No. 98-6322
In the Supreme Court of the United States
ANTONIO TONTON SLACK, PETITIONER
v.
ELDON MCDANIEL, WARDEN, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
The Court has invited the Solicitor General to express the views of the
United States on the following questions:
1. Do the provisions of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), specifically including 28 U.S.C. 2253(c) and 28 U.S.C.
2244(b) (Supp. III 1997), control the proceedings on appeal?
2. If AEDPA does control the proceedings on appeal, may a certificate of
appealability issue under 28 U.S.C. 2253(c) (Supp. III 1997)?
In the Supreme Court of the United States
No. 98-6322
ANTONIO TONTON SLACK, PETITIONER
v.
ELDON MCDANIEL, WARDEN, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
This brief is submitted in response to the Court's order inviting the Solicitor
General to file a brief expressing the views of the United States.
STATEMENT
In 1990, petitioner was convicted of second degree murder with the use of
a deadly weapon in violation of Nevada law and sentenced to life imprisonment
with the possibility of parole. J.A. 25. The Nevada Supreme Court dismissed
his appeal. J.A. 3-4.
In 1991, petitioner filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. 2254 in the United States District Court for the District
of Nevada. J.A. 6 (Slack v. Director, Case No. CV-N-91-561-HDM). The district
court dismissed the petition without prejudice for failure to exhaust all
state remedies. J.A. 21-22. Petitioner then filed a petition for post-conviction
relief in state trial court. J.A. 25. The state trial court denied the petition,
J.A. 24-30, and the Nevada Supreme Court dismissed petitioner's appeal,
J.A. 31-33.
On May 30, 1995, petitioner returned to federal court and filed a pro se
petition for writ of habeas corpus under 28 U.S.C. 2254. J.A. 35 (Slack
v. McDaniel, Case No. CV-N-95-00194-DWH). On October 8, 1996, he filed an
amended petition. J.A. 96. On February 13, 1997, the district court appointed
counsel and ordered him to file an amended petition or a notice indicating
his intent to proceed with the first amended petition. J.A. 64-65. On June
10, 1997, petitioner filed a second amended petition. Pet. App. 190. On
December 3, 1997, acting on respondents' motion for a more definite statement,
the district court gave petitioner 20 days to file a third amended petition.
Id. at 196.
On December 24, 1997, petitioner sought (and the district court subsequently
granted) leave to file a third amended petition. J.A. 66. On March 30, 1998,
the district court dismissed several of the claims in the third amended
petition for abuse of the writ because petitioner had not included those
claims in his 1991 federal habeas petition. J.A. 152, 156. The court dismissed
the remainder of the petition without prejudice because one of the remaining
claims had still not been exhausted. J.A. 157-158.
In taking those actions, the court determined that the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), which went into effect on April
26, 1996, "is not applicable to this case" because the case "was
commenced March 27, 1995." J.A. 156. The court therefore applied the
pre-AEDPA abuse-of-the-writ doctrine reflected in Rule 9(b) of the Rules
Governing Section 2254 Cases. J.A. 156.
On April 29, 1998, petitioner filed a notice of appeal, J.A. 161, and, on
May 11, 1998, he applied for a certificate of probable cause, J.A. 163.
The district court denied the certificate. J.A. 182-183. The Ninth Circuit
assigned the case docket number 98-15943. See App., infra, 1a. On July 7,
1998, a two-judge panel of that court denied the certificate, and the court
entered that judgment on its docket. Id. at 2a.
On February 22, 1999, this Court granted the petition for a writ of certiorari
limited to the following question:
If a person's petition for habeas corpus under 28 U.S.C. § 2254 is
dismissed for failure to exhaust his state remedies and he subsequently
exhausts his state remedies and refiles the § 2254 petition, are claims
included within that petition that were not included within his initial
§ 2254 filing "second or successive" habeas applications?
J.A. 198. That question was briefed, and the case was argued on October
4, 1999. On October 18, 1999, the Court restored the case to the calendar
for reargument and called for briefing on whether 28 U.S.C. 2253(c) and
28 U.S.C. 2244(b) (Supp. III 1997) of AEDPA control the proceedings on appeal,
and if so, whether a certificate of appealability may issue under 28 U.S.C.
2253(c) (Supp. III 1997).
SUMMARY OF ARGUMENT
I. This Court has determined that the general amendments to the law of habeas
corpus in Chapter 153 of Title 28, United States Code, made by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA or Act), Pub. L. No. 104-132,
110 Stat. 1214, were not made applicable to habeas cases pending on the
date of enactment of AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The
Court reached that result by drawing an inference from AEDPA's Section 107(c):
since Congress specifically provided that Chapter 154's provisions for habeas
review of certain state capital cases were made applicable to "cases
pending on or after the date of enactment of this Act," § 107(c),
110 Stat. 1226, Congress did not intend the Chapter 153 amendments to apply
to pending cases. The first question here is whether two of the provisions
of Chapter 153 as amended by AEDPA, 28 U.S.C. 2253(c) and 28 U.S.C. 2244(b)
(Supp. III 1997), are applicable to the appellate proceedings. Petitioner
here filed his underlying habeas petition before enactment of AEDPA, but
amended it to include new claims, and sought to appeal the district court's
dismissal of those claims, after enactment of AEDPA.
Lindh's analysis and general principles of habeas law indicate that AEDPA's
requirement that a petitioner obtain a certificate of appealability (COA),
Section 2253(c), is applicable to petitioner's appellate proceedings. As
this Court made clear in Hohn v. United States, 524 U.S. 236 (1998), an
application for a certificate of appealability is itself a "case,"
and that case is not "pending" until leave to appeal is requested.
The negative implication of Section 107(c), i.e., that the provisions of
Chapter 153 are not applicable to pending cases, is therefore not relevant
to applications for authorization to appeal that are made after the effective
date of AEDPA.
The same cannot be said, however, about the second-or-successive provisions
of amended Section 2244(b). Those provisions include substantive restrictions
on when second or successive habeas applications may be made and procedural
requirements that establish a gatekeeping mechanism administered by the
courts of appeals. If a habeas petition is filed before AEDPA's effective
date, none of those provisions of Section 2244(b) is applicable, even if
the habeas petitioner seeks to appeal after AEDPA's effective date. To hold
otherwise would mean that the district court's adjudication of the case
under pre-AEDPA law, as required under Lindh, would be nullified by appellate
review under AEDPA's new legal standards. If, however, a second or successive
habeas application is initiated after AEDPA's effective date, that "case"
is controlled by Section 2244(b).
The issue here is whether petitioner's new claims in his post-AEDPA amended
petition can properly be treated as a separate "case" that is
subject to AEDPA's restrictions on second or successive petitions. In our
view, they cannot. Such treatment is inconsistent with the usual meaning
of "case," which applies to an entire proceeding rather than to
separate claims for relief within it. It is also inconsistent with AEDPA's
separate use of the terms "case" and "claim" and with
traditional habeas practice, which has not treated amendments to a habeas
petition as second or successive petitions.
II. If AEDPA's COA provisions are applicable, the second question presented
is whether a COA may issue when a petitioner argues that the district court
committed a non-constitutional procedural error that foreclosed consideration
of an underlying constitutional claim arising from the state criminal proceedings.
Under AEDPA, a COA may issue only if the applicant makes "a substantial
showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).
That showing has two components: first, that the petitioner's underlying
habeas case contains a claim of a constitutional violation that is "debatable
among jurists of reason," Lozada v. Deeds, 498 U.S. 430, 432 (1991)
(per curiam), and, second, if procedural obstacles exist that may bar relief
on that claim, that there is a reasonably debatable argument that the petitioner
can surmount those procedural obstacles.
Because of those requirements, a petitioner who claims that the district
court has denied his habeas application on procedural grounds cannot obtain
a COA simply because the procedural ruling is reasonably open to question;
that, standing alone, would not demonstrate a "substantial showing
of the denial of a constitutional right." By the same token, however,
the fact that the procedural ruling on which the district court denied relief
is non-constitutional in character does not preclude the issuance of a COA.
If there is a possibly meritorious claim of constitutional error in the
state criminal proceedings, and the claim of procedural error by the habeas
court is reasonably debatable, a COA may issue to decide whether adjudication
of the underlying constitutional claim was foreclosed by the habeas court's
procedural error.
ARGUMENT
I. AEDPA'S CERTIFICATE OF APPEALABILITY PROVISIONS APPLY TO THE PROCEEDINGS
IN THE COURT OF APPEALS, BUT AEDPA'S PROVISIONS GOVERNING SECOND OR SUCCESSIVE
PETITIONS DO NOT
Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA
or Act), Pub. L. No. 104-132, 110 Stat. 1214, made substantial revisions
to federal law governing petitions for collateral relief. Sections 101 through
106 of AEDPA amended 28 U.S.C. 2244 and 2253-2255 (collectively, Chapter
153), which generally govern post-conviction review proceedings in federal
courts.1 110 Stat. 1217-1221. Section 107 created a new Chapter 154 concerning
habeas proceedings in state capital cases. Chapter 154 contains more stringent
procedural and substantive limitations on relief in capital cases but is
applicable only if the State meets certain conditions. 110 Stat. 1221-1226.
Congress provided, in Section 107(c) of AEDPA, that "Chapter 154 *
* * shall apply to cases pending on or after the date of enactment of this
Act." 110 Stat. 1226.
In Lindh v. Murphy, 521 U.S. 320, 336 (1997), this Court held that the negative
implication of Section 107(c) is that AEDPA's amendments to Chapter 153
"generally apply only to cases filed after the Act became effective,"
April 24, 1996. The Court specifically held that amended Section 2254(d)
in Chapter 153, which prescribes standards for granting federal habeas relief
to a state prisoner, did not apply to Lindh, who had filed his habeas petition
and his appeal before AEDPA's enactment. 521 U.S. at 322-323. The Court
did not provide further clarification concerning when a "case"
is "pending" within the meaning of Section 107(c) so that the
amendments to Chapter 153 do not apply to it.
Petitioner here filed his petition for habeas corpus before the advent of
AEDPA, but, unlike in Lindh, the petition was amended to add new claims,
and appellate proceedings were commenced, after the advent of AEDPA. The
question before the Court is whether those post-AEDPA events trigger the
applicability of two of AEDPA's provisions: the certificate of appealability
(COA) provisions, which control whether a habeas petitioner may bring an
appeal to the court of appeals, 28 U.S.C. 2253(c), and the provisions governing
the filing of a second or successive application for habeas relief, 28 U.S.C.
2244(b). We believe that the COA provisions are applicable to petitioner's
appeal-authorization proceedings, but AEDPA's second-or-successive provisions
are not.
A. The COA Provisions In Amended 28 U.S.C. 2253(c) Apply To The Proceedings
In The Court Of Appeals
As amended by AEDPA, 28 U.S.C. 2253(c) provides that "an appeal may
not be taken to the court of appeals" from the denial of a petition
for collateral relief filed by a state or federal prisoner, "[u]nless
a circuit justice or judge issues a [COA]." Section 2253(c) further
provides that a COA may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).
The COA requirements govern only the threshold screening proceeding in which
a petitioner seeks authorization to appeal; they have no application to
the underlying collateral relief proceedings in district court.
The application for a certificate, rather than the case in district court,
is thus the relevant "case" for purposes of applying to the COA
provisions the negative implication of AEDPA's Section 107(c). In Hohn v.
United States, 524 U.S. 236, 241 (1998), this Court held that an "application
for a [COA] constitutes a case under [28 U.S.C. 1254(1) (1994)]," which
gives the Court jurisdiction to review "[c]ases in the courts of appeals"
(ibid.). It is logical to apply the same approach to hold that the application
for a COA is also a case within the meaning of Section 107(c). As the Eighth
Circuit explained in Tiedeman v. Benson, 122 F.3d 518, 521 (1997), there
is "no reason why a new provision exclusively directed towards appeal
procedures would depend for its effective date on the filing of a case in
a trial court, instead of on the filing of a notice of appeal or similar
document." In accord with that reasoning, this Court has applied amendments
to the Federal Rules of Appellate Procedure to "all proceedings in
appellate cases thereafter commenced." 517 U.S. 1257 (1996) (emphasis
added).2
Treating an application for a certificate as the relevant "case"
under Section 107(c) is consistent with that term's ordinary legal meaning.
"Case" is "[a] general term for an action, cause, suit, or
controversy, at law or in equity" and includes "any proceeding
judicial in its nature." Black's Law Dictionary 215 (6th ed. 1990)
(emphasis added). See also Random House Dictionary of the English Language
321 (2d ed. 1987) ("10. Law: a suit or action at law"). The analysis
in this Court's precedent supports the same approach. The Court in Hohn
did not attach any special meaning to the term "case" in Section
1254(1) but instead relied on the term's usual meaning. See 524 U.S. at
241 (citing Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871) ("case"
is "a proceeding in court, a suit, or action")). The Court also
observed that the courts of appeals treat applications for certificates
as they treat other cases, i.e., by assigning a docket number, submitting
the matter to a panel, and entering judgment. 524 U.S. at 242.3
An application for a COA is "pending" within the meaning of Section
107(c) once the application or a notice of appeal is filed. See Fed. R.
App. P. 22(b) ("If no express request for a certificate is filed, the
notice of appeal constitutes a request addressed to the judges of the court
of appeals."); Black's Law Dictionary 1134 (6th ed. 1990) ("[A]n
action or suit is 'pending' from its inception until the rendition of final
judgment."); Ex parte Quirin, 317 U.S. 1, 24 (1942) ("Presentation
of the petition for judicial action is the institution of a suit.").
Petitioner filed his notice of appeal on April 29, 1998, and applied for
a certificate of probable cause (CPC) (the pre-AEDPA predecessor to a COA)
on May 11, 1998. J.A. 161, 163. Because neither his notice of appeal nor
his application for a certificate had been filed by AEDPA's effective date,
his "case" seeking authorization to appeal was not "pending"
at that time. Therefore, the negative implication of Section 107(c), which
the Court relied on in Lindh, does not preclude application of the COA provisions
to the proceedings in the court of appeals.4
Nor would application of the COA provisions to those proceedings have "retroactive
effect." Landgraf v. USI Film Prods., 511 U.S. 249, 280 (1994). The
requirement that petitioner obtain a COA was in place before petitioner
was obliged to seek one. Indeed, petitioner addressed whether AEDPA applied
in his application for a CPC. See J.A. 166-167. Application of the COA provisions
is therefore prospective and raises no retroactivity concerns.
Finally, the COA requirement applies to the proceedings in the court of
appeals whether or not respondents properly preserved the claim that it
applies. Section 2253(c) provides that "an appeal may not be taken
to the court of appeals" absent a COA. In Hohn, this Court termed issuance
of a COA "a threshold prerequisite for court of appeals jurisdiction."
524 U.S. at 248. That view accords with the Court's longstanding position
that the absence of a CPC deprived an appellate court of the power to review
a denial of habeas corpus relief. See, e.g., Bilik v. Strassheim, 212 U.S.
551 (1908) (dismissing appeal for want of jurisdiction, under Act of March
10, 1908, ch. 76, 35 Stat. 40, a forerunner of Section 2253(c), which required
certification of probable cause before appeal to this Court from the denial
of a habeas petition). And it comports with the Court's holding that the
courts of appeals lack jurisdiction over an appeal absent the filing of
a timely, proper notice of appeal. See Torres v. Oakland Scavenger Co.,
487 U.S. 312, 315 (1988); United States v. Robinson, 361 U.S. 220, 224 (1960).
Appellate courts must consider jurisdictional limits on their power on their
own initiative, and those limits cannot be waived or forfeited. See, e.g.,
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998).5
B. The Provisions Restricting The Filing Of Second Or Successive Petitions
In Amended 28 U.S.C. 2244(b) Do Not Apply To Petitioner's Third Amended
Petition
As amended by AEDPA, 28 U.S.C. 2244(b) imposes limitations on the filing
of a "second or successive habeas corpus application." Those limitations
include both substantive standards that determine when a claim presented
in a second or successive application may form the basis for habeas relief,
Section 2244(b)(1) and (2), and a procedural gatekeeping provision that
requires authorization by a court of appeals before a second or successive
application may be filed in a district court, Section 2244(b)(3). See Felker
v. Turpin, 518 U.S. 651, 656-657 (1996). The question here is whether the
proceedings on appeal, which were initiated after the effective date of
AEDPA, are controlled by Section 2244(b). We believe that they are not.
Unlike the COA provisions, which are exclusively concerned with initiating
an appellate case, the provisions in Section 2244(b) affect the entire course
of the collateral relief proceedings, including the prisoner's ability to
file his petition for collateral relief in the district court. See Felker,
518 U.S. at 662-663. Accordingly, when a habeas petition is filed before
the effective date of AEDPA, none of Section 2444(b) is applicable to it.
That is true even when the habeas petitioner seeks leave to appeal after
the effective date of AEDPA. To hold otherwise would mean that the district
court's determination of the case would be governed by pre-AEDPA law, under
Lindh, but the appellate court would review the district court's decision
under the different legal standards of AEDPA. That result would essentially
nullify Congress's intention to apply Chapter 153 only to habeas cases that
were not pending at the time of AEDPA's enactment. In contrast, when a habeas
petitioner seeks to initiate a second or successive habeas application after
AEDPA's effective date, that habeas "case" is controlled by Section
2244(b).
Here, petitioner's case was "pending" once he filed his petition
for collateral relief in the district court on May 30, 1995. See Ex parte
Quirin, supra; Ex parte Milligan, 71 U.S. (4 Wall.) 2, 112-113 (1866) (cause
commences when habeas petition is filed); 28 U.S.C. 2254(e)(1) (discussing
"a proceeding instituted by an application for a writ of habeas corpus");
28 U.S.C. 1914(a) (requiring the filing fee for "instituting any civil
action" to be paid "on application for a writ of habeas corpus").
That view is consistent with ordinary civil practice, see Fed. R. Civ. P.
3 ("A civil action is commenced by filing a complaint with the court."),
which informs proper procedure in habeas cases. See Rule 11 of the Rules
Governing Section 2254 Cases. And the majority of the courts of appeals
look to the date on which the petition was filed in district court to determine
whether AEDPA applies.6
Because petitioner's case in district court was pending when AEDPA was enacted,
the negative implication of Section 107(c) recognized in Lindh, supra, dictates
that amended 28 U.S.C. 2244(b) does not apply to petitioner's third amended
habeas petition. Respondents (Supp. Br. 9) suggest that a different result
is warranted because the third amended petition was filed after AEDPA's
enactment. Respondents (id. at 15) and their amici States (Br. Amici Curiae
States of Cal. et al. at 8, 11 (June 23, 1999)) argue that this Court should
construe "case" as used in Section 107(c) and Lindh in a "claim-specific
fashion," so that pre-AEDPA law applies to claims pending on AEDPA's
enactment, and AEDPA governs claims presented after its enactment. We do
not agree.
The suggestion that a "claim" is a "case" finds no support
in the ordinary meaning of the word "case." In ordinary usage,
"case" refers to a judicial proceeding rather than a specific
pleading or claim in that proceeding. See p. 9, supra (citing dictionary
definitions for "case"). This Court has construed "case"
in precisely that manner. See Hohn, 524 U.S. at 241 ("a proceeding
seeking relief for an immediate and redressable injury"); Blyew, 80
U.S. (13 Wall.) at 595 ("a proceeding in court, a suit, or action").
The suggestion is also inconsistent with Congress's use of the words "case"
and "claim" in other provisions of AEDPA. See, e.g., 28 U.S.C.
2244(b) and (d)(1); 28 U.S.C. 2254(d) and (e)(2); 28 U.S.C. 2255; 28 U.S.C.
2261(a), (d) and (e); 28 U.S.C. 2262(c); 28 U.S.C. 2264; 28 U.S.C. 2265
(b) and (c); 28 U.S.C. 2266(b)(1). When Congress used "case" in
other provisions of AEDPA, Congress used that word in its ordinary sense,
to refer to a judicial proceeding or action. See, e.g., 28 U.S.C. 2244(b)(2)(A)
("a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court"); 28 U.S.C. 2261(e) ("a capital case");
28 U.S.C. 2262(c) ("no Federal court thereafter shall have the authority
to enter a stay of execution in the case"); 28 U.S.C. 2265(c) ("cases
involving a sentence of death"); 28 U.S.C. 2266(b)(1)(B) (if necessary,
district court shall afford a hearing before "submission of the case
for decision"). Congress used the word "claim," however,
to refer to a legal basis for relief within a case. See, e.g., 28 U.S.C.
2244(b)(1) and (2) ("[a] claim presented in a second or successive
habeas corpus application"); 28 U.S.C. 2254(e)(2) (if applicant "failed
to develop the factual basis of a claim in State court proceedings,"
court shall not hold an evidentiary hearing unless specified conditions
are met). If Congress had meant AEDPA's application to turn on whether a
particular claim was pending on enactment rather than on whether the habeas
proceeding was pending, Congress presumably would have used "claim"
rather than "case" in Section 107(c). Because it did not, Section
107(c)'s negative implication applies to a habeas "case," not
a habeas "claim."
Finally, respondents' interpretation of "case" is inconsistent
with traditional habeas practice. Courts have not viewed amendments to pending
habeas petitions as new cases subject to the limitations on second or successive
petitions, but instead have permitted amendments under Federal Rule of Civil
Procedure 15. See Johnson v. United States, No. 97-2519, 1999 WL 1022126,
*3 (7th Cir. Nov. 10, 1999); Bonin v. Calderon, 59 F.3d 815, 845-846 (9th
Cir. 1995), cert. denied, 516 U.S. 1051 (1996); see also Calderon v. Ashmus,
523 U.S. 740, 750 (1998) (Breyer, J., concurring).7 In AEDPA, Congress implicitly
endorsed the traditional approach for non-capital cases when it subjected
only amendments in capital cases under the new Chapter 154 to AEDPA's limitations
on second or successive petitions. See 28 U.S.C. 2266(b)(3)(B).8 Moreover,
district courts do not assign separate docket numbers when prisoners file
amendments to pending petitions, as this case illustrates. See p. 2, supra
(all three amended petitions recorded under docket number assigned on filing
of initial petition). Respondents and their amici have not identified, nor
have we found, any court of appeals decision interpreting Section 107(c)
and Lindh as they advocate.
Amici correctly point out that their theory would enable the courts to avoid
some anomalous results that might occur in cases in which a petition for
collateral relief was filed shortly before enactment of AEDPA and amended
thereafter. See Br. Amici Curiae States of Cal. et al. at 8-9 (June 23,
1999). But bright-line rules often generate similar anomalies, and courts
should not seek to avoid them by disregarding traditional principles of
statutory construction. Moreover, any anomalies that might occur here would
be transitory and would end with the disposal of those petitions pending
when AEDPA was enacted. And respondents' approach has its own practical
flaw: it would require district courts to apply different versions of the
same provisions of law to different claims in the same case, an administratively
burdensome task that Congress should not lightly be presumed to have imposed.9
If the Court concludes that the COA requirement of AEDPA applies to petitioner's
proceedings in the court of appeals but amended Section 2244(b) does not
apply, the Court will then be presented with the question whether a COA
may issue. We now turn to that question.10
II. A COA MAY NOT ISSUE UNLESS REASONABLE JURISTS COULD CONCLUDE BOTH THAT
THE HABEAS PETITION IS NOT BARRED BY ABUSE OF THE WRIT AND THAT IT PRESENTS
A CONSTITUTIONAL CLAIM ON WHICH PETITIONER COULD PREVAIL
Under AEDPA, a court may issue a COA only if an applicant makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C.
2253(c)(2). Consistent with pre-AEDPA law, a substantial showing requires
an applicant to demonstrate that his right to relief on a claim in his habeas
petition (including his ability to overcome any procedural obstacle to relief)
is "debatable among jurists of reason." Lozada v. Deeds, 498 U.S.
430, 432 (1991) (per curiam). In a departure from pre-AEDPA law, the COA
requirement permits appeal only when the showing is made as to a "constitutional
right" rather than a "federal right." See Barefoot v. Estelle,
463 U.S. 880, 893 (1983).
1. The reference to a "constitutional" right in Section 2253(c)(2)
requires that the underlying petition for collateral relief raise a constitutional
claim, rather than a claim based on a federal statute or treaty, the other
two bases for habeas relief, see 28 U.S.C. 2254(a). Young v. United States,
124 F.3d 794, 798-799 (7th Cir. 1997), cert. denied, 524 U.S. 928 (1998);
Murphy v. Netherland, 116 F.3d 97, 99-100 (4th Cir.), cert. denied, 521
U.S. 1144 (1997).11 The elimination of statutory and treaty-based claims
from the appellate process is consistent with AEDPA's general purpose of
streamlining habeas corpus review and with the certificate requirement's
longstanding purpose of rooting out frivolous appeals. See 141 Cong. Rec.
S4590-S4593 (daily ed. Mar. 24, 1995) (Sen. Specter); 141 Cong. Rec. H1400
(daily ed. Feb. 8, 1995) (Rep. McCollum); id. at H1402 (Rep. Young); Barefoot,
463 U.S. at 892, 893 n.3. Although some habeas petitions have invoked treaties,
e.g., Breard v. Greene, 523 U.S. 371 (1998), or federal statutes, e.g.,
Reed v. Farley, 512 U.S. 339 (1994), collateral relief for non-constitutional
violations is available only to rectify a "complete miscarriage of
justice" or an "omission inconsistent with the rudiment[s] of
fair procedure." See Reed, 512 U.S. at 348. Because few statutory or
treaty claims meet that demanding standard, appeals raising those claims
are unlikely to succeed. See Young, 124 F.3d at 799.
2. The requirement in Section 2253(c)(2) that the prisoner's showing be
"substantial" means that his right to prevail on the claim must
be "debatable among jurists of reason." See Barefoot, 463 U.S.
at 893 n.4; Lozada, 498 U.S. at 432. An applicant cannot make that showing
if there is a clear procedural obstacle to his right to relief, even if
there is merit to his underlying claim. Thus, when there may be a procedural
bar to recovery, an applicant for a certificate must demonstrate that both
the merits of his underlying claim and his ability to overcome the procedural
obstacle are subject to reasonable debate. See, e.g., Morris v. Horn, 187
F.3d 333, 340 (3d Cir. 1999); Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.
1997).
Congress could not have intended to permit appeals based solely on the abstract
merit of an underlying claim if relief on that claim would clearly be procedurally
barred. To allow such appeals would frustrate the certificate's core purpose
of curbing meritless appeals. Therefore, before and after AEDPA, courts
of appeals have held that a prisoner may not obtain appellate review of
the merits of a petition for collateral relief unless it is at least arguable
that he can overcome procedural obstacles to relief. See Murphy v. Netherland,
116 F.3d at 101; Tucker v. Johnson, 115 F.3d 276, 281 (5th Cir.), cert.
denied, 522 U.S. 1017 (1997); Murphy v. Johnson, 110 F.3d at 11; Hogan v.
Zavaras, 93 F.3d 711, 712 (10th Cir. 1996); Sterling v. Scott, 57 F.3d 451,
453 (5th Cir. 1995), cert. denied, 516 U.S. 1050 (1996). We are aware of
no decision to the contrary.
3. Several courts of appeals have held, however, that they may review a
procedural ruling denying collateral relief without a showing that an underlying
constitutional claim has potential merit. See, e.g., Gaskins v. Duval, 183
F.3d 8, 9 n.1 (1st Cir. 1999); Thomas v. Greiner, 174 F.3d 260 (2d Cir.
1999); Nichols v. Bowersox, 172 F.3d 1068, 1070 n.2 (8th Cir. 1999) (en
banc); Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We do not
believe that those decisions can be reconciled with the plain language of
Section 2253(c), which makes "a substantial showing of the denial of
a constitutional right" a prerequisite to an appeal from "the
final order in a habeas corpus proceeding." 28 U.S.C. 2253(c) (emphasis
added). An erroneous procedural ruling by the habeas court, standing alone,
does not meet that standard.12 Nor would review of a procedural ruling,
absent the existence of a potentially meritorious underlying claim, accord
with the COA requirement's purpose of rooting out insubstantial appeals.
There is no need to correct a district court's procedural error when that
error prevents consideration of only meritless claims.
On the other hand, we do not agree with the view that a COA can never issue
when a district court denies collateral relief on procedural grounds because
that adverse procedural ruling does not deny any constitutional right. Resp.
Supp. Br. 22-23; Br. Amicus Curiae States of Cal. et al. at 21 (June 23,
1999). We are not aware of any court of appeals that has adopted that view.13
Nor does the text of Section 2253(c) support it. Section 2253(c) requires
a "substantial showing of the denial of a constitutional right,"
and a prisoner makes that showing if he demonstrates that his conviction
or sentence may have been imposed in violation of the Constitution and that
the district court may have erred in refusing him relief.
There is no evidence that Congress intended to preclude appellate review
when a prisoner has a meritorious underlying constitutional claim, but the
district court has erroneously denied it on procedural grounds. Although
that limitation would reduce appeals, it would do so at the expense of meritorious
appeals. The goal of the certificate requirement, however, is to screen
out "frivolous" appeals. See Barefoot, 463 U.S. at 892 & n.3;
see also, e.g., 141 Cong. Rec. S4596 (daily ed. Mar. 24, 1995) (Sen. Hatch)
("Habeas corpus reform must not discourage legitimate petitions that
are clearly meritorious and deserve close scrutiny."). Further, although
a prohibition on issuance of a COA when relief is denied on procedural grounds
would not preclude all appellate review of procedural rulings (because the
government can appeal without obtaining a certificate, Fed. R. App. P. 22(b)(3)),
it would increase the likelihood of divergent procedural rules among the
district courts. There is no warrant for attributing to Congress an intention
to foster disarray in the procedural rules governing habeas cases, given
the interest in consistent disposition of those cases.
The COA standard that we espouse would mean that, in some cases, a court
of appeals, in deciding whether to issue a certificate, will have to pass
on questions that the district court has not addressed. For several reasons,
however, that consideration does not warrant rejection of our proposed standard.
First, an application to the court of appeals for a COA is not an appeal
from the district court's denial of a COA but an independent proceeding
in the court of appeals. Viewed in that light, it is not anomalous for the
court of appeals to address issues in the first instance.
Second, courts of appeals not infrequently must address issues that district
courts have not discussed in written opinions. In fact, district courts
sometimes summarily dismiss entire habeas petitions without written opinions.
See 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice
and Procedure § 15.2a, at 630 (3d ed. 1998) (noting that "some"
courts of appeals require written opinions explaining summary dismissals).
And, even though Federal Rule of Appellate Procedure 22(b) requires a district
court that denies an application for a COA to "state why a certificate
should not issue," the explanation may be brief and thus provide little
guidance to a court of appeals. See, e.g., J.A. 182-183.
Third, only in limited instances will a court of appeals, in passing on
an application for a COA, in fact have to address the underlying claim raised
in a petition for collateral relief without any prior discussion of the
claim by the district court. The appellate court need do so only if (1)
the district court has rejected the petition for collateral relief solely
on procedural grounds; (2) the district court has denied a COA solely on
procedural grounds, because it has concluded that the applicant's ability
to overcome the procedural obstacle is not even debatable; but (3) the court
of appeals disagrees with that conclusion, and therefore cannot itself dispose
of the application for a COA on procedural grounds.
CONCLUSION
The Court should hold that petitioner is subject to the COA requirements
of amended 28 U.S.C. 2253(c) and therefore may not appeal from the district
court's dismissal of his habeas petition unless he obtains a COA. The Court
should also hold that petitioner is not entitled to a COA unless reasonable
jurists could conclude both that his habeas petition is not barred by abuse
of the writ and that it presents a constitutional claim on which petitioner
could prevail. The Court may wish to remand this case to the court of appeals
for application of that standard. Alternatively, the Court may wish to address
the question on which it initially granted review in the course of deciding
whether reasonable jurists could reject the district court's finding of
abuse of the writ, and then dispose of the case accordingly.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney
DECEMBER 1999
1 Citations in this brief to sections of Title 28 of the United States Code
are to Supplement III 1997, unless otherwise indicated.
2 The Court has also applied those amendments, "insofar as just and
practicable, [to] all proceedings in appellate cases then pending."
517 U.S. 1257 (1996). That action reflects the principle that new procedural
rules may generally be applied to pending litigation provided they were
enacted before the phase of the case to which they apply. See Landgraf v.
USI Film Prods., 511 U.S. 244, 275 & n.29 (1994).
3 The application here, although handled under pre-AEDPA procedures requiring
a certificate of probable cause, followed the same course: the court of
appeals assigned petitioner's application a separate docket number, distinct
from his district court case, and entered judgment on that application.
Compare p. 3, supra (No. 98-15943) with p. 2, supra (No. CV-N-95-00194-DWH).
4 Aside from the Eighth Circuit, the courts of appeals have not agreed with
our view that the applicability of AEDPA's COA provisions depends on the
date on which the notice of appeal or application for a certificate was
filed. Those courts have focused instead on the date when the underlying
habeas case was filed. See, e.g., United States v. Kunzman, 125 F.3d 1363,
1364 n.2 (10th Cir. 1997), cert. denied, 523 U.S. 1053 (1998); United States
v. Skandier, 125 F.3d 178, 182 (3d Cir. 1997). As discussed above, that
view is incorrect because it fails to recognize the distinct "case"
that is commenced when a habeas petitioner seeks to initiate proceedings
in the court of appeals. We note that the Eighth Circuit has declined to
extend its holding in Tiedeman, which involved a state prisoner, to cases
involving federal prisoners. See United States v. Navin, 172 F.3d 537 (1999).
The court concluded that, because federal prisoners, unlike state prisoners,
did not need authorization in order to appeal before enactment of AEDPA,
applying the COA requirement to federal prisoners with petitions pending
in district court when AEDPA was enacted would present retroactivity concerns.
Id. at 539. As we explain in the text following this note, application of
the certificate requirement to prisoners who initiated appellate proceedings
after AEDPA's enactment is not retroactive.
5 Cases holding that other, non-jurisdictional provisions of AEDPA, such
as 28 U.S.C. 2254(d), may be forfeited (e.g., Arnold v. Evatt, 113 F.3d
1352, 1362 n.57 (4th Cir. 1997), cert. denied, 522 U.S. 1058 (1998); Emerson
v. Gramley, 91 F.3d 898, 900 (7th Cir. 1996), cert. denied, 520 U.S. 1122,
520 U.S. 1139 (1997)) do not alter that conclusion.
6 See, e.g., Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.), cert. denied,
120 S. Ct. 502 (1999); Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999),
petition for cert. pending, No. 98-10002; Williams v. Coyle, 167 F.3d 1036,
1039-1040 (6th Cir. 1999); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.),
cert. denied, 119 S. Ct. 2376 (1999); United States v. Marmolejos, 140 F.3d
488, 489 n.1 (3d Cir. 1998); Pratt v. United States, 129 F.3d 54, 58 (1st
Cir. 1997), cert. denied, 523 U.S. 1123 (1998). Petitioner's case was not
pending before his May 30 application was filed, even though he first filed
a federal habeas petition in 1991, because the 1991 petition was dismissed
before enactment of AEDPA. See, e.g., Libby v. Magnusson, 177 F.3d 43, 46
(1st Cir. 1999); Graham, 168 F.3d at 782; Mancuso, 166 F.3d at 101. The
Ninth Circuit has held that, in capital cases in which the prisoner moves
for appointment of counsel before filing a habeas petition, a case is pending
under AEDPA Section 107(c) once the motion for counsel is filed. Calderon
v. United States Dist. Court for the Cent. Dist. of Cal. (Kelly), 163 F.3d
530, 540 (1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999). We disagree
with the Ninth Circuit that a motion for appointment of counsel commences
a habeas "case" within the meaning of Section 107(c), but this
Court need not address that question here, because petitioner, who is not
a capital prisoner, filed his habeas petition before he moved for counsel.
See J.A. 35, 56.
7 By contrast, the abuse-of-the-writ standard has been held to apply once
the court has disposed of the habeas petition; for example, to a motion
to recall the mandate after judgment, see Calderon v. Thompson, 523 U.S.
538, 553 (1998), and to a motion to amend judgment under Federal Rule of
Civil Procedure 60(b); see, e.g., In re Medina, 109 F.3d 1556, 1561 (11th
Cir.), cert. denied, 520 U.S. 1151 (1997). Although here the Ninth Circuit
applied the abuse-of-the-writ standard to some of the claims that petitioner
added in his third amended petition, the court did so not based on the fact
that those claims were amendments to petitioner's May 30 petition, but based
on the fact that petitioner had filed a petition in 1991 that had been dismissed
for failure to exhaust state remedies. See p. 2, supra.
8 That provision states: "No amendment to an application for a writ
of habeas corpus under this chapter [154] shall be permitted after the filing
of the answer to the application, except on the grounds specified in section
2244(b)," the provision governing second and successive habeas applications.
9 One could arrive at an outcome similar to the one produced by the theory
of respondents and the amici States by reasoning that, although petitioner's
case was pending before enactment of AEDPA, that case includes only the
claims in the May 30, 1995, petition and any claims added by amendment that
"relate[] back" to that filing under Federal Rule of Civil Procedure
15(c). Under that reasoning, claims in the third amended petition that do
not arise out of the "conduct, transaction, or occurrence" (ibid.)
described in the May 30 petition are not part of the case pending before
AEDPA's enactment; instead, they are a new case subject to the requirements
of amended Section 2244(b). That approach would be even more complex than
the one proposed by respondents and the amici States, and it should likewise
be rejected. Section 107(c)'s reference to "cases pending" gives
no indication that Congress intended the scope of those cases to be defined
by Rule 15(c)'s relation back principle, which primarily applies in the
statute-of-limitations context. See Fed. R. Civ. P. 15(c)(1) (allowing relation
back when "permitted by the law that provides the statute of limitations
applicable to the action"); Fed. R. Civ. P. 15(c) Advisory Committee
Notes On 1966 Amendment ("Relation back is intimately connected with
the policy of the statute of limitations."); Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 150 n.3 (1984) ("The rationale of Rule
15(c) is that a party who has been notified of litigation concerning a particular
occurrence has been given all the notice that statutes of limitations were
intended to provide.").
10 On the other hand, if the Court agrees with respondents and their amici
States that amended Section 2244(b) applies, then presumably the gatekeeping
provision of that Section, under which second or successive habeas applications
may not be filed in district court without leave of the court of appeals,
applies as well. See 28 U.S.C. 2244(b)(3)(A). Because of the prohibition
in 28 U.S.C. 2244(b)(3)(E) against certiorari review of gatekeeping decisions,
it would not be appropriate for this Court to treat the court of appeals'
disposition in this case as a gatekeeping determination. Rather, the Court
should either remand the case to the court of appeals with instructions
to construe petitioner's notice of appeal as a gatekeeping motion, see,
e.g., Pratt v. United States, 129 F.3d 54, 59 (1st Cir. 1997), cert. denied,
523 U.S. 1123 (1998), or dismiss the petition for a writ of certiorari and
allow petitioner to pursue any remedies he might have under Section 2244(b),
such as formally filing a gatekeeping motion in the court of appeals. In
passing on a gatekeeping motion, that court could decide whether petitioner's
claims are "second or successive" within the meaning of Section
2244(b). Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 641-642 (1998).
11 Some courts of appeals have suggested that the substitution of "constitutional"
for "federal" was not intended to alter the pre-AEDPA standard.
See, e.g., Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997); Lyons
v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir.), cert. denied,
520 U.S. 1224 (1997). The language of Section 2253(c)(2) makes that view
untenable.
12 Conceivably, a procedural error of constitutional dimension in the habeas
proceedings might constitute the denial of a "constitutional right."
Although Section 2253(c) could be read to cover that situation, the normal
focus of a habeas petition, and any appeal, is on redressing the claimed
denial of rights in the underlying state criminal process.
13 Instead, appellate courts have continued to review procedural issues,
sometimes explicitly holding that they have the power to do so, as in the
cases we cite on pages 21-22, supra, and, at other times, implicitly assuming
that power, see, e.g., Breard v. Greene, 523 U.S. 371 (1998); Morris, 187
F.3d at 340 (citing cases).
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Docket No. 98-15943
ANTONIO TONTON SLACK, PETITIONER-APPELLANT
v.
E. K. MCDANIEL, ATTORNEY GENERAL OF
THE STATE OF NEVADA, RESPONDENT-APPELLEE*
DOCKET ENTRIES
_________________________________________________
DATE DOCKET PROCEEDINGS
NUMBERS
_________________________________________________
5/22/98 1 Filed request for a certificate of appealability. Date COA denied
in DC: 5/19/98. DC file included (y/n): yes (MOATT).
5/22/98 2 Rec'd original DC file in 2 vol pldgs to (MOATT). ( jr.)
_________________________________________________
DATE DOCKET PROCEEDINGS
NUMBERS
_________________________________________________
5/22/98 3 Rec'd (coa pending) certificate of record. RT filed in DC none.
[98-15943] (jr)
6/29/98 5 Case to motions panel. [98-15943] (rc) [Entry date 07/07/98]
7/7/98 6 Order filed, the request for a COA is DENIED. (Procedurally Terminated
After Other Judicial Action; Certificate of Appealability. David R. THOMPSON;
Edward LEAVY, author) [98-15943] (rc)
7/8/98 7 District court casefile returned. (ups) (stev)
10/13/98 8 Received notice from Supreme Court: petition for certiorari filed
Supreme Court No. 98-6322 filed on 10/7/98. (Casefiles) [98-15943] (gva)
[Entry date 10/15/98]
* So in original.
APPENDIX B
RELEVANT STATUTES AND RULES
1. Section 107(c) of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1226, provides:
Chapter 154 of title 28, United States Code (as added by subsection (a))
shall apply to cases pending on or after the date of enactment of this Act.
2. Section 2244 of Chapter 153 of Title 28, United States Code (Supp. III
1997), provides in relevant part:
* * * * *
(b)(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless-
(A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider
the application.
(B) A motion in the court of appeals for an order authorizing the district
court to consider a second or successive application shall be determined
by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a
second or successive application not later than 30 days after the filing
of the motion.
(E) The grant or denial of an authorization by a court of appeals to file
a second or successive application shall not be appealable and shall not
be the subject of a petition for rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or successive
application that the court of appeals has authorized to be filed unless
the applicant shows that the claim satisfies the requirements of this section.
* * * * *
(d)(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
* * * * *
3. Section 2253(c) of Chapter 153 of Title 28, United States Code (Supp.
III 1997), provides:
(1) Unless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from -
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph
(2).
4. Section 2254 of Chapter 153 of Title 28, United States Code (1994 &
Supp. III 1997), provides in relevant part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.
* * * * *
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court,
a determination of a factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary hearing
on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
* * * * *
5. Section 2255 of Chapter 153 of Title 28, United States Code (Supp. III
1997), provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
* * * * *
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is
removed, if the movant was prevented from making a motion by such governmental
action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
* * * * *
A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
6. Section 2261 of Chapter 154 of Title 28, United States Code (Supp. III
1997), provides in relevant part:
(a) This chapter shall apply to cases arising under section 2254 brought
by prisoners in State custody who are subject to a capital sentence. It
shall apply only if the provisions of subsections (b) and (c) [establishing
procedures for appointment of counsel in State post-conviction proceedings]
are satisfied.
* * * * *
(d) No counsel appointed pursuant to subsections (b) and (c) to represent
a State prisoner under capital sentence shall have previously represented
the prisoner at trial or on direct appeal in the case for which the appointment
is made unless the prisoner and counsel expressly request continued representation.
(e) The ineffectiveness or incompetence of counsel during State or Federal
post-conviction proceedings in a capital case shall not be a ground for
relief in a proceeding arising under section 2254. * * *
7. Section 2262(c) of Chapter 154 of Title 28, United States Code (Supp.
III 1997), provides in relevant part:
If one of the conditions in subsection (b) [specifying circumstances under
which a stay of execution shall expire] has occurred, no Federal court thereafter
shall have the authority to enter a stay of execution in the case, unless
the court of appeals approves the filing of a second or successive application
under section 2244(b).
8. Section 2264 of Chapter 154 of Title 28, United States Code (Supp. III
1997), provides:
(a) Whenever a State prisoner under capital sentence files a petition for
habeas corpus relief to which this chapter applies, the district court shall
only consider a claim or claims that have been raised and decided on the
merits in the State courts, unless the failure to raise the claim properly
is-
(1) the result of State action in violation of the Constitution or laws
of the United States;
(2) the result of the Supreme Court's recognition of a new Federal right
that is made retroactively applicable; or
(3) based on a factual predicate that could not have been discovered through
the exercise of due diligence in time to present the claim for State or
Federal post-conviction review.
(b) Following review subject to subsection (a), (d), and (e) of section
2254, the court shall rule on the claims properly before it.
9. Section 2265 of Chapter 154 of Title 28, United States Code (Supp. III
1997), provides in relevant part:
(a) For purposes of this section, a "unitary review" procedure
means a State procedure that authorizes a person under sentence of death
to raise, in the course of direct review of the judgment, such claims as
could be raised on collateral attack. * * *
* * * * *
(b) * * * No counsel appointed to represent the prisoner in the unitary
review proceedings shall have previously represented the prisoner at trial
in the case for which the appointment is made unless the prisoner and counsel
expressly request continued representation.
(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation to cases
involving a sentence of death from any State having a unitary review procedure
that qualifies under this section. * * *
10. Section 2266 of Chapter 154 of Title 28, United States Code (Supp. III
1997), provides in relevant part:
* * * * *
(b)(1)(A) A district court shall render a final determination and enter
a final judgment on any application for a writ of habeas corpus brought
under this chapter in a capital case not later than 180 days after the date
on which the application is filed.
(B) A district court shall afford the parties at least 120 days in which
to complete all actions, including the preparation of all pleadings and
briefs, and if necessary, a hearing, prior to the submission of the case
for decision.
* * * * *
(3) * * *
(B) No amendment to an application for a writ of habeas corpus under this
chapter shall be permitted after the filing of the answer to the application,
except on the grounds specified in section 2244(b).
11. Rule 22(b) of the Federal Rules of Appellate Procedure provides:
(1) In a habeas corpus proceeding in which the detention complained of arises
from process issued by a State court, or in a 28 U.S.C. § 2255 proceeding,
the applicant cannot take an appeal unless a circuit justice or a circuit
or district judge issues a certificate of appealability under 28 U.S.C.
§ 2253(c). If an applicant files a notice of appeal, the district judge
who rendered the judgment must either issue a certificate of appealability
or state why a certificate should not issue. The district clerk must send
the certificate or statement to the court of appeals with the notice of
appeal and the file of the district-court proceedings. If the district judge
has denied the certificate, the applicant may request a circuit judge to
issue the certificate.
(2) A request addressed to the court of appeals may be considered by a circuit
judge or judges, as the court prescribes. If no express request for a certificate
is filed, the notice of appeal constitutes a request addressed to the judges
of the court of appeals.
(3) A certificate of appealability is not required when a State or its representative
or the United States or its representative appeals.
12. Section 1914(a) of Title 28, United States Code (Supp. III 1997), provides:
The clerk of each district court shall require the parties instituting any
civil action, suit or proceeding in such court, whether by original process,
removal or otherwise, to pay a filing fee of $150, except that on application
for a writ of habeas corpus the filing fee shall be $5.
13. Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts provides:
The Federal Rules of Civil Procedure, to the extent that they are not inconsistent
with these rules, may be applied, when appropriate, to petitions filed under
these rules.
14. Rule 3 of the Federal Rules of Civil Procedure provides:
A civil action is commenced by filing a complaint with the court.