Banister v. Davis

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BANISTER v. DAVIS, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 18–6943. Argued December 4, 2019—Decided June 1, 2020

Federal Rule of Civil Procedure 59(e) allows a litigant to file a motion to

alter or amend a district court’s judgment within 28 days from the

entry of judgment, with no possibility of an extension. The Rule enables

a district court to “rectify its own mistakes in the period immediately

following” its decision, White v. New Hampshire Dept. of Employment

Security, 455 U. S. 445, 450, but not to address new arguments or evi-

dence that the moving party could have raised before the decision. A

timely filed motion suspends the finality of the original judgment for

purposes of appeal, and only the district court’s disposition of the mo-

tion restores finality and starts the 30-day appeal clock. If an appeal

follows, the ruling on the motion merges with the original determina-

tion into a single judgment.

Title 28 U. S. C. §2244(b), the so-called gatekeeping provision of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), gov-

erns federal habeas proceedings. Under AEDPA, a state prisoner is

entitled to one fair opportunity to seek federal habeas relief from his

conviction. Section 2244(b), however, sets stringent limits on second

or successive habeas applications. Among those restrictions, a pris-

oner may not reassert any claims “presented in a prior application,”

§2244(b)(1), and may bring a new claim only in limited situations. Be-

cause habeas proceedings are civil in nature, the Federal Rules of Civil

Procedure generally apply, but statutory habeas restrictions, includ-

ing §2244(b), trump any “inconsistent” Rule. §2254 Rule 12.

Petitioner Gregory Banister was convicted by a Texas court of ag-

gravated assault and sentenced to 30 years in prison. After exhausting

his state remedies, he filed for federal habeas relief, which the District

2 BANISTER v. DAVIS

Syllabus

Court denied. Banister timely filed a Rule 59(e) motion, which the

District Court also denied. He then filed a notice of appeal in accord-

ance with the timeline for appealing a judgment after the denial of a

Rule 59(e) motion. But the Fifth Circuit construed Banister’s Rule

59(e) motion as a successive habeas petition and dismissed his appeal

as untimely.

Held: Because a Rule 59(e) motion to alter or amend a habeas court’s

judgment is not a second or successive habeas petition under 28

U. S. C. §2244(b), Banister’s appeal was timely. Pp. 5–16.

(a) The phrase “second or successive application” is a term of art and

does not “simply ‘refe[r]’ ” to all habeas filings made “ ‘second or succes-

sively in time,’ ” following an initial application. Magwood v. Patter-

son, 561 U. S. 320, 332. In addressing what qualifies as second or suc-

cessive, this Court has looked to historical habeas doctrine and

practice and AEDPA’s purposes. Here, both point toward permitting

Rule 59(e) motions in habeas proceedings.

Prior to AEDPA, the Court held in Browder v. Director, Dept. of Cor-

rections of Ill., 434 U. S. 257, that Rule 59(e) applied in habeas pro-

ceedings. The Rule, the Court recounted, derived from courts’ common-

law power “to alter or amend [their] own judgments during[ ] the

term of court in which [they were] rendered,” prior to any appeal, in-

cluding “in habeas corpus cases.” Id., at 270. Although the drafters of

the Federal Rules eventually replaced the “term of court” power with

Rule 59(e), the Court concluded that this did nothing to narrow the set

of judgments amenable to alteration. The record of judicial decisions

accords with that view. Pre-AEDPA, habeas courts were to dismiss

repetitive applications except in “rare case[s].” Kuhlmann v. Wilson,

477 U. S. 436, 451. Yet in the half century from Rule 59(e)’s adoption

through Browder to AEDPA’s enactment, there exists only one dismis-

sal of a Rule 59(e) motion as impermissibly successive. In all other

cases, the district courts resolved Rule 59(e) motions on the merits.

Congress passed AEDPA against this backdrop, and gave no indica-

tion that it meant to change what qualifies as a successive application.

Nor do AEDPA’s purposes of reducing delay, conserving judicial re-

sources, and promoting finality suggest any different result. Rule

59(e) offers a narrow, 28-day window to ask for relief; limits requests

for reconsideration to matters properly raised in the challenged judg-

ment; and consolidates proceedings by producing a single final judg-

ment for appeal. Indeed, the Rule may make habeas proceedings more

efficient by enabling a district court to reverse a mistaken judgment or

to clarify its reasoning so as to make an appeal unnecessary. Pp. 5–

12.

(b) Gonzalez v. Crosby, 545 U. S. 524, which held that a Rule 60(b)

Cite as: 590 U. S. ____ (2020) 3

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motion counts as a second or successive habeas application if it “at-

tacks the federal court’s previous resolution of a claim on the merits,”

id., at 532, does not alter that conclusion. Rule 60(b) differs from Rule

59(e) in just about every way that matters here. Whereas Rule 59(e)

derives from a common-law court’s plenary power to revise its judg-

ment before anyone could appeal, Rule 60(b) codifies various writs

used to collaterally attack a court’s already completed judgment. That

distinction was not lost on pre-AEDPA habeas courts, which routinely

dismissed Rule 60(b) motions for raising repetitive claims. Next, the

Rules’ modern-day operations also diverge, with only Rule 60(b) un-

dermining AEDPA’s scheme to prevent delay and protect finality.

That is because a Rule 60(b) motion, which can arise long after the

denial of a prisoner’s initial petition, generally goes beyond pointing

out alleged errors in the just-issued decision. Still more, a Rule 60(b)

motion “does not affect the [original] judgment’s finality or suspend its

operation” and is appealable as “a separate final order.” Stone v. INS,

514 U. S. 386, 401. Left unchecked, a Rule 60(b) motion threatens se-

rial habeas litigation, while a Rule 59(e) motion is a one-time effort to

point out alleged errors in a just-issued decision before taking a single

appeal. Pp. 12–16.

Reversed and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and GINSBURG, BREYER, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ.,

joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.

Cite as: 590 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–6943

_________________

GREGORY DEAN BANISTER, PETITIONER v. LORIE

DAVIS, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 1, 2020]

JUSTICE KAGAN delivered the opinion of the Court.

A state prisoner is entitled to one fair opportunity to seek

federal habeas relief from his conviction. But he may not

usually make a “second or successive habeas corpus appli-

cation.” 28 U. S. C. §2244(b). The question here is whether

a motion brought under Federal Rule of Civil Procedure

59(e) to alter or amend a habeas court’s judgment qualifies

as such a successive petition. We hold it does not. A Rule

59(e) motion is instead part and parcel of the first habeas

proceeding.

I

This case is about two procedural rules. First, Rule 59(e)

applies in federal civil litigation generally. (Habeas pro-

ceedings, for those new to the area, are civil in nature. See

Fisher v. Baker, 203 U. S. 174, 181 (1906).) The Rule ena-

bles a party to request that a district court reconsider a just-

issued judgment. Second, the so-called gatekeeping provi-

sion of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), codified at 28 U. S. C. §2244(b), governs

2 BANISTER v. DAVIS

Opinion of the Court

federal habeas proceedings. It sets stringent limits on sec-

ond or successive habeas applications. We say a few words

about each before describing how the courts below applied

them here.

A

Rule 59(e) allows a litigant to file a “motion to alter or

amend a judgment.”1 The time for doing so is short—28

days from entry of the judgment, with no possibility of an

extension. See Fed. Rule Civ. Proc. 6(b)(2) (prohibiting ex-

tensions to Rule 59(e)’s deadline). The Rule gives a district

court the chance “to rectify its own mistakes in the period

immediately following” its decision. White v. New Hamp-

shire Dept. of Employment Security, 455 U. S. 445, 450

(1982). In keeping with that corrective function, “federal

courts generally have [used] Rule 59(e) only” to “recon-

sider[ ] matters properly encompassed in a decision on the

merits.” Id., at 451. In particular, courts will not address

new arguments or evidence that the moving party could

have raised before the decision issued. See 11 C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure §2810.1,

pp. 163–164 (3d ed. 2012) (Wright & Miller); accord, Exxon

Shipping Co. v. Baker, 554 U. S. 471, 485–486, n. 5 (2008)

(quoting prior edition).2 The motion is therefore tightly tied

to the underlying judgment.

The filing of a Rule 59(e) motion within the 28-day period

“suspends the finality of the original judgment” for pur-

poses of an appeal. FCC v. League of Women Voters of Cal.,

468 U. S. 364, 373, n. 10 (1984) (internal quotation marks

——————

1 The complete text of the Rule reads: “A motion to alter or amend a

judgment must be filed no later than 28 days after the entry of the judg-

ment.”

2 By contrast, courts may consider new arguments based on an “inter-

vening change in controlling law” and “newly discovered or previously

unavailable evidence.” 11 Wright & Miller §2810.1, at 161–162 (3d ed.

2012). But it is rare for such arguments or evidence to emerge within

Rule 59(e)’s strict 28-day timeframe.

Cite as: 590 U. S. ____ (2020) 3

Opinion of the Court

and alterations omitted). Without such a motion, a litigant

must take an appeal no later than 30 days from the district

court’s entry of judgment. See Fed. Rule App. Proc. (FRAP)

4(a)(1)(A). But if he timely submits a Rule 59(e) motion,

there is no longer a final judgment to appeal from. See Os-

terneck v. Ernst & Whinney, 489 U. S. 169, 174 (1989). Only

the disposition of that motion “restores th[e] finality” of the

original judgment, thus starting the 30-day appeal clock.

League of Women Voters, 468 U. S., at 373, n. 10 (internal

quotation marks omitted); see FRAP 4(a)(4)(A)(iv) (A

party’s “time to file an appeal runs” from “the entry of the

order disposing of the [Rule 59(e)] motion”). And if an ap-

peal follows, the ruling on the Rule 59(e) motion merges

with the prior determination, so that the reviewing court

takes up only one judgment. See 11 Wright & Miller §2818,

at 246; Foman v. Davis, 371 U. S. 178, 181 (1962). The

court thus addresses any attack on the Rule 59(e) ruling as

part of its review of the underlying decision.

Now turn to §2244(b)’s restrictions on second or succes-

sive habeas petitions. Under AEDPA, a state prisoner al-

ways gets one chance to bring a federal habeas challenge to

his conviction. See Magwood v. Patterson, 561 U. S. 320,

333–334 (2010). But after that, the road gets rockier. To

file a second or successive application in a district court, a

prisoner must first obtain leave from the court of appeals

based on a “prima facie showing” that his petition satisfies

the statute’s gatekeeping requirements. 28 U. S. C.

§2244(b)(3)(C). Under those provisions, which bind the dis-

trict court even when leave is given, a prisoner may not re-

assert any claims “presented in a prior application.”

§2244(b)(1). And he may bring a new claim only if it falls

within one of two narrow categories—roughly speaking, if

it relies on a new and retroactive rule of constitutional law

or if it alleges previously undiscoverable facts that would

establish his innocence. See §2244(b)(2). Still more: Those

restrictions, like all statutes and rules pertaining to habeas,

4 BANISTER v. DAVIS

Opinion of the Court

trump any “inconsistent” Federal Rule of Civil Procedure

otherwise applicable to habeas proceedings. 28 U. S. C.

§2254 Rule 12.

B

This case began when, nearly two decades ago, petitioner

Gregory Banister struck and killed a bicyclist while driving

a car. Texas charged him with the crime of aggravated as-

sault with a deadly weapon. A jury found him guilty, and

he was sentenced to 30 years in prison. State courts upheld

the conviction on direct appeal and in collateral proceed-

ings. Banister then turned to federal district court for ha-

beas relief. Although raising many claims, his petition

mainly argued that his trial and appellate counsel provided

him with constitutionally ineffective assistance. The Dis-

trict Court disagreed and entered judgment denying the ap-

plication.

At that point, Banister timely filed a Rule 59(e) motion

asking the District Court to alter its judgment. Consistent

with the Rule’s corrective purpose, Banister urged the court

to fix what he saw as “manifest errors of law and fact.” App.

219. Five days later and without requiring a response from

the State, the court issued a one-paragraph order explain-

ing that it had reviewed all relevant materials and stood by

its decision. See id., at 254. In accordance with the timeline

for appealing a judgment after the denial of a Rule 59(e)

motion, see supra, at 3, Banister then filed a notice of ap-

peal (along with a request for a certificate of appealability)

to challenge the District Court’s rejection of his habeas ap-

plication.

Yet the Court of Appeals for the Fifth Circuit dismissed

the appeal as untimely. That ruling rested on the view that

Banister’s Rule 59(e) motion, although captioned as such,

was not really a Rule 59(e) motion at all. Because it “at-

tack[ed] the federal court’s previous resolution of [his] claim

on the merits,” the Fifth Circuit held that the motion must

Cite as: 590 U. S. ____ (2020) 5

Opinion of the Court

be “construed as a successive habeas petition.” App. 305

(internal quotation marks omitted). In any future case,

that holding would prohibit a habeas court from consider-

ing claims made in a self-styled Rule 59(e) motion except in

rare circumstances—that is, when a court of appeals gave

permission and the claim fell within one of §2244(b)’s two

slender categories. See supra, at 3. In Banister’s own case,

that bar was of no moment because the District Court had

already addressed his motion’s merits. But viewing a Rule

59(e) motion as a successive habeas petition also had an-

other consequence, and this one would affect him. Unlike a

Rule 59(e) motion, the Court of Appeals noted, a successive

habeas application does not postpone the time to file an ap-

peal. That meant the clock started ticking when the Dis-

trict Court denied Banister’s habeas application (rather

than his subsequent motion)—and so Banister’s appeal was

several weeks late.

We granted certiorari to resolve a Circuit split about

whether a Rule 59(e) motion to alter or amend a habeas

court’s judgment counts as a second or successive habeas

application. 588 U. S. ___ (2019). We hold it does not, and

reverse.

II

This case requires us to choose between two rules—more

specifically, to decide whether AEDPA’s §2244(b) displaces

Rule 59(e) in federal habeas litigation. The Federal Rules

of Civil Procedure generally govern habeas proceedings.

See Fed. Rule Civ. Proc. 81(a)(4). They give way, however,

if and to the extent “inconsistent with any statutory provi-

sions or [habeas-specific] rules.” 28 U. S. C. §2254 Rule 12;

see supra, at 3–4. Here, the Fifth Circuit concluded and

Texas now contends that AEDPA’s limitation of repetitive

habeas applications conflicts with Rule 59(e)’s ordinary op-

eration. That argument in turn hinges on viewing a Rule

6 BANISTER v. DAVIS

Opinion of the Court

59(e) motion in a habeas case as a “second or successive ap-

plication.” §2244(b); see Brief for Respondent 10. If such a

motion constitutes a second or successive petition, then all

of §2244(b)’s restrictions kick in—limiting the filings Rule

59(e) would allow. But if a Rule 59(e) motion is not so un-

derstood—if it is instead part of resolving a prisoner’s first

habeas application—then §2244(b)’s requirements never

come into the picture.

The phrase “second or successive application,” on which

all this rides, is a “term of art,” which “is not self-defining.”

Slack v. McDaniel, 529 U. S. 473, 486 (2000); Panetti v.

Quarterman, 551 U. S. 930, 943 (2007). We have often

made clear that it does not “simply ‘refer’ ” to all habeas fil-

ings made “ ‘second or successively in time,’ ” following an

initial application. Magwood, 561 U. S., at 332 (quoting

Panetti, 551 U. S., at 944 (alteration omitted)). For exam-

ple, the courts of appeals agree (as do both parties) that an

amended petition, filed after the initial one but before judg-

ment, is not second or successive. See 2 R. Hertz & J. Lieb-

man, Federal Habeas Corpus Practice and Procedure §28.1,

pp. 1656–1657, n. 4 (7th ed. 2017) (collecting cases); Brief

for Petitioner 20–21; Brief for Respondent 16. So too, ap-

peals from the habeas court’s judgment (or still later peti-

tions to this Court) are not second or successive; rather,

they are further iterations of the first habeas application.3

Chronology here is by no means all.

In addressing what qualifies as second or successive, this

Court has looked for guidance in two main places. First, we

have explored historical habeas doctrine and practice. The

——————

3 For additional examples, see Slack v. McDaniel, 529 U. S. 473, 487

(2000) (allowing a prisoner to file a second-in-time, post-judgment appli-

cation to assert claims earlier dismissed for failure to exhaust) and Stew-

art v. Martinez-Villareal, 523 U. S. 637, 643–644 (1998) (permitting a

prisoner to file a second-in-time, post-judgment application to argue that

he was incompetent to be executed).

Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

phrase “second or successive application,” we have ex-

plained, is “given substance in our prior habeas corpus

cases,” including those “predating [AEDPA’s] enactment.”

Slack, 529 U. S., at 486; Panetti, 551 U. S., at 944; see id.,

at 943 (stating that the phrase “takes its full meaning from

our case law”). In particular, we have asked whether a type

of later-in-time filing would have “constituted an abuse of

the writ, as that concept is explained in our [pre-AEDPA]

cases.” Id., at 947. If so, it is successive; if not, likely not.

Second, we have considered AEDPA’s own purposes. The

point of §2244(b)’s restrictions, we have stated, is to “con-

serve judicial resources, reduc[e] piecemeal litigation,” and

“lend[ ] finality to state court judgments within a reasonable

time.” Id., at 945–946 (internal quotation marks omitted).

With those goals in mind, we have considered “the implica-

tions for habeas practice” of allowing a type of filing, to as-

sess whether Congress would have viewed it as successive.

Stewart v. Martinez-Villareal, 523 U. S. 637, 644 (1998).

Here, both historical precedents and statutory aims point

in the same direction—toward permitting Rule 59(e) mo-

tions in habeas proceedings. And nothing cuts the opposite

way.

A

This Court has already held that history supports a ha-

beas court’s consideration of a Rule 59(e) motion. In

Browder v. Director, Dept. of Corrections of Ill., 434 U. S.

257 (1978), we addressed prior to AEDPA “the applicability

of Federal Rule [59(e)] in habeas corpus proceedings.” Id.,

at 258. In deciding that the Rule applied in habeas—that

“a prompt motion for reconsideration” was “thoroughly con-

sistent” with habeas law and “well suited to the special

problems and character of [habeas] proceedings”—we

mainly looked to historical practice. Id., at 271 (internal

quotation marks omitted). Rule 59(e), we recounted, de-

rived from a court’s common-law power “to alter or amend

8 BANISTER v. DAVIS

Opinion of the Court

its own judgments during[] the term of court in which [they

were] rendered,” prior to any appeal. Id., at 270; see Zim-

mern v. United States, 298 U. S. 167, 169–170 (1936) (“The

judge had plenary power while the term was in existence to

modify his judgment [or] revoke it altogether”).4 Courts ex-

ercised that authority, we explained, “in habeas corpus

cases” just as “in other civil proceedings.” Browder, 434

U. S., at 270. In 1946, the drafters of the Federal Rules re-

placed the “term of court” power with Rule 59(e), thus pre-

scribing a set number of days (then 10, now 28) in which a

party could move to amend a judgment. See id., at 271. But

in our view, that change did nothing to narrow the set of

judgments amenable to alteration. See id., at 270–271. Af-

ter Rule 59(e), just as before, a district court could “recon-

sider the grant or denial of habeas corpus relief ” in the

same way it could review any other decision. Id., at 270;

see id., at 271. A timely Rule 59(e) motion, we held, “sus-

pend[ed] the finality” of any judgment, including one in ha-

beas—thus enabling a district court to address the matter

again. Id., at 267 (internal quotation marks omitted).5

——————

4 A term of court in those days was simply a period in which a court

was open for business. A statute or rule set the date of its commence-

ment, and the court itself determined the date to adjourn. See United

States v. Pitman, 147 U. S. 669, 670–671 (1893).

5 The dissent’s attempt to dismiss Browder is impossible to square with

the opinion. Mostly, the dissent claims that Browder is just a case about

“time limits.” Post, at 10 (opinion of ALITO, J.). But Browder is about

time limits only in the sense that this case is about time limits: There,

as here, the timeliness of a motion depended on the broader question

whether Rule 59(e) applied in habeas proceedings. See 434 U. S., at 258

(“In order to resolve th[e] question” whether the “appeal was untimely,”

“we must consider the applicability of Federal Rule[ ] 59 in habeas corpus

proceedings”). The dissent also intimates that Browder was different be-

cause there the prison warden rather than the prisoner moved for recon-

sideration of the habeas ruling. See post, at 10, and n. 2. But the Court’s

decision explicitly addressed “motion[s ] to reconsider the grant or denial

of habeas corpus relief.” 434 U. S., at 270 (emphasis added). In other

Cite as: 590 U. S. ____ (2020) 9

Opinion of the Court

The record of judicial decisions accords with Browder’s

view of the use of Rule 59(e) in habeas practice. Before

AEDPA, “abuse-of-the-writ principles limit[ed] a [habeas

applicant’s] ability to file repetitive petitions.” McCleskey

v. Zant, 499 U. S. 467, 483 (1991). That doctrine was more

forgiving than AEDPA’s gatekeeping provision—for exam-

ple, enabling courts to hear a second or successive petition

if the “ends of justice” warranted doing so. Id., at 485. But

the rule against repetitive litigation still had plenty of bite.

It demanded the dismissal of successive applications except

in “rare case[s].” Kuhlmann v. Wilson, 477 U. S. 436, 451

(1986) (plurality opinion). So if courts had viewed Rule

59(e) motions as successive, there should be lots of decisions

dismissing them on that basis. But nothing of the kind ex-

ists. In the half century from Rule 59(e)’s adoption (1946)

through Browder (1978) to AEDPA’s enactment (1996), we

(and the parties) have found only one such dismissal. See

Bannister v. Armontrout, 4 F. 3d 1434, 1445 (CA8 1993). In

every other case, courts resolved Rule 59(e) motions on the

merits—and without any comment about repetitive litiga-

tion. Mostly, courts denied the motions and adhered to

their original judgments. See, e.g., Gajewski v. Stevens, 346

F. 2d 1000, 1001 (CA8 1965) (per curiam). Occasionally,

courts decided they had erred in those decisions. See, e.g.,

York v. Tate, 858 F. 2d 322, 325 (CA6 1988) (per curiam).

The win-loss rate is for this point irrelevant. What matters

is that they all (but one) treated Rule 59(e) motions not as

successive, but as attendant on the initial habeas applica-

tion.

Congress passed AEDPA against this legal backdrop, and

did nothing to change it. AEDPA of course made the limits

on entertaining second or successive habeas applications

——————

words, the identity of the movant—whether warden or prisoner—was ir-

relevant.

10 BANISTER v. DAVIS

Opinion of the Court

more stringent than before. See supra, at 3. But the stat-

ute did not redefine what qualifies as a successive petition,

much less place Rule 59(e) motions in that category. Cf.

Magwood, 561 U. S., at 336–337 (distinguishing between

two questions: “§2244(b)’s threshold inquiry into whether

an application is ‘second or successive’ and its subsequent

inquiry into whether [to dismiss] a successive application”).

When Congress “intends to effect a change” in existing

law—in particular, a holding of this Court—it usually pro-

vides a clear statement of that objective. TC Heartland

LLC v. Kraft Foods Group Brands LLC, 581 U. S. ___, ___

(2017) (slip op., at 8). AEDPA offers no such indication that

Congress meant to change the historical practice Browder

endorsed of applying Rule 59(e) in habeas proceedings.

Nor do AEDPA’s purposes demand a change in that tra-

dition. As explained earlier, AEDPA aimed to prevent se-

rial challenges to a judgment of conviction, in the interest

of reducing delay, conserving judicial resources, and pro-

moting finality. See supra, at 7. Nothing in Rule 59(e)—a

rule Browder described as itself “based on an interest in

speedy disposition and finality,” 434 U. S., at 271 (internal

quotation marks omitted)—conflicts with those goals. Re-

call everything said above about the Rule’s operation. See

supra, at 2–3. To begin with, Rule 59(e) gives a prisoner

only a narrow window to ask for relief—28 days, with no

extensions. Next, a prisoner may invoke the rule only to

request “reconsideration of matters properly encompassed”

in the challenged judgment. White, 455 U. S., at 451. And

“reconsideration” means just that: Courts will not entertain

arguments that could have been but were not raised before

the just-issued decision. A Rule 59(e) motion is therefore

backward-looking; and because that is so, it maintains a

prisoner’s incentives to consolidate all of his claims in his

initial application. Yet more, the Rule consolidates appel-

late proceedings. A Rule 59(e) motion briefly suspends fi-

nality to enable a district court to fix any mistakes and

Cite as: 590 U. S. ____ (2020) 11

Opinion of the Court

thereby perfect its judgment before a possible appeal. The

motion’s disposition then merges into the final judgment

that the prisoner may take to the next level. In that way,

the Rule avoids “piecemeal appellate review.” Osterneck,

489 U. S., at 177. Its operation, rather than allowing re-

peated attacks on a decision, helps produce a single final

judgment for appeal.

Indeed, the availability of Rule 59(e) may make habeas

proceedings more efficient. Most obviously, the Rule ena-

bles a district court to reverse a mistaken judgment, and so

make an appeal altogether unnecessary. See United States

v. Ibarra, 502 U. S. 1, 5 (1991) (per curiam) (noting that giv-

ing district courts a short time to correct their own errors

“prevents unnecessary burdens being placed on the courts

of appeals”). Of course, Rule 59(e) motions seldom change

judicial outcomes. But even when they do not, they give

habeas courts the chance to clarify their reasoning or ad-

dress arguments (often made in less-than-limpid pro se pe-

titions) passed over or misunderstood before. See Brief for

National Association of Criminal Defense Lawyers as Ami-

cus Curiae 12–20 (describing examples). That opportunity,

too, promotes an economic and effective appellate process,

as the reviewing court gets “the benefit of the district

court’s plenary findings.” Osterneck, 489 U. S., at 177. And

when a district court sees no need to change a decision, the

costs of permitting a Rule 59(e) motion are typically slight.

A judge familiar with a habeas applicant’s claims can usu-

ally make quick work of a meritless motion. This case may

well provide an example: The District Court declined to

make the State respond to Banister’s motion and decided it

within five days. Nothing in such a process conflicts with

AEDPA’s goal of streamlining habeas cases.

The upshot, after AEDPA as before, is that Rule 59(e) mo-

tions are not second or successive petitions, but instead a

part of a prisoner’s first habeas proceeding. In timing and

substance, a Rule 59(e) motion hews closely to the initial

12 BANISTER v. DAVIS

Opinion of the Court

application; and the habeas court’s disposition of the former

fuses with its decision on the latter. Such a motion does not

enable a prisoner to abuse the habeas process by stringing

out his claims over the years. It instead gives the court a

brief chance to fix mistakes before its (single) judgment on

a (single) habeas application becomes final and thereby

triggers the time for appeal. No surprise, then, that habeas

courts historically entertained Rule 59(e) motions, rather

than dismiss them as successive. Or that Congress said not

a word about changing that familiar practice even when en-

acting other habeas restrictions.

B

Texas (along with the dissent) resists this conclusion on

one main ground: this Court’s prior decision in Gonzalez v.

Crosby, 545 U. S. 524 (2005). The question there was

whether a Rule 60(b) motion for “relie[f] from a final judg-

ment” denying habeas relief counts as a second or succes-

sive habeas application. Fed. Rule Civ. Proc. 60(b).6 We

said that it does, so long as the motion “attacks the federal

court’s previous resolution of a claim on the merits.” 545

U. S., at 532 (emphasis deleted).7 Texas thinks the “Gonza-

lez principle applies with equal force to Rule 59(e) motions.”

——————

6 Under Rule 60(b), a court may relieve a party in civil litigation from

a final judgment if the party can show (1) mistake, inadvertence, sur-

prise, or excusable neglect; (2) certain newly discovered evidence; (3)

fraud, misrepresentation, or misconduct by an opposing party; (4) void-

ness of the judgment; (5) certain events that would cast doubt on the

validity or equity of continuing to apply the judgment; or (6) “any other

reason that justifies relief.” Fed. Rule Civ. Proc. 60(b)(1)–(6).

7 By contrast, Gonzalez held, a Rule 60(b) motion that attacks “some

defect in the integrity of the federal habeas proceedings”—like the mis-

taken application of a statute of limitations—does not count as a habeas

petition at all, and so can proceed. 545 U. S., at 532. Texas concedes

that if Gonzalez controls Rule 59(e) motions, that decision’s distinction

between merits-based motions and integrity-based motions would have

to apply. See Brief for Respondent 37. The need for a habeas court to

make that not-always-easy threshold determination further undermines

Cite as: 590 U. S. ____ (2020) 13

Opinion of the Court

Brief for Respondent 8. After all, the State argues, both

Rule 59(e) and Rule 60(b) provide “vehicles for asserting ha-

beas claims” after a district court has entered judgment

denying relief. Id., at 2. And if Gonzalez does apply, Texas

concludes, Banister must lose because (as everyone agrees)

his Rule 59(e) motion pressed only merits-based claims.

But Rule 60(b) differs from Rule 59(e) in just about every

way that matters to the inquiry here. (Contra the dissent’s

refrain, see post, at 1, 3, 5, 6, 10, 14, the variance goes far

beyond their “labels.”) Begin, again, with history. Recall

that Rule 59(e) derives from a common-law court’s plenary

power to revise its judgment during a single term of court,

before anyone could appeal. See supra, at 7–8. By contrast,

Rule 60(b) codifies various writs used to seek relief from a

judgment at any time after the term’s expiration—even af-

ter an appeal had (long since) concluded. Those mecha-

nisms did not (as the term rule did) aid the trial court to get

its decision right in the first instance; rather, they served

to collaterally attack its already completed judgment. See

Advisory Committee’s 1946 Notes on Amendments to Fed.

Rule Civ. Proc. 60; Mann, Note, History and Interpretation

of Federal Rule 60(b), 25 Temp. L. Q. 77, 78 (1951). And

that distinction was not lost on pre-AEDPA habeas courts

applying the two rules. As discussed earlier, it is practically

impossible to find a case dismissing a Rule 59(e) motion for

raising repetitive claims. See supra, at 9. But decisions

abound dismissing Rule 60(b) motions for that reason. See,

e.g., Williamson v. Rison, 1993 WL 262632 (CA9, July 9,

1993); see also Brewer v. Ward, 1996 WL 194830, *1 (CA10,

Apr. 22, 1996) (collecting cases from multiple Circuits).

That is because those courts recognized Rule 60(b)—as con-

——————

the notion—already on shaky ground, see supra, at 10–11—that Texas’s

position would lead to any efficiency gains.

14 BANISTER v. DAVIS

Opinion of the Court

trasted to Rule 59(e)—as threatening an already final judg-

ment with successive litigation.8

The modern-day operation of the two Rules also diverge,

with only Rule 60(b) undermining AEDPA’s scheme to pre-

vent delay and protect finality. Unlike Rule 59(e) motions

with their fixed 28-day window, Rule 60(b) motions can

arise long after the denial of a prisoner’s initial petition—

depending on the reason given for relief, within either a

year or a more open-ended “reasonable time.” Fed. Rule

Civ. Proc. 60(c)(1). In Gonzalez itself, the prisoner made his

motion nearly three years after the habeas court’s denial of

relief, and more than one year after his appeal ended. See

545 U. S., at 527. Given that extended timespan, Rule 60(b)

inevitably elicits motions that go beyond Rule 59(e)’s mis-

sion of pointing out the alleged errors in the habeas court’s

decision. See, e.g., Lopez v. Douglas, 141 F. 3d 974, 975

(CA10 1998) (per curiam) (seeking relief in light of a Su-

preme Court decision issued a decade after judgment); Ty-

ler v. Anderson, 749 F. 3d 499, 504–505 (CA6 2014) (seeking

to raise claims that former counsel had neglected in a years-

old habeas application). Still more, the appeal of a Rule

60(b) denial is independent of the appeal of the original pe-

tition. Recall that a Rule 59(e) motion suspends the finality

——————

8 The dissent’s alternative explanation for this disparity does not pass

muster. According to the dissent, habeas courts “might have been more

inclined” to rule on the merits of Rule 59(e) motions because doing so was

easier: after all, they (but not Rule 60(b) motions) always challenge a

just-issued decision. Post, at 12. But another course would have been

easier still: throwing out the motion for raising repetitive claims. And

even more to the point, that course would usually have been required if

the dissent were right that Rule 59(e) motions counted as successive.

Although pre-AEDPA courts had some discretion around the edges, the

consideration of successive petitions was supposed to be “rare.”

Kuhlmann v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion); see

supra, at 9. It is a “tall order,” post, at 12, then, to think that a half

century’s worth of habeas courts would have resolved Rule 59(e) motions

on the merits if they thought of those motions as successive. The only

plausible account of their actions is that they did not.

Cite as: 590 U. S. ____ (2020) 15

Opinion of the Court

of the habeas judgment, and a decision on the former

merges into the latter for appellate review. See supra, at

2–3, 10-11. By contrast, a Rule 60(b) motion “does not affect

the [original] judgment’s finality or suspend its operation.”

Fed. Rule Civ. Proc. 60(c)(2). And an appeal from the denial

of Rule 60(b) relief “does not bring up the underlying judg-

ment for review.” Browder, 434 U. S., at 263, n. 7. Instead,

that denial is appealed as “a separate final order.” Stone v.

INS, 514 U. S. 386, 401 (1995).9

In short, a Rule 60(b) motion differs from a Rule 59(e)

motion in its remove from the initial habeas proceeding. A

Rule 60(b) motion—often distant in time and scope and al-

ways giving rise to a separate appeal—attacks an already

completed judgment. Its availability threatens serial ha-

beas litigation; indeed, without rules suppressing abuse, a

prisoner could bring such a motion endlessly. By contrast,

a Rule 59(e) motion is a one-time effort to bring alleged er-

rors in a just-issued decision to a habeas court’s attention,

before taking a single appeal. It is a limited continuation

of the original proceeding—indeed, a part of producing the

final judgment granting or denying habeas relief. For those

reasons, Gonzalez does not govern here. A Rule 59(e) mo-

tion, unlike a Rule 60(b) motion, does not count as a second

or successive habeas application.

——————

9 Texas objects that if a Rule 60(b) motion is filed within 28 days, it too

suspends the finality of the underlying judgment so that the denial of the

motion merges with that judgment on appeal. See Brief for Respondent

25, 28. But that is only because courts of appeals have long treated Rule

60(b) motions filed within 28 days as . . . Rule 59(e) motions. See, e.g.,

Skagerberg v. Oklahoma, 797 F. 2d 881, 882–883 (CA10 1986) (per cu-

riam) (“A post-judgment motion made within [28] days of the entry of

judgment that questions the correctness of a judgment,” however denom-

inated, “is properly construed as a motion to alter or amend judgment

under [Rule] 59(e)”); see also Fed. Rule App. Proc. 4(a)(4)(A)(vi) (codify-

ing that approach by setting the same appeals clock for self-styled Rule

60(b) motions filed within 28 days as for Rule 59(e) motions).

16 BANISTER v. DAVIS

Opinion of the Court

III

Our holding means that the Court of Appeals should not

have dismissed Banister’s appeal as untimely. Banister

properly brought a Rule 59(e) motion in the District Court.

As noted earlier, the 30-day appeals clock runs from the dis-

position of such a motion, rather than from the initial entry

of judgment. See supra, at 3. And Banister filed his notice

of appeal within that time. The Fifth Circuit reached a con-

trary conclusion because it thought that Banister’s motion

was really a second or successive habeas application, and so

did not reset the appeals clock. For all the reasons we have

given, that understanding of a Rule 59(e) motion is wrong.

We therefore reverse the judgment of the Court of Appeals

and remand the case for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 590 U. S. ____ (2020) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–6943

_________________

GREGORY DEAN BANISTER, PETITIONER v. LORIE

DAVIS, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 1, 2020]

JUSTICE ALITO, with whom JUSTICE THOMAS joins,

dissenting.

Gregory Banister, a state prisoner, filed a federal habeas

petition arguing that his conviction was invalid for 53 rea-

sons. His arguments spanned almost 300 pages and fea-

tured an imagined retelling of the jury deliberations in the

form of stage dialogue. After the District Court determined

that all his claims lacked merit, he filed a motion rearguing

many of them.

If Banister had labeled this motion what it was in sub-

stance—another habeas petition—it would have been sum-

marily dismissed under 28 U. S. C. §2244(b)(1). If he had

labeled it a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b), it would also have been sub-

ject to dismissal under our decision in Gonzalez v. Crosby,

545 U. S. 524 (2005). Instead, he gave it a different label,

styling it as a motion to alter the judgment under Rule

59(e), and the Court now holds this label makes all the

difference.

The question in this case is whether a state prisoner can

evade the federal habeas statute’s restrictions on second or

successive habeas petitions by affixing a Rule 59(e) label.

The answer follows from our decision in Gonzalez, and the

2 BANISTER v. DAVIS

ALITO, J., dissenting

answer is no. If a Rule 59(e) motion asserts a habeas claim,

the motion functions as a second or successive habeas peti-

tion and should be treated as such.

I

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) “streamlin[es] federal habeas corpus pro-

ceedings.” Rhines v. Weber, 544 U. S. 269, 277 (2005). A

state prisoner is generally limited to a single federal habeas

petition, which usually must be filed within one year after

the end of direct review; the district court must give this

petition “priority”; if the prisoner is dissatisfied with the

district court’s decision and wants to appeal, he must seek

permission from the appropriate court of appeals and must

set out the errors he thinks the district court made; and the

appeal can go forward only if a specified standard is met.

§§2244(d), 2253(c), 2254(a), 2266(a). As we have frequently

said, this design was crafted to promote comity, finality,

federalism, and judicial efficiency. See, e.g., Panetti v.

Quarterman, 551 U. S. 930, 945 (2007).

Habeas petitions occupy an outsized place on federal

dockets. See infra, at 13. Their efficient resolution not only

preserves federal judicial capacity but removes the cloud of

federal review from state-court judgments. The federal ha-

beas provisions create a procedural regime that differs

sharply from the regime that generally applies in civil

cases, and the habeas statute displaces any Federal Rule of

Civil Procedure that is “inconsistent with” its provisions.

28 U. S. C. §2254 Rule 12 (Habeas Rule 12).

Integral to AEDPA’s design are its restrictions on “second

or successive” habeas petitions, which, prior to AEDPA,

sometimes led to very lengthy delays. See, e.g., Kuhlmann

v. Wilson, 477 U. S. 436, 453, and n. 15 (1986) (plurality

opinion). A provision added by AEDPA, 28 U. S. C.

§2244(b), is designed to prevent this. Under §2244(b)(1), a

second or successive petition may not duplicate the initial

Cite as: 590 U. S. ____ (2020) 3

ALITO, J., dissenting

petition. Thus, any claim “that was presented in a prior

application shall be dismissed.” §2244(b)(1). In addition,

second or successive petitions usually may not raise new

claims either. Any claim “that was not presented in a prior

application shall be dismissed unless” it meets stringent

standards contained in §2244(b)(2). Specifically, to avoid

dismissal, a new claim must rely on (1) “a new rule of con-

stitutional law” that this Court has made applicable in ha-

beas proceedings or (2) a fact that “could not have been dis-

covered previously through the exercise of due diligence”

and that now makes the petitioner’s innocence “clear and

convincing.” §§2244(b)(2)(A)–(B).

A prisoner wishing to file a second or successive petition

must apply to a court of appeals for permission to do so, and

the court of appeals cannot authorize the filing unless the

petition makes a prima facie showing that it meets

§2244(b)(2)’s standards. §2244(b)(3). If a court of appeals

allows the second or successive petition to be filed, the dis-

trict court must nevertheless review its claims and dismiss

any that turns out not to meet §2244(b)(2)’s standards.

§2244(b)(4).

II

In Gonzalez, we considered how §2244(b) applies to a fil-

ing that is in essence a second or successive habeas petition

but bears a different label. The filing there was a motion

under Rule 60(b), which allows a court to relieve a party of

an earlier judgment. Every Member of the Gonzalez Court,

including those in dissent, recognized that whether a Rule

60(b) motion should be treated as a habeas petition depends

on the nature of the relief the motion seeks, not the label

slapped onto it. 545 U. S., at 532 (opinion of the Court); id.,

at 538 (BREYER, J., concurring); id., at 539 (Stevens, J., dis-

senting). And in considering whether a Rule 60(b) motion

asserts the type of relief that requires it to be treated as a

habeas petition, the critical question is whether the motion

4 BANISTER v. DAVIS

ALITO, J., dissenting

in essence asserts a habeas claim, that is, a claim that pro-

pounds a “federal basis for relief from a state court’s judg-

ment of conviction.” Id., at 530 (opinion of the Court). If

the motion “seeks to add a new ground for” that relief, it

“will of course qualify” as a second or successive habeas pe-

tition. Id., at 532. It will also qualify “if it attacks the fed-

eral court’s previous resolution of a [habeas] claim on the

merits.” Ibid.

To see how this analysis plays out, imagine a case in

which a state prisoner files a Rule 60(b) motion alleging

that he was denied the effective assistance of counsel at

trial. If that claim was not in his initial habeas petition,

the motion constitutes a second or successive habeas peti-

tion because it asserts a new reason why he is entitled to

habeas relief. And if that claim was in his initial habeas

petition but he now alleges that the court erroneously de-

nied the claim, the motion is still a second or successive ha-

beas petition since it alleges that the court should have

granted him habeas relief, an argument that is “effectively

indistinguishable” from the claim that he was entitled to

that relief in the first place. Ibid. In either event, we held

in Gonzalez, “failing to subject” the motion to §2244(b)

“would be inconsistent with” AEDPA. Id., at 531 (internal

quotation marks omitted).

Although Gonzalez concerned a motion under Rule 60(b),

nothing in its reasoning was tied to any specific character-

istics of such a motion, and accordingly, there is no good

reason why a Rule 59(e) motion should not be subject to the

same rules. Indeed, the application of Gonzalez’s reasoning

is even more clear-cut when a habeas petitioner files a Rule

59(e) motion. Like its neighbor, Rule 59(e) provides a way

for a civil litigant to get relief after the entry of judgment,

but a Rule 59(e) motion can seek only “reconsideration of

matters properly encompassed in a decision on the merits.”

White v. New Hampshire Dept. of Employment Security, 455

U. S. 445, 451 (1982); accord, ante, at 10. And a claim that

Cite as: 590 U. S. ____ (2020) 5

ALITO, J., dissenting

“attacks the federal court’s previous resolution of a claim on

the merits” is exactly the type of claim that, under Gonzalez,

is subject to §2244(b)(1) and must therefore be dismissed.

545 U. S., at 532.1

Today’s opinion thus permits precisely the type of circum-

vention that Gonzalez prevents. Consider again the habeas

petitioner with the allegedly bad trial lawyer. Suppose

that, after the district court denies an ineffective-assistance

claim in his initial petition, he submits three effectively in-

distinguishable filings under different headers: a second

habeas petition asserting the same claim again; a Rule

60(b) motion disputing the court’s resolution of the claim;

and a Rule 59(e) motion doing the same. The first two will

face dismissal under §2244(b)(1). But, under today’s deci-

sion, the third may proceed. And not only that, if a pro se

litigant does not appreciate that he can get around

§2244(b)(1) by calling his second or successive petition a

Rule 59(e) motion, a court may “ignore the legal label that

[the] pro se litigant attaches to” his filing, treat the petition

as a Rule 59(e) motion, and voilà, §2244(b) disappears from

view. Castro v. United States, 540 U. S. 375, 381 (2003).

This allows a habeas petitioner to obtain “a second chance

to have the merits determined favorably” in contravention

of AEDPA and our reasoning in Gonzalez, 545 U. S., at 533,

n. 5.

III

The Court provides a variety of reasons for refusing to

follow Gonzalez, but none is sound.

——————

1 Rule 59(e) motions can also assert “newly discovered or previously

unavailable evidence” and “intervening change[s] in controlling law.” 11

C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1

(3d ed. Supp. 2020). Banister’s motion did neither, see Brief for Peti-

tioner 47, so this case concerns only the types of claims that require au-

tomatic dismissal under 28 U. S. C. §2244(b)(1).

6 BANISTER v. DAVIS

ALITO, J., dissenting

A

The Court begins by saying that a Rule 59(e) motion is

part of a petitioner’s “one fair opportunity to seek federal

habeas relief,” ante, at 1, but if there is a reason why a Rule

60(b) motion could not also be called part of that “oppor-

tunity,” the Court does not offer one. A repetitive habeas

claim is as much a repetitive habeas claim if filed under

Rule 59(e) in 28 days or under Rule 60(b) at, say, day 29.

The label is the only “variance” that explains why one is

now allowed but not the other. Ante, at 13.

B

The Court proclaims that Rules 59(e) and 60(b) differ “in

just about every way that matters to the inquiry here,” ante,

at 13, but none of the differences that the Court cites matter

under Gonzalez’s reasoning, which relies on the nature of

the claim asserted in the post-judgment motion. Under

that reasoning, it makes no difference that a Rule 60(b) mo-

tion may be filed later than a Rule 59(e) motion, that a Rule

59(e) motion (but not a later-filed Rule 60(b) motion) sus-

pends a judgment’s finality for purposes of appeal, or that

an order denying a Rule 59(e) motion merges with the judg-

ment for purposes of appeal, whereas a Rule 60(b) denial is

separately appealable. Ante, at 14–15. Gonzalez did not

rely on a single one of the Rule 60(b) characteristics men-

tioned by the Court here, and none matters under Gonza-

lez’s reasoning. On the contrary, Gonzalez’s logic was sim-

ple: If a motion advances a habeas claim, it counts as a

habeas petition.

C

The Court looks to the history of motions to alter or

amend a judgment, see ante, at 7–8, but it is hard to see

how that history has a bearing on the issue in this case. As

the Court notes, trial courts once had the power to correct

errors in their judgments during but not after the term in

Cite as: 590 U. S. ____ (2020) 7

ALITO, J., dissenting

which the judgment was handed down, but how this is rel-

evant to our issue is a mystery. The point in time at which

a court’s power to alter or amend a judgment ends (whether

at the conclusion of a court term or at a specified point after

the entry of the judgment) is used to determine whether a

motion to alter or amend is timely. But the issue before us

is not whether Banister filed his Rule 59(e) motion within

the time allowed for such motions (he did) but whether his

motion counts as a habeas petition. The question would be

exactly the same if district courts still had terms of court

and his motion was filed before the term ended.

D

In arguing that “[t]his case requires us to choose be-

tween” §2244(b) and Rule 59(e), ante, at 5, the Court in-

vokes Habeas Rule 12, which states that “[t]he Federal

Rules of Civil Procedure, to the extent that they are not in-

consistent with any statutory provisions or these rules, may

be applied to a proceeding under these rules.” According to

the Court, AEDPA does not “place Rule 59(e) motions in

th[e] category” of second or successive petitions, and there-

fore AEDPA does not alter Rule 59(e)’s role. Ante, at 10.

This argument greatly exaggerates the very limited role

of Habeas Rule 12. Although “habeas corpus proceedings

are characterized as ‘civil,’ ” “the label is gross and inexact.”

Harris v. Nelson, 394 U. S. 286, 293–294 (1969). They are

“unique,” and even before AEPDA they “conformed with

civil practice only in a general sense.” Id., at 294. Thus, we

have contrasted a “civil action, governed by the full panoply

of the Federal Rules of Civil Procedure,” with the “swift,

flexible, and summary determination” of a habeas claim.

Preiser v. Rodriguez, 411 U. S. 475, 495–496 (1973). The

Civil Rules themselves give AEDPA precedence. They “ap-

ply to proceedings for habeas corpus” only insofar as “the

practice in those proceedings is not specified in a federal

statute” or the Habeas Rules and “has previously conformed

8 BANISTER v. DAVIS

ALITO, J., dissenting

to the practice in civil actions.” Fed. Rule Civ. Proc.

81(a)(4). And as we have observed, “[s]uch specific evidence

as there is with respect to the intent of the draftsmen of the

[civil] rules indicates nothing more than a general and non-

specific understanding that the rules would have very lim-

ited application to habeas corpus proceedings.” Harris, 394

U. S., at 295.

Let’s count some of the ways in which habeas proceedings

deviate from the Civil Rules. Discovery rules, which are

central to civil litigation, do not apply “as a matter of right”

in habeas proceedings. Ibid. Instead, a court’s leave is re-

quired for factual development. See Habeas Rule 6(a); see

also Bracy v. Gramley, 520 U. S. 899, 908–909 (1997). An-

other civil mainstay, the Rule 12(b)(6) motion to dismiss,

also has no place in habeas. See Browder v. Director, Dept.

of Corrections of Ill., 434 U. S. 257, 269, n. 14 (1978); see

also Habeas Rule 4 (responsive pleading not required un-

less the court directs). Indeed, the entire “civil action pro-

cedural sequencing—from a motion to dismiss, to an an-

swer, to discovery, and ultimately to trial—[i]s not

applicable in habeas cases.” O’Brien v. Moore, 395 F. 3d

499, 506 (CA4 2005) (discussing Browder, 434 U. S., at 269,

n. 14). Even nationwide service of process authorized by

statute, rather than the Civil Rules, is unavailable in ha-

beas. See Schlanger v. Seamans, 401 U. S. 487, 489–491,

and n. 4 (1971). And though courts have long applied “non-

controversial rules in habeas corpus proceedings,” Harris,

394 U. S., at 294, n. 5, the mixed bag shows habeas’s hybrid

nature. See 4 C. Wright, A. Miller, & A. Steinman, Federal

Practice and Procedure §1021, n. 6 (4th ed. Supp. 2020)

(Wright & Miller) (cataloging other rules that courts have

and have not applied).

Our decisions rejecting some of the Civil Rules’ proce-

dural “formalisms” have often inured to the benefit of ha-

beas petitioners. Hensley v. Municipal Court, San Jose-

Milpitas Judicial Dist., Santa Clara Cty., 411 U. S. 345, 350

Cite as: 590 U. S. ____ (2020) 9

ALITO, J., dissenting

(1973). In O’Neal v. McAninch, 513 U. S. 432 (1995), we

rejected a State’s argument that Rule 61 put the burden on

habeas petitioners to resolve doubts about whether trial er-

rors were harmless, and we reached that conclusion primar-

ily because habeas proceedings are “[u]nlike the civil cases

cited by the State.” Id., at 440. In Holiday v. Johnston, 313

U. S. 342 (1941), the petitioner sought habeas relief from a

district court but received a hearing before an Alcatraz com-

missioner. We held that Rule 53, which allows a court to

send some issues to a “master,” did not justify that practice

in habeas cases; the federal habeas statute contemplated

proceedings before judges, giving Rule 53 “no application.”

Id., at 353. In so holding, we rejected the argument that

the practice at issue was permissible because it was “a con-

venient one,” id., at 352, the same claim that the Court

makes about Rule 59(e), ante, at 11. Instead, we held that

a court “may not substitute another more convenient mode”

from civil practice if it contravenes “the Congressional pol-

icy” reflected “in the Habeas Corpus Act.” Holiday, 313

U. S., at 352.

AEDPA has only widened the gap between habeas and

other civil proceedings, see Felker v. Turpin, 518 U. S. 651,

664 (1996), and Gonzalez illustrates the point. Like Rule

59(e) and the other Rules just discussed, no federal habeas

provision “expressly circumscribe[s]” the application of

Rule 60(b) in habeas cases. 545 U. S., at 529. And like Rule

59(e) but unlike the discovery rules, which were “innova-

tions,” Hickman v. Taylor, 329 U. S. 495, 500 (1947), Rule

60(b) descends from “ancient” civil practice, 11 Wright &

Miller §2851. But AEDPA so “dramatically” reshaped fed-

eral habeas procedure, Rhines, 544 U. S., at 274, that courts

must proceed “in a manner consistent with the objects of

the statute” even where it does not address a given detail,

Calderon v. Thompson, 523 U. S. 538, 554 (1998). Where a

Civil Rule does conflict with a specific AEDPA provision

like §2244(b), AEDPA necessarily prevails.

10 BANISTER v. DAVIS

ALITO, J., dissenting

On its own, then, Habeas Rule 12 cannot do the work that

Banister needs. He must show that AEDPA itself contains

the loophole he seeks to exploit, and he has not done so. The

refrain echoed by the Court—that a Rule 59(e) motion

comes included with a petitioner’s “one full and fair oppor-

tunity” for habeas relief, Brief for Petitioner 1; see ante, at

1—simply begs the question that AEDPA answers: namely,

what that opportunity entails. It does not entail “a second

chance to have the merits” of a habeas claim “determined

favorably.” Gonzalez, 545 U. S., at 533, n. 5.

Lifting partial quotations from our decision in Browder,

434 U. S., at 271, the Court states that we have “already

held” that Rule 59(e) is “ ‘thoroughly consistent’ with ha-

beas law,” ante, at 7, but the partial quotations are highly

misleading. The case had nothing to do with the interplay

between Rule 59(e) and restrictions on filing a second or

successive habeas petition.

In Browder, a prison warden moved for reconsideration

of a judgment granting habeas relief, but he did not do so

within the time allowed by Rule 59 and Rule 52(b), which

sets the same deadline for a motion to amend factual find-

ings. All that the Court held was that those “time limits”

were “thoroughly consistent with the spirit of the habeas

corpus statutes,” which did not address the “timeliness” of

such a motion. 434 U. S., at 270–271.

Browder in no way establishes that it is “thoroughly con-

sistent with” AEDPA to allow a petitioner to accomplish via

a Rule 59(e) motion what the prisoner could not achieve by

honestly labeling his motion as a habeas petition.2 The

warden, of course, was not seeking habeas relief, so his Rule

——————

2 Browder cites two cases for the proposition that courts had power to

alter their judgments “in habeas corpus cases.” 434 U. S., at 270. Nei-

ther did so at the habeas petitioner’s request. See Aderhold v. Murphy,

103 F. 2d 492, 493 (CA10 1939) (sua sponte alteration deemed void on

appeal); Tiberg v. Warren, 192 F. 458, 462 (CA9 1911) (government

motion).

Cite as: 590 U. S. ____ (2020) 11

ALITO, J., dissenting

59(e) motion could not have constituted a successive habeas

petition.

E

This brings us to the Court’s final redoubt, pre-AEDPA

practice. We have sometimes looked there in interpreting

AEDPA’s terms. See Slack v. McDaniel, 529 U. S. 473, 486

(2000). But assuming pre-AEDPA practice can inform our

understanding of AEDPA, history lends no real support to

the Court’s holding that a Rule 59(e) motion cannot count

as a second or successive habeas petition. Research has

found exactly one decision that directly addresses that

question, and its holding is contrary to the Court’s position.

In Bannister v. Armontrout, 4 F. 3d 1434 (CA8 1993), af-

ter the District Court denied a habeas petition, the prisoner

filed a Rule 59(e) motion asserting a new claim. The Eighth

Circuit held that this motion “was the functional equivalent

of a second petition” and rejected it on that ground. Id., at

1445. The Court does not attempt to distinguish that case,

and cannot cite a single pre-AEDPA case that directly sub-

stantiates its claim about pre-AEDPA practice.

Without any direct support, the Court reads volumes into

what it sees as the disparate treatment of habeas petition-

ers’ Rule 60(b) and 59(e) motions in pre-AEDPA days. Pre-

AEDPA courts often, though not always, treated prisoners’

Rule 60(b) motions as successive habeas petitions. See

Brewer v. Ward, 1996 WL 194830, *1 (CA10, Apr. 22, 1996)

(noting the trend as to motions “raising new claims” but af-

firming a denial of Rule 60(b) relief on the merits). By con-

trast, only Bannister denied a Rule 59(e) motion on that ba-

sis, and a handful of cases denied (or reversed lower-court

decisions granting) habeas petitioners’ Rule 59(e) motions

on other grounds. Ante, at 9. From this state of affairs, the

Court infers that Rule 59(e) motions were generally re-

garded as free from the pre-AEDPA strictures on second or

successive petitions. In other words, the Court infers that

12 BANISTER v. DAVIS

ALITO, J., dissenting

judges thought that they were required to decide Rule 59(e)

motions on the merits even if they were second or successive

habeas petitions in substance.

This is nothing but speculation, and there is a more likely

explanation for the disparity between reported cases dis-

missing Rule 60(b) and Rule 59(e) motions as second or suc-

cessive. Before AEDPA, whether to entertain a successive

habeas petition was left to “the sound discretion of the fed-

eral trial judges,” Sanders v. United States, 373 U. S. 1, 18

(1963), and therefore the disparity may be attributable, not

to what judges thought they were required to do, but to

what they chose to do as a matter of discretion. And the

Court provides the obvious reasons why judges might have

been more inclined to reach the merits in Rule 59(e) cases.

A Rule 59(e) motion raises claims that the judge recently

decided; a Rule 60(b) motion may raise entirely new claims

and may be filed later. For these reasons, judges might

have found it more attractive to decide the merits in Rule

59(e) cases when they had the discretion to do so.

The important point, however, is that the Court can only

speculate. But based on that speculation, the Court is will-

ing to conclude that in the days before AEDPA, judges

thought that they were legally required to decide the merits

of second or successive habeas petitions if they were labeled

as Rule 59(e) motions and that AEDPA’s express and tight

restrictions on second or successive petitions were enacted

on the understanding that this feature of pre-AEDPA prac-

tice would not be disturbed. That is a tall order indeed, and

this inconclusive case law does not suffice. See, e.g.,

Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952)

(“Statutes . . . are to be read with a presumption favoring

the retention of long-established and familiar principles”).

Cite as: 590 U. S. ____ (2020) 13

ALITO, J., dissenting

IV

A

The Court muses that its opinion “may make habeas pro-

ceedings more efficient,” ante, at 11, but improving statutes

is not our job, and in any event, the Court’s assessment of

the consequences of its decision is dubious.

State prisoners file thousands of federal habeas petitions

per year.3 After a petition is denied, as most are, the Court

suggests that Rule 59(e) gives federal habeas courts a

chance “to correct their own errors” or “to clarify their rea-

soning,” but the value of this opportunity is questionable

since, as the Court admits, “Rule 59(e) motions seldom

change judicial outcomes.” Ante, at 11. Statistics agree

that, in the main, district courts resolve habeas petitions

correctly. In 2019, appeals courts reversed in only a

miniscule percentage of appeals in cases involving state

prisoners’ habeas claims.4

The Court is probably right that, once in a while, a

Rule 59(e) motion could save the need for an appeal. But

that positive effect is very likely outweighed by the burden

imposed by the entirely meritless Rule 59(e) motions that

today’s decision will give prisoners an incentive to file. Not

only will prisoners file such motions on the off chance of

winning, but some may file simply to toll the deadline for

filing an appeal, Fed. Rule App. Proc. 4(a)(4)(A)(iv). The

burden of wading through these motions will not always be

“slight.” Ante, at 11; see App. 219–253 (Banister’s motion).

And the aggregate burden on the district courts may actu-

ally be quite substantial.

The Court’s decision would be more understandable if it

——————

3 See Administrative Office of the U. S. Courts, Federal Judicial Case-

load Statistics, U. S. District Courts–Civil Cases Commenced, by Basis

of Jurisdiction and Nature of Suit (2019) (Table C–2). State prisoners’

habeas petitions are listed under the “Federal Question” category of “Pri-

vate Cases.”

4 See id., Table B–5.

14 BANISTER v. DAVIS

ALITO, J., dissenting

offered any real benefit for habeas petitioners, but it does

not. As Banister concedes, see Brief for Petitioner 33, the

standard for Rule 59(e) relief from an erroneous judgment

is higher than the standard for permission to appeal. Com-

pare Miller-El v. Cockrell, 537 U. S. 322, 336 (2003) (“rea-

sonable debate” standard for a certificate of appealability),

with 11 Wright & Miller §2810.1 (“manifest error” standard

for Rule 59(e) relief ). So if a prisoner has a claim that can

prevail under Rule 59(e), there should be no problem in ob-

taining permission to appeal. That is the procedure pre-

scribed by AEDPA, and it is an entirely reasonable one that

does not prejudice habeas petitioners.

B

If treated according to their substance rather than their

label, Rule 59(e) motions would still have “an unquestiona-

bly valid role to play” in habeas cases. Gonzalez, 545 U. S.,

at 534. The construction of AEDPA in Gonzalez did not

doom the Rule 60(b) motion at issue in that case. Although

deficient for other reasons, that motion challenged “a non-

merits aspect of the first federal habeas proceeding,” the de-

nial of the habeas petition on timeliness grounds. Ibid.

That sort of claim is not the equivalent of a habeas claim.

It does not assert a federal basis for relief from the state-

court judgment; rather, it seeks to cure a “defect” in the fed-

eral habeas proceeding itself. Id., at 532.

Rule 59(e) motions can do the same. Through that Rule,

a petitioner can flag manifest errors in a district court’s ap-

plication of AEDPA’s statute of limitations, AEDPA’s ex-

haustion requirement, or the rules of procedural default.

See Webb v. Davis, 940 F. 3d 892, 898 (CA5 2019) (adding

“the district court’s denial of funding, the district court’s

dismissal of claims without conducting an evidentiary hear-

ing, . . . the district court’s failure to consider claims pre-

sented in the habeas application,” and “the denial of a claim

based on a valid appeal waiver” (internal quotation marks

Cite as: 590 U. S. ____ (2020) 15

ALITO, J., dissenting

omitted)). These challenges relate only to a petitioner’s

ability to assert a claim, not the merits of the claim itself.

Under Gonzalez, a petitioner could seek reconsideration of

them unencumbered by §2244(b).

That is not what Banister sought. In substance, his Rule

59(e) motion was simply a repackaged version of his peti-

tion, and since the Fifth Circuit had not authorized him to

file it, the District Court had no jurisdiction to consider it.

See Burton v. Stewart, 549 U. S. 147, 153 (2007) (per

curiam).

V

The question remains whether Banister’s Rule 59(e) mo-

tion tolled his appeal deadline. Under 28 U. S. C. §2107(a),

the Fifth Circuit could hear his appeal only if he filed it

within 30 days of the District Court’s judgment. See Hamer

v. Neighborhood Housing Servs. of Chicago, 583 U. S. ___,

___ (2017) (slip op., at 1). During that time, Banister filed

his Rule 59(e) motion, but he did not file his appeal until 66

days after the court denied his habeas petition.

Appellate Rule 4(a) provides that “the time to file an ap-

peal runs for all parties from the entry of the order dispos-

ing of,” among other things, a Rule 59(e) motion. Fed. Rule

App. Proc. 4(a)(4)(A)(iv). Not on that list: successive habeas

petitions. Since that is what Banister’s Rule 59(e) motion

was in substance, it did not toll his appeal deadline.

Banister contends that, even if his Rule 59(e) motion con-

stituted a habeas petition, the simple act of filing it gave

him more time to appeal. He points to the statement in

Artuz v. Bennett, 531 U. S. 4 (2000), that an application is

commonly regarded as having been “ ‘filed’ ” if “it is deliv-

ered to, and accepted by, the appropriate court officer for

placement into the official record.” Id., at 8. Under this

definition, he argues, his motion was filed, and therefore,

the time to take an appeal was tolled until it was denied.

This argument fails because the timeliness of Banister’s

16 BANISTER v. DAVIS

ALITO, J., dissenting

appeal does not depend on whether what Banister labeled

a Rule 59(e) motion was “filed” in the District Court. Under

Appellate Rule 4(a), the time to appeal runs from the date

when the district court finally disposes of a motion falling

within one of six categories, including motions to alter or

amend the judgment under Rule 59. And whether a motion

falls into one of those categories depends on the substance

of the motion, not the label that is affixed to it. See, e.g.,

Budinich v. Becton Dickinson & Co., 486 U. S. 196, 199–

200, 203 (1988) (a motion for attorney’s fees is not equiva-

lent to a Rule 59(e) motion and did not toll the time to ap-

peal); State Nat. Ins. Co. v. County of Camden, 824 F. 3d

399, 410 (CA3 2016); Yost v. Stout, 607 F. 3d 1239, 1243

(CA10 2010); Borrero v. Chicago, 456 F. 3d 698, 700 (CA7

2006); Moody Nat. Bank of Galveston v. GE Life and Annu-

ity Assurance Co., 383 F. 3d 249, 251 (CA5 2004); Jones v.

UNUM Life Ins. Co. of America, 223 F. 3d 130, 136 (CA2

2000). Thus, to toll the time to appeal, Banister’s motion

had to be a motion to alter or amend, and because §2244(b)

dictates that his motion be treated as a habeas petition, it

cannot be allowed to toll the time to appeal.

* * *

I would hold that a Rule 59(e) motion that constitutes a

second or successive habeas petition is subject to §2244(b)

and that such a motion does not toll the time to appeal. I

therefore conclude that the Fifth Circuit was correct to dis-

miss Banister’s untimely appeal. Because the Court holds

to the contrary, I respectfully dissent.