Criminal Law Blog

A § 23-110 Motion Filed After Resentencing Cannot Be Barred As “Second or Successive,” Even If It Challenges the Underlying Conviction

Long v. United States (Long IV) (decided July 20, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Belson. Opinion by Judge Easterly. Vincent A. Jankoski for Mr. Long. Trial Judges: Judith A. Smith & Lynn Leibovitz.

Facts: Mr. Long was convicted of first-degree murder while armed and several lesser offenses in 1998. After a complicated procedural history that spanned 14 years, he filed a second § 23-110 motion for post-conviction relief in 2012 (the 2012 motion). In that motion, filed pro se, Mr. Long challenged his conviction on Fifth Amendment grounds, alleging that he was the victim of a vindictive prosecution and that the government knowingly relied on perjured testimony. Two years later, in April 2014, Judge Smith denied the motion without a hearing.

One month after the denial of his 2012 post-conviction motion, Judge Leibovitz held a new sentencing hearing for Mr. Long, pursuant to the DCCA’s decision in Long III (ordering resentencing due to the failure of prior appellate counsel to raise a meritorious Apprendi claim). At the conclusion of the hearing, Judge Leibovitz issued a new judgment and commitment order.

Following his resentencing, Mr. Long filed two more pro se appeals. The first was a direct appeal from his resentencing, arguing that the trial court had failed to apply the law in effect at the time of his offense. As a result, he argued, he was given a sentence of thirty-five years to life for his murder conviction when he should have been resentenced to life with eligibility for parole after 30 years.

Mr. Long also appealed the denial of his 2012 motion for post-conviction relief. The government argued that Mr. Long’s 2012 motion was procedurally barred as a “second or successive” motion for post-conviction relief. In response, Mr. Long’s counsel filed a third §23-110 motion for Mr. Long (the 2016 motion). In that motion, he renewed the claims made in Mr. Long’s 2012 motion. He then argued that under the Supreme Court’s decision in Magwood v. Patterson, Mr. Long’s claims were not procedurally barred because they were collateral challenges to a new judgment: the judgment Mr. Long received when he was resentenced by Judge Leibovitz. The 2016 motion was denied by Judge Leibovitz without a hearing, who ruled that a “resentenc[ing] does not convert a motion that presented a successive claim regarding his trial into a fresh claim.” Mr. Long appealed that denial as well, and all three appeals were considered together by the DCCA.

Issue 1: Was Mr. Long’s 2016 motion for post-conviction relief procedurally barred as “second or successive” pursuant to D.C. Code § 23-110 (e)?

Holding 1: No. Even though it was the third § 23-110 motion he had filed since his conviction, it was the first post-conviction motion he had filed after receiving a new judgment at his resentencing.

The DCCA first noted the similarities between the D.C. and federal habeas statutes. It then looked to the Supreme Court’s decision in Magwood, which addressed “second or successive” petitions in the federal habeas context. The Magwood court held that the “second or successive” bar is judgment based, not claim-based. In practical terms, explained the DCCA, this means that if 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’” because it is the first habeas petition to challenge the new judgment. Importantly, “[t]he fact that the judgment incorporated an earlier error that could have been challenged in the habeas petition filed before [a petitioner] was resentenced [is] immaterial: ‘An error made a second time is still a new error.’”

Because the petitioner in Magwood was challenging his new judgment, the Supreme Court did not decide whether the “second or successive” bar would apply to Mr. Long’s situation: where a petitioner challenges his original conviction after he is resentenced and receives a new judgment. However, six of the eight Federal Courts of Appeals to consider the question have applied the rationale of Magwood and held that a habeas petition filed after a new judgment cannot be barred as “second or successive,” regardless of whether the petitioner is challenging the new sentence or his original conviction. The DCCA adopted this majority rule and held 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.”

Issue 2: Did the trial court fail to apply the law in effect at the time of Mr. Long’s original conviction when he was resentenced?

Holding 2: Yes. The Court held that under the plain language of the statute in effect at the time of his conviction, the trial court could only resentence him to a life sentence. The law at the time also dictated that Mr. Long would become eligible for parole after thirty years.


Read the full opinion here.