OpenJurist

133 F3d 454 Walker v. P Roth

133 F.3d 454

Clarence WALKER, Petitioner,
v.
Thomas P. ROTH, Respondent.

No. 97-9127.

United States Court of Appeals,
Seventh Circuit.

Submitted Dec. 2, 1997.*
Decided Dec. 24, 1997.**

Before BAUER, RIPPLE, Circuit Judges, and BURNS, Senior District Judge.***

PER CURIAM.

1

The district court dismissed Clarence Walker's petition for a writ of habeas corpus, 28 U.S.C. § 2254, on the ground that it was a second or successive petition that could not be filed without prior authorization from this court. See, 28 U.S.C. § 2244. Mr. Walker therefore filed an application for leave to file a second or successive petition for habeas relief in this court. We dismiss the application as unnecessary, and instruct the district court to accept Walker's petition.

2

In 1966, an Illinois jury convicted Walker of rape, armed robbery and attempted murder. The state court imposed an aggregate sentence of 219 to 312 years' imprisonment. In 1988, after exhausting his state court remedies, Walker filed his first petition for a writ of habeas corpus. The district court granted Walker's petition after finding that the state had violated Walker's due process rights at sentencing. We affirmed. United States ex rel. Walker v. O'Leary, 973 F.2d 521 (7th Cir.1992). In November 1992, Walker was resentenced.

3

In November 1996, Walker filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, challenging various aspects of the resentencing hearing. The district court summarily dismissed the petition. Relying on Nunez v. United States, 96 F.3d 990 (7th Cir.1996), the district court reasoned that this filing was Walker's second habeas petition, and concluded that it was without jurisdiction to hear the case absent authorization from this court. See 28 U.S.C. § 2244(b)(3)(A).

4

Walker then filed the application at issue here. He argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of § 2244; rather, he argues, it is his first collateral attack on the second sentencing proceeding. He contends, therefore, that the prior-approval mechanism of § 2244 is inapplicable. We agree.

5

The claims Walker seeks to bring in his new petition challenge aspects of his resentencing; he does not present any claims challenging his conviction.1 None of these new claims were raised in his first petition, nor could they have been; Walker is attempting to challenge the constitutionality of a proceeding which obviously occurred after he filed, and obtained relief, in his first habeas petition. Therefore, although Walker had filed an earlier habeas petition in 1988, the petition that he now wishes to file cannot be considered a second or successive petition to the earlier one for purposes of § 2244 because it constitutes Walker's first federal challenge to the proceedings that resulted in his current state custody. We hold that a second habeas petition attacking for the first time the constitutionality of a newly imposed sentence is not a second or successive petition within the meaning of § 2244.

6

Because the petition Walker seeks to file is his first collateral attack on the resentencing proceedings, authorization from this court is unnecessary. Therefore, the application for authorization is DISMISSED. We instruct the district court to accept filing of Walker's petition for a writ of habeas corpus nunc pro tunc to the date he originally filed the petition. See Batanic v. Immigration and Naturalization Serv., 12 F.3d 662, 667-68 (7th Cir.1993). We express no opinion on the procedural or substantive issues presented by this case.

7

APPLICATION PETITION DISMISSED; CASE REMANDED.

*

This application for leave to file a second or successive collateral attack has been submitted to the panel that decided the appeal in his first collateral attack. See Operating Procedure 6(b)

**

This opinion was released in typescript

**

* The Honorable James M. Burns, Senior Judge of the United States District Court for the District of Oregon, is sitting by designation

1

Of course, had Walker sought to challenge aspects of his conviction the district court would have been correct in dismissing his petition as successive. Nunez, 96 F.3d at 991