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(Slip Opinion) Cite as: 549 U. S. ____ (2007) 1 

Per Curiam 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 05–9222 

LONNIE LEE BURTON, PETITIONER v. BELINDA

STEWART, SUPERINTENDENT, STAFFORD

CREEK CORRECTIONS CENTER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[January 9, 2007] 

PER CURIAM. 

We granted certiorari in this case, 547 U. S. ___ (2006), 

to determine whether our decision in Blakely v. Washington, 542 U. S. 296 (2004), announced a new rule and, if so,

whether it applies retroactively on collateral review. We 

do not answer these questions, however, because petitioner—a state prisoner seeking postconviction relief from

the federal courts—failed to comply with the gatekeeping

requirements of 28 U. S. C. §2244(b). That failure deprived the District Court of jurisdiction to hear his claims. 

Accordingly, we vacate the judgment of the Court of Appeals and remand with instructions to direct the District

Court to dismiss petitioner’s habeas corpus application for 

lack of jurisdiction. 

I 

On October 31, 1994, a Washington jury convicted petitioner Lonnie Burton of rape, robbery, and burglary. App.

3–4. The state trial court initially entered judgment and 

sentence on December 19, 1994 (1994 judgment). In that 

judgment, the court sentenced Burton to a total of 562 
2 BURTON v. STEWART 

Per Curiam 

months in prison. State v. Burton, No. 35747–6–I etc., 

1997 WL 306429, *12 (Wash. App., June 9, 1997). The 

trial court rested the 562-month sentence on two alternative grounds under Washington’s determinate sentencing 

scheme. First, it sentenced Burton to within-guidelines 

sentences for each offense—153 months for robbery, 105

months for burglary, and 304 months for rape—and directed that the sentences be served consecutively, for a

total term of 562 months. Id., at *13. Under Washington’s “multiple offense policy,” imposition of consecutive

sentences constitutes an “exceptional” sentence, Wash.

Rev. Code §§9.94A.120(18), 9.94A.400(1)(a) (2000),1 but 

the trial court justified such a sentence on the ground that

running the three terms concurrently would result in a

sentence “clearly too lenient” in light of the purposes of 

Washington’s sentencing scheme. See §9.94A.390(2)(i).2 

The second basis on which the court calculated a 562-

month term was by running the sentences concurrently 

but imposing an exceptional sentence of 562 months solely

for the rape conviction—again on the ground that the total

sentence would otherwise be “clearly too lenient.” State v. 

Burton, 1997 WL 306429, at *13. 

After an unrelated prior conviction was overturned,

Burton requested resentencing. Accordingly, over a year

after the 1994 judgment, the trial court entered an 

amended judgment and sentence (1996 judgment), which, 

after recalculating Burton’s offender scores, imposed a 

new sentence that relied solely on an exceptional 562-

month sentence for the rape conviction, run concurrently 

—————— 

1As we noted in Blakely v. Washington, 542 U. S. 296, 298, n. 1 

(2004), Washington has since amended and recodified its criminal code.

Citations are to provisions in effect at the time of Burton’s sentencing. 2Specifically, the standard range sentences for rape, robbery, and

burglary, if run concurrently, would have punished Burton as if he had 

committed only the rape. State v. Burton, No. 35747–6–I etc., 1997 WL 

306429, *11–*12 (Wash. App., June 9, 1997). 
Cite as: 549 U. S. ____ (2007) 3 

Per Curiam 

with the other two terms. Ibid.; App. 45. On direct review, the Washington Court of Appeals upheld Burton’s 

conviction, State v. Burton, supra, a decision the Washington Supreme Court declined to review, State v. Burton, 

133 Wash. 2d 1025, 950 P. 2d 475 (1997), cert. denied, 523

U. S. 1082 (1998). The State Court of Appeals remanded 

for resentencing, however, because the trial court’s exclusive reliance on the exceptional rape sentence decreased

Burton’s potential early release credits, raising vindictiveness concerns. State v. Burton, 1997 WL 306429, at *14. 

In response, on March 16, 1998, the trial court entered a

second amended judgment and sentence (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 doing 

so—running the three within-guidelines sentences consecutively. Id., at 7, 29–32. Burton sought review of this

sentence, but the Washington courts eventually rejected

his challenges both on direct review and in state postconviction proceedings. Id., at 43–55; App. to Brief for Petitioner 1a–4a. 

On December 28, 1998, while state review of his sentence was still pending, Burton filed a petition under 28

U. S. C. §2254 for a writ of habeas corpus in the United 

States District Court for the Western District of Washington (1998 petition). App. 34. The standard form he filled 

out warned applicants that they must “ordinarily first

exhaust . . . available state court remedies as to each 

ground on which” they sought “action by the federal 

court,” or run the risk of being “barred from presenting 

additional grounds at a later date.” Id., at 37–38. Burton 

nonetheless challenged his custody only by disputing the 

constitutionality of his three convictions, not by pressing 

any sentencing claims. Where the form requested the

“[d]ate of judgment of conviction,” Burton listed “Dec. 16,

1994,” corresponding roughly to the date of the 1994 
4 BURTON v. STEWART 

Per Curiam 

judgment. Id., at 34. The form asked whether the applicant had “any petition or appeal now pending in any court, 

either state or federal, as to the judgment under attack,” to 

which Burton answered “Yes,” explaining that “[the]

sentence I received at resentencing is on direct appeal.” 

Id., at 40 (emphasis added). The District Court denied 

relief, id., at 42, and the United States Court of Appeals 

for the Ninth Circuit affirmed, Burton v. Walter, 21 Fed. 

Appx. 632 (2001), cert. denied, 535 U. S. 1060 (2002). 

Over three years subsequent to filing the 1998 petition, 

after the Washington courts had rejected his sentencing

challenges, Burton filed another federal habeas petition

(2002 petition), again in the Western District of Washington. This time, Burton claimed to be contesting the 1998 

judgment, and challenged only the constitutionality of his 

sentence. In particular, he alleged that it violated our 

decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), 

to the extent the sentencing court departed from a standard sentence based on its own factual determinations. 

The District Court again denied the petition, App. 77, and 

the Ninth Circuit again affirmed, Burton v. Waddington, 

142 Fed. Appx. 297 (2005). Both courts rejected the

State’s contention that the District Court lacked jurisdiction to entertain the petition because Burton had not

obtained an order 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 rejected 

Burton’s Apprendi claim and agreed with the State that

Burton could not benefit from Blakely v. Washington, 542 

U. S. 296, because that decision announced a new rule 

that did not apply retroactively to Burton’s sentence. 142 

Fed. Appx., at 299. 

It is this petition, the 2002 petition, that is before us

today. We conclude, though, that because the 2002 petition is a “second or successive” petition that Burton did 
Cite as: 549 U. S. ____ (2007) 5 

Per Curiam 

not seek or obtain authorization to file in the District 

Court, the District Court never had jurisdiction to consider 

it in the first place. 

II 

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) established a stringent set of procedures

that a prisoner “in custody pursuant to the judgment of a

State court,” 28 U. S. C. §2254(a), must follow if he wishes

to file a “second or successive” habeas corpus application 

challenging that custody, §2244(b)(1). In pertinent part,

before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an

order authorizing the district court to consider the application.” §2244(b)(3)(A). A three-judge panel of the court of 

appeals may authorize the filing of the second or successive application only if it presents a claim not previously

raised that satisfies one of the two grounds articulated in

§2244(b)(2). §2244(b)(3)(C); Gonzalez v. Crosby, 545 U. S. 

524, 529–530 (2005); see also Felker v. Turpin, 518 U. S. 

651, 656–657, 664 (1996). 

Burton’s 2002 petition was a “second or successive” 

habeas application for which he did not seek, much less

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 nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody 

pursuant to the same 1998 judgment. In short, Burton 

twice brought claims contesting the same custody imposed

by the same judgment of a state court. As a result, under 

AEDPA, he was required to receive authorization from the 

Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without 

jurisdiction to entertain it.

The Ninth Circuit determined that the 2002 petition 
6 BURTON v. STEWART 

Per Curiam 

was not “second or successive” because, under McCleskey 

v. Zant, 499 U. S. 467 (1991), Burton had a “legitimate 

excuse for failing to raise” his sentencing challenges in the

1998 petition. 142 Fed. Appx., at 299 (quoting McCleskey, 

supra, at 490; internal quotation marks omitted). Specifically, the Ninth Circuit reasoned that because Burton had 

not exhausted his sentencing claims in state court when

he filed the 1998 petition, “they were not ripe for federal 

habeas review” at that time. 142 Fed. Appx., at 298. 

We assume for purposes of this case, without deciding,

that the Ninth Circuit’s “legitimate excuse” approach to

determining whether a petition is “second or successive” is 

correct. That court’s ruling that Burton had a “legitimate

excuse,” however, is inconsistent with the precise practice 

we have explained governs in circumstances such as Burton’s. The plurality opinion in Rose v. Lundy, 455 U. S. 

509, 520–522 (1982), stated that district courts should 

dismiss “mixed petitions”—those with exhausted and

unexhausted claims—and that petitioners with such 

petitions have two options. They may withdraw a mixed

petition, exhaust the remaining claims, and return to

district court with a fully exhausted petition. We have 

held that in such circumstances the later filed petition 

would not be “second or successive.” Slack v. McDaniel, 

529 U. S. 473, 485–486 (2000). 

Alternatively, prisoners filing mixed petitions may 

proceed with only the exhausted claims, but doing so risks 

subjecting later petitions that raise new claims to rigorous

procedural obstacles. Lundy, supra, at 520–521 (plurality 

opinion); see also Slack, supra, at 486–487. As noted, the 

form Burton used in filing his first petition warned of just

that consequence. App. 37–38, supra, at 3. There is no 

basis in our cases for supposing, as the Ninth Circuit did, 

that a petitioner with unexhausted claims who chooses the

second of these options—who elects to proceed to adjudication of his exhausted claims—may later assert that a 
Cite as: 549 U. S. ____ (2007) 7 

Per Curiam 

subsequent petition is not “second or successive” precisely

because his new claims were unexhausted at the time he 

filed his first petition. This reasoning conflicts with both 

Lundy and §2244(b) and would allow prisoners to file

separate habeas petitions in the not uncommon situation 

where a conviction is upheld but a sentence is reversed. 

Such a result would be inconsistent with both the exhaustion requirement, with its purpose of reducing “piecemeal 

litigation,” Duncan v. Walker, 533 U. S. 167, 180 (2001), 

and AEDPA, with its goal of “streamlining federal habeas

proceedings.” Rhines v. Weber, 544 U. S. 269, 277 (2005).

Burton directs us to two decisions, Stewart v. MartinezVillareal, 523 U. S. 637 (1998), and Slack, supra, in which 

we have not regarded subsequent petitions to be “second 

or successive.” But these cases are readily distinguishable. In Martinez-Villareal, we held that the claim of a 

capital prisoner that he was insane and therefore could 

not be put to death was necessarily unripe until the State 

issued a warrant for his execution, and so the prisoner’s

subsequent request for consideration of that previously

unripe claim was not “second or successive” for purposes of

§2244(b). 523 U. S., at 644–645. But unlike Burton, the 

prisoner there had attempted to bring this claim in his

initial habeas petition, prompting us to look to Lundy in 

concluding that the claim “should be treated in the same

manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies,” that is, 

characterizing 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 645, n. In this 

case, Burton did not raise the relevant claims in his 1998 

petition. Without more, therefore, our holding in Martinez-Villareal does not support the conclusion that Burton’s 

2002 petition was not “second or successive.” 

Slack is equally unhelpful to Burton; that decision 
8 BURTON v. STEWART 

Per Curiam 

merely confirmed that when a “first” petition is dismissed

because it contains unexhausted claims, a prisoner returning later with a fully exhausted petition would not confront the “second or successive” bar. 529 U. S., at 485– 

486. We held that a “petition filed after a mixed petition

has been dismissed under Rose v. Lundy before the district 

court adjudicated any claims is to be treated as ‘any other 

first petition’ and is not a second or successive petition.” 

Id., at 487 (emphasis added). See also id., at 478 (“[A] 

habeas petition which is filed after an initial petition was 

dismissed without adjudication on the merits for failure to 

exhaust state remedies is not a ‘second or successive’ 

petition” (emphasis added)). Burton’s case is quite different—his first petition was not subject to dismissal as 

containing unexhausted claims, and in fact was adjudicated on the merits. 

Moving beyond the ground relied upon by the Ninth

Circuit, Burton argues that his 1998 and 2002 petitions

challenged different judgments. He notes that his 1998 

petition identified the pertinent judgment as the 1994 

judgment, App. 34, while the 2002 petition challenged the 

sentence imposed in the 1998 judgment. The 1998 judgment, however, had been entered nine months before 

Burton filed his first petition. That judgment, the same

one challenged in the subsequent 2002 petition, was the 

judgment pursuant to which Burton was being detained. 

Unlike In re Taylor, 171 F. 3d 185 (CA4 1999), cited by 

Burton, there was no new judgment intervening between 

the two habeas petitions. In his 1998 petition, Burton

specifically described his unexhausted sentencing claims

as claims “as to the judgment under attack,” App. 40, 

belying any notion that those claims arose from a judgment distinct from the one challenged in 1998.3 

—————— 

3For the same reasons, Burton’s reliance on Castro v. United States, 

540 U. S. 375 (2003), is misplaced. That case reversed a lower court’s 
Cite as: 549 U. S. ____ (2007) 9 

Per Curiam 

Burton finally contends that had he not filed the 1998 

petition when he did, and instead waited until state review of his sentencing claims was complete, he risked

losing the opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute of limitations. 

See §2244(d)(1). But this argument misreads AEDPA,

which states that the limitations period applicable to “a

person in custody pursuant to the judgment of a State

court” shall run from, as relevant here, “the date on which 

the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such review.” §2244(d)(1)(A). “Final judgment in a criminal case 

means sentence. The sentence is the judgment.” Berman 

v. United States, 302 U. S. 211, 212 (1937). Accordingly,

Burton’s limitations period did not begin until both his 

conviction and sentence “became final by the conclusion of

direct review or the expiration of the time for seeking such

review”—which occurred well after Burton filed his 1998 

petition.

Burton argues in rebuttal that this reasoning would

necessarily mean the District Court lacked jurisdiction to 

consider the 1998 petition, but he is mistaken. Section 

2254(a) states that a district court “shall entertain” a

habeas petition “in behalf of a person in custody pursuant 

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 court”—even if, at that point, the 1998 

judgment was not final for purposes of triggering AEDPA’s 

statute of limitations. 

The long and short of it is that Burton neither sought 

—————— 

recharacterization of a motion requesting a new trial pursuant to

Federal Rule of Criminal Procedure 33 as a first habeas petition. Here 

Burton filed his first habeas petition as such in 1998; it involves no

similar “recharacterization” to recognize that the judgment pursuant to

which Burton was confined at the time was the same judgment that 

gave rise to the sentence later challenged in his second habeas petition. 
10 BURTON v. STEWART 

Per Curiam 

nor received authorization from the Court of Appeals 

before filing his 2002 petition, a “second or successive” 

petition challenging his custody, and so the District Court

was without jurisdiction to entertain it. The judgment of 

the Court of Appeals for the Ninth Circuit is therefore 

vacated, and the case is remanded with instructions to 

direct the District Court to dismiss the habeas petition for

lack of jurisdiction. 

It is so ordered.