. See Marmolejos
v. United States, 789 F.3d 66, 70–72 (2d Cir. 2015) (§ 2255); see also, e.g., May v. Kansas,
562 F. App’x 644, 645–46 (10th Cir. 2014) (per curiam) (§ 2254); United States v. Cano,
558 F. App’x 936, 941 n.6 (11th Cir. 2014) (per curiam) (§ 2255).

                                               III.

       For these reasons, we deny Stansell’s motion to file a second or successive habeas
petition as unnecessary and transfer his petition to the district court for proceedings consistent
with this opinion.
