Abstract
The Eleventh Circuit’s recent opinion in Patterson v. Secretary includes a heated dispute over the prohibition against “second or successive” habeas corpus petitions in 28 U.S.C. § 2244(b). Considering an amended criminal sentence from Florida state court, the majority and dissenting opinions structure that sentence differently and, thus, apply the prohibition differently. This Article argues that both the majority and the dissent conceal policy judgments beneath the surface of legal decision-making. First, the Article analyzes the statutory prohibition against “second or successive” habeas petitions, as applied previously by the U.S. Supreme Court in Magwood v. Patterson and by the Eleventh Circuit in Insignares v. Secretary. Next, the Article describes the majority and dissenting opinions in Patterson v. Secretary, focusing on section 2244(b) as the focal point of the judges’ dispute. Finally, the Article argues that the statutory language of section 2244(b) underdetermines interpretations, inviting rival normative views regarding whether to prohibit a particular habeas petition. Given such open statutory language, policy judgments are unavoidable.