United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, Magistrate Judge.
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
On September 17, 1977, petitioner, Mark Burge, was convicted of aggravated kidnapping and aggravated rape under Louisiana law. On October 21, 1977, he was sentenced on each conviction to a term of life imprisonment without benefit of parole, probation, or suspension of sentence, and it was ordered that those sentences be served consecutively. On September 5, 1978, the Louisiana Supreme Court affirmed his convictions, vacated his sentence on the aggravated rape conviction, and remanded the matter for resentencing on that conviction. Petitioner was thereafter "resentenced on remand to fifty-years imprisonment without benefit of parole, probation, or suspension of sentence for the lesser included offense of attempted aggravated rape, to be served consecutively to the life sentence."
In 1984, petitioner filed an application for post-conviction relief with the state district court. That application was denied on April 6, 1984. The Louisiana Supreme Court then denied his related writ application on April 19, 1985.
In 1986, petitioner filed an application with this Court seeking federal habeas corpus relief. On November 30, 1987, that application was granted to the limited extent that the state was ordered to resentence him on the aggravated kidnapping conviction to simple life imprisonment, i.e. without the original sentence's prohibition against the benefit of parole, probation, or suspension of sentence. On March 10, 1989, the United States Fifth Circuit Court of Appeals affirmed that judgment.
In the interim, petitioner filed another application for post-conviction relief with the state district court in 1987. That application was denied on May 19, 1987.
In 1990, petitioner filed another application for post-conviction relief with the state district court. That application was denied on August 22, 1990. The Louisiana Supreme Court then denied his related writ application on September 27, 1991,  and the United States Supreme Court denied his petition for a writ of certiorari on February 24, 1992.
In 1992, petitioner filed a motion to correct an illegal sentence with the state district court. That motion was denied on April 7, 1992. His related writ application was then likewise denied by the Louisiana First Circuit Court of Appeal on August 18, 1992.
In 1998, petitioner filed another application for post-conviction relief with the state district court. That application was denied on August 5, 1998,  as was a motion to reconsider on September 17, 1998. The Louisiana Supreme Court then denied his related writ application on February 5, 1999.
On April 28, 2011, petitioner, through counsel, filed with the state district court a motion to correct an illegal sentence, arguing that his sentence on the aggravated kidnapping conviction was illegal under Graham v. Florida, 560 U.S. 48 (2010). On September 12, 2011, the court granted the motion and resentenced him on that conviction to a consecutive term of five years imprisonment. On December 21, 2012, the Louisiana First Circuit Court of Appeal vacated that judgment and remanded the matter for resentencing. Petitioner then filed an application for rehearing,  which was denied on January 23, 2013. The Louisiana Supreme Court thereafter denied his related writ application on March 8, 2013. On June 24, 2013, the state district court resentenced petitioner to a term of life imprisonment with benefit of parole. After that resentencing, neither petitioner nor the state sought further review from the Louisiana First Circuit Court of Appeal or the Louisiana Supreme Court. On March 13, 2014, petitioner was released on parole.
Prior to his release, petitioner filed the instant federal habeas corpus application in which he argued that the Louisiana First Circuit Court of Appeal's 2012 decision violated his right to both procedural and substantive due process and further imposed a new sentence in violation his rights under the Ex Post Facto Clause. The state filed a response in opposition to the application,  and petitioner filed a reply to the state's response.
Petitioner and a co-defendant, Anthony Wayne Morrow, were charged with and jointly tried for aggravated kidnapping and aggravated rape. On direct appeal, the Louisiana Supreme Court summarized the facts of the case as follows:
[O]n July 28, 1976, defendants placed a sharp object at the throat of a female shopper as she returned to her car. The two then forced the woman into the passenger side of the vehicle and drove her to a deserted area, where she was beaten and raped. Afterwards, the victim was released; she identified the defendants as the culprits.
II. State's Procedural Objections
The state concedes that petitioner's federal application is timely. However, the state raises the following other procedural objections.
The state argues that petitioner's application should be dismissed because it is a "second or successive" application which has been filed without the required authorization from the United States Fifth Circuit Court of Appeals. See 28 U.S.C. § 2244. That argument is misplaced for two reasons.
First, since his initial federal application in 1980s, petitioner has been resentenced, an event which resulted in a new state criminal judgment for the purposes of 28 U.S.C. § 2254. Because his current petition challenges a different judgment than was challenged in his previous federal petition, the current petition does not qualify as a "second or successive" application within the meaning of § 2244. See, e.g., Magwood v. Patterson, 561 U.S. 320, 331 (2010) ("Magwood... reads § 2244(b) to apply only to a second or successive' application challenging the same state-court judgment. According to Magwood, his 1986 resentencing led to a new judgment, and his first application challenging that new judgment cannot be second or successive' such that § 2244(b) would apply. We agree."). Simply put: where, as here, "there is a new judgment intervening between the two habeas petitions, an application challenging the resulting new judgment is not 'second or successive' at all." Id. at 341-42 (citation and quotation marks omitted).
Second, in any event, petitioner's claims in the instant petition allege that his rights were violated by the Louisiana First Circuit Court of Appeal's decision in 2012. Because that decision was issued more than two decades after his first federal application was filed and adjudicated, the instant claims obviously could not have been asserted in the prior application. Therefore, the prior authorization requirements of § 2244 do not apply. See, e.g., In re Tamayo, 552 Fed.App'x 371, 374 (2014) ("Here, Tamayo could not have raised his claim based on the January 2014 IACHR decision in his first federal habeas petition in September 2003. Therefore, it is unnecessary for Tamayo to seek authorization to file a successive habeas petition concerning the IACHR decision and instead he properly filed his habeas petition in the district court under § 2254."); United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000) (if the facts on which a petitioner's underlying claim did not occur until after his first habeas application was filed, his subsequent petition is not subject to the § 2244's restrictions on "second or successive" applications).
The state next argues that petitioner's federal application was premature at the time of filing because he had not yet been resentenced by the state district court on the aggravated kidnapping conviction. However, as noted, petitioner was subsequently resentenced and his state criminal judgment is now final. Accordingly, the state's prematurity argument is moot.
The state also argues that petitioner's claims are unexhausted. The Court disagrees. Petitioner's claims challenge purported defects arising from the Louisiana First Circuit Court of Appeal's 2012 decision, and those claims were presented both to that court in the application for rehearing and to the Louisiana Supreme Court in the related writ application. Considering the nature of the claims, that should suffice. Nevertheless, in any event, a federal court has the authority to deny unexhausted claims on the merits. 28 U.S.C. § 2254(b)(2). Because petitioner's claims are plainly meritless for the reasons explained herein, it is recommended that they be dismissed on that basis even if the United States District Judge finds that they are in fact technically unexhausted.
III. Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be ...