28 U.S.C. § 2244(b) governs successor habeas petitions by state prisoners and provides:
28 U.S.C. § 2255 governs successor habeas application by federal prisoners, providing in pertinent part:
In Tyler v. Cain, 533 U.S. 656 (2001), the Court addressed whether the rule of Cage v. Louisiana, 498 U.S. 39 (1990), was "made retroactive to cases on collateral review by the Supreme Court" under 28 U.S.C. § 2244(b)(2)(A). In a 5 to 4 decision, the Court determined that the Cage rule had not been "made" retroactive by the Supreme Court because "made" means "held" and the Court had not held Cage retroactively applicable to cases on collateral review. The Court rejected Tyler’s argument that Sullivan v. Louisiana, 508 U.S. 275 (1993), made clear that retroactive application of Cage is warranted under Teague v. Lane, 489 U.S. 288 (1989). While the Court in Sullivan recognized Cage error as "structural," the Court has never held that a "structural error" necessarily falls within one of the two Teague exceptions for retroactivity. The Court refused to decide whether Cage is retroactive to cases on collateral review. In order for Tyler to satisfy the requirements of section 2244(b)(2)(A) for proceeding on a second petition, the rule he relied upon had to have already been made retroactive when he filed the petition. Therefore, a decision on whether Cage is retroactive would not help Tyler and would be dictum. Justice O’Connor wrote a concurring opinion to clarify that a single decision holding a rule retroactive is not the only way to satisfy section 2244(b)(2)(A). A rule may be "made" retroactive by the Supreme Court through multiple decisions which "logically dictate" the rule’s retroactivity. However, "the holdings must dictate the conclusion and not merely provide principles from which one may conclude that the rule applies retroactively." In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court interpreted pre-AEDPA law and rejected the district court’s finding of abuse of the writ. Slack’s first federal habeas corpus petition contained claims that had not been presented to the state court. The petition was dismissed without prejudice, and without any claim being adjudicated, so that Slack could present these claims to state court. After these claims were presented to state court, Slack filed a second federal habeas corpus petition containing these newly exhausted, and some additional (i.e., not previously presented to state or federal court), claims. The district court dismissed the additional claims that had not been included in the first habeas corpus petition as an "abuse of the writ," construing the second petition as "a second or successive" petition subject to procedural dismissal rules contained in Rule 9(b), Rules Governing Habeas Corpus Cases Under Section 2254. The Supreme Court reversed and held that when a first petition is dismissed without prejudice and without any claim being adjudicated, a second petition cannot be dismissed as an abuse of the writ and is not subject to Rule 9(b). Instead, the second petition must be treated as if the first petition had never been filed. Agreeing with the Fifth and Eighth Circuits, the Ninth Circuit ruled in Hill v. State of Alaska, 297 F.3d 895 (9th Cir. 2002), that a petition containing claims challenging the calculation of petitioner’s release date under Alaska’s "mandatory parole" system was not properly treated as "second or successive" for purposes of § 2244(b). The court reasoned that although petitioner had previously "filed numerous habeas petitions," the parole-related claims raised in his current petition "could not have been included in earlier petitions challenging his conviction and sentence." The Eleventh Circuit, in Fugate v. Department of Corrections, 301 F.3d 1287 (11th Cir. 2002), affirmed the district court’s finding that the civil rights action brought by a Georgia death row inmate under 42 U.S.C. § 1983 was properly construed as a successor habeas petition. The law suit sought to enjoin and restrain the defendants from executing Fugate until measures were taken to minimize the risk of unnecessary pain, suffering and mutilation during the execution process. A complaint seeking relief under 42 U.S.C. § 1983 from a sentence of death as cruel and unusual punishment "constitutes the 'functional equivalent' of a second habeas petition," and "the district court [i]s subject to the law applicable to successive habeas petitions." Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.1997), citing Felker v. Turpin, 101 F.3d 95, 96 (11th Cir.1996). Thus, the district court correctly ruled that it was without jurisdiction to consider the "petition." Further, the appeals court found that it was precluded from authorizing the filing of this petition under In re Provenzano, 215 F.3d 1233, 1235-36 (11th Cir.2000) (finding that a claim that lethal injection as administered is cruel and unusual punishment does not meet the requirements of § 2244(b)(2)(A) or (B)). In Graham v. Costello, 299 F.3d 129 (2nd Cir. 2002), a New York drug case, the Second Circuit addressed whether the rejection of a first § 2254 petition based on a finding that its sole claim - one premised on a Fourth Amendment violation - was non-cognizable under Stone v. Powell renders any subsequent petitions containing other claims "second or successive" within the meaning of § 2244(b). After establishing that "a petition shall be dismissed as 'second or successive' if a prior petitioner, challenging the same conviction, has been decided 'on the merits,'" the court provided the following explanation of an "on the merits" decision: [O]ur distinction between petitions that are denied "on the merits" and those that are not does not depend on whether the federal court actually determined the merits of the underlying claims but rather on whether the prior denial of the petition conclusively determined that the claims presented could not establish a ground for federal habeas relief. From there, the court quickly concluded that the denial of petitioner's first § 2254 petition under Stone v. Powell constituted a decision "on the merits." The court explained: Because the bar to federal habeas review of Fourth Amendment claims is permanent and incurable [when applicable], we conclude that the denial of a habeas petition pursuant to Stone v. Powell has the same effect as the denial of a petition presenting procedurally defaulted claims when there is no showing of cause and prejudice. We therefore conclude that the denial of a habeas petition pursuant to Stone v. Powell is a denial "on the merits." Accordingly, an inmate who has had a petition denied on that basis is required to seek authorization from the court of appeals prior to filing a subsequent habeas petition.
The Sixth Circuit in In re Shelton, 295 F.3d 620 (6th Cir. 2002) (per curiam), joined the Second, Third, Fourth, Seventh, Ninth and Tenth Circuits, in holding as follows: "[D]istrict courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized." (quoting Adams v. United States, 155 F.3d 582, 584 (2nd Cir. 1998)). "Unless such a warning is provided," the court continued, "a re-characterized § 2255 motion must not be counted against the prisoner for purposes of the bar on successive motions." Applying its holding to this case, the court concluded that the district court had not provided petitioner with sufficient notice and opportunity to withdraw before recharacterizing and dismissing his initial post-conviction filing. The court therefore determined that the earlier submission could not be counted against petitioner, and dismissed his request for leave to file a successive § 2255 motion as moot. Subsequently, the Eighth Circuit expressed its agreement with the approach adopted by the majority of circuits and ruled: When a district court intends to reclassify a pro se litigant's pleading as a § 2255 motion, it must do two things. First, the court must warn the litigant of the restrictions on second or successive motions, and of the one-year limitations period, set forth in 28 U.S .C. § 2255. Second, the court must provide him an opportunity either to consent to the reclassification or to withdraw his motion. Morales v. United States, ___F.3d___, 2002 WL 31000322 (8th Cir. Sept. 6, 2002). Because the district court failed to provide the petitioner with this information and an opportunity to choose which course of action to take, the case is remanded so that the petitioner may decide whether to consent to reclassification or to withdraw his motion. In United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), the Fourth Circuit adopted the following procedure for district courts to "follow prior to converting a prisoner’s mislabeled or unlabeled post-conviction motion into the movant’s first § 2255 motion": [I]f a prisoner files a motion that is not denominated a § 2255 motion and the court at its option prefers to convert it into the movant's first § 2255 motion, the court shall first advise the movant that it intends to so recharacterize the motion. The court shall also notify the movant of the § 2255 restrictions on second or successive motions, the one-year period of limitations, and the four dates in § 2255 to be used in determining the starting date for the limitations period. The notice to the movant shall set a reasonable amount of time for the prisoner to respond to the court's proposed recharacterization and shall advise the prisoner that failure to respond within the time set by the court will result in the original motion being recharacterized as a § 2255 motion. And, of course, if the movant does not respond within the time set by the court, the court may proceed with its recharacterization of the motion. [footnote omitted] If, within the time set by the court, the movant agrees to have the motion recharacterized or by default acquiesces, the court shall consider the motion as one under § 2255 and shall consider it filed as of the date the original motion was filed. If the movant agrees to or acquiesces in the recharacterization, the court should permit amendments to the motion to the extent permitted by law. . . If, however, the movant responds within the time set by the court but does not agree to have the motion recharacterized, the court shall not treat it as a § 2255 motion but shall rule on the merits of the motion as filed. Because petitioner in this case "was not given notice of the adverse consequences of having his Rule 35 motion construed as an initial § 2255 motion," the court vacated the district court’s order denying relief and remanded for further consideration. The court further instructed that, on remand, the district court should consider the claims raised in petitioner’s Rule 35 motion and in his subsequent § 2255 motion "together as one § 2255 motion, which shall be deemed timely filed." Finally, because petitioner had not been afforded notice prior to the district court’s denial of relief, the court ordered that petitioner be given "a reasonable amount of time for the motion to be amended to reflect any additional alleged grounds for relief." In a federal narcotics and firearms case, United States v. Palmer, 296 F.3d 1135 (D.C.Cir. 2002), the D.C. Circuit addressed the issues arising out of sua sponte recharacterization of pro se pleadings as § 2255 motions. The court reached the following conclusions: [T]he [federal] court may recharacterize a post-conviction motion made under another rule or law as a section 2255 motion only if it first ensures that the movant is fully informed of section 2255’s restriction on second or successive 2255 motions as well as other procedural hurdles implicated by recharacterization and the court offers the movant an opportunity to withdraw his motion. [footnote omitted] We endorse the Fourth Circuit’s instruction that "[t]he notice to the movant shall set a reasonable period of time for the prisoner to respond to the court's proposed recharacterization and shall advise the prisoner that failure to respond within the time set by the court will result in the original petition being recharacterized as a § 2255 petition." [United States v.] Emmanuel, 288 F.3d [644,] 649 [(4th Cir. 2002)]. Thus, where, as here, a movant’s post-conviction filing has been recharacterized without using the protocol, the recharacterized motion will ordinarily not function as a first petition for the purpose of determining whether the section 2255 motion under review is a second or successive one. The court analyzed and rejected the contrary conclusions by the Fifth and Eleventh Circuits. Applying the Fourth Circuit’s approach, the court reversed the district court’s dismissal of petitioner’s §2255 motion and remanded for further proceedings. In Castro v. United States, 290 F.3d 1270 (11th Cir. 2002) (request for rehearing en banc denied July 5, 2002), a majority of the Eleventh Circuit panel vacated its prior opinion in this case (reported at 277 F.3d 1300 (11th Cir. 2002)), and entered this opinion affirming the district court’s dismissal of petitioner’s § 2255 motion as successive. Petitioner had filed a Rule 33 motion for a new trial in1994; the district court recharacterized that motion as a request for relief under both Rule 33 and § 2255, and denied it the same year. In 1997, petitioner filed another challenge to his conviction, which he styled as a § 2255 motion. Based on the denial of the recharacterized motion, the district court deemed petitioner’s 1997 submission "second or successive," and dismissed it. In its original decision in this case, the Eleventh Circuit reversed the district court’s dismissal and remanded for consideration of petitioner’s claims for relief. In the current opinion, however, the panel majority upheld the dismissal, explaining as follows: Despite the fact that [petitioner] filed his first recharacterized Rule 33 and § 2255 petition before the AEDPA’s effective date, we must apply the restrictions set forth under the AEDPA. Congress made no exceptions for those who had filed their § 2255 petitions before the AEDPA was enacted and were now filing their second petitions after the effective date of the AEDPA. With regard to the fact that petitioner’s first challenge had been recharacterized without his consent, the majority found that the claim presented in his current motion "was available to [him] at the time he filed his initial motion for new trial . . . Therefore, this subsequent § 2255 petition . . . is successive because it does not meet either of the two requirements found under the AEDPA . . .." The majority went on to recognize that its decision in this case is at odds with Raineri v.United States, 233 F.3d 96 (1st Cir. 2000), under which recharacterized initial filings do not count in the "second or successive" calculation. However, the majority found itself "constrained. . . to disagree with . . . Raineri because of [the] view that Congress, in enacting the AEDPA, imposed further restrictions on a prisoner’s ability to file a second § 2255 petition." "Thus," the majority continued, "if we were to relieve an entire class of petitioners from any restriction at all on the filing of a second motion simply because their first motions had been recharacterized, we might undermine the congressional purpose behind the AEDPA." Acknowledging that it had "substantial fairness concerns with the result in this case," the majority offered the following: [W]e feel we must note that in future cases where the petitioner is not filing a second petition, but rather is asking to withdraw his motion or to include additional claims after a district court has decided to recharacterize the initial motion as a § 2255 petition, we would agree with a clear majority of the circuits that district courts should warn prisoners of the consequences of recharacterization and provide them with the opportunity to amend or dismiss their filings. Finally, the majority added that "in the future, we urge district courts to be aware of these substantial fairness concerns and warn petitioners of the consequences of the recharacterization of their filings as § 2255 petitions." Judge Roney dissented, contending that the court should follow Raineri, and that the majority’s decision "is in direct conflict" with the First Circuit’s decision in that case. In Ching v. United States, 298 F.3d 174 (2nd Cir. 2002), the Second Circuit ruled. "[A] habeas [§ 2241] petition submitted during the pendency of an initial § 2255 motion should be construed as a motion to amend the initial motion," rather than as a second or successive motion whose filing requires leave of the court of appeals. The unusual procedural history of this case is as follows: petitioner filed an initial § 2255 motion in March, 1997; in May, 1997, that motion was denied as untimely; in August, 1998, while the denial of the initial § 2255 motion was pending on appeal, petitioner filed a § 2241 petition raising additional claims; thereafter, the Second Circuit vacated the district court's denial of the first § 2255 motion and remanded for merits review; the district court subsequently denied relief on the merits of the first § 2255 motion, but found that the § 2241 petition should be treated as a successive § 2255 motion, and transferred it to the Second Circuit for application of the gatekeeping provisions. With regard to the district court's characterization of petitioner's second submission, the Second Circuit held that, "when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion." In this case, the court found that "adjudication of [petitioner]'s initial motion was not yet complete at the time he submitted his second § 2255 motion [since] [t]he denial of the March 1997 motion was still pending on appeal before this Court and no final decision had been reached with respect to the merits of [petitioner]'s claim." "Under these facts," the court concluded, "we cannot say that adjudication of the initial § 2255 motion was complete when [petitioner] filed his August 1998 petition." After additional discussion, the court made clear that "the AEDPA does not prohibit amendment of a § 2255 motion after adjudication has proceeded beyond the first round of appeals" - assuming, of course, that the district court's ruling disposing of the motion is not upheld on appeal. Finally, the Second Circuit acknowledged the district court's alternative finding that the claims set forth in his August, 1998 filing were time-barred. The court went on to remand the case to the district court with instructions to "consider whether the issues raised in [petitioner]'s motion to amend relate back to the claims raised in the original § 2255 motion." In United States v. Prevatte, 300 F.3d 792 (7th Cir. 2002), after construing petitioner's motion to recall the mandate as a § 2241 petition seeking relief under Jones v. United States, 529 U.S. 848 (2000), the Seventh Circuit transferred petitioner's case to the district of his incarceration for further proceedings. Before deciding that transfer was appropriate, the court made "a preliminary inquiry as to whether the case . . . is a sufficiently meritorious matter to warrant . . . transfer in 'in the interest of justice.'" 2002 WL 1815860 at *5 (citation omitted). After discussing the impact of Jones' narrow construction of the federal statute under which petitioner was convicted, the court concluded as follows: [Petitioner] has brought a non-frivolous challenge to his conviction by alleging that, due to an intervening decision of the Supreme Court of the United States that narrows significantly the statute under which he was convicted, he stands convicted of having committed an act that Congress did not intend to criminalize. It also appears that a court with jurisdiction over the § 2241 petition would determine that there was no procedural impediment to considering the petition on the merits. Accordingly, we believe that the interests of justice require that we transfer the matter . . . consideration as a petition for a writ of habeas corpus under § 2241. 2002 WL 1815860 at *8.
The district court in United States v. Enigwe, 212 F.Supp.2d 420 (E.D.Pa. 2002), made the following comments in declining to "consider (or reconsider)" claims raised in petitioner's fourth § 2255 motion: It is correct that, in some circumstances, the gatekeeping provisions of § 2255 do not apply to habeas petitioners seeking to file second or successive petitions when the petitioner's first habeas petition was filed before the enactment of the [AEDPA] . . . However, this Court has no jurisdiction to decide whether defendant falls into those special circumstances . . . That analysis is one to be conducted by the Court of Appeals. [citation and footnote omitted] Thus, to the extent defendant believes the instant Motions should not be evaluated under AEDPA's substantive gatekeeping provisions, he must raise that argument with the Third Circuit. The Eleventh Circuit in McIver v. United States , ___F.3d___, 2002 WL 31160004 (11th Cir. Sept. 30, 2002), a § 2255 case, joined the Fourth, Seventh and Tenth Circuits in holding that "a successful [§2255] motion to permit a direct appeal [where ineffective assistance of trial counsel deprived the petitioner of his ability to pursue a timely direct appeal] does not render a subsequent collateral challenge ‘second or successive’ under AEDPA." Additionally, in footnote two, the court noted that where a petitioner files a § 2255 motion which includes a request for an out-of-time appeal as well as other claims for collateral relief, the district court’s "best approach is to dismiss without prejudice or hold in abeyance the resolution of the remaining collateral claims pending the direct appeal." |
