NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-2044

___________

RONALD MORGAN,

Appellant

v.

WARDEN BUTLER COUNTY PRISON;

ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;

DISTRICT ATTORNEY OF BUTLER COUNTY

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 2:19-cv-01047)

U.S. District Judge: Honorable Arthur J. Schwab

____________________________________

Argued July 6, 2022

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges

(Opinion Filed: September 6, 2022)

Michael H. McGinley

Tiffany Engsell

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Tristan Lim [ARGUED]

University of Pennsylvania School of Law
2

3400 Chestnut Street

Philadelphia, PA 19104

Attorneys for Ronald Morgan

Mark A. Lope [ARGUED]

Butler County Office of District Attorney

P.O. Box 1208

Butler, PA 16003

Attorney for Butler County District Attorney’s Office, Warden of Butler County 

Jail, Attorney General of Pennsylvania

OPINION*

KRAUSE, Circuit Judge.

Ronald Morgan appeals the order of the United States District Court for the 

Western District of Pennsylvania dismissing his petition for a writ of habeas corpus under 

28 U.S.C. § 2254. JA 2, 16-17. Because his filing of that petition was premature, we 

will affirm the District Court’s dismissal for lack of jurisdiction.

I. DISCUSSION1

The District Court in this case dismissed Morgan’s petition on the ground that it 

was “filed prematurely” because he was still in the process of a direct state court appeal 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 While the District Court concluded that it could not consider Morgan’s habeas petition 

because it was filed prematurely, “it is familiar law that a federal court always has 

jurisdiction to determine its own jurisdiction,” so it properly exercised jurisdiction in 

dismissing the petition. United States v. Ruiz, 536 U.S. 622, 628 (2002) (citing United 

States v. United Mine Workers of Am., 330 U.S. 258, 291 (1947)). For our part, we have 
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of his recent resentencing. App. 16. A district court’s jurisdiction to consider a habeas 

petition is predicated on the petitioner being “in custody pursuant to the judgment of a 

State court,” 28 U.S.C. § 2254(a), (b)(1), where the “judgment” consists of both a final 

conviction and final sentence, Burton v. Stewart, 549 U.S. 147, 156–57 (2007). See also 

Lesko v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211, 224–25 (3d Cir. 2022) (explaining that 

“both a conviction and sentence are necessary to authorize a prisoner’s confinement” and 

create a judgment for the purposes of a § 2254 petition). Morgan contends that the 

District Court erred in dismissing his petition as premature, because the ongoing 

resentencing proceedings concern only two of his counts of conviction and did not 

disturb the finality of the judgments on the remaining 215 counts on which he was 

convicted. 

Resentencing necessarily affects the finality of a judgment on the counts for which 

a defendant is being resentenced, because “a vacatur of a sentence and order of a full 

remand cancels the original sentence and renders the defendant unsentenced until the 

district court imposes a new sentence.” United States v. Mitchell, 38 F.4th 382, 388 (3d 

Cir. 2022); see also id. at 392 (Bibas, J., concurring) (explaining that vacatur of a 

sentence makes it “void from the start,” as it had never been imposed). As long as the 

jurisdiction under 28 U.S.C. §§ 1291 and 2253, both of which require a “final” order in 

the District Court. Here, although the District Court dismissed Morgan’s petition 

“without prejudice to [his] filing a new habeas case,” JA 16, the dismissal without 

prejudice possesses the finality necessary for it to be appealable because it definitively 

ended the case as far as the District Court is concerned and Morgan could not have cured

the deficiency (prematurity) by amending his petition and refiling it in the same 

proceeding. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n.1 (1949); 

Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002).
4

resentencing process is ongoing, then, a petitioner has no “final judgment” on those 

counts for habeas purposes.

But where, as here, a petitioner is convicted and sentenced for multiple counts, 

there are multiple “judgments”—each consisting of a conviction and sentence—that the 

petitioner may challenge in his habeas proceedings. Lesko, 34 F.4th at 225. The dates on 

which those judgments become “final” may therefore differ, and assessing finality, e.g.,

for the purposes of determining whether a habeas petition has been timely filed within the 

one-year limitations period of 28 U.S.C. § 2244(d)(1)(A), must accordingly be done on a 

judgment-by-judgment basis. See Turner v. Brown, 845 F.3d 294, 297 (7th Cir. 2017) 

(“[T]he state may pursue convictions on as many crimes as it likes, and it may then seek 

as many judgments as it likes. AEDPA’s one-year time limit will then run from each 

judgment.”); Fielder v. Varner, 379 F.3d 113, 118 (3d Cir. 2004) (noting that AEDPA’s 

limitations window must be assessed “on a claim-by-claim basis”). 

Morgan is correct that, under certain circumstances, where a petitioner has been 

resentenced on some, but not all, counts of a multi-count conviction, that resentencing 

creates a new final judgment and restarts the one-year limitations period for a habeas 

petition as to just those counts, while leaving the finality and associated limitations period 

undisturbed as to the unaffected counts. See Romansky v. Superintendent Greene SCI, 

933 F.3d 293, 300 (3d Cir. 2019). Under other circumstances, however, the vacatur of 

specific counts of a petitioner’s conviction may trigger “a de novo resentencing as to all 

counts of conviction . . . under the theory that the sentencing judge would ‘craft a 

disposition in which the sentences on the various counts form part of an overall plan.’” 
5

Id. (quoting United States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010)). And a de novo 

resentencing creates new final judgments as to all counts, restarting AEDPA’s one-year 

limitations period for each. See, e.g., Lesko, 34 F.4th at 225 (noting that, as “anticipated 

in Romansky,” where a petitioner “was resentenced as to all counts of his conviction,” 

there were new final judgments as to all counts, and therefore the new habeas challenges 

were “not barred as second-or-successive”).

Here, the transcript of Morgan’s recent resentencing hearing on January 18, 2022,

leaves no doubt he was resentenced de novo on all counts. The judge, to whom Morgan’s 

resentencing proceedings had just been reassigned and who was considering his case for 

the first time, was explicit at the outset that his responsibility was to conduct “a full 

sentencing hearing and take into consideration all of the factors, including what, if 

anything, the defendant had done during the time he had been sentenced.” SA 93. 

Accordingly, the prosecution and the defense argued over—and the judge duly 

considered—Morgan’s aggregate sentence in light of all 217 counts of his conviction, the 

facts of the underlying case, and Morgan’s mitigation evidence. SA 89-92, 98, 101-04. 

At the close of the hearing, Morgan was resentenced on each of the 217 counts, and those 

judgments are now on direct appeal, so they are not yet final. SA 102-04; State Court 

Dkt. at 2, 403.

Because Morgan does not have final judgments on any of his counts, he is not yet

able to challenge them on habeas review. Once he does have new final judgments, the 

one-year limitations period will begin anew as to all of his counts and he may file a new 
6

petition,2assuming he has exhausted his state court remedies.3 When Morgan filed his

habeas petition with the District Court, however, he was not yet “in custody pursuant to 

the judgment of a State court,” 28 U.S.C. § 2254(a), as was required for the District Court 

to entertain his petition. The District Court was therefore correct to dismiss his petition 

as premature.

II. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court. 

2 Morgan had argued on appeal for a stay-and-abeyance rather than a dismissal on the 

premise that his recent resentencing was limited to only two counts of conviction, such 

that dismissal would cause additional days to run against AEDPA’s one-year limitation 

period on his remaining counts and, given Morgan’s pro se status and the vagaries of the 

prison mail system, might effectively prevent him from refiling. See Blue Br. at 31-33. 

But as even Morgan’s counsel acknowledged at argument, if we concluded Morgan’s 

resentencing was de novo, there will be new final judgments on all 217 counts when that 

process concludes, restarting the clock under AEDPA and allowing Morgan the full oneyear period to seek habeas relief. Argument Audio at 23:15-24:20. As that is our 

conclusion, there is no good cause for a stay-and-abeyance.

3 The Commonwealth expressly conceded at oral argument that Morgan has already 

exhausted the particular constitutional claims he is seeking to bring in his habeas petition. 

Argument Audio at 19:40-19:52.