Successive Petitions and Federal Prisoners

In the Antiterrorism and Effective Death Penalty Act of 1996, Congress cracked down on prisoners making repeated collateral attacks on their convictions and sentences. AEPDA included a very strict rule for successive petitions by state prisoners in 28 U.S.C. §2244(b)(1)&(2). A less stringent rule for federal prisoners was added to the end of the separate section for federal-prisoner collateral review, §2255, language that is now designated subdivision (h) of that section.

Does the rule for state prisoners also apply to federal prisoners? Of course not. I’m surprised anyone ever thought it did. Yet it appears that six federal courts of appeals have so held. On Monday, the Supreme Court turned down a case attempting to raise the issue, but Justice Kavanaugh noted the Court should address it soon.

Second and subsequent collateral attacks come in two flavors–those seeking to relitigate previously rejected claims and those raising new claims not previously litigated. In pre-AEDPA parlance, these were often somewhat confusingly designated “successive” and “abusive” claims, respectively. However,  Rule 9(b) of the federal Rules Governing Habeas Corpus Proceedings, adopted in 1976, referred to “second or successive petitions” of both flavors, using the word “successive” to mean “third, fourth, fifth, ….”

In Sanders v. United States, 373 U.S. 1 (1963), the Supreme Court gave federal prisoners filing § 2255 motions nearly carte blanche to file an unending stream of motions with new claims. This laxity spilled over to state-prisoner cases as well. Successive petitions were a major obstacle to the execution of capital sentences, as condemned murderers filed petition after petition and received stay after stay to litigate them.

In McCleskey v. Zant, 499 U.S. 467 (1991), the Supreme Court abandoned Sanders and imported the “cause and prejudice” standard from the procedural default doctrine, at the suggestion of a certain notorious amicus curiae. See dissent footnote 10.

Five years later, in a landmark bill intended to create an effective death penalty in America, Congress cracked down further than the McCleskey decision had.

In § 2244, paragraphs (b)(1) and (b)(2) expressly apply only to “application[s] under section 2254,” i.e., habeas corpus petitions by state prisoners challenging their criminal judgments. The two paragraphs revive the distinction between new-claim petitions and repeated-claim petitions but do not revive the old “successive” and “abusive” labels. Both apply to “second and successive habeas corpus application[s]” as that phrase was used in the habeas rules, i.e., any application after the first.

Paragraph (b)(1) flatly forbids relitigation of a previously adjudicated claim in a state-prisoner case. No exceptions.

For new claims in a second or successive petition, Paragraph (b)(2) has exceptions different from McCleskey, and in practice they are considerably narrower. The first exception is for “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Congress did not trust the federal courts of appeals to decide whether a rule is retroactive, with good reason. Some courts of appeals at that time, particularly the notorious Ninth, would stop at nothing to overturn a capital sentence.

The second exception kept the “cause” element of the McCleskey test but limited it to the factual predicate of the claim, which “could not have been discovered previously through the exercise of due diligence,” and it required that those facts demonstrate actual innocence by a very demanding standard. Neither previously undiscoverable facts alone nor actual innocence alone is sufficient.

The language added to §2255 for federal prisoners, now subdivision (h) of that section,* provides considerably broader exceptions. A showing of actual innocence alone is sufficient for a federal prisoner under paragraph (h)(1). The evidence showing it need only be “newly discovered,” with no requirement of a showing of diligence and no requirement that it be the factual basis of the claim. The “new rule” exception is the same as for state prisoners.

For federal prisoners, both exceptions apply to both new-claim petitions and repeated-claim petitions. The flat, no-exceptions prohibition of repeated claim petitions in §2244(b)(1) is missing from §2255(h).

Why was Congress so much tougher on the state prisoners than the federal prisoners? Because for state prisoners the federal court remedy is secondary. Their primary avenue for relief is the state courts. Further, since federal death penalty cases are relatively rare, the need to crack down on federal courts intentionally misapplying habeas corpus to block well-deserved executions was not felt as keenly in the federal prisoner cases.

Paragraphs (3) and (4) of §2244(b) create procedural requirements for second and successive petitions. The petitioner must get a certification from the court of appeals before filing the petition in district court. Congress did not trust single district judges to make the determination of whether a petitioner had plausibly met the requirements for a successive petition to be considered, and for good reason. In capital cases, there are just too many judges who would misuse that authority to block enforcement of a penalty they disagree with.

For federal prisoners, §2255(h) says, “A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain …” followed by the two exceptions described above. It seems perfectly obvious to me that “certified as provided in section 2244” refers only to the certification procedure, and the substantive criteria of what must be certified are those in §2255(h) itself. Why would Congress have designated the criteria in paragraphs (1) and (2) of that subdivision if the stricter criteria in §2244(b)(1) and (2) applied also? That does not make any sense, yet six courts of appeals have decided they do apply.

USDoJ now agrees. From the Brief in Opposition in Avery v. United States, No. 19-633: “The government agrees that Section 2244(b)(1) does not apply to Section 2255 motions and that the court of appeals erred in concluding to the contrary.” Yet the brief remains a Brief in Opposition. This case has “vehicle problems,” in SCOTUS bar parlance. “That conclusion, however, lacks practical significance in this case because, as the district court found, petitioner’s second Section 2255 motion was subject to dismissal because it failed to satisfy the requirements of 28 U.S.C. 2255(h).” In plain English, it doesn’t matter which set of criteria apply because Avery doesn’t meet either of them. The bottom line of the court of appeals’ decision is correct, even if the opinion contains an incorrect statement on this point.

No Justice indicated disagreement with the decision to turn down this case. But Justice Kavanaugh fired a shot across the bow of the issue. “In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.” Indeed, the Court should take this up.

* At the time AEDPA was enacted, §2255 was a long section of text with no subdivisions. In 2008, at the suggestion of your humble correspondent, Senator Kyl slipped the subdivision designations into a bill on courthouse security.