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             DISTRICT OF COLUMBIA COURT OF APPEALS

                  Nos. 14-CO-0453, 14-CO-0641, 16-CO-1152


                           COLIE L. LONG, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.


                        Appeals from the Superior Court
                          of the District of Columbia
                                (FEL-2346-96)

           (Hon. Judith A. Smith & Hon. Lynn Leibovitz, Trial Judges)

(Submitted September 15, 2015                              Decided July 20, 2017)

      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


      1
         Mr. Long initiated this appeal pro se; his court-appointed counsel, Mr.
Jankoski, filed supplemental briefs on his behalf.
      2
          Ronald C. Machen Jr., United States Attorney at the time that brief was
filed, and Elizabeth Trosman, Elizabeth H. Danello, Jeffrey Ragsdale, Patricia
Riley, and Jay Apperson, Assistant United States Attorneys, were on the initial
brief (responding to Mr. Long‘s pro se filings) 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
                                          3

―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
                                         4

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 History3



      Mr. Long was convicted in 1998 of first-degree murder while armed4 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


      3
         As we have summarized the facts of this case in prior decisions, Long v.
United States (Long I), 910 A.2d 298, 301–02 (D.C. 2006); Long v. United States
(Long II), 36 A.3d 363, 365–72 (D.C. 2010); id. at 380–87 (Schwelb, J.,
dissenting); Long v. United States (Long III), 83 A.3d 369, 372–75 (D.C. 2013),
we detail only so much of the facts and procedural history as is necessary to put the
legal issues in their proper context. Moreover, although a number of Superior
Court judges have made rulings in Mr. Long‘s case, we identify by name only the
judges that made the rulings currently being reviewed. Lastly, the identities of
counsel who represented Mr. Long prior to the instant case are noted in Long III,
83 A.3d at 376 n.12.
      4
          D.C. Code §§ 22-2401, -3202 (1996 Repl.).
                                          5

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 counsel5 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



      5
          See Strickland v. Washington, 466 U.S. 668 (1984).
      6
         Mr. Long argued that his initial sentence was unconstitutional because the
trial court had relied on three aggravating factors that had not been found by a jury
in order to sentence him to LWOP. Long II, 36 A.3d at 376.
                                        6

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.),
                                          7

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


      7
           It was undisputed at this proceeding that Mr. Long‘s sentences had been
vacated and that the trial court was sentencing Mr. Long anew. Prior to the hearing
the court received sentencing memoranda from the government and Mr. Long, and
a number of letters submitted on Mr. Long‘s behalf. And at the hearing, the court
heard argument from counsel and gave Mr. Long an opportunity to speak. In
announcing its sentence, the court made clear that it was sentencing Mr. Long
based on its own assessment of these materials and the facts in the case, that it did
not feel bound by the decision-making of the original sentencing judge, and indeed
that, even if it had the discretion to do so, it would not find that the offense
satisfied any of the three sentencing enhancements that the original trial court
found under § 22-2404.1 (b) (―(4) The murder was especially heinous, atrocious, or
cruel; . . . (10) The murder victim was especially vulnerable . . .; [and] (11) The
murder [wa]s committed after substantial planning . . . .‖).
                                        8

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,


      8
         The trial court also noted that arguments in the 2016 § 23-110 motion had
been ―addressed‖ in the order denying Mr. Long‘s 2012 pro se motion and were
the subject of a pending appeal. But see infra note 23.
                                        9

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.




      9
          28 U.S.C. § 2255 was amended in 1996 by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214 (codified, as amended, in scattered sections of the U.S. Code, including 28
U.S.C §§ 2244–55).
      10
          Compare D.C. Code § 23-110 (e) (―The [Superior] [C]ourt shall not be
required to entertain a second or successive motion for similar relief on behalf of
the same prisoner.‖), with 28 U.S.C. § 2255 (1996) (―The sentencing court shall
not be required to entertain a second or successive motion for similar relief on
behalf of the same prisoner.‖). See also Head v. United States, 489 A.2d 450, 451
n.4 (D.C. 1985) (acknowledging that § 23-110 and § 2255 are ―nearly identical and
                                                                     (continued…)
                                         10

§ 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




(…continued)
functionally equivalent‖ (quoting Streater v. United States, 429 A.2d 173, 174
(D.C. 1980)).
      11
           For cases from this court, see, for example, Strozier v. United States, 991
A.2d 778, 788–89 (D.C. 2010) (disagreeing with the trial court‘s assessment that
the second petition could be denied on procedural grounds because it supplemented
the first and was filed during the pendency of the direct appeal); Peoples v. Roach,
669 A.2d 700, 702 n.5 (D.C. 1995) (acknowledging that a § 23-110 motion might
be reviewed in ―special circumstances‖ even if it raised the same grounds
previously rejected in an earlier § 23-110); Brown v. United States, 656 A.2d 1133,
1136 (D.C. 1995) (concluding that where defendant received ineffective assistance
of counsel at his first § 23-110 hearing, ―the first hearing was a nullity and may not
serve as a bar to a successive § 23-110 petition‖); Pettaway v. United States, 390
A.2d 981, 985 (D.C. 1978) (affirming the denial of a § 23-110 motion as vague and
conclusory but ―mak[ing] clear‖ that, under those circumstances, the court‘s
decision ―does not bar a new application by appellant to the trial court‖).
                                        11

interpret parallel provisions of § 23-11012 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


      12
          See Head, 489 A.2d at 451 n.4 (explaining this court ―rel[ies] on federal
court interpretations of § 2255 in construing § 23-110,‖ because the former was the
model for the latter); see also Carl S. Rauh & Earl J. Silbert, Criminal Law and
Procedure: D.C. Court Reform and Criminal Procedure Act of 1970, 20 Am. U.L.
Rev. 252, 339 (1970–1971) (―Inasmuch as the provisions of . . . D.C. Code § [23-
]110 are virtually identical to the provisions of 28 U.S.C. § 2255, there is a vast
body of judicial opinion construing the statutory language and defining the scope
of the remedy.‖).
      13
           We do not rely, however, on federal case law interpreting additional
restrictions imposed by AEDPA on post-conviction relief under §§ 2244, 2254 and
2255. AEDPA did not alter § 23-110, and thus these restrictions ―are not
applicable at all in the District of Columbia courts,‖ Graham v. United States, 895
A2d 305, 307 (D.C. 2006).
                                          12

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


      14
         The Court concluded that the text of § 2254 controlled, although the court
also determined that a judgment-based understanding of the second or successive
bar was consistent with its precedents, 561 U.S. at 336–37, and the ―historical
underpinnings‖ of the phrase, id. at 337.
                                         13

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 incorporated an earlier error that could have been challenged in

the habeas petition filed before he was resentenced was immaterial: ―An error

made a second time is still a new error.‖ Id. at 339.



      The Supreme Court in Magwood left open whether the second or successive

bar would nonetheless apply if a defendant had previously sought habeas relief,

had been resentenced and obtained a new judgment, and then sought to challenge

his underlying conviction in addition to (or instead of) his new sentence. See id. at

342 (explaining that ―[t]his case gives us no occasion to address that question,

because [Mr.] Magwood has not attempted to challenge his underlying

conviction‖). But of the eight federal appellate courts that have addressed this

issue, six (the Second, Third, Fourth, Sixth, Ninth and Eleventh Circuits) have held

that the judgment-based analysis of Magwood compels the conclusion that a

habeas petition filed after resentencing and the corresponding issuance of a new
                                        14

judgment may not be barred as second or successive, whether the petitioner is

challenging his new sentence or the constitutionality of his original, undisturbed

conviction.15 Another federal appeals court (the Fifth Circuit), while taking a more

limited view under its precedent of what constitutes a new judgment, appears to

agree that if a habeas petitioner has received a new judgment, a subsequent habeas

petition challenging the conviction or sentence would not be second or

successive.16 Only one federal appellate court (the Seventh Circuit) has declined to

endorse this understanding of the reach of the second or successive bar, and its

decision is primarily attributable to its adherence to its own contrary precedent

which the Supreme Court had not clearly overruled—not a rejection of the analysis

of the majority of other circuits.17


      15
          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); In re Gray, 850 F.3d 139, 142–43
(4th Cir. 2017); King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015); Wentzell v.
Neven, 674 F.3d 1124, 1126–28 (9th Cir. 2012); Insignares v. Sec’y, Fla. Dep’t of
Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (per curiam).
      16
          In re Lampton, 667 F.3d 585, 587–90 (5th Cir. 2012); see also In re
Parker, 575 F. App‘x 415, 417–19 (5th Cir. 2014) (per curiam) (denying habeas
relief under Lampton; citing Johnson and Wetzell approvingly as distinguishable
examples of cases where ―courts have found . . . a new, intervening judgment‖
(emphasis added)).
      17
          Suggs v. United States, 705 F.3d 279, 284 (7th Cir. 2013) (―Because the
question before us is settled in our circuit and the Supreme Court considered the
question but expressly declined to answer it, we follow our circuit‘s precedents and
hold that Suggs‘ motion is second or successive. Even if the Court‘s reasoning in
Magwood could extend to the facts here, we believe it would be premature to
                                                                       (continued…)
                                         15



      The rationale underlying the majority rule is clearly and comprehensively set

forth in an opinion by Judge Sutton, writing on behalf of a unanimous panel of the

Sixth Circuit in King:

             In the [Supreme] Court‘s words: Where 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. 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.
             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. . . . 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


(…continued)
depart from our precedent where the Court has not asked us to.‖); see also id. at
284–85 (―We recognize that our reading of Magwood differs from the approach
taken by other circuits . . . [which] found Magwood‘s teaching sufficiently clear to
extend it to the circumstances before them. Here, however, where we have clear
circuit precedent directing us otherwise, we do not find Magwood‘s guidance to be
clear enough to depart from our precedent.‖). But see id. at 288 (Sykes, J.,
dissenting) (opining ―that Magwood‘s interpretation of § 2244 (b) is clear enough
to require a departure from circuit precedent that directly conflicts‖).
                                        16

            problem before it. The Court could have applied the
            second-petition rule on a claim-by-claim basis, separating
            the claims within a petition and deeming some successive
            and others not. But it declined. It reasoned that such an
            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.‖ 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. 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,
            and if the count applies to petitions, not claims, the
            existence of a new judgment permits a new application to
            attack the sentence, the conviction, or both.

807 F.3d at 157–58 (internal quotation marks, emphases, citations, and alterations

omitted) (emphases added).



      Judge Sutton also observed that allowing a new judgment to wipe the slate

clean in this manner makes sense for practical reasons:

            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
                                       17

            adjudicator (e.g., for bias) would cover both proceedings.
            If the trial jury found facts applicable to the conviction
            and sentence, 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, could apply to both. . . .

            [Meanwhile, a] contrary approach . . . 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 [are] 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.

807 F.3d at 158–59 (internal quotation marks, emphases, citations, and alterations

omitted).
                                        18

      Having reviewed the landscape of federal case law post-Magwood and

discerned the majority view that a habeas petition filed post-resentencing may

attack the sentence or underlying conviction without running afoul of the bar on

second or successive petitions,18 we turn our attention to D.C. Code § 23-110,




      18
          The government‘s briefing does not acknowledge this majority view and
instead implies that the weight of authority limits the holding of Magwood to its
facts. The government asserts that ―as the Supreme Court noted in Magwood,
federal appellate courts that had considered this issue had rejected the argument
that [Mr. Long] makes‖—i.e., that his new judgment wipes the slate clean for a
post-conviction challenge to his conviction as well as his sentence—―and they
continue to do so.‖ For this latter proposition, the government cites In re Hensley,
836 F.3d 504, 506 (5th Cir. 2016), and Suggs, 705 F.3d at 282–284, as well as
what it characterizes as a ―cogent, closely reasoned dissent‖ in Patterson v. Sec’y,
Fla. Dep’t of Corr., 812 F.3d 885, 888–889 (11th Cir. 2016).
       The government‘s reliance on decisions of ―federal appellate courts that had
considered this issue‖ before Magwood is unavailing; save in the Seventh Circuit,
see supra note 17, these decisions have been overturned by the post-Magwood
decisions cited above, see supra note 15. Equally unhelpful is the government‘s
citation to In re Hensley, 836 F.3d at 506–07, which is an extension of Lampton,
see supra note 16; both Hensley and Lampton address only what constitutes a new
judgment and appear not to take issue with the majority understanding that a new
judgment wipes the slate clean for the purpose of the second or successive bar.
Similarly, Patterson (which has now been reversed by the Eleventh Circuit sitting
en banc) concerns what constitutes a new judgment—not the effect of a new
judgment under Magwood. Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321
(11th Cir. 2017) (en banc) (reaffirming Insignares, cited supra note 15, but holding
that prisoner does not receive a new judgment when state court issues an order
removing a chemical castration requirement). This leaves the government with
only one decision, Suggs, that (relying on binding circuit precedent that does not
bind us) has read Magwood so narrowly.
                                         19

which, as noted above, similarly includes a bar on ―second or successive‖

motions.19



      We acknowledge at the outset that the precise text interpreted by the

Supreme Court in Magwood—―applications for a writ of habeas corpus pursuant to

a judgment of the state court,‖ 28 U.S.C. § 2254 (b)—does not appear in § 23-110,

which refers instead to ―motions‖ by a prisoner ―attacking a sentence.‖ But 28

U.S.C. § 2255, upon which § 23-110 was modeled, see supra note 12, likewise

does not contain the same text, and yet every federal court to consider the issue has

held that Magwood prescribes how the second or successive bar applies to requests

for post-conviction relief by federal as well as state prisoners.20 As the Second


      19
          Our consideration of this question as a division is not barred by M.A.P. v.
Ryan, 285 A.2d 310, 312 (D.C. 1971). Although a number of our cases suggest a
claims-based application of the bar on second or successive petitions, see, e.g.,
Hurt, 366 A.2d at 781 (citing Sanders for the proposition that ―to the extent the
allegations in the motion merely repeat the previously rejected contentions in the
habeas corpus petition, they need not have been considered by the trial court
judge‖), in no case have we considered the question before us and held that a
habeas petition filed after the issuance of a new judgment is a second or successive
petition. See Magwood, 561 U.S. at 336 (acknowledging prior decisions where the
Court upheld the denial of habeas relief because the ―petitioners did not avail
themselves of prior opportunities to present the claims‖ but explaining that none of
the decisions ―applies the phrase ‗second or successive‘ to an application
challenging a new judgment‖).
      20
          See Johnson, 623 F.3d at 45; Zavala v. Attorney Gen. of the United
States, 655 F. App‘x 927, 930 (3d Cir. 2016) (per curiam); In re Gray, 850 F.3d at
                                                                    (continued…)
                                         20

Circuit explained in Johnson, ―[t]he term ‗sentence‘ in § 2255 (a) . . . does not

have a materially different meaning than the term ‗judgment‘ in § 2254 (b). These

two terms are often used interchangeably.‖ 623 F.3d at 45 (quoting Burton v.

Stewart, 549 U.S. 147, 156 (2007) (―Final judgment in a criminal case means

sentence. The sentence is the judgment.‖) and Black‘s Law Dictionary (8th ed.

2004) (defining ―sentence‖ as ―[t]he judgment that a court formally pronounces

after finding a criminal defendant guilty‖)). And, ―[a]s a practical matter, courts

routinely allow federal prisoners to challenge their conviction, in addition to their

sentence, under § 2255 (a). For that purpose, the word ‗sentence‘ in § 2255 (a) is

understood to encompass both the conviction and the sentence.‖ Id. Likewise,

D.C. prisoners are permitted to use § 23-110 motions to challenge both

components of a judgment—the sentence and the underlying conviction.



      Additionally, just as ―nothing in the AEDPA indicates that Congress

intended the ‗second or successive‘ rules to operate differently with regard to state

and federal prisoners,‖ Johnson, 623 F.3d at 45 (quoting Urinyi v. United States,



(…continued)
141 n.1 (4th Cir. 2017); In re Lampton, 667 F.3d at 588; Ajan v. United States, 731
F.3d 629, 631 (6th Cir. 2013); Suggs, 705 F.3d at 283 n.1; United States v.
Ailsworth, 513 F. App‘x 720, 722 (10th Cir. 2013); Betzner v. United States, 470 F.
App‘x 744, 746 n.3 (11th Cir. 2012).
                                        21

607 F.3d 318, 321 (2d Cir. 2010))—to the contrary, as noted above, the second or

successive bar on § 2254 petitions originated in § 2255—there is nothing in § 23-

110 or its history that indicates that Congress intended the ―second or successive‖

rules to operate differently with regard to District of Columbia prisoners. Nor does

the passage of AEDPA, which altered the federal habeas statutes but not D.C.

Code § 23-110, give us a reason to distinguish federal cases interpreting the bar on

second or successive habeas petitions. Although that procedural bar, as it applies

to petitions under §§ 2254 and 2255, is now located in § 2244, its meaning has not

changed.21



      Lastly, § 23-110 contains other language that naturally supports our

adherence to the Court‘s judgment-based interpretation of the bar on second or

successive habeas petitions in Magwood. In particular, § 23-110 (c) sets forth the

circumstances when a trial court may grant relief, including if ―the judgment was

rendered without jurisdiction‖ or if the prisoner‘s constitutional rights have been

infringed upon in such a way ―as to render the judgment vulnerable to collateral


      21
          See Magwood, 561 U.S. at 337 (explaining that pre-AEDPA precedent ―is
consistent with our reading‖ of the bar on second or successive habeas petitions);
see also Goodrum v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016) (―[C]ourts have
naturally assumed that the term [second or successive] carries the same meaning it
did under the pre-AEDPA . . . doctrine.‖).
                                         22

attack.‖ Id. (emphases added). And it ties the relief available to the judgment:

―the court shall vacate and set the judgment aside and shall discharge the prisoner,

resentence him, grant a new trial, or correct the sentence, as may appear

appropriate.‖ Id. (emphasis added); cf. Junior v. United States, 634 A.2d 411,

417–18 (D.C. 1993) (holding that it was error to construe a resentencing motion as

a § 23-110 motion because a judgment had not yet been entered; without a

judgment, no collateral attack was yet possible).



      For all of these reasons, we conclude that the bar on second or successive

motions under D.C. Code § 23-110, like the bar on second or successive petitions

filed under 28 U.S.C. §§ 2254 and 2255, is judgment-based. Further, we follow

the majority of the federal appellate courts in applying this judgment-based

understanding to the full extent of its logic, and hold that, after being resentenced

and receiving a new judgment, a prisoner may file a § 23-110 motion attacking

either his sentence or underlying conviction without running afoul of the bar on

second or successive motions. Applying our holding to this case, we conclude

that, although Mr. Long‘s 2016 § 23-110 motion was chronologically his third

such motion, because he filed it after he was resentenced and received a new
                                         23

judgment,22 it was not second or successive23 and it should not have been

dismissed as procedurally barred.24


      22
           In a footnote in its first supplemental brief, the government argued,
without citation to any authority, that Mr. Long‘s resentencing did not result in a
new judgment. The government did not renew that argument in its second
supplemental brief addressing whether Mr. Long‘s 2016 § 23-110 petition was
procedurally barred. But even if this argument has not been abandoned or waived,
it has no merit. As detailed above, the trial court held a full hearing to resentence
Mr. Long, see supra note 7 & accompanying text. And the trial court subsequently
issued a new judgment and commitment order, nunc pro tunc to September 4,
1998, the date of Mr. Long‘s original sentencing. In this jurisdiction, as in the
federal courts, a sentence is an integral part of a judgment. Compare Super. Ct.
Crim. R. 32 (f) (―[T]he judgment of conviction . . . [includes] the sentence.‖), with
Fed. R. Crim. P. 32 (k)(1) (same); see also Deal v. United States, 508 U.S. 129,
132 (1993) (―[T]he entry of a final judgment of conviction . . . includes both the
adjudication of guilt and the sentence.‖). And a resentencing such as occurred in
Mr. Long‘s case results in a new judgment. See, e.g., Magwood, 561 U.S. at 326
(leaving his convictions undisturbed, the trial court at the resentencing hearing
―imposed a penalty of death, stating on the record that the new ‗judgment and
sentence were the result of a complete and new assessment of all the evidence,
arguments of counsel, and law‘‖ (brackets omitted)); id. at 339 (contrasting the
case with an earlier decision in which the Court had recognized that the outcome
might have been different ―had there been a new judgment intervening between the
two habeas petitions‖ and then observing that ―there is such an intervening
judgment here‖).
      23
          Under this reasoning, Mr. Long‘s 2012 § 23-110 petition, also a subject
of this appeal, is directed to a judgment that no longer exists. Accordingly we have
no cause address it.
      24
           We decline the government‘s invitation to affirm the trial court‘s
procedural bar ruling on alternative grounds, namely that Mr. Long‘s post-
conviction claims were considered and rejected on direct appeal. See Doepel v.
United States, 510 A.2d 1044, 1045–46 (D.C. 1986) (explaining ―that where an
appellate court has disposed of an issue on appeal, it will not be considered afresh
on collateral attack in a trial court of the same judicial system, absent special
circumstances‖). Mr. Long seeks post-conviction relief on the grounds that (1) the
                                                                      (continued…)
                                           24

      III.   Mr. Long’s Challenge on Direct Appeal to His Sentence Post-

                                    Resentencing



      Mr. Long also challenges (on direct appeal) the trial court‘s imposition, upon

resentencing, of a term of incarceration of thirty-five years to life for his first-

degree murder conviction.25 He argues that the trial court mistakenly failed to

apply the law in effect at the time of his offense, which required imposition of a

life sentence with ―eligibil[ity] for parole . . . after . . . 30 years,‖ D.C. Code § 22-

2404 (b) (1996 Repl.) (now codified, as amended, at D.C. Code § 22-2104.01

(2013 Repl.)), and did not authorize the imposition of a minimum sentence or a

sentencing range. The government does not respond to this argument.26



(…continued)
government vindictively decided to charge him with conspiracy after the jury at his
first trial hung on the most serious charges and the government was forced to retry
him; and (2) the government improperly relied on perjured testimony to obtain a
superseding indictment. Neither of these claims was the subject of his direct
appeal, see Long I, 910 A.2d at 304 & n.3, 306 (rejecting Mr. Long‘s speedy trial
(under the Fifth and Sixth Amendments) and improper closing argument claims).
      25
          In his initial pro se briefs, Mr. Long indicated some concern that the trial
court had imposed a second $400 fee to be paid to the victims of violent crime
fund. The record reflects however that the court, sentencing Mr. Long anew,
imposed one $400 fee. If Mr. Long has already paid this fee, as he indicates, no
further payment will be necessary.
      26
         Instead, the government mistakenly addresses a different argument raised
in Mr. Long‘s pro se brief to this court.
                                        25

      Reviewing this claim of legal error de novo,27 we agree that the trial court

erred. The law governing sentencing for first-degree murder at the time Mr. Long

committed this offense gave one directive to the trial court: that ―[t]he punishment

for murder in the first degree shall be life imprisonment,‖ D.C. Code § 22-2404 (a)

(1996 Repl.) (now codified, as amended, at D.C. Code § 22-2104 (a) (2013 Repl.));

and one directive to the paroling authority (before August 1998, the D.C. Board of

Parole; thereafter, the United States Parole Commission):         that ―[a] person

convicted of murder in the first degree and upon whom a sentence of life

imprisonment is imposed shall be eligible for parole only after the expiration of 30

years from the date of the commencement of the sentence,‖ D.C. Code § 22-2404

(b) (1996 Repl.) (now codified, as amended, at § 22-2104 (b) (2013 Repl.)). As we

explained in Beale v. United States, Congress ―specifically determined the

punishment for first[-]degree murder to be mandatory life imprisonment and barred

release on parole for such a defendant until he ha[d] served 20 years[28] of his

sentence.‖   465 A.2d 796, 806 (D.C. 1983), overruled on other grounds by

Winfield v. United States, 676 A.2d 1 (D.C. 1996). In other words, under § 22-

      27
         The government, focused on Mr. Long‘s pro se argument, see supra note
26, argues that we should review for plain error. But Mr. Long‘s claim that he
should be resentenced under § 22-2404 to life imprisonment was preserved in the
memorandum prior counsel submitted to the court before Mr. Long‘s resentencing.
      28
           This had been raised to thirty years by the time Mr. Long committed the
instant crime. See D.C. Code § 22-2404 (b) (1996 Repl.).
                                            26

2404 (a) and (b), ―a trial judge ha[d] no discretion when passing sentence on a

first-degree murder conviction.‖ Garris v. United States, 491 A.2d 511, 514 (D.C.

1985).



      The plain language of the statute, in conjunction with Beale and Garris,

makes it clear that the trial court was without authority to impose a minimum

sentence; it could only impose a life sentence. And the court was likewise without

authority to dictate when Mr. Long would become eligible for parole; by statute he

will become eligible after thirty years.



                                  IV.      Conclusion



      For the reasons set forth in this opinion, we vacate the denial of Mr. Long‘s

2016 § 23-110 motion and remand for consideration on the merits. Additionally,

we vacate Mr. Long‘s sentence for first-degree murder and remand for the

imposition of the proper sentence.



                                                        So ordered.
