IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20764

ALBERT L HARDEMON, JR

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:06-CV-2015

Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Albert L. Hardemon, Jr., proceeding pro se, appeals the district

court’s dismissal of his petition for habeas corpus under 28 U.S.C. § 2254. The

district court found that Hardemon’s petition was an unauthorized successive

petition. As a matter of first impression, we address whether the prohibition

against successive § 2254 petitions requires a prisoner to challenge all

judgments from a single court in a single habeas petition. We find that

Hardemon was not required to challenge his multiple judgments in a single

petition. Accordingly, we hold that Hardemon’s petition is not successive and

the judgment of the court below is REVERSED and REMANDED. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 30, 2008

Charles R. Fulbruge III

Clerk
No. 06-20764

2

I. BACKGROUND 

Hardemon was charged in separate indictments with sexual assault of

a child (Cause Number 809996) and two counts of aggravated sexual assault

of a child (Cause Numbers 809997 and 809998). The counts were

consolidated for trial, and Hardemon was found guilty on all three counts. 

Hardemon received concurrent sentences of forty years in prison for Cause

Numbers 809997 and 809998 and a consecutive twenty-year sentence for

Cause Number 809996. The state appellate court affirmed the convictions

and the Texas Court of Criminal Appeals (“TCCA”) refused Hardemon’s

petition for discretionary review. Hardeman v. State, 2002 WL 1765283, at

*4 (Tex. App. July 31, 2002) (unpublished). 

Hardemon filed three post-conviction habeas applications in state trial

court–one for each conviction–challenging his attorney’s effectiveness

regarding the petition for discretionary review. The TCCA denied each

application. Hardemon then filed three new applications in state trial court,

each challenging a separate conviction. In Cause Numbers 809997 and

809998, Hardemon argued that: the evidence was factually insufficient to

support his convictions; trial and appellate counsel rendered ineffective

assistance; and the prosecutor improperly questioned a witness and made an

improper closing argument. In Cause Number 809996, Hardemon asserted

that trial counsel rendered ineffective assistance and the trial court erred in

ordering this sentence to run consecutively with the other sentences. The

trial court recommended that relief be denied on various grounds, and the

TCCA denied all relief. 

While his second round of state applications was pending, Hardemon

filed a 28 U.S.C. § 2254 petition in federal district court challenging his

conviction in Cause Number 809996. The district court dismissed the

application without prejudice because the claim was not exhausted. 
No. 06-20764

3

Hardemon v. Dretke, No. 4:04-CV-03510 (S.D. Tex. Sept. 16, 2004)

(unpublished). In 2005, after the claim was exhausted, Hardemon filed a

second § 2254 petition, again challenging his conviction in Cause Number

809996. The district court denied relief on the merits. Hardemon v. Dretke,

No. 4:05-CV-02597 (S.D. Tex. June 5, 2006) (unpublished). 

On or about June 6, 2006, Hardemon filed the instant § 2254 petition

challenging his conviction in Cause Number 809997. He raised the same

claims he presented in his second state application challenging this

conviction. The district court sua sponte dismissed Hardemon’s case as an

unauthorized successive § 2254 petition, concluding that it lacked jurisdiction

because Hardemon had not previously received permission from this Court to

file his petition. The district court reasoned that, under former Rule 2(d) of

the Rules Governing Section 2254 Cases in the United States District Courts

(“the Rules”), Hardemon was required to raise all relevant claims arising

from any of the judgments of a single state court in his previous § 2254

petition.

Hardemon filed a timely notice of appeal. We granted Hardemon a

certificate of appealability on the question of whether his current petition was

successive. Appellee was ordered “to provide this court with information

regarding whether Hardemon’s state court convictions . . . were resolved in a

single judgment, thus rendering Rule 2(d) inapplicable.”

II. STANDARD OF REVIEW

When reviewing the denial of habeas relief, we review the district

court’s findings of fact for clear error. Moody v. Johnson, 139 F.3d 477, 480

(5th Cir. 1998). We review issues of law de novo. Id.

III. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2244, establishes a “gatekeeping mechanism for the
No. 06-20764

1 Section 2244(b) provides in part that:

(b)(1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be dismissed.

(2) 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--

(A)the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or 

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence

as a whole, would be sufficient to establish by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

2 The current rule, codified as Rule 2(e), states only that challenges to judgments from

multiple state courts must be raised in separate petitions. 

4

consideration of second or successive” habeas petitions.1 Felker v. Turpin, 518

U.S. 651, 657 (1996) (internal quotation marks omitted). AEDPA, however,

does not define the term “second or successive” application. We have

previously held that a petition is successive when it: “1) raises a claim

challenging the petitioner’s conviction or sentence that was or could have

been raised in an earlier petition; or 2) otherwise constitutes an abuse of the

writ.” In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). 

Prior to the 2004 amendments to the Rules, Rule 2(d) stated that:

A petition shall be limited to the assertion of a claim for relief

against the judgment or judgments of a single state court . . . . If a

petitioner desires to attack the validity of the judgments of two or

more state courts under which he is in custody . . . he shall do so by

separate petitions.2

Despite Hardemon’s consolidated trial, it is undisputed that his convictions

resulted in separate judgments. Thus, Appellee concedes that former Rule 2(d)

applies to this case.
No. 06-20764

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Appellee argues, however, that Hardemon’s petition is successive

because: (1) it is undisputed that Hardemon could have raised claims relating

to both Cause Numbers 809996 and 809997 in a single petition and (2) it is

undisputed that Hardemon knew the basis of his challenges to both

convictions at the time he filed his previous federal petition. Hardemon

argues that his current petition is not successive because he is challenging a

different judgment of conviction than he did in his previous petition. 

Appellee argues that our decision in Crone v. Cockrell controls this case. 

324 F.3d 833 (5th Cir. 2003). In Crone, we noted that we “look to pre-AEDPA

abuse of the writ principles in determining whether [a] petition is successive.” 

Id. at 837. Under these principles, “a subsequent petition is second or

successive when it raises a claim that was, or could have been, raised in an

earlier petition.” Id. (internal quotation marks and citation omitted); see also

United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000). We held

that Crone’s petition was successive because he “knew of all of the facts

necessary to raise his [second] claim before he filed his initial federal

petition.” Crone, 324 F.3d at 837. This holding aligned with our “strong

policy against piecemealing claims.” Id.

Appellee’s reliance on Crone is misplaced, however, because Crone

involved multiple § 2254 petitions attacking a single judgment. In this case,

we are confronted with habeas petitions attacking separate judgments from

the same court. While Appellee presents a strong policy argument against

piecemealing claims, we must base our decision upon the text of AEDPA and

the Rules. Where Congress has addressed the issue of habeas petitions

regarding multiple judgments from a single court, it has used permissive–not

mandatory–language. For example, the Advisory Committee Notes to the

1976 adoption of Rule 2(d) explain that the rule “permits, but does not

require, an attack in a single petition on judgments based upon separate
No. 06-20764

3 Hardemon’s sentences were imposed on the same day. Given that Congress has not

required a prisoner to attack multiple judgments from a single court in one petition,the timing

of Hardemon’s sentences does not change our analysis. 

6

indictments or on separate counts even though sentences were imposed on

separate days by the same court.”3 We find this language instructive and

agree with the Second Circuit that “to be considered ‘successive,’ a prisoner’s

second petition must, in a broad sense, represent a second attack by federal

habeas petition on the same conviction.” Vasquez v. Parrott, 318 F.3d 387,

390 (2d Cir. 2003); see also Thomas v. Superintendent/Woodbourne Corr.

Facility, 136 F.3d 227, 229 (2d Cir. 1997) (in determining whether a petition

is successive, “the district court should determine whether . . . the instant

petition attacks that same judgment that was attacked in the prior petition.”). 

We hold that under former Rule 2(d), Hardemon was permitted, but not

required, to challenge his separate convictions in a single § 2254 petition. 

Therefore, Hardemon’s petition is not “second or successive” within the

meaning of § 2244.

IV. CONCLUSION

In light of the foregoing, the judgment of the district court is

REVERSED and REMANDED for further proceedings consistent with this

opinion.