                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-3944

A LONZO S UGGS,
                                           Petitioner-Appellant,
                               v.

U NITED S TATES OF A MERICA,
                                           Respondent-Appellee.


          Appeal from the United States District Court
               for the Southern District of Illinois.
          No. 3:09-cv-00775—William D. Stiehl, Judge.



  A RGUED S EPTEMBER 13, 2012—D ECIDED JANUARY 17, 2013




 Before M ANION, S YKES, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. This appeal depends on a
nuance of habeas corpus practice under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). The
specific issue is whether a second-in-time motion filed
under 28 U.S.C. § 2255 is barred as “second or succes-
sive” when a prisoner has been resentenced pursuant to
a successful first section 2255 motion, and the new
motion challenges only the underlying conviction, not
2                                               No. 10-3944

the resentencing. The Supreme Court recently addressed
a closely related but distinct question in Magwood v.
Patterson, 561 U.S. ___, 130 S. Ct. 2788 (2010), holding
that a petitioner’s second challenge to his sentence
under 28 U.S.C. § 2254 was not barred as “second or
successive” when it (a) came after the petitioner had been
resentenced because of a successful, initial section 2254
petition and (b) asserted a claim based only on the
resentencing. The Magwood Court expressly declined to
extend its holding to the situation we face here, where
the second motion challenges the original conviction, not
the new sentence. This circuit’s precedent holds that
the second motion here is barred as second or succes-
sive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001).
We recognize that the reasoning in Magwood casts some
doubt about the continued viability of Dahler. However,
because Magwood explicitly limited its holding so as not
to reach the situation we face here, we are not persuaded
that we should overrule our precedent. Based on the
authority of Dahler, we conclude that Suggs’ motion is
“second or successive” under section 2255, and we affirm
the district court’s dismissal for lack of jurisdiction.


I. Factual and Procedural Background
  In 2001, Alonzo Suggs was convicted of conspiracy to
possess cocaine with the intent to distribute and was
sentenced to 300 months in prison. He challenged his
conviction and sentence on nine grounds under 28 U.S.C.
§ 2255, which authorizes federal courts to vacate, set aside,
or correct a federal prisoner’s sentence. Suggs eventually
No. 10-3944                                                3

succeeded on one of those grounds — he received ineffec-
tive assistance of counsel regarding his sentencing guide-
line calculations. After a remand, the district court recal-
culated the guidelines and imposed a new sentence of
240 months.
  After his resentencing, which occurred in 2009, eight
years after his trial, Suggs obtained new information
that he argues shows his innocence. A key witness
against him has now recanted his testimony and claims
that his first statement to law enforcement did not im-
plicate Suggs. If that in fact happened, and if the first
exculpatory statement was not disclosed to Suggs and
his attorney as he claims, there could have been a viola-
tion of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972). The government agrees
here that if this were Suggs’ first section 2255 motion,
the evidence he has presented would be enough to
require at least an evidentiary hearing on the Brady claim.
  The problem is that sections 2244(a) and 2255(h)
sharply restrict a “second or successive” motion to
narrow circumstances that do not apply here. Suggs
requested permission from this court to bring a second
challenge to his conviction because of his newly dis-
covered evidence. See 28 U.S.C. § 2255(h). We denied
his request, finding that his new evidence did “not come
close to showing that no reasonable factfinder would
have found him guilty as required for authorization.”
Suggs v. United States, No. 09-3070, Order (7th Cir. Aug. 27,
2009). Suggs then filed a new motion under section 2255
in the district court challenging his conviction based on
the new evidence. Although this was literally his second
4                                                 No. 10-3944

motion under section 2255, Suggs argued that it should
not be barred as “second or successive” because his
resentencing imposed a new judgment such that his new
motion under section 2255 should not be barred. The
district court disagreed and dismissed his motion based
on Dahler, the controlling circuit precedent. Suggs now
appeals the dismissal.


II. Analysis
  We must determine whether Suggs’ most recent
motion counts as “second or successive” under section
2255 and thus should be barred under sections 2244
and 2255. We have jurisdiction under 28 U.S.C. §§ 1291
and 2253(a). We review de novo the district court’s deter-
mination of this question of law.


    A. Section 2255’s Limits on Second or Successive Petitions
  Section 2255 gives a federal prisoner one opportunity
to challenge a conviction and sentence following a direct
appeal. See 28 U.S.C. § 2255(a), (h). If a prisoner seeks to
challenge his conviction or sentence a second time, he
must persuade a court of appeals to certify the motion
and authorize the district court to hear it. See 28 U.S.C.
§§ 2244(a)-(b), 2255(h). The court of appeals may authorize
a second or successive motion only if it presents either
(1) newly discovered evidence that makes a clear and
convincing showing of innocence or (2) a new rule of
constitutional law made retroactive by the Supreme
Court. 28 U.S.C. § 2255(h). Without authorization from
the court of appeals, the district court has no jurisdiction
No. 10-3944                                                   5

to hear the petition. Burton v. Stewart, 549 U.S. 147, 152-53
(2007).
  Not all literally subsequent motions, however, are
“second or successive” within the meaning of the
statutes, for the phrase is a term of art in the technical
world of habeas procedure. See Panetti v. Quarterman,
551 U.S. 930, 944 (2007) (“The Court has declined to
interpret ‘second or successive’ as referring to all § 2254
applications filed second or successively in time . . . .”). For
example, since AEDPA’s earliest days, we have held
that if a petitioner successfully challenges a sentence via
one section 2255 motion and is resentenced, a later
motion challenging the resentencing is not “second or
successive.” Walker v. Roth, 133 F.3d 454 (7th Cir. 1997).
Similarly, if an incompetency challenge to the death
penalty is not ripe when a petitioner files the first ap-
plication, the petitioner’s second application once the
challenge is ripe is not “second or successive.” Panetti,
551 U.S. at 945 (petition raising incompetency challenge
to death penalty as soon as the claim is ripe is not
second or successive where it would not have been ripe
at time of first petition); see also Stewart v. Martinez-
Villareal, 523 U.S. 637, 645 (1998) (construing petitioner’s
initial and subsequent applications raising an incom-
petency challenge to the death penalty as a single ap-
plication so that later application was not “second or
successive”). Or if a prisoner’s first application is
dismissed without a decision on the merits because of
failure to exhaust state remedies and the prisoner files
another application after exhausting state remedies, the
application with newly exhausted claims is not “second or
successive.” Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
6                                                   No. 10-3944

    B. The Meaning of “Second or Successive”
  This case turns on whether Suggs’ motion filed after his
resentencing is “second or successive” within the
meaning of section 2255. If not, then Suggs does not
need this court’s certification under section 2255(h) for
the district court to have jurisdiction to hear the motion.
We have held that that such motions after resentencing
are not second or successive when they allege errors
made during the resentencing, but they are second or
successive when they challenge the underlying convic-
tion. See Dahler v. United States, 259 F.3d 763 (7th Cir.
2001), which adopted as a holding what we had said in
dicta in Walker v. Roth, 133 F.3d 454 (7th Cir. 1997).
  In Magwood v. Patterson, however, the Supreme Court
held that a petition challenging a death sentence
was not second or successive where the second petition
followed a resentencing after a remand from a successful
initial petition, even though the same challenge to the
sentence also could have been made to the original sen-
tence. 561 U.S. ___, 130 S. Ct. 2788 (2010). We conclude
that because Magwood expressly declined to extend its
holding to the facts before us here, it did not disturb
our circuit’s precedent, Dahler, which applies to Suggs’
motion and required the district court to dismiss it as
second or successive.1


1
  Although Magwood concerned a challenge to a state court
judgment under 28 U.S.C. § 2254, the bar on second or succes-
sive challenges under section 2254 is parallel to the bar under
section 2255. We therefore apply analysis and reasoning
                                                   (continued...)
No. 10-3944                                                       7

  In Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), we consid-
ered a petition filed after resentencing that challenged
only aspects of the resentencing hearing. We held that
such a petition was not second or successive. We rea-
soned that the petitioner could not have raised the issues
he presented in the second petition in his initial petition
because he challenged the “constitutionality of a pro-
ceeding which obviously occurred after he filed, and
obtained relief, in his first habeas petition.” We noted
that his second petition did not challenge his original
conviction, and we commented: “Of course, had
Walker sought to challenge aspects of his conviction the
district court would have been correct in dismissing his


1
  (...continued)
based on section 2254’s treatment of second or successive
petitions to section 2255. See White v. United States, 371 F.3d 900,
903 (7th Cir. 2004) (“Congress made parallel changes to §§ 2254
and 2255 to ensure that successive litigation would take place
only under the most compelling of circumstances.”); Bennett
v. United States, 119 F.3d 470, 471 (7th Cir. 1997) (noting
statutory language of section 2254 was “made applicable to
section 2255 motions by the eighth paragraph of section 2255
[2255(h)]”); see also Johnson v. United States, 623 F.3d 41, 45 (2d
Cir. 2010). But see Gonzalez v. Crosby, 545 U.S. 524, 529 n.3
(2005) (limiting its analysis of Rule 60(b) to section 2254, not
section 2255, noting the section governing second or succes-
sive applications under section 2255 “is similar to, and refers
to, the statutory subsection applicable to second or successive
§ 2254 petitions, [but] is not identical”). Here, unlike in
Gonzalez, the Court did not expressly limit its reasoning to
section 2254, so we do not either.
8                                                 No. 10-3944

petition as successive.” Id. at 455 & n.1, citing Nunez v.
United States, 96 F.3d 990 (7th Cir. 1996).
   In Dahler v. United States, 259 F.3d 763 (7th Cir. 2001), we
faced exactly that situation. The prisoner successfully
challenged his sentence through a section 2255 motion,
was resentenced, and then attempted to raise another
challenge to an error made in his initial conviction
and sentencing. We explained that the prisoner in Dahler,
unlike in Walker, was challenging not a new error made
at the resentencing but a much earlier error that could
have been challenged in several proceedings before the
second motion — at trial, on direct appeal, or in his first
section 2255 motion. We found that section 2255 distin-
guishes between “challenges to events that are novel to
the resentencing” and “events that predated the resen-
tencing,” and that any challenge to an error preceding the
resentencing “must be treated as a collateral attack on
the original conviction and sentence, rather than as an
initial challenge to the last sentence.” Id. at 765. We looked
to what the motion actually challenged to determine
whether a motion following a resentencing was “second
or successive.” If it alleged that errors occurred during
the resentencing, it was not second or successive, but if
it alleged that errors were made before the resentencing,
then it was.
  In Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788
(2010), the petitioner was convicted of murdering a
sheriff and was sentenced to death in state court. He
successfully challenged his sentence via a section 2254
petition, and the state court held a new full hearing on
No. 10-3944                                               9

his sentence and again sentenced him to death. He filed
another section 2254 petition, arguing for the first time
(in habeas proceedings) that his sentence was uncon-
stitutional because he lacked fair warning that his
murder of a sheriff was an aggravating factor sufficient
to warrant the death penalty and that he received inef-
fective assistance by his counsel at the resentencing. 130
S. Ct. at 2792-96.
  The Supreme Court found that the new petition was not
“second or successive” for purposes of the statutory
limits. The Court reasoned that whether an applica-
tion was second or successive must be considered in
reference to the judgment that was challenged: if there
was a new judgment following the first application, that
judgment created a clean slate. Treating the petitioner’s
resentencing as a new, intervening, judgment, the Court
held that his new petition challenged the intervening
judgment and therefore was not “second or successive.”
Id. at 2797-2801 (“This is Magwood’s first application
challenging that intervening judgment.”). The Court
emphasized, though, that the petition was the first
petition challenging the new judgment and that the
“errors [the petitioner] alleges are new,” noting that “[a]n
error made a second time is still a new error.” Id. at 2801.
  That reasoning could be understood to extend to a
situation like this case, but the Magwood Court took pains
to limit its holding. The State and the dissenting Justices
in Magwood argued that the Court’s holding would
extend to cases like this one, where a post-resentencing
petition challenges not the new sentence but only the
10                                               No. 10-3944

underlying conviction. See id. at 2802, 2808 (Kennedy, J.,
dissenting). The Court demurred:
     The State objects that our reading of § 2244(b)
     would allow a petitioner who obtains a conditional
     writ as to his sentence to file a subsequent application
     challenging not only his resulting, new sentence, but
     also his original, undisturbed conviction. The State
     believes this result follows because a sentence and
     conviction form a single “judgment” for purposes of
     habeas review. This case gives us no occasion to
     address that question, because Magwood has not
     attempted to challenge his underlying conviction. We
     base our conclusion on the text, and that text is not
     altered by consequences the State speculates will
     follow in another case.
Id. at 2802-03 (footnotes omitted).
  Thus, Magwood left open the question whether a
motion following a resentencing is “second or successive”
where it challenges the underlying conviction, not the
resentencing. Suggs’ case is distinct from the situation
in Magwood, where the errors alleged in the second
petition were “new.” 130 S. Ct. at 2801. The petitioner
in Magwood challenged an error made in the initial sen-
tencing and again in the resentencing, leading the Court
to observe that “[a]n error made a second time is still a
new error.” Id. at 2801. The same is not true here. Suggs
does not claim that any errors, new or repeated, occurred
in his resentencing.
  Because the question before us is settled in our circuit
and the Supreme Court considered the question but
No. 10-3944                                                11

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 depart from our precedent where the
Court has not asked us to. Magwood’s application to
these facts is not sufficiently clear for us to abandon
principles of stare decisis based on what the Supreme
Court itself called “speculation” about how the Court
would rule on an issue it expressly chose not to decide.
  We recognize that our reading of Magwood differs
from the approach taken by other circuits. See, e.g., Wentzell
v. Neven, 674 F.3d 1124 (9th Cir. 2012); Johnson v. United
States; 623 F.3d 41 (2d Cir. 2010). Those circuits 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.
  In reaching this conclusion, it is relevant that other
circuits’ broader readings of Magwood have the odd
effect of interpreting AEDPA to relax limits on successive
claims beyond the pre-AEDPA standards. Under the pre-
AEDPA doctrine of abuse of the writ, a prisoner in Suggs’
position could have brought a challenge to his original
conviction only if he could show either cause and preju-
dice or a fundamental miscarriage of justice. In McCleskey
v. Zant, the Court laid out the standards that applied
then for successive petitions: if the government objected
to a prisoner’s petition as an abuse of the writ, the failure
12                                              No. 10-3944

to raise the claim earlier would be excused only if the
petitioner could show either that he had cause for failing
to raise it and suffered prejudice therefrom, or that to
deny the petition would be a fundamental miscarriage
of justice. 499 U.S. 467, 493-95 (1991). Under the Johnson
and Wentzell reading of Magwood, however, any prisoner
who has successfully challenged his sentence can bring
a new collateral challenge to his original conviction
without making any showing of cause, prejudice, or a
fundamental miscarriage of justice. This seems to us an
unlikely result, given that AEDPA’s text imposed new
and tighter limits on successive petitions and that
AEDPA was intended more broadly “to further the princi-
ples of comity, finality, and federalism.” Duncan v.
Walker, 533 U.S. 167, 178 (2001), quoting Williams v. Taylor,
529 U.S. 420, 436 (2000).


                         Conclusion
  Because Suggs’ new motion challenges his underlying
conviction, not his resentencing, the motion is successive
to his first motion. We therefore A FFIRM the district
court’s dismissal for lack of jurisdiction.
No. 10-3944                                                    13

  S YKES, Circuit Judge, dissenting. I respectfully dissent.
The Supreme Court’s decision in Magwood v. Patterson,
561 U.S. ___, 130 S. Ct. 2788 (2010), has displaced
our decision in Dahler v. United States, 259 F.3d 763 (7th
Cir. 2001). Magwood held that a second-in-time habeas
petition under 28 U.S.C. § 2254 is not “second or succes-
sive” under 28 U.S.C. § 2244(b) if it challenges a new
judgment entered after a successful § 2254 petition. 130
S. Ct. at 2796-97. This is so, the Court held, even if the
claim asserted in the attack on the new judgment could
have been raised in the first petition. Id. In Dahler we
held that a habeas petition under 28 U.S.C. § 2255 chal-
lenging a new judgment must be treated as successive
under § 2244(b) if it belatedly raises a claim of error
that could have been made earlier. 259 F.3d at 765. That
holding did not survive Magwood.
  As my colleagues have explained, Magwood involved
an Alabama prisoner on death row who won a new
sentencing hearing on his first round of habeas review
in federal court under § 2254. When the state court reim-
posed the death sentence, he returned to federal court
on a new § 2254 petition. The question was whether
the new petition qualified as a “second or successive”
habeas application under § 2244(b) and was therefore
subject to the strict limitations on successive collateral
attacks imposed by that section.1 The Supreme Court



1
  A “second or successive” collateral attack by a state or federal
prisoner requires authorization from the court of appeals, see
                                                    (continued...)
14                                                  No. 10-3944

focused on the text of §§ 2244(b) and 2254 as amended
by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), and held that the new petition was not
properly classified as second or successive.
  The Court noted first that the limits imposed by
§ 2244(b) apply to “a ‘habeas corpus application under
§ 2254,’ that is, [to] an ‘application for a writ of habeas
corpus on behalf of a person in custody pursuant to the
judgment of a State court.’ ” Magwood, 130 S. Ct. at 2797
(quoting 28 U.S.C. § 2254(b)(1) (emphasis in original)). The
Court also observed that a habeas application “seeks
invalidation (in whole or in part) of the judgment authorizing
the prisoner’s confinement.” Id. (quotation marks omitted)
(emphasis in original). Accordingly, based on the text of
§ 2254(b) and the nature of the relief it provides, the
Court held that the phrase “second or successive” in
§ 2244(b) “must be interpreted with respect to the judg-
ment challenged.” Id.



1
  (...continued)
28 U.S.C. §§ 2244(a)-(b), 2255(h), and must meet the
standards set by § 2244(b). As relevant here, § 2244(b)(2)
provides that “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was not
presented in a prior application shall be dismissed unless” (1) it
“relies on a new rule of constitutional law” made retroactive
on collateral review; or (2) “the factual predicate for the
claim could not have been discovered previously through the
exercise of due diligence” and those facts would establish
that “no reasonable factfinder would have found the applicant
guilty.” 28 U.S.C. § 2244(b)(2)(A), (B) (emphasis added).
No. 10-3944                                                   15

   So far Dahler and Magwood are consistent. In Dahler
we addressed § 2244(b)’s limits on successive collateral
attacks in the context of a habeas application by a federal
prisoner who, like the state prisoner in Magwood, won
a new sentencing hearing on his first round of habeas
review under § 2255.2 After resentencing the prisoner
filed another § 2255 petition attacking the new judgment
but raising a claim of error that he could have made
in the first petition. As in Magwood, the question was
whether the second petition was properly deemed
“second or successive” under § 2244(b). We began by
noting that “[o]ne substantive chance per judgment is the
norm under § 2255 [] and § 2244(b).” Dahler, 259 F.3d at
764. Magwood confirmed this principle, although it did
so in the context of a habeas petition by a state
prisoner under § 2254. Thus, for both state and federal
prisoners, it’s now clear that a collateral attack is
either initial or successive in relation to the judgment
it challenges.
  But Magwood specifically rejected a key aspect of Dahler
that affects how the “one challenge per judgment” rule
applies. In Dahler we distinguished “between challenges
to events that are novel to the resentencing (and will
be treated as initial collateral attacks) and events that



2
  As my colleagues have explained, see Majority Op. p. 6-7 n.1,
although Magwood involved a § 2254 petition by a state prisoner,
the limits imposed by § 2244 apply to § 2255 petitions by federal
prisoners as well, see 28 U.S.C. §§ 2244(a), 2255(h), so the
Supreme Court’s interpretation of § 2244(b) applies here.
16                                                     No. 10-3944

predate[] the resentencing (and will be treated as succes-
sive collateral attacks).” Id. at 765. Thus, under Dahler a
first habeas petition attacking a new judgment will be
deemed “initial” or “successive” based on the nature
and genesis of the claims that it makes. In his § 2255
petition challenging the new judgment, Dahler raised
an Apprendi error 3 that dated to his trial and original
sentencing and could have been raised in his earlier
§ 2255 petition. We held that “a belated challenge to
events that precede a resentencing must be treated as a
collateral attack on the original conviction and
sentence, rather than as an initial challenge to the latest
sentence.” Id. In other words, when a subsequent habeas
petition challenges an aspect of the new judgment that
is simply a carryover from the previously challenged
judgment, the court “look[s] straight through” the “nomi-
nal” new judgment and treats the petition as a succes-
sive collateral attack on the original judgment. Id.
  Magwood specifically rejected the distinction we drew
in Dahler between claims that are novel to the pro-
ceeding that produced the new judgment and claims
that predate it. Instead, the Supreme Court applied the
“one challenge per judgment” principle more formally,
holding that when a prisoner wins a habeas writ and a
new judgment is thereafter entered, his subsequent
habeas application seeks relief from the new judgment and
is categorically not second or successive. Magwood, 130
S. Ct. at 2800. Thus, “where . . . there is a new judgment



3
    See Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 10-3944                                               17

intervening between the two habeas petitions, an ap-
plication challenging the resulting new judgment is
not ‘second or successive’ at all.” Id. at 2802 (internal
quotation marks and citation omitted).
  Importantly here, the State had argued in Magwood
that the prisoner’s new habeas petition should be
deemed successive because he raised a claim of error—
lack of fair warning that his crime made him death
eligible—that he could have raised in his first petition
but did not. The State insisted that “although § 2244(b),
as amended by AEDPA, applies the phrase ‘second or
successive’ to ‘application[s],’ it ‘is a claim-focused stat-
ute.’ ” Id. at 2796 (alteration in original). The Supreme
Court rejected this interpretation, again emphasizing
that a new judgment resets the habeas counter. Id. at 2801
(“This is Magwood’s first application challenging th[e]
intervening judgment.” (emphasis in original)). The
Court relied in part on the fact that the fair-notice
error was necessarily embedded in the proceedings held
on resentencing and therefore could be characterized as
a “new error.” Id. (“An error made a second time is still
a new error.”). But the repetition of the error was not
the justification for the Court’s decision, which rested
instead on the text of §§ 2244(b) and 2254. The Court
explained that the State’s “claim-focused” interpretation
“fail[ed] to distinguish between § 2244(b)’s threshold
inquiry into whether an application is ‘second or succes-
sive[]’ and its subsequent inquiry into whether claims in
a successive application must be dismissed.” Id. at 2799.
  It is true, as my colleagues have noted, that Magwood
declined to address the precise question present here:
18                                                No. 10-3944

whether § 2244 “allow[s] a petitioner who obtains a
conditional writ as to his sentence to file a subsequent
application challenging not only his resulting[], new
sentence, but also his original, undisturbed conviction.” Id.
at 2802. The State had warned that “this result
[would] follow[] because a sentence and conviction form
a single ‘judgment’ for purposes of habeas review.” Id.
In response the Court said it had “no occasion to
address that question[] because Magwood has not at-
tempted to challenge his underlying conviction.” Id.
I understand this to be a reservation of the question, not
a limitation on the Court’s reasoning or its interpretation
of § 2244(b). Indeed, in declining to address the question,
the Court specifically reiterated that its holding was
based on the text of §§ 2244(b) and 2254, and “that text
is not altered by consequences the State speculates will
follow in another case.” Id. at 2802-03.
   And as the Court reads that text, a habeas petition is
deemed initial or successive by reference to the judg-
ment it attacks—not which component of the judgment
it attacks or the nature or genesis of the claims it raises. It
is well understood that “[a] judgment of conviction
includes both the adjudication of guilt and the sentence.”
Deal v. United States, 508 U.S. 129, 132 (1993) (emphasis
added). Nothing in the Court’s opinion suggests that the
second-or-successive inquiry turns on which part of the
judgment is challenged. Instead, the Court’s reasoning
was categorical: “[T]he existence of a new judgment is
dispositive.” Magwood, 130 S. Ct. at 2800. Accordingly,
when a first habeas petition results in a new judgment, a
subsequent habeas petition seeking relief from that judg-
No. 10-3944                                                    19

ment is not second or successive under § 2244(b), and
this is so regardless of whether it challenges the
amended or unamended part of the judgment.
  Other circuits agree. See Wentzell v. Neven, 674 F.3d
1124, 1127 (9th Cir. 2012); Johnson v. United States, 623 F.3d
41, 45-46 (2d Cir. 2010) (“It follows [from Magwood]
that, where a first habeas petition results in an amended
judgment, a subsequent petition is not successive re-
gardless of whether it challenges the conviction, the
sentence, or both.”). In Johnson the Second Circuit
expressly recognized that its circuit precedent, which
interpreted § 2244(b) as we did in Dahler, could not be
reconciled with Magwood. 623 F.3d at 42 (recognizing
the partial abrogation of Galtieri v. United States, 128 F.3d
33 (2d Cir. 1997), in light of Magwood).4



4
  The Fifth Circuit split with the Second Circuit based on a
different view of remedial practice specific to double-jeopardy
claims. See In re Lampton, 667 F.3d 585, 589 (5th Cir. 2012). Both
Lampton and the Second Circuit’s decision in Johnson v. United
States, 623 F.3d 41, 45-46 (2d Cir. 2010), involved defendants
who asserted double-jeopardy claims in their first round of
habeas review under 28 U.S.C. § 2255 and won. In each case
the conviction and sentence on the duplicative count was
vacated, leaving the conviction and sentence on the other count
in place, and the prisoner subsequently filed a new § 2255
petition raising other claims. In Lampton the Fifth Circuit
concluded that under these circumstances “there is no new,
intervening judgment to trigger the operation of Magwood,
and . . . Lampton’s instant petition is ‘second or successive’
                                                    (continued...)
20                                                  No. 10-3944

  Like the Second Circuit, I cannot reconcile our circuit
precedent with Magwood. Unlike my colleagues, I’m
satisfied that Magwood’s interpretation of § 2244(b) is
clear enough to require a departure from circuit
precedent that directly conflicts. See Majority Op. p. 11
(“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.”). I
would hold that Magwood’s interpretation of § 2244(b)
has abrogated Dahler’s claims-based approach to the
second-or-successive habeas inquiry.
  Finally, a word about the concerns my colleagues raise
regarding “comity, finality, and federalism” and “the odd


4
  (...continued)
within the meaning of § 2255(h).” 667 F.3d at 589. In contrast,
in Johnson the Second Circuit viewed the modified judgment
as a new, amended judgment. Applying Magwood, the court
held that the prisoner’s § 2255 challenge to the amended
judgment was not second or successive. See id. at 45-46.
  In another nuance, the Tenth Circuit has held, albeit in an
unpublished order, that Magwood is inapplicable when the
court enters an amended judgment merely to correct a clerical
error rather than as a result of “new proceedings.” In re Martin,
398 F. App’x 326, 327 (10th Cir. 2010) (“In comparison [to
Magwood ], in this case there were no new proceedings resulting
in a new judgment. Rather, the amended judgment merely
corrected a clerical error . . . .” (emphasis added)). This, too,
contrasts with the Second Circuit’s approach to Magwood in
Johnson, which involved an amended judgment to remedy a
double-jeopardy violation but no formal resentencing or
other “new proceeding.”
No. 10-3944                                             21

effect of interpreting AEDPA to relax limits on successive
claims beyond the pre-AEDPA standards.” Majority Op.
pp. 11-12. These concerns are valid, but they were raised
and fully argued in Magwood itself, and indeed occupied
much of the dissent. See Magwood, 130 S. Ct. at 2804-11
(Kennedy, J., dissenting). The Court was not persuaded.
   Alonzo Suggs won a new sentencing hearing on his
first § 2255 petition and after resentencing timely filed a
§ 2255 petition attacking the new judgment and raising
a claim under Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972). Applying
Magwood, the second petition is Suggs’s first collateral
challenge to the new judgment, not a second or successive
collateral challenge to the original judgment. The gov-
ernment concedes that if the present petition is not prop-
erly classified as second or successive under § 2244(b),
then Suggs has presented enough in his petition to
require an evidentiary hearing. I would reverse and
remand for further proceedings.




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