_________________

_________________ 1 (Slip Opini o n) Cite as: 54 9 U

. S. ____ (2007)
Per Curiam

NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
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## SUPREME CO URT O FTHE UNI TED STATES

No. 05–9 22 2
LON N IE L EE B U RT ON, PETITI ONE R v. BE L I N D A STEWAR T, SUPE RIN T EN DEN T , STAF FOR D CRE EK C O RRE CTION S CE NTE R
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Jan u a r y9, 2007] P ERC UR IAM

. We granted certiorari in this case, 547 U. S. ___ (2006), to determine whether our decision in Blakelyv. Was h ing

to n , 542 U. S. 296 (2004), announced a new rule and, if so, whether it applies retr oactively on collateral review. We do not ans wer these questions , however, because peti

tioner—a state prisone rseek ing postconviction relief fro m the federal courts—failed to comply with the gatekeeping requiremen t s of 28 U. S. C. §2244(b). That failure de

prived the DistrictCo urt of juris d iction to h e ar his claims. Accordin gly , we vacate the judgm e nt of the Court of Ap peals and remand with instru ctions to direct the Distric t Court to dismiss petitioner’s habeas corpus application for lack of juris d iction. I On October 31, 1994, a Washington jury convicted peti

tioner Lonnie Burton of rape, robbe ry, and burglary. App. 3–4. The s t ate trial court initially entered ju dgment and sentence onDecember 19, 1994 (1994 judgment). In that judgment, the court sentenced Burton to a total of 5622 BURTON v. STEWART
Per Curiam months in prison. Statev. Burton , No. 35 747–6–I et c., 1997 WL 306429, *12 (Wash. App., June 9, 1997). Th e trial court rested the 562-month sentence ontwo alterna

tive grounds under Washington ’s determinate sentenci ng scheme. First, it sentenced Burt on to within-guidelines sentences f o r each off e nse—153 months forrobbery, 1 0 5 months for burglary, and 304 months for rape—and di

rected thatthe sentences be serv ed consecutively, for a total term of 562 mon t hs. Id. , a t*13. Under Washing

ton’s “mult i ple offense policy, ” i m position of consecutive sentences constitutes an “excep tional” sentence, Wash. Rev. Code §§9.94A.12 0 (18), 9.94A.400(1)(a) (2000), 1 but the trial court justified such a sent ence on the ground that running th e three terms concurrently would result ina sentence “clearly too l e nient” in l i ght of the purposes of Washington’s sentenci ng scheme. See §9.9 4A.390(2)(i). 2 The secondbasis on which the court calcu l ated a 56 2

- month term was by running th e sentences concurrently but imposing an excepti o nal senten ce of 562 months solely for the rape conviction—again on the ground that the tot a l sentence would otherwise be “clearly too lenient.” Statev. Burton , 199 7 WL 306429, at *13. After an unrelated prior conviction was ov erturned , Burton req u ested resentencing. Accordin gly , over a year after the 1994 judgment, the trial court entered an amended judgment and sentence (1996 judgment), which, after recalc ulating Bu rton’s offender scores, imposed a new sentence that relied sol e ly on an exceptional 562

- month sentence for the rape conviction, run concurrentl y

——————

1 As we not e din Blakelyv. Washington , 542 U. S. 29 6, 298, n

. 1 (2 0 0 4) , Was h ingt on ha s s i nce a m ended a n d recodified its crimina l code. Citations are to provisions in effectat the time of Burton’ssentencing.

2 S p ecifica lly, t h e s t a n da rd ra nge s e nt ence s for ra pe, ro b b e ry, a n d b urgla ry, if ru n con cur rent ly , would have p unis h ed Burt on a s if he ha d
c o mmitted on l yth e r a pe. St atev. Burton , No. 3574 7–6–I etc

. , 1997 WL 306 42 9, *11–* 12 (Wash

. App ., Ju n e9, 1997 ).3 Cite as: 54 9 U

. S. ____ (2007)
Per Curiam with the other two ter m s. Ibid.; App. 45. On direct r e view, the Washington Court of Appeals upheld Burto n’s conviction, Sta t ev. Bu rton , sup ra , a decision the Washing

ton Supre m e Court declined to review, Sta t ev. Burton , 133 Wash. 2d 1025, 950 P. 2d 475 (1997), cert. denied, 52 3 U. S. 1082 (1998). Th e State Court of Appeals remanded for resentencing, however, be cause the trial court’s excl u sive relianc e onthe ex ceptio nal rape sentence decreased Burton’s po tential early releas e credits, raising vindictive

ness concerns. Statev. Burton , 19 97 WL 306429, at *14. In response, on March 16, 1998, the trial court entered a second amended judgm e nt and sen t ence (1998 judgment). App. 3. In this judgment, the trial court recited the jury’s 1994 guilty verdicts, id ., at 3–4, and again imposed a 562

- month sentence, reverting to its original basis for doin g so—running the thre e within-guidelines s e ntences con

secutively. Id., at 7, 2 9–32. Burton sought review of this sentence, but the Washington courts eventually rejected his challenges both on direct revi ew and in s t ate postco n viction proceedings. Id., at 43–5 5; App. to Brief for Peti

tioner 1a–4a. On Decemb er 28, 1998, while state review of his sen

tence was still pending, Burton filed a petition under 28 U. S. C. §2254 for a writ of habeas corpus in the Unit ed States Dist rict Court f o r the West ern Districtof Washing

ton (1998 petition). App. 34. Th e standard form he fill ed out warnedapplicants that they must “ordinarily first exhaust .

. . available state court remedies as to each ground on which” th ey sought “action by the feder a l court,” or r un the risk of being “barred fro m presenting additional grounds at a later date.” Id., at 37– 38. Burto n nonetheles s challenged his custody only by disputing th e constitutionality of his three convictions, notby pressing any sentencing claims. Where the form requested the “[d]ate of judgment of conviction,” Burton listed “Dec. 1 6 , 1994,” corresponding roughly to the date of the 199 44 BURTON v. STEWART
Per Curiam judgment. Id., at 34. The form asked wheth e r the appli

cant had “a ny petition or appeal n o w pending in any court, either state or federal, as to the ju dgment und er a tta ck ,” to which Burton answered “Yes,” explainin gthat “[the] sentence I received at resenten cing is on direct appeal. ” Id., at 40 ( e mphasis a dded)

. The District Court denied relief, id., a t42, and the United States Court of Appeals for the Ninth Circuit affirmed, Burtonv. Walt er , 21 Fed. Appx. 632 (2001), cert. denied, 535 U. S. 1060 (2002). Over three years subsequent to filing the 199 8 petition, after the Washington courts hadrejected his sentencing challenges, Burton fil e d anoth er federal habeas petition (2002 petition), again in the Western District of Washin g ton. This time, Burton claimed to be contesting the 19 98 judgment, and challenged only the constitutionality of his sentence. In particular, he al leged that it violated our decision in Apprendiv. New J ers e y , 530 U. S. 466 (2000), to the extent the sent encing court departed from a stan

dard sentence based on its own factual de terminations. The Distric tCourt a g a i n denied the petition, App. 77, a n d the Ninth Circuit a g a i n affirmed, Burtonv. Waddingto n , 142 Fed. Appx. 297 (2005). Both courts rejected the State’s cont ention that the Dist ric tCourtlac k ed ju risdic

tion to ent e rtain the petition because Burt on had not obtained a norder from the Court of Appeals authorizing him to file a “second or successive” habeas petition, as required by the habeas gatekeeping provisions, 28 U. S. C. §2244(b)(3). On the merits, the Ninth Circuit rejecte d Burton’s A pprendicla i m and agreed with the State tha t Burton could not benef i t from Blakelyv. Was h ington , 5 42 U. S. 296, because that decision announced a new rul e that did no t apply re troactive ly to Burton’s s e ntence. 142 Fed. Appx., at 299. It is this petition, the 2002 petit i on, that is before u s today. We conclude, though, that because the 2002 peti

tion is a “s econd or s u ccessive” petition th at Bu rton did5 Cite as: 54 9 U

. S. ____ (2007)
Per Curiam not seek or obtain authorization to file in the Dist rict Court, the District Co urt never h a d jurisdicti on to consider it in the first place. II The Antite rrorism an d Effec t ive Death Penalty Act o f 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursua nt to the judgment of a State court,” 28 U. S. C. §2254(a), must followif he wish es to file a “second or successive” habeas corpus application challenging that custo d y, §2244(b)(1). In pertinent part, before fil i n gthe application in the district court, a pris

oner “shall move in theapprop riat e court of appeals for an order authorizing the district cou rt to consider the appli

cation.” §2244(b)(3)(A). A three-ju dge panel of the court of appeals may authorize the filing of the second or succes

sive application only if it pr esents a claim not previousl y raised that satisfies one of the t w o grounds a rticulated i n §2244(b)(2). §2244(b)(3)(C); Gonza lezv. Crosby , 545 U. S. 524, 529–530 (2005); see also Felkerv. Tur p in , 518 U. S. 651, 656–65 7, 664 (1996). Burton’s 2 002 petition was a“second or successive” habeas application for whichhe did not seek, muchless obtain, authorization to file. When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nin e months ear lier. Wh enhe fi led hi s second peti

tion, the 2002 petition, he was still being hel din custody pursuant to the same 1998 judgment. In short, Burton twice brough t claims contesting th e same cust ody imposed by the same judgment of a state court. As a result, under AED PA, he was requir e d to receiv e authorization from t h e Court of Appeals before filing hi s second challenge. B e cause he d i d not do s o , th e District Court was withou t jurisdiction to entertain it. The NinthCircuitde termined t hat the 20 02 petition6 BURTON v. STEWART
Per Curiam was not “second or successive” because, under McCleskey
v. Zan t , 49 9 U. S. 467 (1991), Bu rton had a“legitimate excuse for failing to raise” his sentencing challenges in the 1998 petition. 142 Fed. Appx., at 2 99 (quoting McCleskey , supra , at 4 90; internal quotation marks omitted). Specifi

cally, the Ninth Circuit reasoned t hat because Burton had not exhausted his sen t encing claims in state court whe n he filed the 1998 petiti on, “they were not ripe for federal habeas review” at that time. 142 Fed. Appx., a t298. We assume for purposes of this c a se, without deciding, that the Ninth Circui t ’s “legitimate excuse” a pproach to determining whether apetition is “second or successive” is correct. Th at court ’ s r u ling that Burton hada “legitima t e excuse,” however, is inconsiste nt with the pr ecise practice we have explained governs in circumstances such as Bur

ton’s. The plurality opinion in Ro sev. Lund y , 455 U. S. 509, 520–5 22 (1982), stated that district courts should dismiss “mixed petitions”—those with exhausted and unexhausted claims— and that petitioners with su ch petitions have two opt i ons. They may withd r aw amixe d petition, exhaust the remaining claims, and returnto district cou rt with a fully exhaus ted petition. We have held that in such circ umstances the later filed petition would not be “second or successive.” Sla c kv. McDani el , 529 U. S. 473, 485–486(2000). Alternative l y, prisoners filing mixed petitions may proceed with only the exhausted cl aims, but doing so risks subjecting later petitions that rais e new claims to rigorous procedural obstacles. Lundy , sup ra , at 520– 521 (plurality opinion); see also Slack , supr a , at 486–487. As noted, the form Burton used infi ling his f i rst petition warned of just that consequence. App. 37–38, supra, at 3. There is no basis inourcases for s u pposing, as the Ninth Circuit did, that a peti tioner with u n exhausted claims who chooses the second of these options

—who el ects to proceed to adjudica

tion of his exhausted claims—may later assert that a7 Cite as: 54 9 U

. S. ____ (2007)
Per Curiam subsequentpetition is not “second or successive” precisel y because his new claim s were une xhausted at the time h e filed his fir s t petition. This reasoning conflicts with bot h Lundyand §2244(b) and would allow prisoners to file separate habeas petitions in the n o t uncommon situation where a conviction is upheld but a sentence is reversed. Such a resu lt would be inconsisten twith both the exhaus

tion requirement, with its purpose of reducing“piecemeal litigation,” Duncanv. Walke r , 53 3 U. S. 167 , 180 (2001), and AEDPA, with its goal of “streamlining f e deral habeas proceedings.” Rhinesv. Webe r , 544 U. S. 269, 277 (2005). Burton dire cts us to tw o decisions, Stewa r tv. Martin ezVillareal , 523 U. S. 637 (1998), and Slack , su pra , in whi c h we have no t regarded subsequentpetitions to be “second or successive.” But these cases are readily distinguish

able. In Martin ez-Vill areal , we held that th e claim of a capital prisoner that he was ins ane and th erefore coul d not be put to death was necessaril yunripe until the State issued a warrant for his execut ion, and so the prisoner’ s subsequentrequest for consideration of tha tpreviousl y unripe claim was not “ s econd or successive” f o r purposes of §2244(b). 523 U. S., at 644–645. But unlike Burton, the prisoner there had attempted to bring this claim in hi s initial habeas petition, prompting us to look to Lundyin concluding that the cla i m “should be treated in the same
manner as the claim of a petition er who returns to a fed

eral habeas court after exhausting state remedies,” that is, characterizi ng it as not“second or successive.” MartinezVillareal, 523 U. S., at 644. Indeed, we expressly declined to address the situation where a petitioner fails to raise the claim in the initial petition. See id. , at 64 5, n. In this case, Burton did not raise the relevant claims in his 1998 petition. Without more, therefore, our holding in Marti

nez-Villarealdoes not support the conclusion that Burton ’ s 2002 petition was not “second or successive.” Slackis e qually unhelpful to Burton; th at decision8 BURTON v. STEWART
Per Curiam merely confirmed that when a “first” petition is dismissed because it c o ntains unexhausted claims, aprisoner return

ing later with a fully exhaus ted petition would not con

front the “second or su ccessive” bar. 529 U. S., at 485– 486. We held that a “petition filed after a m i xed petition has been di smissed un der Rosev. Lundy before the di stric t court adjudicated any claimsis to be treated as ‘any other first petition’ and is not a seco nd or successive petition.” Id. , at 487(emphasis added). See als o id. , at 478 (“[A] habeas peti tion which is fil e d after an initial petition was dismissed without adj u dication on the merits for failure to exhaust state remedies is not a ‘second or successive’ petition” (emphasis added)). Bur t on’s case is quite differ

ent—his first petitionwas not subject to dismissal as containing unexhausted claims, and in fact was adjudi

cated on the merits. Moving beyond the ground relied upon by the Ninth Circuit, Bu rton argues that his 1 998 and 20 02 petitions challenged different ju dgments. He notes that his 1998 petition identified the perti nent judgment as the 19 94 judgment, App. 34, while the 20 02 petition challenged the sentence imposed in the 1998 ju dgment. The 1998 ju dg

ment, however, had been enter e d nine months befor e Burton filed his first petition. T hat jud g ment, the sam e one challen g ed in the subsequent2002 petition, was the judgment pursuant to which Bu rton was being detained. Unlike In re Taylor , 171 F. 3d 185 (CA4 1999), cited by Burton, the r e was no new judgm e nt intervening between the two habeas petitions. In hi s 1998 petition, Burton specifically described his unexhausted sentencing claim s as claims “as to the judgment u n der attac k ,” Ap p. 4 0 , belying any notion tha tthose clai ms arose fr om a judg

ment distinct from the one challen g ed in 1998. 3

——————

3 For t h e s a me rea s ons , Burt on’s relia nce o n Castrov. United States , 5 4 0 U. S

. 37 5 (2 0 0 3 ) , is mispla ced. Tha t ca s e revers ed alower court ’s9 Cite as: 54 9 U

. S. ____ (2007)
Per Curiam Burton finally contends that had he not fil e d the 1998 petition when he did, and instea d waited until state re

view of his sentencing claims wa s complete, he riske d losing the opportunityto challenge his conv iction in fed

eral court due to AEDPA’s 1-ye ar statute of limitations. See §2244( d)(1). But this argument misreads AEDPA, which state s that the limitations period applicable to “a person in custody pu rsuant to th e judgment of a State court” shall run from, as relevant here, “the date on which the judgme nt became final by the conclusion of direct review or the expiration of the time for seeking such r e view.” §2244(d)(1)(A). “Final judgment in a c r iminal cas e means sent ence. The sentence is the judgment.” Berm a n v. United S t ates , 302 U. S. 211, 212 (1937). Accordingly, Burton’s li mitations period did not begin until both his conviction andsentence “became final by the conclusion of direct revie wor the ex piration of the time for seeking such review”—w h ich occurr ed well afterBurton filed his 1998 petition. Burton arg u es in rebuttal that this reasoning would necessarily mean the District Co urt lacked j u risdiction to consider the 1998 peti tion, but h e is mistaken. Section 2254(a) states that adistrict co urt “shall entertain” a habeas peti tion “in beh a lf of apers on incustody pursuan t to the judgment of a State court.” When he filed the 1998 petition, Burton assuredly was “in custody pursuant to the judgment of a State cou rt”—e v en if, at that point, the 1998 judgment w a s not final for purpose s of trig g eri n g A E D PA’s statute of limitations. The long and short of it is that Burton neither sought

—————— recha ra ct eriza t ion of amot i on req u es t i ng anew t r i a l purs ua ntt o Feder a l Ru le of Cr imin alPr oc edu r e33 as a fir s th abe as petition

. Her e Burt on filed his firs t hab e a s pet i tion a s s uch in 1 9 98; itinvolves n o s i mila r “ r echa ra ct eriza t i on” t o recog n ize t h a tt h e j u dgmentpurs ua ntt o whichBurt onwa s confineda tt h e t i me wa s t h e s a me j u dgmentt h at gave ris e t o t h e s e nt ence la t e r c h a lleng ed in his s e cond h ab e as pet i tion.10 BURTON v. STEWART
Per Curiam nor received authoriz a tion from the Cour tof Appeal s before filin g his 2002 petition, a “second or successive” petition challenging his custody, and so the D i strict Cour t was withou t jurisdic tion to entert ain it. The judgment of the Court of Appeals for the Ni nth Circuitis therefore vacated, an d the case is remanded with instructions t o direct the District Court to di smiss the habeas petition for lack of juris d iction. It is so orde red.