THOMAS, J., dissenting

that term in Steffel, it would apply only if Genentech had threatened MedImmune with a patent infringement suit in the absence of a license agreement. At that point, MedImmune would have had a choice, as did the declaratory plaintiff in Steffel, either to cease the otherwise protected activity (here, selling Synagis) or to continue in that activity and face the threat of a lawsuit. But MedImmune faced no such choice. Here, MedImmune could continue selling its product without threat of suit because it had eliminated any risk of suit by entering into a license agreement. By holding that the voluntary choice to enter an agreement to avoid some other coerced choice is itself coerced, the Court goes far beyond Steffel.

The majority explains that the "coercive nature of the exaction preserves the right . . . to challenge the legality of the claim." Ante, at 131 (internal quotation marks omitted). The coercive nature of what "exaction"? The answer has to be the voluntarily made license payments because there was no threat of suit here. By holding that contractual obligations are sufficiently coercive to allow a party to bring a declaratory judgment action, the majority has given every patent licensee a cause of action and a free pass around Article III's requirements for challenging the validity of licensed patents. But the reasoning of today's opinion applies not just to patent validity suits. Indeed, today's opinion contains no limiting principle whatsoever, casting aside Justice Stewart's understanding that Steffel's use would “be exceedingly rare." 415 U. S., at 476 (concurring opinion).

For the foregoing reasons, I respectfully dissent.

Syllabus

BURTON v. STEWART, SUPERINTENDENT, STAFFORD 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 review of his sentence was pending, Burton sought federal habeas disputing 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 contention that the District Court lacked jurisdiction to entertain the petition because Burton had not obtained an order from the Ninth Circuit authorizing him to file a "second or successive" habeas petition as required 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" petition, 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 subsequent 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

Syllabus

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 expiration 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 expiration 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. Russell, 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 Weisser 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 Attorney 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, Michael A. Cox of Michigan, Mike McGrath of Montana, George J. Chanos of Nevada, Jim Petro of Ohio, Hardy Myers of Oregon, Henry D. McMaster

Per Curiam

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 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 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 Under Washington's "multiple offense policy," imposi

*13.

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 Foundation by Kent S. Scheidegger; and for the Law Offices of Robert A. Ratliff by Mr. Ratliff, pro se.

Per Curiam

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 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 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.

1 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 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).