United States Court of Appeals

for the Fifth Circuit

No. 19-60884

In re: Gregory Greenwood, 

Petitioner.

Appeal from the United States District Court

for the Southern District of Mississippi 

USDC No. 3:19-CV-598

Before Dennis, Elrod, and Duncan, Circuit Judges.

Per Curiam:*

In 1998, Gregory Greenwood, Mississippi prisoner # 63128, was 

convicted of murder and sentenced to life imprisonment. See Greenwood v. 

State, 747 So. 2d 273, 274–75 (Miss. Ct. App. 1999). In 2002, Greenwood 

filed a previous 28 U.S.C. § 2254 petition, which the district court dismissed 

as untimely, and this court denied a certificate of appealability. 

Greenwood, 16 years old at the time of the murder, was originally 

sentenced to life without the possibility of parole. Following the decisions in 

Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 

U.S. 190 (2016), Greenwood challenged his sentence in state court. The

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 18, 2022

Lyle W. Cayce

Clerk

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No. 19-60884

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State agreed that Greenwood should be resentenced to life with the 

possibility of parole. In February 2019, the state court entered an “Agreed 

Order & Judgment” to that effect, vacating Greenwood’s original sentence 

and resentencing him to life with eligibility for parole. 

In August 2019, Greenwood again filed a § 2254 petition in the district 

court. The district court concluded that Greenwood’s petition was an 

unauthorized successive petition and transferred it to this court. 

I.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 

a prisoner must obtain authorization from a federal court of appeals prior to 

filing a “second or successive” habeas petition in federal district court. 28 

U.S.C. § 2244(b)(3)(A). The phrase “second or successive” is a term of art

that does not apply to all petitions subsequent to an initial petition. Magwood 

v. Patterson, 561 U.S. 320, 331–32 (2010). Instead, the phrase “only applies 

to a later-in-time petition that challenges the same state-court judgment as an 

earlier-in-time petition.” In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012). 

Accordingly, the first petition to challenge a new judgment intervening 

between two habeas petitions is “not ‘second or successive’ at all.” 

Magwood, 561 U.S. at 341–42. “[T]he existence of a new judgment is 

dispositive.” Id. at 338. Greenwood argues that the state court’s “Agreed 

Order & Judgment” constitutes a “new judgment” under Magwood, and that 

therefore his current habeas petition is not “second or successive.” We 

agree. 

“Whether a new judgment has intervened between two habeas 

petitions, such that the second petition can be filed without this Court’s 

permission, depends on whether a new sentence has been imposed.” 

Lampton, 667 F.3d at 588 (citing Burton v. Stewart, 549 U.S. 147, 156 (2007) 

(“Final judgment in a criminal case means sentence. The sentence is the 

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judgment.”)). Greenwood’s § 2254 petition filed in 2002 challenged his 

conviction and life-without-parole sentence imposed in 1998. His current 

petition challenges the life-with-parole sentence imposed by the 2019 state 

court order. By its plain language, the effect of the order is clear. First, the 

order explicitly vacates Greenwood’s prior sentence; it does not purport to 

merely modify an existing sentence. Cf. United States v. Jones, 796 F.3d 483, 

485–86 (5th Cir. 2015) (holding that a sentence modification pursuant to 18 

U.S.C. § 3582(c)(2) did not constitute a new sentence under Magwood). 

Second, the order imposes an entirely new sentence upon Greenwood; it 

does not reinstate a previous sentence. Cf. In re Hensley, 836 F.3d 504, 506–

07 (5th Cir. 2016) (per curiam) (holding that a reinstated prior sentence did 

not constitute a new sentence and was therefore not a new judgment under 

Magwood). Third, the order does not leave the sentence for any count of 

conviction undisturbed; it imposes a new sentence for Greenwood’s sole 

charge of conviction. Cf. Lampton, 667 F.3d at 589 (finding no new judgment 

where an order vacated the sentence and conviction of only one count in a 

multi-count conviction, leaving the sentences of the remaining counts 

undisturbed).

The dissenting opinion reads Magwood and Lampton to say that a “new 

judgment” may arise only from “a successful federal habeas petition.” Post

at 8. This misunderstands both cases. Magwood turned on the meaning of 

the words “second or successive” vis-à-vis the petitioner’s judgment: a new 

judgment breaks the “second or successive” chain such that a petition 

challenging a new judgment is not “‘second or successive’ at all.” Magwood, 

561 U.S. at 341–42. This is irrespective of how the new judgment comes 

about. The Court’s occasional references to a new judgment’s resulting from 

a prior habeas petition—references which primarily occur in the majority’s 

responses to counterarguments—are only accidents of the facts of that case 

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and the reality that “second or successive” questions only arise when prior 

federal habeas petitions have been filed.

The dissenting opinion similarly misunderstands Lampton by 

emphasizing the wrong half of its statement that Magwood’s rule “applies 

only when a new sentence was imposed as a result of the first habeas 

proceeding.” Lampton, 667 F.3d at 589. The context of this quotation 

clarifies it. Lampton was sentenced to two life sentences for two separate 

convictions. Id. at 587. Lampton’s first habeas petition yielded the vacatur 

of one of those convictions, but the district court left the other intact. Id. 

Lampton attempted to file a second habeas petition challenging this latter 

conviction, but this court rightly concluded that because the “sentence on 

the [conviction] remained intact after the initial § 2255 proceeding was 

completed,” the second petition challenged the same judgment of conviction 

as the first. Id. at 589. Thus, the court emphasized that “the rule announced 

in Magwood applies only when a new sentence was imposed as a result of the first 

habeas proceeding.” Id. (emphasis added).

Even if the context were not clear, Lampton explains that Magwood 

encompasses new judgments generated by other types of post-conviction 

relief. As an example of a “new judgment,” Lampton favorably discusses a 

case from this circuit, In re Barnes, in which this court held that a petitioner’s 

second habeas petition was not “second or successive” after the petitioner 

successfully moved in state court for post-conviction relief. Id. at 588 (quoting 

In re Barnes, No. 11-30319, slip op. at 2–3 (5th Cir. June 23, 2011)). Following 

Magwood, Lampton, and Barnes, then, it does not matter how Greenwood’s 

new judgment was obtained.

For the foregoing reasons, we hold that the new sentence imposed by 

the 2019 “Agreed Order & Judgment” constitutes a new judgment under 

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Magwood. See Lampton, 667 F.3d at 588.1 Because Greenwood’s instant 

§ 2254 petition is his first challenging the new judgment, it is “not ‘second 

or successive’ at all.” Magwood, 561 U.S. at 341–42. Therefore, Greenwood

does not require this court’s authorization to proceed. Id. 

II.

The State argues that, notwithstanding the intervening judgment, 

Greenwood’s petition is successive because the petition challenges the 

original conviction rather than the new sentence.2 We rejected a nearly 

identical argument in Scott v. Hubert, 635 F.3d 659, 665–66 (5th Cir. 2011). 

In Scott, the State similarly proposed a component-based interpretation of the 

term “judgment” within the context of AEDPA finality, arguing that the 

1 This is indeed a new sentence. The dissenting opinion would apparently concede 

that Greenwood would have a new sentence if only his parole eligibility were written into 

the statute of conviction. Post at 9–12. But it makes little difference whether the 

unavailability of parole is written into the statute of conviction or merely cross-referenced 

in a parole statute. Compare Miller v. Alabama, 567 U.S. 460, 466 (2012)(quoting Ark. Code 

Ann. § 5-4-104(b) (1997) as follows: “A defendant convicted of capital murder or treason 

shall be sentenced to death or life imprisonment without parole.”), with Lester Parker v. 

State, 119 So. 3d 987, 996 (Miss. 2013) (quoting the then-in-effect parole statute as follows: 

“[N]o person shall be eligible for parole who is convicted except that an offender convicted 

of only nonviolent crimes [may be eligible] . . . ‘nonviolent crimes’ means a felony other 

than homicide . . . .”). Furthermore, constitutional challenges to a petitioner’s sentence—

whether on direct or collateral appeal—encompass challenges to the application and effect 

of state parole statutes. See, e.g., Lester Parker, 119 So. 3d at 997 (analyzing the “statutory 

scheme” of the statute of conviction and the applicable parole statute and holding that the 

inmate was unconstitutionally sentenced to life without parole in violation of Miller).

Moreover, the state court here vacated Greenwood’s “mandatory life-withoutparole sentence” and “re-sentenced [him] to life imprisonment with eligibility for parole.”

(emphasis added). In doing so, it followed the lead of the Supreme Court of Mississippi, 

which instructed that the proper remedy for Miller violations is to vacate the sentence and 

resentence for either “life imprisonment” or “life imprisonment with eligibility for parole 

notwithstanding [the applicable parole statute].” Lester Parker, 119 So. 3d at 999–1000.

2 To the extent that circuits have split over this question, the split pre-exists this 

decision and the answer here is compelled by our precedents.

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term referred to both a “conviction judgment” and a “sentence judgment.” 

Id. We determined that this interpretation ran afoul of the Supreme Court’s 

statement in Burton: “[F]inal judgment in a criminal case means sentence. 

The sentence is the judgment.” Id. (quoting Burton, 549 U.S. at 156). 

Applying Burton, we instead held that “the judgment of conviction does not 

become final within the meaning of [AEDPA] until both the conviction and 

the sentence have become final . . . .” Id. at 666. We treat the conviction and 

sentence as a single unit. 

The State argues that Scott is distinguishable because it concerned the 

term “judgment” within the context of AEDPA finality. We disagree. We 

generally interpret “identical words used in different parts of the same act 

. . . to have the same meaning.” Horton v. Bank One, N.A., 387 F.3d 426, 435 

(5th Cir. 2004) (emphasis omitted). We thus interpret “judgment”

consistently as it relates to both finality and successiveness and therefore

hold that a conviction and sentence form a single judgment for the purpose 

of determining successiveness under AEDPA. E.g., Lampton, 667 F.3d at 588 

(“Whether a new judgment has intervened between two habeas petitions . . .

depends on whether a new sentence has been imposed.” (citing Burton, 549 

U.S. at 156 (“Final judgment in a criminal case means sentence. The 

sentence is the judgment.”))). Accordingly, Greenwood’s petition is not 

“second or successive” because it challenges a new, intervening judgment. 

Magwood, 561 U.S. at 341–42.

III.

For the foregoing reasons, we REVERSE the judgment of the district 

court and REMAND for further proceedings consistent with this opinion. 

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Stuart Kyle Duncan, Circuit Judge, dissenting:

Greenwood has filed two federal habeas petitions, seventeen years 

apart, raising identical challenges to his 1998 murder conviction. Yet the 

majority holds the second petition is not “second or successive” and so 

Greenwood can file it without our permission. Why? Because, between the 

two petitions, Greenwood became eligible for parole under Miller v. Alabama, 

567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). In 

the majority’s view, this means Greenwood has a “new judgment” under 

Magwood v. Patterson, 561 U.S. 320 (2010), which saves his second petition 

from being successive. Ante at 4–5.

I respectfully dissent because Magwood does not apply here.

I.

In Magwood, a prisoner filed a second-in-time habeas petition 

challenging his “sentence, [which was] imposed as part of a resentencing in 

response to a conditional writ from the District Court.” 561 U.S. at 330. The 

Supreme Court held the second petition was not successive. Id. at 331. Why?

Because the “resentencing led to a new judgment” and this was “his first 

application challenging that new judgment.” Ibid. So, where “there is a ‘new 

judgment intervening between the two habeas petitions,’ an application 

challenging the resulting new judgment is not ‘second or successive.’” Id. at

341–42 (quoting Burton v. Stewart, 549 U.S. 147, 156 (2010)). Applying 

Magwood, we have held that “[w]hether a new judgment has intervened 

between two habeas petitions . . . depends on whether a new sentence has 

been imposed.” In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012) (citing 

Burton, 549 U.S. at 156).

Magwood does not apply here for two reasons.

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A.

First, even assuming Greenwood’s parole eligibility means he now has 

a “new sentence,” that state of affairs did not result from his prior federal 

habeas petition. This forecloses applying Magwood under our case law. In 

Lampton, we held “Magwood applies only when a new sentence was imposed 

as a result of the first habeas proceeding.” Id. at 589 (emphasis added); see also

id. at 587–88.

1 But Greenwood’s parole eligibility did not come about this 

way—“as a result of [his] first habeas proceeding.” Id. at 589. To the 

contrary, following Miller and Montgomery, Greenwood moved in state court 

for post-conviction relief. The State had no objection and so the court 

entered an “Agreed Order & Judgment,” which, as explained infra, merely

nullified application of the Mississippi parole-ineligibility statute. Because 

this change in circumstances did not arise from a successful federal habeas 

petition, Greenwood does not have a “new judgment” under Magwood and 

his second petition is therefore successive.

1 Other courts have recognized Lampton’s restriction on Magwood, as well as a 

leading habeas treatise. See Harper v. Sanders, 503 F. App’x 564, 568 (10th Cir. 2012) 

(discussing Lampton and observing “all the cases cited in support of [Magwood’s] holding 

involved habeas applicants whose first petition was granted”); Hermansen v. White, No. 13-

103-HRW, 2014 WL 4182453, at *6 (E.D. Ky. Aug. 21, 2014); Myers v. Cain, No. 10–4496, 

2012 WL 5450046, at *6 (E.D. La. Nov. 7, 2012); Brian R. Means, Federal 

Habeas Manual [Means] §§ 9A:18, 11:47, 27:10 Westlaw (database updated May 

2021).

The majority’s reference to In re Barnes, No. 11-30319, 2011 U.S. App. LEXIS 

26753 (5th Cir. June 23, 2011), an unpublished decision that predates Lampton, is 

unavailing. Ante at 4. Having observed the new sentence in Barnes arose from a state-court 

motion, Lampton clearly intended to limit Magwood’s reach. See Lampton, 667 F.3d at 587–

90. After Lampton, we have never permitted a second petition that resulted from a 

proceeding other than a prior, successful habeas petition. See In re Graves, 678 F. App’x 

217 (5th Cir. 2017) (per curiam); In re Hickman, No. 16-40640 (5th Cir. Aug. 12, 2016) (per 

curiam); In re Sherrick, No. 16-30535 (5th Cir. June 13, 2016) (per curiam).

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B.

Second, Greenwood’s newfound parole eligibility does not equate to 

a “new sentence,” so he cannot have a “new judgment” under Magwood. 

Contrary to the majority’s view, Greenwood was originally sentenced to “life 

imprisonment,” not “life without the possibility of parole.” Ante at 1. Greenwood’s murder conviction, see Miss. Code Ann. § 97-3-19(1), carries a 

mandatory sentence of “imprisonment for life,” id. § 97-3-21(1).2 “Section 

97–3–21 neither mandates, nor makes any provision allowing for, a sentence 

of ‘life without the possibility of parole.’” Lester Parker v. State, 119 So.3d 

987, 996–97 (Miss. 2013).

3 Rather, state parole statutes determine parole eligibility. See Miss. Code Ann. § 47-7-3(f); Lester Parker, 119 So.3d at 997. 

Those statutes “appl[y] only to the internal operating procedures of the Department of Corrections and the prisons and do[] not affect a judge’s sentencing prerogative under the criminal statutes.” Fernando Parker v. State, 30 

So.3d 1222, 1228 (Miss. 2010). Thus, however “[t]he legislative mandates” 

2 See also Greenwood v. State, 747 So.2d 273, 2775 (Miss. Ct. App. 1999) (emphasis 

added) (“Greenwood was sentenced to serve a life term in the custody of the Mississippi 

Department of Corrections.”); Greenwood v. Johnson, No. 3:02-cv-64, slip op. at 1 (S.D. 

Miss. Apr. 1, 2002) (emphasis added) (noting sentence of “life imprisonment in the custody 

of the Mississippi Department of Corrections”); 28 U.S.C. § 2254 Petition at 1, Greenwood, 

No. 3:02-cv-64 (Jan. 22, 2002), ECF No. 1 [hereinafter Petition] (petition: “Length of 

sentence LIFE”); id. at 10 (emphasis added) (supporting brief: “sentenced to a term of life 

imprisonment”); id. at 27 (state-court docket sheet: sentence of “LIFE”); id. at 31 (statecourt sentencing form: “sentenced to serve a term of: LIFE in the custody of . . . the MS 

Department of Corrections”); see also O.A. Rec. at 14:25–15:06, available at 

https://www.ca5.uscourts.gov/OralArgRecordings/19/19-60884_2-4-2021.mp3.

3 See ibid. (explaining Mississippi “courts have not been empowered by the 

Legislature to sentence a [murder] defendant to life without parole”); Fernando Parker v. 

State, 30 So.3d 1222, 1227–28 (Miss. 2010) (reversing sentence of “life imprisonment 

without parole” for murder conviction as “exceed[ing] the statutory maximum” because 

section 97-3-21(1) permits “a sentence of only imprisonment for life”).

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applied to Greenwood’s parole eligibility, Lester Parker, 119 So.3d at 997, no 

court sentenced him to “life without parole.” He was sentenced to life, period.

And that same mandatory life sentence was reimposed on Greenwood 

in the “Agreed Order & Judgment.” To be sure, the order also recognizes 

that Greenwood is now eligible for parole “notwithstanding” the parole statutes. But he still has the same “sentence” under Mississippi law. Because 

Greenwood’s original life sentence was never invalidated and no new sentence was imposed, Magwood is inapposite.4

It is true that the agreed order says the State “VACATED” Greenwood’s original sentence and “RE-SENTENCED” him. But we are not 

bound by those labels.5 Instead, we “consider the impetus and effect of the 

[agreed order].” United States v. Emeary, 773 F.3d 619, 622 (5th Cir. 2014)

(citation omitted). Its impetus and effect were to impose the same life sentence while making Greenwood eligible for parole under the parole statutes. 

And that was merely “a stopgap mechanism to annul application of Section 

47–7–3(1)([f])” because the legislature had not yet amended the statute to 

comport with Miller and Montgomery. Lester Parker, 119 So.3d at 998–99.6 

4 See In re Hensley, 836 F.3d 504, 506–07 (5th Cir. 2016) (per curiam) (finding no 

new sentence where “the court vacated [the prisoner’s] habitual-offender life sentence 

while simultaneously reimposing [his] original sixty-year sentence,” “which ha[d] never 

been invalidated”); see also Lampton, 667 F.3d at 589–90 (finding Magwood inapplicable 

where the court entered a new judgment vacating life sentence on one count but left life 

sentence on second count undisturbed because the prisoner was “still serving the same life 

sentence” and “[n]o new sentence was imposed”).

5 See, e.g., La. Envt’l Action Network v. City of Baton Rouge, 677 F.3d 737, 744 (5th 

Cir. 2012); Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074, 1077 

(5th Cir. 1978); cf. Carpenter v. Shaw, 280 U.S. 363, 367–68 (1930); Bath v. United States, 

480 F.2d 289, 292 (5th Cir. 1973).

6 Indeed, after the agreed order in this case, the Mississippi Supreme Court held 

that “it is error for our trial courts to vacate a juvenile’s original life-without-parole 

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Thus, the agreed order’s effect bears no kinship to the “resentencing” that results in a “new judgment” under Magwood. The state court in 

Magwood “conducted a full resentencing” and a “complete and new assessment of all of the evidence, arguments of counsel, and law.” 561 U.S. at 326, 

339. That did not happen here. The State merely “conferred” with Greenwood, “ha[d] no objection” to his requested relief, and, along with his counsel, signed the agreed order. “This procedure does not in any way resemble 

a full resentencing.” United States v. Jones, 796 F.3d 483, 486 (5th Cir. 

2015).7

That procedure was also entirely consistent with Montgomery itself.

Montgomery recognized states need not “relitigate sentences . . . in every case 

where a juvenile offender received mandatory life without parole” and “may 

remedy a Miller violation by permitting juvenile homicide offenders to be 

considered for parole, rather than by resentencing them.” 577 U.S. at 212 

(citation omitted). That is precisely what the agreed order did here, and it 

means Greenwood does not now have a “new judgment” under Magwood.

sentence (or life sentence) before conducting a Miller hearing. Neither Miller nor 

Montgomery mandate this.” Wharton v. State, 298 So.3d 921, 928 (Miss. 2019).

7 See also Hensley, 836 F.3d at 506–07 (finding no new sentence where “the 

reinstatement of [the prisoner’s] original sentence . . . did not result in anything that 

‘resemble[d] a full resentencing’” (quoting Jones, 796 F.3d at 486)); United States v. Garza, 

624 F. App’x 208, 212 (5th Cir. 2015) (per curiam) (finding “ministerial task” of reentering 

judgment after permitting an out-of-time appeal “did not constitute a resentencing or new 

sentence”); Jones, 796 F.3d at 484, 486 (finding sentence “modification” under 18 U.S.C. 

§ 3582(c)(2) pursuant to an “Agreed Motion for Reduction of Sentence” was not a new 

sentence because, inter alia, the district court left “undisturbed the findings and 

calculations that formed the recommended sentencing range”); In re Parker, 575 F. App’x 

415, 419 (5th Cir. 2014) (per curiam) (holding amended judgment to “correct[]” and 

shorten terms of supervised release did not trigger Magwood because, inter alia, “[t]here 

was no need for the district court to make any reassessment of the sentencing evidence or 

law” and “[t]he amended judgment [wa]s not the result of a new proceeding or 

resentencing”).

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In short, the majority errs by finding Greenwood has a “new sentence 

and a new judgment” under Magwood. I would instead conclude that 

Greenwood’s latest section 2254 petition, which challenges his conviction on 

the same grounds as his first petition, is successive. See 28 U.S.C. § 2244(b).

II.

Because Magwood does not apply, we need not decide whether it 

permits Greenwood to challenge his original conviction. Magwood expressly 

avoided deciding that question. See 561 U.S. at 342 (declining to decide 

whether its “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”). Yet the majority, silently taking sides in a developing circuit 

split, decides Greenwood may do so.8

This is likely an unwarranted extension of Magwood. Unlike the 

second petition in Magwood, Greenwood’s second petition raises the same 

claim as his first and is therefore an abuse of the writ.9 Magwood itself stressed

8 See Means § 9A:18 (“Lower courts have split over this unanswered question.”). 

Compare In re Gray, 850 F.3d 139, 144 (4th Cir. 2017), and King v. Morgan, 807 F.3d 154, 

156 (6th Cir. 2015), and Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th 

Cir. 2014), and In re Brown, 594 F. App’x 726, 729 (3d Cir. 2014) (per curiam), and Wentzell 

v. Neven, 674 F.3d 1124, 1127–28 (9th Cir. 2012), and Johnson v. United States, 623 F.3d 41, 

46 (2d Cir. 2010) (holding “where a first habeas petition results in an amended judgment, 

a subsequent petition is not successive regardless of whether it challenges the conviction, 

the sentence, or both”), with Burks v. Raemisch, 680 F. App’x 686, 691 (10th Cir. 2017), 

and Suggs v. United States, 705 F.3d 279, 280 (7th Cir. 2013) (holding “a second-in-time 

motion filed under 28 U.S.C. § 2255 is barred as ‘second or successive’ when a prisoner 

has been resentenced pursuant to a successful first section 2255 motion, and the new 

motion challenges only the underlying conviction, not the resentencing”).

9 See Beras v. Johnson, 978 F.3d 246, 252 (5th Cir. 2020); 2 Randy Hertz & 

James S. Liebman, Federal Habeas Corpus Practice and Procedure

§§ 28.1, 28.2[b], 28.4, LexisNexis (database updated Dec. 2020).

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that the errors the prisoner alleged in his second petition were “new.” 561

U.S. at 339. And seven justices agreed that the term “second or successive” 

incorporates the pre-AEDPA abuse-of-the-writ doctrine. United States v. 

Buenrostro, 638 F.3d 720, 724 (9th Cir. 2011) (per curiam) (citations 

omitted).10 So, I doubt Magwood saves Greenwood’s abusive petition from 

being successive. See Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 

1285 (11th Cir. 2014) (Fay, J., concurring).

Instead of grappling with this problem, the majority cites Scott v. 

Hubert, 635 F.3d 659 (5th Cir. 2011), for the proposition that a “sentence” 

and “judgment” cannot be analytically separate under AEDPA. Ante at 5–6. 

I am not persuaded. Scott concerned finality; there is no reason to apply it to 

this different area of AEDPA. The majority invokes the presumption of 

consistent usage, ante at 6, but that presumption “readily yields to context, 

and a statutory term may mean different things in different places.” King v. 

Burwell, 576 U.S. 473, 493 n.3 (2015) (internal quotation marks and citation 

omitted).11 Context rebuts any presumption here. In assessing “what 

qualifies as second or successive,” the Supreme Court “look[s] for 

10 Compare Magwood, 561 U.S. at 337–38 (Part IV.B, plurality opinion) (arguing the 

dissent “errs by interpreting the phrase ‘second or successive’ by reference to our 

longstanding doctrine governing abuse of the writ”), with id. at 343 (Breyer, J., concurring) 

(explaining Magwood’s “new judgment” holding is consistent with abuse-of-the-writ 

doctrine), and id. at 344–45 (Kennedy, J., dissenting) (arguing “a second-in-time 

application that seeks to raise the same claim [raised in a prior application] is barred as 

‘second or successive’ . . . consistent with pre-AEDPA cases applying the abuse-of-thewrit doctrine”).

11 Besides, section 2244(b) does not even contain the word “judgment.” Rather, 

“judgment” in section 2254(b)(1) informs the meaning of “second or successive” and 

“application” in section 2244(b). See Magwood, 561 U.S. at 332 (“The limitations imposed 

by § 2244(b) apply only to a ‘habeas corpus application under section 2254,’ that is, an 

‘application for a writ of habeas corpus on behalf of a person in custody pursuant to the 

judgment of a State court.’” (quoting 28 U.S.C. § 2254(b)(1))).

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guidance” in abuse-of-the-writ doctrine. Banister v. Davis, 140 S. Ct. 1698, 

1705–06 (2020). A later-in-time petition is successive if it “would have 

constituted an abuse of the writ, as that concept is explained in [the Court’s] 

pre-AEDPA cases.” Ibid. (cleaned up). “Congress passed AEDPA against 

th[e] [abuse-of-the-writ] legal backdrop, and did nothing to change it.” Id. at 

1707 (rejecting the notion that AEDPA “redefine[d] what qualifies as a 

successive petition”).

In sum, the majority’s extension of Magwood has “the odd effect of 

interpreting AEDPA to relax limits on successive claims beyond the preAEDPA [abuse-of-the-writ] standards.” Suggs v. United States, 705 F.3d 279, 

285 (7th Cir. 2013). But it is unlikely “Congress, in enacting a statute aimed 

at placing new restrictions on successive petitions, would have intended this 

irrational result.” Magwood, 561 U.S. at 356 (Kennedy, J., dissenting).

I respectfully dissent.

Case: 19-60884 Document: 00516208994 Page: 14 Date Filed: 02/18/2022