BURTON v. STEWART, SUPERINTENDENT, STAF- FORD CREEK CORRECTIONS CENTER

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147 OCTOBER TERM, 2006
Syllabus
BURTON v. STEWART, SUPERINTENDENT, STAF-
FORD CREEK CORRECTIONS CENTER
certiorari to the united states court of appeals for
the ninth circuit
No. 05–9222. Argued November 7, 2006—Decided January 9, 2007
Petitioner Burton was initially convicted of rape, robbery, and burglary
and sentenced to prison in 1994, but the state trial court entered
amended judgments and sentences in 1996 and 1998. While state re
view of his sentence was pending, Burton sought federal habeas disput
ing his convictions but not his sentence, and listing 1994 as the judgment
date. The District Court denied relief, and the Ninth Circuit affirmed.
In 2002, he filed another federal habeas petition, contesting the 1998
judgment and challenging only his sentence. The District Court and
the Ninth Circuit denied relief on the merits, rejecting the State’s con
tention that the District Court lacked jurisdiction to entertain the peti
tion because Burton had not obtained an order from the Ninth Circuit
authorizing him to file a “second or successive” habeas petition as re
quired by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U. S. C. § 2244(b)(3).
Held: Because Burton’s 2002 petition was a “second or successive” peti
tion, his failure to obtain authorization from the Ninth Circuit deprived
the District Court of jurisdiction to hear his claims. When Burton filed
each of his petitions, he was being held in custody pursuant to the same
1998 judgment. The Ninth Circuit’s reasoning that the 2002 petition
was not “second or successive” because, under McCleskey v. Zant, 499
U. S. 467, Burton had a legitimate excuse for not raising his sentencing
challenges in his first petition as they had not yet been exhausted is
inconsistent with the plurality opinion in Rose v. Lundy, 455 U. S. 509,
520–522, which stated that a petitioner with a mixed petition had two
options: to withdraw the petition, exhaust the remaining claims, and
return with a fully exhausted petition, or to proceed on the exhausted
claims while risking subjecting later petitions that raise new claims to
rigorous procedural obstacles. There is no basis for supposing that a
petitioner who chooses the second option may later assert that a subse
quent petition is not “second or successive” precisely because his new
claims were unexhausted at the time he filed his first petition. Stewart
v. Martinez-Villareal, 523 U. S. 637, and Slack v. McDaniel, 529 U. S.
473, distinguished. Finally, in contending that he risked losing the op

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148 BURTON v. STEWART
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portunity to challenge his conviction in federal court due to AEDPA’s
1-year statute of limitations, Burton misreads AEDPA, which states
that the limitations period applicable to “a person in custody pursuant
to the judgment of a State court” runs from “the date on which the
judgment became final by the conclusion of direct review or the expira
tion of the time for seeking such review,” 28 U. S. C. § 2244(d)(1)(A).
Burton’s limitations period did not begin until both his conviction and
sentence “became final by the conclusion of direct review or the expira
tion of the time for seeking such review”—which occurred well after he
filed his first petition. See Berman v. United States, 302 U. S. 211, 212.
142 Fed. Appx. 297, vacated and remanded.
Jeffrey L. Fisher, by appointment of the Court, post,
p. 807, argued the cause for petitioner. With him on the
briefs were Pamela S. Karlan, Amy Howe, Kevin K. Rus
sell, Brian Tsuchida, Laura E. Mate, and Thomas C.
Goldstein.
William Berggren Collins, Deputy Solicitor General of
Washington, argued the cause for respondent. With him on
the brief were Rob McKenna, Attorney General, Carol A.
Murphy, Deputy Solicitor General, and Paul Douglas Weis
ser and John J. Samson, Assistant Attorneys General.
Matthew D. Roberts argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Solicitor General Clement, Assistant Attor
ney General Fisher, Deputy Solicitor General Dreeben, and
Joel M. Gershowitz.*
*Sheryl Gordon McCloud, Pamela Harris, and Suzanne Elliott filed a
brief for the National Association of Criminal Defense Lawyers et al. as
amici curiae urging reversal.
A brief of amici curiae urging affirmance was filed for the State of
Indiana et al. by Steve Carter, Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, and Stephen R. Creason, and by the Attorneys
General for their respective States as follows: Terry Goddard of Arizona,
Mike Beebe of Arkansas, John W. Suthers of Colorado, Charles J. Crist,
Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Mi
chael A. Cox of Michigan, Mike McGrath of Montana, George J. Chanos of
Nevada, Jim Petro of Ohio, Hardy Myers of Oregon, Henry D. McMaster

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Per Curiam.
We granted certiorari in this case, 547 U. S. 1178 (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 an
swer 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 va
cate the judgment of the Court of Appeals and remand with
instructions to direct the District Court to dismiss petition
er’s habeas corpus application for lack of jurisdiction.
I
On October 31, 1994, a Washington jury convicted peti
tioner 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
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,” imposi
of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of
Texas, Robert F. McDonnell of Virginia, William Sorrell of Vermont, and
Patrick J. Crank of Wyoming.
Briefs of amici curiae were filed for the Criminal Justice Legal Founda
tion by Kent S. Scheidegger; and for the Law Offices of Robert A. Ratliff
by Mr. Ratliff, pro se.

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tion 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 cal
culated a 562-month term was by running the sentences con
currently 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 le
nient.” State v. Burton, 1997 WL 306429, at *13.
After an unrelated prior conviction was overturned, Bur
ton requested resentencing. Accordingly, over a year after
the 1994 judgment, the trial court entered an amended judg
ment and sentence (1996 judgment), which, after recalculat
ing Burton’s offender scores, imposed a new sentence that
relied solely on an exceptional 562-month sentence for the
rape conviction, run concurrently 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 re
view, State v. Burton, 133 Wash. 2d 1025, 950 P. 2d 475 (1997),
cert. denied, 523 U. S. 1082 (1998). The State Court of Ap
peals 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.
1 As 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.
2 Specifically, the standard range sentences for rape, robbery, and bur
glary, if run concurrently, would have punished Burton as if he had com
mitted only the rape. State v. Burton, No. 35747–6–I etc., 1997 WL
306429, *11–*12 (Wash. App., June 9, 1997).

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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 proceed
ings. 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 Dis
trict Court for the Western District of Washington (1998 pe
tition). App. 34. The standard form he filled out warned
applicants that they must “ordinarily first exhaust . . . avail
able 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 convic
tions, not by pressing any sentencing claims. Where the
form requested the “[d]ate of judgment of conviction,” Bur
ton listed “Dec. 16, 1994,” corresponding roughly to the date
of the 1994 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 ap
peal.” Id., at 40 (emphasis added). The District Court de
nied 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

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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 Ap
prendi 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 af
firmed, 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 peti
tion, as required by the habeas gatekeeping provisions, 28
U. S. C. § 2244(b)(3). On the merits, the Ninth Circuit re
jected 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 “sec
ond or successive” petition that Burton did 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, be
fore 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.”

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§ 2244(b)(3)(A). A three-judge panel of the court of appeals
may authorize the filing of the second or successive applica
tion 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, au
thorization 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 contest
ing 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 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 peti
tion. 142 Fed. Appx., at 299 (quoting McCleskey, supra, at
490; internal quotation marks omitted). Specifically, the
Ninth Circuit reasoned that because Burton had not ex
hausted his sentencing claims in state court when he filed
the 1998 petition, “they were not ripe for federal habeas re
view” 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 deter
mining whether a petition is “second or successive” is cor
rect. That court’s ruling that Burton had a “legitimate ex
cuse,” however, is inconsistent with the precise practice we
have explained governs in circumstances such as Burton’s.

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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 conse
quence. App. 37–38; supra, at 151. There is no basis in our
cases for supposing, as the Ninth Circuit did, that a peti
tioner 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 subsequent peti
tion is not “second or successive” precisely because his new
claims were unexhausted at the time he filed his first peti
tion. 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 incon
sistent with both the exhaustion requirement, with its pur
pose 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. Martinez-
Villareal, 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

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to death was necessarily unripe until the State issued a war
rant for his execution, and so the prisoner’s subsequent re
quest 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 peti
tioner who returns to a federal habeas court after exhausting
state remedies,” that is, characterizing it as not “second or
successive.” Martinez-Villareal, 523 U. S., at 644. Indeed,
we expressly declined to address the situation where a pe
titioner fails to raise the claim in the initial petition. See
id., at 645, n. In this case, Burton did not raise the rele
vant claims in his 1998 petition. Without more, therefore,
our holding in Martinez-Villareal does not support the con
clusion that Burton’s 2002 petition was not “second or
successive.”
Slack is equally unhelpful to Burton; that decision 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 adjudi
cation 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 Cir
cuit, Burton argues that his 1998 and 2002 petitions chal
lenged different judgments. He notes that his 1998 petition

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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 peti
tion. That judgment, the same one challenged in the subse
quent 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 sen
tencing 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
Burton finally contends that had he not filed the 1998 peti
tion when he did, and instead waited until state review of
his sentencing claims was complete, he risked losing the op
portunity 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 pursu
ant to the judgment of a State court” shall run from, as rele
vant 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
3 For 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 rechar
acterization 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 “recharacteriza
tion” to recognize that the judgment pursuant to which Burton was con
fined at the time was the same judgment that gave rise to the sentence
later challenged in his second habeas petition.

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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 neces
sarily 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 nor
received authorization from the Court of Appeals before fil
ing his 2002 petition, a “second or successive” petition chal
lenging 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.