United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2012 Decided February 8, 2013

No. 11-7018

ERIC SHEPTOCK AND COMMITTEE TO SAVE FRANKLIN 

SHELTER, ON BEHALF OF ITS MEMBERS,

APPELLANTS

v.

ADRIAN FENTY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00672)

George E. Rickman argued the cause and filed the briefs 

for appellants. 

Stacy L. Anderson, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellees. With her on the brief were Irvin B. 

Nathan, Attorney General, Todd S. Kim, Solicitor General, 

and Donna M. Murasky, Deputy Solicitor General.

Before: ROGERS and TATEL, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: This case stems from the closure 

of the Franklin Shelter, an overnight facility for homeless men 

in downtown Washington, D.C. In two prior suits filed in the

Superior Court for the District of Columbia, former shelter 

residents alleged that the closure violated D.C. law and the 

Fifth Amendment to the United States Constitution. In a third 

case, filed in federal court and on appeal here, plaintiffs allege 

that the closure also violated federal and D.C.

antidiscrimination statutes. Because plaintiffs could have 

raised these latter claims in the Superior Court cases, we 

affirm the district court’s dismissal on res judicata grounds.

I.

At the time the Franklin Shelter was operating, 

approximately 2,200 single adults were chronically homeless 

in the District of Columbia. See Second Am. Fed. Compl. 

¶ 20; see also Nader v. Democratic National Committee, 567 

F.3d 692, 694 (D.C. Cir. 2009) (“Because the district court 

granted defendants’ motion to dismiss, [plaintiffs’] allegations 

must be taken as true.” (internal quotation marks omitted)).

Because the Franklin Shelter served as an emergency facility, 

residents were permitted to stay there only between 4 P.M. 

and 7 A.M. Although required to leave during the day, 

residents could keep their personal belongings in small 

lockers. Mirroring the District’s homeless population, 

Franklin Shelter residents were disproportionately African 

American. See Second Am. Fed. Compl. ¶¶ 20, 28. Many

suffered from psychological disorders and substance abuse

problems. See id. ¶¶ 24, 28.

In mid-2008, Mayor Adrian Fenty and the D.C. City 

Council began making plans to close the Franklin Shelter. On 

September 16, the City Council passed the Franklin Shelter 
3

Closing Requirements Emergency Act of 2008, which 

required the mayor to make certain detailed certifications 

before closing the facility. See D.C. Act 17-518. Before 

signing the Emergency Act, however, the Mayor closed the 

shelter and made none of the required certifications. See

Second Am. Fed. Compl. ¶¶ 14–16.

Evicted residents were informed that their personal 

belongings had been moved to a homeless shelter in 

Anacostia and that they could receive transportation there if 

they wished. They were also encouraged to relocate to 

shelters outside Northwest Washington—the city’s rapidly 

gentrifying commercial and residential area. See id. ¶¶ 14, 28, 

33–37. And to “mitigate any loss of shelter space,” id. ¶ 38, 

the District created the Permanent Supportive Housing 

Program to provide long-term housing and services to the

chronically homeless.

The Franklin Shelter closing sparked a flurry of litigation. 

Specifically, former Franklin Shelter residents—including 

named plaintiff Eric Sheptock—and the Committee to Save 

Franklin Shelter brought three separate suits, two in D.C. 

Superior Court and one in the United States District Court for 

the District of Columbia. Because the outcome of this case 

turns on the application of res judicata, we describe each of 

these suits in detail.

The first case, Sheptock I, was filed in D.C. Superior 

Court on September 26, 2008, the day the Franklin Shelter 

closed. Plaintiffs brought two D.C. law claims, as well as a 

Fifth Amendment procedural due process claim premised on 

the District’s failure to provide advance notice and an 

opportunity to be heard before closing the shelter. Shortly 

after initiating the case, plaintiffs filed a notice of dismissal, 

which terminated the suit.
4

While Sheptock I was pending, plaintiffs filed a second 

suit, Sheptock II, in D.C. Superior Court. The Sheptock II 

plaintiffs raised eight claims: a Fifth Amendment procedural 

due process claim; a Takings Clause challenge to the 

appropriation of the former residents’ personal belongings; 

intentional infliction of emotional distress; conversion; 

negligence; and violations of the Emergency Act, the Frigid 

Temperature Protection Amendment Act of 1988, D.C. Code 

§ 4-753.01, and the Homeless Services Reform Act of 2005, 

D.C. Code § 4-754.22. Plaintiffs twice amended their 

complaint to add new facts and allegations concerning the 

fallout from the Franklin Shelter closure.

Significantly for our purposes, on March 9, 2009, the 

Sheptock II plaintiffs filed a motion entitled “Motion to Stay 

Proceedings Pending Discovery and Pending Submission of 

Federal Claims in the United States District Court for the 

District of Columbia or in the Alternative Motion to Amend 

Complaint for Preliminary and Permanent Injunctions.” In 

this motion, plaintiffs notified the Superior Court that they 

would be bringing claims in federal court under the 

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101

et seq., the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et 

seq., and the D.C. Human Rights Act, D.C. Code §§ 2-

1401.01 et seq. According to plaintiffs, further investigation 

had uncovered evidence concerning the Franklin Shelter’s 

racial demographics and the widespread presence of 

disabilities in the homeless community. Based on these facts, 

plaintiffs alleged race and disability discrimination under 

theories of disparate treatment and disparate impact. Plaintiffs

“move[d] [the Superior Court] to stay proceedings on 

defendant’s motion for dismissal or summary judgment . . . 

pending plaintiffs’ submission of federal [antidiscrimination] 

claims” in federal court. The motion included a seventeenpage discussion of the merits of plaintiffs’ antidiscrimination 
5

claims. Acknowledging that the Superior Court had 

jurisdiction to hear their federal antidiscrimination claims,

plaintiffs nonetheless asserted that “[w]hile the splitting of 

claims is disfavored, the federal claims raised here are ones of 

a special nature and are claims of first impression, and 

warrant federal jurisdiction.” In the alternative, plaintiffs 

moved to amend their complaint, attaching a third amended 

complaint that included the ADA, FHA, and D.C. Human 

Rights Act claims. Plaintiffs subsequently withdrew that 

request, reserving the right to re-file an amended complaint.

On May 11, 2009, the Superior Court granted the 

District’s motion for summary judgment and denied all other 

pending motions, including plaintiffs’ motion to stay. A year 

and a half later, the D.C. Court of Appeals affirmed. See 

Baltimore v. District of Columbia, 10 A.3d 1141 (D.C. 2011). 

In a footnote, the Court of Appeals held that the Superior 

Court had not abused its discretion in denying the motion to 

stay and that the antidiscrimination claims “could have been 

filed in the instant action and [plaintiffs] offer no persuasive 

reason why they were not.” Id. at 1156 n.23.

While Sheptock II was pending in the D.C. Superior 

Court, plaintiffs initiated their third suit, Sheptock III, by 

filing a complaint in the United States District Court alleging 

violations of the ADA, FHA, and D.C. Human Rights Act.

The Sheptock III plaintiffs also alleged procedural and 

substantive due process violations. Unlike in Sheptock II, 

plaintiffs brought no claims under the Takings Clause, the 

Emergency Act, or D.C. tort law. The Sheptock III plaintiffs 

named as defendants then-Mayor Fenty and three other 

officials, each in their individual and official capacities.

In early July 2009, the district court, responding to a

motion to dismiss based on res judicata, stayed Sheptock III
6

“pending a decision by the District of Columbia Court of 

Appeals in a matter arising out of the same event that is the 

subject of this litigation.” At the same time, the district court 

permitted plaintiffs to file a second amended complaint that 

added antidiscrimination counts challenging the District’s 

Permanent Supportive Housing Program. As set forth in that

complaint, plaintiffs’ claims can be divided into three 

categories: Counts I through X allege that the Franklin Shelter

closure violated the ADA, FHA, and D.C. Human Rights Act; 

Counts XI and XII allege that the closure violated plaintiffs’ 

procedural and substantive due process rights; and Counts 

XIII through XVIII allege that the Permanent Supportive

Housing Program violates the ADA, FHA, and D.C. Human 

Rights Act. After the D.C. Court of Appeals issued its 

decision in Sheptock II, the district court dismissed Sheptock 

III on res judicata and collateral estoppel grounds.

The Sheptock III plaintiffs raise two arguments on appeal.

First, they contend that the motion to stay filed in Sheptock II

insulates their claims from res judicata. Second, insisting that 

their challenges to the closure of the Franklin Shelter and to 

the District’s Permanent Supportive Housing Program are 

factually distinct, plaintiffs contend that Counts XIII through 

XVIII fall outside Sheptock II’s preclusive effect. “We review 

a dismissal for failure to state a claim under Federal Rule of 

Civil Procedure 12(b)(6) de novo.” Atherton v. D.C. Office of 

the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). Similarly, we 

review the application of res judicata de novo. See Ibrahim v. 

District of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006).

II.

We begin with familiar principles. “The federal courts 

have traditionally adhered to the . . . doctrine[] of res 

judicata.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Under 

that doctrine, also known as claim preclusion, “a final 
7

judgment on the merits . . . precludes relitigation in a 

subsequent proceeding of all issues arising out of the same 

cause of action between the same parties or their privies, 

whether or not the issues were raised in the first trial.” 

Faulkner v. GEICO, 618 A.2d 181, 183 (D.C. 1992) 

(emphasis added). For res judicata purposes, a “ ‘cause of 

action’ is determined by the factual nucleus, not the theory on 

which a plaintiff relies.” Id. (internal quotation marks 

omitted). “If there is a common nucleus of facts, then the 

actions arise out of the same cause of action.” Id. “In 

determining whether the two actions arise out of the same 

cause of action, [courts] consider[] the nature of the two 

actions and the facts sought to be proved in each one.” Id.

(internal quotation marks omitted). Res judicata serves “the 

dual purpose of protecting litigants from the burden of 

relitigating an identical issue with the same party or his privy 

and of promoting judicial economy by preventing needless 

litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 

(1979).

Less familiar in this Circuit is the related doctrine of

abstention. Cf. John G. Roberts, Jr., What Makes the D.C. 

Circuit Different? A Historical View, 92 Va. L. Rev. 375, 

387–88 (2006) (noting the rarity of state law cases in the D.C. 

Circuit and detailing the creation of the District of Columbia’s 

local court system in the 1970s). Under that doctrine, “a 

District Court may decline to exercise or postpone the 

exercise of its jurisdiction.” Allegheny County v. Frank 

Mashuda Co., 360 U.S. 185, 188 (1959). But as with many 

legal concepts, abstention, as this case well illustrates, “is not 

one doctrine but several.” Adrian Energy Associates v. 

Michigan Public Service Commission, 481 F.3d 414, 423 (6th

Cir. 2007).
8

Plaintiffs contend that this case is governed by the 

abstention principles articulated in Railroad Commission of 

Texas v. Pullman Co., 312 U.S. 496 (1941). There, a group of 

African American porters and the Pullman railroad company 

brought a constitutional challenge in federal court against a 

Texas regulation mandating that Pullman sleeping cars always 

have at least one conductor—which at the time meant a white 

conductor. The Supreme Court recognized that this complaint 

“undoubtedly tendered a substantial constitutional issue. . . . It 

touches a sensitive area of social policy upon which the 

federal courts ought not to enter unless no alternative to its 

adjudication is open.” Id. at 498. The Court further explained 

that it would be unnecessary to reach the constitutional 

question if the Texas Railroad Commission lacked authority 

under state law to promulgate the challenged regulation. 

Accordingly, the Court endorsed a “doctrine of abstention” 

whereby a federal court must withhold ruling on a federal 

claim so that plaintiffs may obtain a state court ruling on an

antecedent state law question. Id. at 501. Given preclusion

doctrine, Pullman abstention raises the question—central to

the Sheptock III plaintiffs’ argument—of how parties

compelled to litigate their state law claims in state court can 

protect their right to return to federal court.

The Supreme Court answered this question in England v. 

Louisiana State Board of Medical Examiners, 375 U.S. 411 

(1964), where it fashioned a mechanism—known as an 

England reservation—by which parties forced into state court 

by federal court abstention can reserve their federal claims 

and avoid the preclusive effect of a state court judgment. The 

England plaintiffs wanted to practice in Louisiana without 

satisfying the educational requirements of the Louisiana 

Medical Practice Act. They first brought suit in federal court 

seeking to have the Act invalidated under the Fourteenth 

Amendment. Invoking Pullman abstention, the federal court 
9

entered an order staying proceedings and retaining 

jurisdiction pending resolution of a state law question in a

Louisiana state court. Plaintiffs then brought suit in state court 

and “did not restrict those proceedings to the question 

whether the Medical Practice Act applied to chiropractors. 

They unreservedly submitted for decision, and briefed and 

argued, their contention that the Act, if applicable to 

chiropractors, violated the Fourteenth Amendment.” Id. at 413 

(footnote omitted). After losing both claims in the Louisiana 

courts, they returned to federal court and the issue of res 

judicata came to the fore.

In considering this issue, the Supreme Court expressed a 

“fundamental objection[] to any conclusion that a litigant who 

has properly invoked the jurisdiction of a Federal District 

Court to consider federal constitutional claims can be 

compelled, without his consent and through no fault of his 

own, to accept instead a state court’s determination of those 

claims.” Id. at 415 (footnote omitted). The Court also 

acknowledged that in the “typical” abstention case—“where 

the state courts are asked to construe a state statute against the 

backdrop of a federal constitutional challenge,” id. at 420—

plaintiffs may feel compelled to alert the state court to the 

pending federal challenge to fully argue their case. Indeed, in

Government and Civic Employees Organizing Committee v. 

Windsor, 353 U.S. 364 (1957), the Court had required 

plaintiffs to notify a state court about pending claims in 

federal court. Thus, to avoid res judicata, the England Court 

instructed plaintiffs to put

on the state record the reservation to the disposition 

of the entire case by the state courts . . . . That is, 

[plaintiff] may inform the state courts that he is 

exposing his federal claims there only for the 

purpose of complying with Windsor, and that he 
10

intends, should the state courts hold against him on 

the question of state law, to return to the District 

Court for disposition of his federal contentions.

England, 375 U.S. at 421 (internal quotation marks omitted). 

In other words, if a party asks a state court not to adjudicate 

its federal claims because it intends to return to federal court, 

then it can escape the preclusive effect of a state court 

judgment. Conversely, “if a party freely and without 

reservation submits his federal claims for decision by the state 

courts, litigates them there, and has them decided there, then 

. . . he has elected to forgo his right to return to the District 

Court.” Id. at 419.

Assuming, as plaintiffs insist, that the district court 

stayed the case under Pullman, the parties contest whether a 

litigant must first file suit in federal court to obtain an 

England reservation—a question that has sparked a circuit 

split. Compare United Parcel Service v. California Public 

Utilities Commission, 77 F.3d 1178, 1185 (9th Cir. 1996) 

(“[W]e decline to limit England’s application to cases where 

the litigant files first in federal court and is remitted to state 

court pursuant to Pullman.”), with Fuller Co. v. Ramon I. Gil, 

Inc., 782 F.2d 306, 312 (1st Cir. 1986) (“In order to make an 

England reservation, a litigant must establish its right to have 

its federal claims adjudicated in a federal forum by properly 

invoking the jurisdiction of the federal court in the first 

instance.”). The parties also disagree about whether the 

Supreme Court’s decisions in Williamson County Regional 

Planning Commission v. Hamilton Bank of Johnson City, 473 

U.S. 172 (1985), and San Remo Hotel v. City and County of 

San Francisco, 545 U.S. 323 (2005), required the Sheptock II

plaintiffs to litigate their Takings Clause claim in D.C. 

Superior Court.
11

More fundamentally, the District of Columbia disagrees 

with plaintiffs’ contention that the district court stayed the

case under Pullman abstention principles. According to the 

District, the court stayed the case pursuant to Colorado River 

Water Conservation District v. United States, 424 U.S. 800 

(1976), which allows a district court to abstain “due to the 

presence of a concurrent state proceeding.” Id. at 818.

Premised on “reasons of wise judicial administration,” id.,

Colorado River abstention “does not rest on a mechanical 

checklist, but on a careful balancing of . . . important factors.” 

Moses H. Cone Memorial Hospital v. Mercury Construction 

Corp., 460 U.S. 1, 16 (1983). These considerations include 

which court “first assum[ed] jurisdiction over property” 

involved in the case; “the inconvenience of the federal forum; 

the desirability of avoiding piecemeal litigation; and the order 

in which jurisdiction was obtained by the concurrent forums.” 

Colorado River, 424 U.S. at 818 (internal citations omitted).

As the District sees it, Colorado River governs because 

Sheptock III was stayed pending the appeal in Sheptock II. An 

England reservation, the District further argues, has no place

when a case is stayed pursuant to Colorado River abstention.

Fortunately for us, this is not a federal courts exam, and 

we have no need to pass on all of these arguments. For even

assuming that plaintiffs are correct about Pullman, their 

motion to stay failed to qualify as an adequate England

reservation. In that motion, plaintiffs asked the Superior Court

to “stay proceedings on defendant’s motion for dismissal or 

summary judgment . . . pending plaintiffs’ submission of 

federal [antidiscrimination] claims” in federal court. In plain 

English, plaintiffs asked the Superior Court to stay all

pending claims, both D.C. and federal. This was not an 

England reservation. Under England, a party asks the state 

court to resolve an antecedent state law issue so that it can 

return to federal court and have its federal claims heard. Here, 
12

by contrast, the Sheptock II plaintiffs asked the Superior Court 

to stay all claims and never signaled a desire to proceed in

federal court after the Superior Court ruled on any claim, 

much less an antecedent question of D.C. law.

Reinforcing our view that plaintiffs’ motion to stay fails 

to qualify as an England reservation, the parties’ briefs on that 

motion repeatedly frame the issue as one of removal. See 28 

U.S.C. §§ 1441 & 1446 (removal jurisdiction). In fact, the 

briefs make no reference at all to England. In opposing the 

motion to stay, the District was uncertain as to what plaintiffs 

had actually requested of the Superior Court. “It is not clear,” 

the District wondered, “whether plaintiffs seek some sort of 

bifurcation or removal of claims plaintiffs initiated before this 

Court.” Indeed, the Sheptock II plaintiffs took inconsistent 

and incoherent positions in their reply brief. Although they 

claimed that they were not seeking removal under 28 U.S.C. 

§ 1441, they nonetheless framed their request as a “removal”

of their antidiscrimination claims—claims never formally 

filed in Superior Court. Plaintiffs also disavowed “removal”

of “previously pending claims,” which included claims under 

the Fifth Amendment. On this point, the Sheptock II plaintiffs

appear to have contradicted their own motion, in which they 

sought to stay all claims. Given this confusion, it is difficult to 

ascertain what exactly the Sheptock II plaintiffs were seeking 

in their motion to stay. But what is clear is that plaintiffs

themselves appear not to have believed they were filing an 

England reservation.

III.

Plaintiffs acknowledge that absent a valid England

reservation, Counts I through XII are precluded. See Oral Arg. 

Rec. 6:55–7:40, 16:49–17:05. These counts include the ADA,

FHA, D.C. Human Rights Act, and due process claims tied 

directly to the Franklin Shelter closure.
13

Plaintiffs insist that Counts XIII through XVIII are not 

barred by res judicata because they stem from a nucleus of 

facts distinct from Sheptock II. These counts raise race and 

disability discrimination claims under the ADA and FHA. 

Although it is not entirely clear from their second amended

federal complaint, plaintiffs contend that these counts 

challenge the District of Columbia’s continuing failure to 

provide housing for the homeless in the wake of the Franklin 

Shelter closure. Specifically, they point to the District’s 

failure to adequately implement its Permanent Supportive

Housing Program. To the extent this program has been 

implemented, plaintiffs contend that the District has done so 

in a discriminatory fashion and with the goal of moving the 

homeless population to the “poorest and most violent parts of 

town.” Second Am. Fed. Compl. ¶ 39. According to plaintiffs, 

these “post-judgment events give rise to new claims, so that 

claim preclusion is no bar.” Stanton v. District of Columbia 

Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997); see also

Drake v. FAA, 291 F.3d 59, 67 (D.C. Cir. 2002) (“The [res 

judicata] doctrine does not bar a litigant from doing in the 

present what he had no opportunity to do in the past.”).

To recap, res judicata bars a subsequent suit “involving 

the same parties or their privies based on the same cause of 

action.” Parklane Hosiery Co., 439 U.S. at 326 n.5. To 

ascertain if “two cases implicate the same cause of action” we 

look to whether “they share the same ‘nucleus of facts.’ ” 

Drake, 291 F.3d at 66 (quoting Page v. United States, 729 

F.2d 818, 820 (D.C. Cir. 1984)).

Contrary to plaintiffs’ argument, Counts XIII through 

XVIII flow directly from the closure of the Franklin Shelter, 

the same event that formed the basis of Sheptock II. The 

second amended federal complaint’s factual allegations

repeatedly link the Permanent Supportive Housing Program
14

and the closure of the Franklin Shelter. For example, the 

complaint alleges that the harms associated with the 

Permanent Supportive Housing Program impact “[m]any 

former residents of Franklin Shelter.” Second Am. Fed.

Compl. ¶ 42; see also id. ¶ 38 (“The Permanent Supportive

Housing Program, previously identified by the District as the 

means to mitigate any loss of shelter space because for [sic] 

the closing of Franklin Shelter, fails to keep pace with the 

demand.”). The complaint further asserts that the 

discriminatory provision of services continues because the 

Franklin Shelter remains closed. “Since the closing of 

Franklin Shelter,” the complaint alleges, “defendants’ 

repeated failures directly and proximately denied plaintiffs 

needed services.” Id. ¶ 148; see also id. ¶ 117 (“Defendants 

intentionally denied plaintiffs housing, continued failures [sic] 

to provide adequate shelter space and placement in permanent 

supportive housing, because of plaintiffs’ race.”). Indeed, the

requested relief—the reopening of the Franklin Shelter—

demonstrates that the allegedly discriminatory provision of 

services is inextricably tied to the Franklin Shelter closure. 

See id. ¶ 40 (“Plaintiffs seek temporary and permanent 

injunctive relief compelling the District Government to reopen Franklin Shelter and return the status quo . . . .”).

To be sure, the events alleged in Counts XIII through 

XVIII occurred after the Franklin Shelter was closed. But a

quick glance at the Sheptock II complaint confirms that the 

events now alleged in Sheptock III were known to plaintiffs

during the Sheptock II litigation. For one thing, the second 

amended complaint refers to the Permanent Supportive

Housing Program’s inability to keep up with demand. See, 

e.g., Second Am. D.C. Compl. ¶ 86 (“It is also unclear what 

priorities were used to determine placement in the Permanent 

Supportive Housing Initiative, since the most vulnerable of 

the Franklin Shelter inhabitants are not currently part of the 
15

program, but are now sleeping in the parks and streets near 

Franklin Shelter.”). The complaint also alludes to the 

District’s alleged policy of moving the homeless population 

out of the downtown commercial area. See, e.g., id. ¶ 80

(“Currently designated warming centers are as many as five 

miles away from the downtown area . . . .”); id. ¶ 84 (“Most 

placements are occurring in the poorest and most violent parts 

of town, and with the least services available for the 

vulnerable and the homeless.”). And most significantly, the

complaint acknowledges the disproportionate rates of 

substance abuse and mental illness amongst the city’s 

homeless population—a key premise of the Sheptock III

plaintiffs’ disability discrimination claims. See id. ¶ 94 (“In 

DC, an estimated 71% of the homeless individuals suffer from 

either substance abuse or mental illnesses.”).

Counts XIII through XVIII thus share the same nucleus 

of facts as Sheptock II. True, the Sheptock II plaintiffs 

marshaled these facts in support of constitutional and D.C. 

law claims, rather than antidiscrimination claims. But res 

judicata turns on a suit’s factual context, “not the theory on 

which a plaintiff relies.” Faulkner, 618 A.2d at 183 (internal 

quotation marks omitted). Because these claims “could have 

been raised” in Sheptock II, they are precluded. Allen, 449 

U.S. at 94.

IV.

For the foregoing reasons, we affirm.

So ordered.