Amicus Curiae Brief — Gregory Dean Banister, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 18-6943

IN THE

Supreme Court of the United States

GREGORY DEAN BANISTER,

Petitioner,

v.

LORIE DAVIS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF OF AMICI CURIAE

LAW PROFESSORS WITH EXPERTISE IN

HABEAS CORPUS AND CIVIL PROCEDURE

IN SUPPORT OF PETITIONER

LEE KOVARSKY

PROFESSOR OF LAW

UNIVERSITY OF

MARYLAND FRANCIS KING

CAREY SCHOOL OF LAW

500 West Baltimore

Room 436

Baltimore, MD 21201

CHARLOTTE H. TAYLOR

Counsel of Record

KAMAILE A.N. TURČAN

DIA RASINARIU

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3872

ctaylor@jonesday.com

i

QUESTION PRESENTED

Whether and under what circumstances a timely

Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v.

Crosby, 545 U.S. 524 (2005).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

TABLE OF AUTHORITIES ......................................iv

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT .............................................................. 3

I.

28 U.S.C. § 2244(B) CODIFIED LONGSTANDING

JUDGE-MADE RULES DISCOURAGING

PRISONERS FROM MOUNTING REDUNDANT

AND PIECEMEAL ATTACKS ON A JUDGMENT........... 3

A. Amendments to § 2244 Incorporated

Preexisting Judge-Made Limitations

on Abuses of the Habeas Writ ...................... 4

B. The Purpose of § 2244(b), Like the

Purpose of the Abuse-of-the-Writ

Doctrine Before It, Was to Force

Petitioners to Consolidate All of Their

Existing Arguments into One

Proceeding Rather Than Bring

Serial Attacks .............................................. 10

II. THE COMPARATIVE HISTORY OF RULES 59(E)

AND 60(B) ESTABLISHES THAT A RULE 59(E)

MOTION ENABLES THE DISTRICT COURT TO

PERFECT A FINAL JUDGMENT PRIOR TO

APPEAL................................................................ 14

iii

TABLE OF CONTENTS

(continued)

Page

A. Rule 59(e) Traces to Courts’ Inherent

Authority to Grant New Trials or to

Grant Rehearing During the Court

Term and Before an Appeal ........................ 14

B. In Contrast, Rule 60(b) Evolved from

Mechanisms Allowing Courts to Set

Aside Judgments After the Conclusion

of the Court Term, and Even After All

Appeals Were Exhausted............................ 21

III. RULE 59(E) IS CONSISTENT WITH HABEAS

PROCEEDINGS UNDER § 2244(B) ......................... 25

CONCLUSION ......................................................... 28

APPENDIX OF AMICI CURIAE ...................... App. 1

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Agostini v. Felton,

521 U.S. 203 (1997) .............................................. 24

Aspen Mining & Smelting Co. v. Billings,

150 U.S. 31 (1893) ................................................ 19

Atchison, T. & S.F. Ry. Co. v. United States,

284 U.S. 248 (1932) .............................................. 17

Austin v. Riley,

55 F. 833 (C.C.S.D. Iowa 1893) ........................... 19

Bankers Mortg. Co. v. United States,

423 F.2d 73 (5th Cir. 1970) ............................ 22, 23

Bannister v. Armontrout,

4 F.3d 1434 (8th Cir. 1993) ............................ 27, 28

Basset v. United States,

76 U.S. 38 (1869) .................................................. 15

Boumediene v. Bush,

553 U.S. 723 (2008) .............................................. 13

Brewer v. Ward,

83 F.3d 431 (10th Cir. 1996) ................................ 28

Bronson v. Schulten,

104 U.S. 410 (1881) ............................ 15, 18, 19, 22

Browder v. Dir., Dep’t of Corr. of Ill.,

434 U.S. 257 (1978) ........................................ 21, 25

Burton v. Stewart,

549 U.S. 147 (2007) ................................................ 9

v

TABLE OF AUTHORITIES

(continued)

Page(s)

City of Manning v. German Ins. Co.,

107 F. 52 (8th Cir. 1901) ...................................... 18

Dorsey v. Gill,

148 F.2d 857 (D.C. Cir. 1945) ............................ 5, 6

Doss v. Tyack,

55 U.S. 297 (1852) ................................................ 15

Easton v. Houston & T.C. Ry. Co.,

44 F. 7 (C.C.E.D. Tex. 1890) ................................ 17

Ex Parte Royall,

117 U.S. 241 (1886) ................................................ 5

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) ........................................ 26, 27

Felker v. Turpin,

518 U.S. 651 (1996) ...................................... 4, 9, 13

Fishburn v. Chicago, M. & St. P. Ry. Co.,

137 U.S. 60 (1890) ................................................ 19

Fraser v. Doing,

130 F.2d 617 (D.C. Cir. 1942) ........................ 22, 23

Giant Powder Co. v. California Vigorit

Powder Co.,

5 F. 197 (C.C.D. Cal. 1880) .................................. 18

Gonzalez v. Crosby,

545 U.S. 524 (2005) .................................... 1, 23, 28

Hayes Family Tr. v. State Farm Fire &

Cas. Co.,

845 F.3d 997 (10th Cir. 2017) .............................. 26

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Hazel-Atlas Glass Co. v. HartfordEmpire Co.,

322 U.S. 238 (1944) .............................................. 22

Henderson v. Carbondale Coal & Coke

Co.,

140 U.S. 25 (1891) ................................................ 15

Horn v. Mitchell,

243 U.S. 247 (1917) ................................................ 5

Jusino v. Morales & Tio,

139 F.2d 946 (1st Cir. 1944) ................................ 20

Kingman & Co. v. W. Mfg. Co.,

170 U.S. 675 (1898) .............................................. 18

Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984) ..................... 23

McCleskey v. Zant,

499 U.S. 467 (1991) ...................................... passim

Morse v. United States,

270 U.S. 151 (1926) .............................................. 19

Motorfrigerator Co. v. Frigidaire Sales

Corp.,

59 F.2d 622 (4th Cir. 1932) .................................. 17

Obear-Nester Glass Co. v. Hartford

Empire Co.,

61 F.2d 31 (8th Cir. 1932) .................................... 23

Panetti v. Quarterman,

551 U.S. 930 (2007) ...................................... 3, 4, 13

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .............................................. 23

Roemer v. Simon,

91 U.S. 149 (1875) ................................................ 17

Safeway Stores v. Coe,

136 F.2d 771 (D.C. Cir. 1943) ........................ 20, 23

Salinger v. Loisel,

265 U.S. 224 ....................................................... 6, 8

Sanders v. United States,

373 U.S. 1 (1963) ...................................... 6, 7, 8, 27

Schlup v. Delo,

513 U.S. 298 (1995) ................................................ 6

Shallas v. United States,

37 F.2d 692 (9th Cir. 1929) .................................. 20

Sheeler v. Alexander,

211 F. 544 (N.D. Ohio 1913) ................................ 17

Stewart v. Martinez-Villareal,

523 U.S. 637 (1998) .......................................... 9, 13

Thomas v. Brockenbrough,

23 U.S. 146 (1825) ................................................ 23

United States v. Ayala,

894 F.2d 425 (D.C. Cir. 1990) .............................. 23

United States v. Ellicott,

223 U.S. 524 (1912) .............................................. 19

United States v. Mandanici,

205 F.3d 519 (2d Cir. 2000) ................................. 22

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Mayer,

235 U.S. 55 (1914) .......................................... 16, 22

United States v. Pitman,

147 U.S. 669 (1893) .............................................. 16

Vorhees v. John T. Noye Mfg. Co.,

151 U.S. 135 (1894) .............................................. 20

Waley v. Johnston,

316 U.S. 101 (1942) ................................................ 4

White v. New Hampshire Dep’t of

Emp’t Sec.,

455 U.S. 445 (1982) ........................................ 14, 26

Wong Doo v. United States,

265 U.S. 239 ................................................... 6, 7, 8

Zimmern v. United States,

298 U.S. 167 (1936) .............................................. 15

STATUTES

28 U.S.C. § 452 .................................................... 16, 21

28 U.S.C. § 2244 ................................................. passim

Act of Feb. 5, 1867,

ch. 28, 14 Stat. 385............................................. 4, 5

Act of Jan. 16, 1925,

Pub. L. No. 68-324, 43 Stat. 751.......................... 16

Act of Sept. 6, 1916,

Pub. L. No. 64-258, 39 Stat. 726.......................... 16

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Antiterrorism and Effective Death

Penalty Act of 1996,

Pub. L. No. 104-132,

110 Stat. 1214 (1996) ............................................. 3

Judiciary Act of 1789,

1 Stat. 83 .............................................................. 18

OTHER AUTHORITIES

12 Moore’s Federal Practice –

Civil § 59 App. 100 ............................................... 18

12 Moore’s Federal Practice

Civil § 60 App. 101 ............................................... 22

Equity Rules of 1822, Rule 31................................... 17

Equity Rules of 1912, Rule 69........................... passim

Fed. R. App. P. 4 .................................................. 21, 24

Fed. R. Civ. P. 6 ......................................................... 16

Fed. R. Civ. P. 59 ............................................... passim

Fed. R. Civ. P. 59 (1937)............................................ 20

Fed. R. Civ. P. 60 ............................................... passim

Fed. R. Civ. P. 81 ....................................................... 28

Vivian Berger,

Justice Delayed or Justice Denied?

A Comment on Recent Proposals

to Reform Death Penalty Habeas

Corpus,

90 Colum. L. Rev. 1665 (1990)....................... 11, 12

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Federal Habeas Corpus Reform:

Eliminating Prisoners’ Abuse of the

Judicial Process: Hearing on S. 623

Before the S. Comm. on the

Judiciary,

104th Cong. (Mar. 28, 1995) .................... 12, 13, 27

H.R. Conf. Rep. No. 104-518 (1996) .......................... 13

Habeas Corpus Reform: Hearings

Before the S. Comm. on the

Judiciary, S. Hrg. 101-1253,

101st Cong. 7-30 (1991) ..................... 10, 11, 12, 13

Lee Kovarsky,

AEDPA’s Wrecks: Comity, Finality,

and Federalism,

82 Tul. L. Rev. 443 (2007) .................................... 12

Legislative Modification of Habeas

Corpus in Capital Cases,

44 Rec. NYC Bar Assoc. 848 (1989) ..................... 12

James W.M. Moore & Eizabeth B.A.

Rogers,

Federal Relief from Civil Judgments,

55 Yale L.J. 623 (1946) .................................. 15, 23

Note,

History and Interpretation of Federal

Rule 60(b) of the Federal Rules of

Civil Procedure,

25 Temp. L.Q. 77 (1951) ...................................... 23

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

Note,

The Freedom Writ – The Expanding

Use of Federal Habeas Corpus,

61 Harv. L. Rev. 657 (1948) ................................... 5

Report on Habeas Corpus in Capital

Cases, 45 Crim. L. Rep. 3239 (1989) ................... 11

INTEREST OF AMICI CURIAE

Amici curiae, listed in the Appendix, are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no

personal interest in the outcome of this case. They all

share an interest in seeing habeas law applied in a

way that ensures the just and timely adjudication of

claims while preserving the traditional and intended

operation of the Federal Rules of Civil Procedure.1

SUMMARY OF ARGUMENT

Timely Rule 59(e) motions should never be recharacterized as second or successive habeas petitions under Gonzalez v. Crosby. Doing so, and thereby treating them like Rule 60(b) motions, is inconsistent with

the history of Rule 59 and the basic purpose of 28

U.S.C. § 2244: to foreclose procedural vehicles for

abusing the writ of habeas corpus.

First, AEDPA’s restrictions on “second or successive” habeas petitions, appearing in 28 U.S.C. § 2244,

were adopted to prevent prisoners from abusing the

habeas writ by inundating the courts with claims already disposed of in a final judgment or unjustifiably

omitted from a prior petition. The statute largely incorporated preexisting, judge-made limitations on

successive habeas petitions. But the abuse-of-thewrit doctrine incorporated into § 2244(b) never limited prisoners’ ability to ask a trial court to fix its own

1 In accordance with Supreme Court Rule 37.6, Amici state

that no counsel for a party authored this brief in any part, and

that no person or entity, other than Amici and their counsel,

made a monetary contribution to fund its preparation and submission. All parties have consented in writing to the filing of this

brief.

2

errors, prior to appeal and during a prisoner’s first

federal habeas proceeding.

Second, Rule 59(e)’s origins make clear that—unlike Rule 60(b)—it represents a court’s exercise of inherent authority to perfect the initial judgment. Rule

59(e) traces to the English legal tradition permitting

trial courts to modify judgments during the court

term. The opportunity to seek amendment of the

judgment for a limited period of time—to, for example,

correct clear errors—was considered essential to the

formation of a final, appealable judgment. The key

distinction between what has become Rule 59(e) and

what has become Rule 60(b) was timing. Motions for

in-term rehearings or new trials (the predecessors to

Rule 59(e) motions) provided courts with the opportunity to correct their own errors while tolling the

time for appeals. Conversely, Rule 60(b) derives from

exceptions to the general rule preventing courts from

modifying judgments after the end of the term, which

permitted parties to seek vacatur or to prevent enforcement after the term had ended.

Third, in light of this history and of the operation

of the current Rule 59(e), a Rule 59(e) motion in a federal habeas case does not present the abuse-of-thewrit concerns to which § 2244(b) is addressed. Because a Rule 59(e) motion must be brought within a

limited period of time after judgment and because it

tolls the time to appeal, it forestalls—rather than allows—piecemeal litigation. Nor does it threaten the

finality of judgments or dissipate judicial resources.

And because the rule does not allow petitioners to reallege old claims or abusively raise new ones, it does

not encourage the repetitive petitions that the abuse-

3

of-the-writ doctrine—and § 2244(b) itself—guards

against.

ARGUMENT

Rule 59(e) motions, unlike Rule 60(b) motions, do

not present the abuse-of-the-writ concerns motivating

Congress’s restrictions on successive habeas petitions.

Comparing the history of § 2244(b) to that of Rules

59(e) and 60(b) makes clear that Rule 59(e) motions

should not be recharacterized as second or successive

petitions under § 2244(b).

I.

28 U.S.C. § 2244(B) CODIFIED LONGSTANDING

JUDGE-MADE RULES DISCOURAGING PRISONERS

FROM MOUNTING REDUNDANT AND PIECEMEAL

ATTACKS ON A JUDGMENT.

The Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996), (“AEDPA”), amended the statutes governing

federal post-conviction process. Relevant here, 28

U.S.C. § 2244(b) restricts “second or successive” habeas corpus applications.

Although the term “second or successive” is undefined in the habeas statutes, it “takes its full meaning

from [the] case law, including decisions predating the

enactment of [AEDPA].” Panetti v. Quarterman, 551

U.S. 930, 943-44 (2007). Indeed, § 2244(b) largely codified the judge-made “abuse-of-the-writ doctrine.” Its

provisions foreclose serial, piecemeal attacks on a

prisoner’s conviction or sentence. But as the history

of the abuse-of-the-writ doctrine makes clear, the bar

on “second or successive” petitions was never aimed at

limiting prisoners’ ability to use their first federal habeas proceeding to fully litigate available claims.

4

A. Amendments to § 2244 Incorporated

Preexisting Judge-Made Limitations on

Abuses of the Habeas Writ.

The 1996 amendments to § 2244(b) reflect the

judge-made restrictions that this Court had placed on

prisoners seeking to assert claims that either were

presented in a previous federal habeas petition or

were new, but previously available. Specifically,

AEDPA tightened restrictions on reasserting previously adjudicated claims, and it largely codified a

judge-made “cause and prejudice” standard for new

claims. In the process, it also transformed the judgemade affirmative defense into a jurisdictional rule

that requires appellate authorization before successive habeas litigation can begin. The judge-made law

that preceded AEDPA therefore provides important

guidance as to the meaning of § 2244(b)—and its limitations. See Panetti, 551 U.S. at 943-44.

1. The abuse-of-the-writ doctrine developed in response to legislation and corresponding judicial decisions expanding the role the writ played in scrutiny of

state judgments.

The Act of February 5, 1867 (the “1867 Act”) expanded the scope of federal courts’ power to issue habeas writs. Among other things, the Act extended the

privilege to state prisoners for whom “the conviction

has been in disregard of the[ir] constitutional rights,”

Waley v. Johnston, 316 U.S. 101, 105 (1942); see also

Act of Feb. 5, 1867 ch. 28, 14 Stat. 385, 385-86; Felker

v. Turpin, 518 U.S. 651, 659 (1996). Thus, for the first

time with the passage of the 1867 Act, the writ could

be used to collaterally review state convictions.

5

The 1867 Act also granted to prisoners, for the

first time, the right to appeal adverse habeas rulings.

See 14 Stat. at 385-86 (granting right to appeal denials of writ to federal courts of appeals and the Supreme Court); McCleskey v. Zant, 499 U.S. 467, 47779 (1991) (summarizing early history of scope of the

writ); Note, The Freedom Writ – The Expanding Use

of Federal Habeas Corpus, 61 Harv. L. Rev. 657 (1948)

(same).2

Before the 1867 Act, orders denying habeas petitions could not be reviewed by an appellate court,

which meant that a successive habeas petition was a

prisoner’s only recourse after an adverse ruling. See

McCleskey, 499 U.S. at 479. Once prisoners were

granted the right to appeal, however, courts sought to

reduce successive habeas filings through procedural

limitations.

2. Specifically, judges developed the abuse-of-thewrit doctrine in reaction to the concern that prisoners

would abuse the habeas process by filing “endless applications” raising the same arguments or new arguments that could have been presented in their first

federal habeas action. Id. at 481; see also Dorsey v.

Gill, 148 F.2d 857, 862 (D.C. Cir. 1945) (noting concerns that prisoners would submit meritless requests,

unduly delay the court process, or harass the court).

This concern was driven in part by the fact that at

common law, res judicata did not attach to a court’s

2 The right to appeal an adverse ruling was removed and

replaced several times by subsequent statutes, including Revised

Statutes §§ 763 & 764. See Horn v. Mitchell, 243 U.S. 247, 24950 (1917); Ex Parte Royall, 117 U.S. 241 (1886).

6

denial of habeas relief. See Sanders v. United States,

373 U.S. 1, 7-8 (1963). This Court has often reiterated

that because res judicata did not apply, a “renewed

application could be made to every other judge or

court in the realm, and each court or judgment was

bound to consider the question of the prisoner’s right

to a discharge independently, and not to be influenced

by the previous decisions refusing discharge.” Schlup

v. Delo, 513 U.S. 298, 317 (1995) (citations omitted).

Unlimited, successive petitions were routine, and

courts noted that some prisoners were filing upwards

of 50 petitions each. See Dorsey, 148 F.2d at 862.

Once prisoners obtained the right to appeal denials of habeas petitions, the question of how to evaluate

repetitive collateral attacks percolated through the

lower courts, until a pair of 1924 cases, Salinger v.

Loisel, 265 U.S. 224, and Wong Doo v. United States,

265 U.S. 239, set forth the guideposts federal courts

were to use for successive petitions. They held that

res judicata did not formally apply to the denial of a

prior habeas petition, but the fact that a first application had been refused might justify a refusal of the

second. Salinger, 265 U.S. at 231-32 (citing Ex parte

Cuddy, 40 F. 62, 65-66 (C.C.S.D. Cal. 1889); In re Simmons, 45 F. 241, 241 (C.C.E.D.N.Y. 1891); Ex parte

Moebus, 148 F. 39, 40-41 (C.C.D.N.H. 1906)). Specifically, the court directed that “a prior refusal to discharge on a like application” “may be considered, and

even given controlling weight,” id. at 231, as could a

previous denial of the writ when the petitioner “had

[a] full opportunity to offer proof of [the grounds] at

the hearing on the first petition” but had simply “reserve[d] the proof . . . to support a later petition,” Wong

Doo, 265 U.S. at 241 (emphasis added).

7

3. The statutory precursor to the current version

of 28 U.S.C § 2244(b) was enacted in 1948, and Sanders v. United States, 373 U.S. 1 (1963), set forth the

standard courts were to apply for evaluating successive petitions under that statute. Abuse of the writ

was an affirmative defense that the Government had

the burden of pleading. Id. at 10-11. For previously

raised claims, “controlling weight” might be given to

the previous denial if it involved the same ground, determined on the merits, and “the ends of justice would

not be served by reaching the merits of the subsequent

application.” Id. at 15.

For claims not previously raised or not adjudicated on the merits, the Court applied a “deliberate[ ]

abandon[ment]” standard. A court was to give “[f]ull

consideration of the merits of the new application” unless “there ha[d] been an abuse of the writ or motion

remedy.” Id. at 17-18. Referring to Wong Doo, the

Court explained that one example of such an abuse

was if “a prisoner deliberately withholds one of two

grounds for federal collateral relief at the time of filing

his first application, in the hope of being granted two

hearings rather than one.” Id. at 18 (emphasis added).

Some 30 years later, the Court again addressed

the abuse-of-the-writ standard in McCleskey v. Zant,

499 U.S. 467 (1991). For successive petitions, McCleskey brought the abuse-of-the-writ standard into line

with the “cause and prejudice” standard applied to determine when a state prisoner’s procedural default

may be excused. See id. at 493-96 (citing Wainwright

v. Sykes, 433 U.S. 72 (1977)). For new claims not

raised in an initial petition, the Court held that abuse

of the writ was not confined to instances of deliberate

8

abandonment. Id. at 489. It also included failing to

raise a claim through inexcusable neglect. Id.

McCleskey therefore culminates a line of cases, dating back at least to Salinger and Wong Doo, reflecting

concerns that, in order to delay the imposition of final

judgment, prisoners were serially presenting the

same claims or asserting new ones that they withheld

from a prior petition. But in none of these cases did

this Court apply, or even consider applying, the abuseof-the-writ doctrine to limit a prisoner’s ability to fully

litigate his claims in his first federal habeas proceeding. Rather, throughout the development of this doctrine, it was taken as a given that the prisoner would

have the opportunity to litigate his first petition to final judgment.

4. Building on this history, AEDPA’s amendments

to § 2244 incorporated these judge-made standards

for abuse of the writ, while also placing additional limitations on the availability of successive petitions.

First, subsection (b)(1) is an outright bar to claims

previously presented in a prior application: “A claim

presented in a second or successive habeas corpus application under section 2254 that was presented in a

prior application shall be dismissed.” 28 U.S.C.

§ 2244(b)(1) (emphasis added). Under Sanders, it had

been the rule that “successive applications were

properly denied [when the prisoner] sought to retry a

claim previously fully considered and decided against

him.” 373 U.S. at 9. AEDPA’s mandatory language,

however, supplants the Sanders’ exception, which applied when “the ends of justice would . . . be served by

reaching the merits of the subsequent application”

concerning the same claim. See id. at 15-17.

9

Second, subsection (b)(2) bars new claims presented in a second or successive application that were

not presented in a prior application, except under

specified narrow circumstances: the claim relies on a

new rule of constitutional law that is made retroactive

by the Supreme Court, or the claim is based on a new

factual predicate not previously discovered through

due diligence that, if proven, would establish the prisoner’s innocence by clear and convincing evidence. 28

U.S.C. § 2244(b)(2)(A)-(B). The new factual predicate

provision of section (b)(2)(B) thereby tracks the causeand-prejudice standard that existed under McCleskey.

Moreover, subsections (b)(3) and (b)(4) convert what

had been an affirmative defense into a jurisdictional

bar, by requiring that a prisoner move the circuit

court for an order authorizing a successive application

before filing the second or successive petition in district court, and mandating that the district court nevertheless dismiss any such authorized claim if it does

not satisfy the statutory requirements of (b)(2). Id.

§ 2244(b)(3), (b)(4); see also Burton v. Stewart, 549

U.S. 147, 152-53 (2007) (describing authorization process); Stewart v. Martinez-Villareal, 523 U.S. 637,

641-42 (1998) (describing the AEDPA “gatekeeping

mechanism”). As the next step in the “evolutionary

process” of the abuse-of-the-writ doctrine after

McCleskey, AEDPA’s “added restrictions” further

limit prisoners’ ability to assert new claims in a successive petition. See Felker, 518 U.S. at 664.

10

B. The Purpose of § 2244(b), Like the

Purpose

of

the

Abuse-of-the-Writ

Doctrine Before It, Was to Force

Petitioners to Consolidate All of Their

Existing Arguments into One Proceeding

Rather Than Bring Serial Attacks.

Section 2244(b)—like the abuse-of-the-writ doctrine before it—was adopted to foreclose procedural

vehicles that would enable prisoners to bring serial attacks on their sentence. The statute targets the two

familiar strategies for extending litigation: re-asserting old claims and asserting new ones that could have

been included in a prior petition. As a result, prisoners are required to consolidate all of their available

arguments into one federal habeas proceeding, subject

to a single appeal.

1. Legislative history confirms that the primary

purpose of § 2244(b) was to prevent prisoners from

abusing habeas procedures to re-allege old claims or

allege previously available claims for the first time.

The goal was to require prisoners to bring all of their

claims in a single federal petition.

Section 2244(b)’s restrictions were implemented

after years of discussion and review by Congress, the

American Bar Association, and committees of the

Court. In 1988, Chief Justice Rehnquist commissioned the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases to examine “the necessity and

desirability of legislation directed toward avoiding delay and the lack of finality” in capital habeas cases,

and appointed retired Justice Lewis F. Powell to chair

it. Judicial Conference of the United States, Ad Hoc

Comm. on Fed. Habeas Corpus in Capital Cases,

Comm. Report and Proposal (Lewis F. Powell, Jr.,

11

Chairman, Aug. 23, 1989), reprinted in Habeas Corpus Reform: Hearings Before the S. Comm. on the Judiciary, S. Hrg. 101-1253, 101st Cong. 7-30 (1991), at

8 [hereinafter “Powell Report”]; see Report on Habeas

Corpus in Capital Cases, 45 Crim. L. Rep. 3239, 3239

(1989).

The resulting report of the Committee, usually referred to as the “Powell Report,” recommended limiting the availability of habeas relief in cases of “unnecessary delay and repetition.” Powell Report at 9. Echoing the same concerns raised by the judiciary, the

Committee observed that the habeas process “fosters

piecemeal and repetitive litigation of claims. Because

res judicata is inapplicable to federal habeas proceedings, many capital litigants return to federal court

with second—or even third and fourth—petitions for

relief. Current rules governing abuse of the writ and

successive petitions have not served to prevent these

endless filings.” Id. at 10. The report recommended

eliminating entirely successive petitions that raise a

previously considered claim, and curtailing courts’

power to hear new-but-previously-available claims to

cases where the facts underlying the claim cast doubt

on guilt.

As Justice Powell explained, the proposal “would

enhance finality by limiting the circumstances in

which federal relief may be sought after one full

course of litigation up to the Supreme Court. The proposal would strictly limit subsequent and successive

petitions. That is, after having one full and fair course

of review, a prisoner should not be allowed to return

to court to seek delay.” Id. at 42; see also Vivian Berger, Justice Delayed or Justice Denied? A Comment on

Recent Proposals to Reform Death Penalty Habeas

12

Corpus, 90 Colum. L. Rev. 1665, 1682-83 (1990); Legislative Modification of Habeas Corpus in Capital

Cases, 44 Rec. NYC Bar Assoc. 848, 857-59 (1989).

The Powell Report was submitted to Congress in

September 1989, and its findings heavily influenced

Congressional habeas reform. Over the next several

years, Congress considered several bills that would

limit repeated attempts for habeas relief, culminating

in AEDPA.

The 1995 Senate Judiciary Committee hearing on

AEDPA confirms that Congress was centrally concerned with preventing multiple, successive petitions.

See Federal Habeas Corpus Reform: Eliminating Prisoners’ Abuse of the Judicial Process: Hearing on S. 623

Before the S. Comm. on the Judiciary, 104th Cong.

(Mar. 28, 1995) [hereinafter “S.623 Hearing”]. For example, Senator Arlen Specter, a co-sponsor of the bill

and a pivotal figure in the post-Powell Report era of

habeas reform, noted that the proposed legislation

would “provide for a timely filing of a petition, time

limits for the courts to consider it, subsequent petitions on very limited grounds filed in the district court

only if there is an allowance specially from the court

of appeals, and a definite way of trying to stop the virtually endless litigation.” Id. at 4; see generally Lee

Kovarsky, AEDPA’s Wrecks: Comity, Finality, and

Federalism, 82 Tul. L. Rev. 443 (2007).

At the same time, legislators did not intend to curtail a prisoner’s first opportunity to fully litigate his

federal habeas petition. Senator Orrin Hatch, cosponsor and Chairman of the Committee, explained

that the legislation would “guarantee prisoners one

complete and fair course of collateral review in the

Federal System,” while also “establish[ing] time limits

13

to eliminate unnecessary delay and to discourage

those who would use the System to prevent the imposition of a just sentence” and “abuse[] the writ in an

effort to delay the imposition of just punishment.”

S.623 Hearing at 2, 3. Then-Senator Joe Biden also

cited the lack of statutory limits on the number of petitions or on the time within which a petition must be

filed as contributing to abuse of the writ and frivolous

habeas petitions. Id. at 21. He encouraged the Committee to “abolish abuse of the writ without losing the

great writ itself.” Id.

The ultimate bill attempted to address these concerns and implemented key recommendations from

the Powell Report. Its amendments were designed to

“curb the abuse of the statutory writ of habeas corpus.” H.R. Conf. Rep. No. 104-518, at 111 (1996).

2. Shortly after § 2244(b) was enacted, this Court

explained that “[t]he new restrictions on successive

petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice

‘abuse of the writ.’” Felker, 518 U.S. at 664. Because

the statute “codified the longstanding abuse-of-thewrit doctrine,” Boumediene v. Bush, 553 U.S. 723, 774

(2008), the concerns motivating that doctrine pervade

application of § 2244(b). See Panetti, 551 U.S. at 94344 (holding that the phrase “second or successive”

takes its meaning from pre-AEDPA case law); see also

Martinez-Villareal, 523 U.S. at 644. And as already

demonstrated, this Court had never deemed a prisoner’s efforts to fully litigate his claims in his first federal habeas proceeding an abuse of the writ.

14

II. THE COMPARATIVE HISTORY OF RULES 59(E)

AND 60(B) ESTABLISHES THAT A RULE 59(E) MOTION ENABLES THE DISTRICT COURT TO PERFECT

A FINAL JUDGMENT PRIOR TO APPEAL.

The historical antecedents to Rule 59(e) establish

that the rule is part of the process of producing an initial final judgment prior to appeal. It is not—and has

never been—a vehicle to bring successive challenges

to a final judgment.

Specifically, the Rule derives from the plenary

power of common law and equity courts to correct

their own judgments during term, for a limited time

after judgment is entered. Its historical analogues

tolled the time for appeal and allowed trial courts to

correct errors of law or fact in order to perfect a single,

final judgment subject to one appeal.

In contrast, Rule 60(b) derives from procedures

used by litigants to challenge judgments after term

had ended and that could be brought even after an appeal had concluded. In short, Rule 59(e) is process

necessary to perfect a final judgment, and Rule 60(b)

is process for attacking one.

A. Rule 59(e) Traces to Courts’ Inherent

Authority to Grant New Trials or to

Grant Rehearing During the Court Term

and Before an Appeal.

Under Rule 59(e), litigants may move to “alter or

amend a judgment” within “28 days after the entry of

the judgment.” Fed. R. Civ. P. 59(e). Federal courts

invoke this rule to “support reconsideration of matters

properly encompassed in a decision on the merits.”

White v. New Hampshire Dep’t of Emp’t Sec., 455 U.S.

445, 451 (1982). The district court’s authority under

15

Rule 59(e) to reconsider a judgment traces back to Equity Rule 69, which allowed litigants to seek rehearing of a court’s judgment during the court term; and

to the court’s inherent power in cases at law to grant

a new trial.

1. Historically, a court’s inherent authority to set

aside its own judgments was subject to the “term rule.”

Terms of the court, the commencement of which was

prescribed by statute or rule, set the time within

which the business of the court must be transacted.

During the “term,” “all the judgments, decrees, or

other orders of the courts, however conclusive in their

character, [we]re under the control of the court which

pronounce[d] them . . . and they [might] then be set

aside, vacated, modified, or annulled by that court.”

Bronson v. Schulten, 104 U.S. 410, 415 (1881). Indeed,

when a court set aside a judgment during the term in

which the judgment was rendered, “it [was] as though

it had never been.” Henderson v. Carbondale Coal &

Coke Co., 140 U.S. 25, 40 (1891); see also Basset v.

United States, 76 U.S. 38, 41 (1869); Doss v. Tyack, 55

U.S. 297, 313 (1852); see generally James W.M. Moore

& Eizabeth B.A. Rogers, Federal Relief from Civil

Judgments, 55 Yale L.J. 623, 627-31 (1946). The court

was empowered during the term to modify its judgment either on motion of a party or on its own volition.

See, e.g., Zimmern v. United States, 298 U.S. 167, 16970 (1936) (“The judge had plenary power while the

16

term was in existence to modify his judgment for error

of fact or law or even revoke it altogether.”).3

Once the term ended, however, under the term

rule, the district court lost this plenary authority to

revisit, amend, or alter its judgment to correct mistakes of fact or law. See, e.g., United States v. Mayer,

235 U.S. 55, 67 (1914) (“[T]he general principle obtains that a court cannot set aside or alter its final

judgment after the expiration of the term at which it

was entered, unless the proceeding for that purpose

was begun during that term.”).4

2. For courts sitting in equity, the term rule was

explicitly codified in the Federal Rules of Equity. Under Equity Rule 69 of the Federal Rules of Equity of

3 The court “term” was typically a number of months, and

although commencement of the court term could be set by statute

or rule, adjournment of the court term rested in the discretion of

the court. See United States v. Pitman, 147 U.S. 669, 670-71

(1893); see also Act of Sept. 6, 1916, Pub L. No. 64-258, 39 Stat.

726 (“The Supreme Court shall hold at the seat of government

one term annually, commencing on the first Monday in October

and such adjourned or special terms as it may find necessary for

the dispatch of business.”). For example, in the Act of Jan. 16,

1925, Congress provided for bi-annual terms for the federal district court in Indianapolis; the term started on the first Mondays

of May and November each year and was not “limited to any particular number of days.” Pub. L. No. 68-324, 43 Stat. 751.

4 With the codification of 28 U.S.C. § 452 in 1948 and the

adoption of Federal Rule of Civil Procedure Rule 6(c), both of

which provided that the power of courts was not limited by the

term of the court, the significance of the court term has lessened

under federal law. It remains true, however, that the origins of

Rule 59 are closely linked to the court’s inherent authority during the term to reconsider its rulings.

17

1912, petitions for rehearing were for correcting mistakes of fact or law and “for the purpose of directing

attention to matters said to have been overlooked or

mistakenly conceived in the original decision, and

thus [to] invite[] a reconsideration upon the record

upon which that decision rested.” Atchison, T. & S.F.

Ry. Co. v. United States, 284 U.S. 248, 259-60, (1932);

see generally Motorfrigerator Co. v. Frigidaire Sales

Corp., 59 F.2d 622, 626 (4th Cir. 1932) (denying petition for rehearing because it was supported by merely

cumulative evidence and untimely under Equity Rule

69); Sheeler v. Alexander, 211 F. 544, 545 (N.D. Ohio

1913) (evaluating petition for rehearing under Equity

Rule 69 after discovery of new evidence).5

Equity Rule 69 strictly limited the timing of such

petitions, providing that “[n]o rehearing shall be

granted after the term at which the final decree of the

court shall have been entered and recorded, if an appeal lies to the Circuit Court of Appeals or the Supreme Court.” Equity Rules of 1912, Rule 69; see also

Roemer v. Simon, 91 U.S. 149, 150 (1875) (“The court

below cannot grant a rehearing after the term at

which the final decree was rendered.”).

While the Rule went on to provide that “if no appeal lies, the petition may be admitted at any time before the end of the next term of the court in the discretion of the court,” this was also a firm time limitation

on the court’s authority. See Easton v. Houston & T.C.

Ry. Co., 44 F. 7, 10 (C.C.E.D. Tex. 1890) (holding this

5 The 1912 Rule 69 is substantively identical to Rule 88 of

the Equity Rules of 1842, see Equity Rules of 1912, Rule 69 (note),

and Rule 31 of the Equity Rules of 1822, see Equity Rules of 1822,

Rule 31 (text).

18

time bar to be “equally absolute” and an order granting rehearing in violation of the rule to be void). And

in either case, a petition for rehearing under Equity

Rule 69 could not be used to attack a judgment that

had already been litigated on appeal. See also infra

Part II.A.4 (discussing relationship between timely

rehearing petitions and timing of appeal).

3. For courts sitting at law, during the term, new

trials were granted “‘for all sorts of errors and mistakes on the part of the jury;’ and . . . for error of law

on the part of the trial judge.” 12 Moore’s Federal

Practice – Civil § 59 App. 100; see also Judiciary Act

of 1789, § 17, 1 Stat. 83. Courts sitting at law also

availed themselves of the equitable power to entertain,

and grant, petitions for rehearing. See, e.g., Kingman

& Co. v. W. Mfg. Co., 170 U.S. 675, 679 (1898) (noting

that previous court decisions didn’t make “any distinction between a motion for a rehearing in a suit in equity and a motion for a new trial in an action at law”);

Bronson, 104 U.S. at 415.

In all cases, this authority was curtailed by the

expiration of the court’s term. See Giant Powder Co.

v. California Vigorit Powder Co., 5 F. 197, 202 (C.C.D.

Cal. 1880) (describing the court’s term jurisdiction

over the case in both law and equity). “[J]udgments

at law [could] not be vacated or substantially modified

by the courts which rendered them subsequent to the

expiration of the terms at which they were entered, in

the absence of motions or proceedings for that purpose

during such terms[.]” City of Manning v. German Ins.

Co., 107 F. 52, 56 (8th Cir. 1901).

Indeed, the term limitation was understood to be

an inherent restriction on federal courts’ authority.

Prior to the Federal Rules of Civil Procedure, federal

19

courts sitting at law generally borrowed from the procedural rules of the state in which they were located.

Austin v. Riley, 55 F. 833, 835 (C.C.S.D. Iowa 1893)

(stating that “[t]he practice, pleadings, and forms and

modes of proceeding in [federal] civil cases” generally

“conform[ed] to the practice and modes of proceeding

existing in the courts of the state”). But the term rule

limited federal courts’ ability to entertain and grant

new trials or rehearing motions even where state procedural rules would have allowed them. See Fishburn

v. Chicago, M. & St. P. Ry. Co., 137 U.S. 60, 60 (1890)

(“In regard to motions for new trial and bills of exceptions, courts of the United States are independent of

any statute or practice prevailing in the courts of the

state in which the trial is had.”). This was because, as

this Court explained, “[t]he question relates to the

power of the [federal] courts, and not the mode of procedure”—something state rules could not change.

Bronson, 104 U.S. at 417.

4. At both law and equity, the timely filing of a

motion for rehearing or a motion for a new trial suspended the time for appeal. Morse v. United States,

270 U.S. 151, 153-54 (1926) (“There is no doubt under

the decisions and practice in this court that where a

motion for a new trial in a court of law, or a petition

for a rehearing in a court of equity, is duly and seasonably filed, it suspends the running of the time for

taking a writ of error or an appeal, and that the time

within which the proceeding to review must be initiated begins from the date of the denial of either the

motion or petition.”); see also, e.g., Aspen Mining &

Smelting Co. v. Billings, 150 U.S. 31, 36 (1893) (holding the same with respect to rehearing petitions);

United States v. Ellicott, 223 U.S. 524, 539 (1912)

20

(holding the same with respect to new trial motions).

This was so even in the rarer instances when a party

first sought to appeal and then sought reconsideration

from the district court, although the party might have

had to file a second notice seeking appellate review after the district court disposed of its motion. See

Vorhees v. John T. Noye Mfg. Co., 151 U.S. 135, 137

(1894); Shallas v. United States, 37 F.2d 692, 694 (9th

Cir. 1929).

5. Motions to alter or amend the judgment under

Rule 59 “represent[ ] an amalgamation” of the petitions for rehearing under Equity Rule 69 and the motions for new trial available in the common law courts.

Fed. R. Civ. P. 59 (advisory committee’s note to 1937

adoption); see Safeway Stores v. Coe, 136 F.2d 771, 773

(D.C. Cir. 1943); Jusino v. Morales & Tio, 139 F.2d 946,

948 (1st Cir. 1944).

From the inception of the Federal Rules of Civil

Procedure, Rule 59 allowed federal courts to grant

new trials in cases tried before or without a jury. Fed.

R. Civ. P. 59(a) (1937). For cases tried without a jury,

the Rule provided that a new trial may be granted “for

any of the reasons for which rehearings have heretofore been granted in suits in equity.” Id. 59(a)(2).

And, incorporating the power previously provided by

Equity Rule 69, Rule 59 allowed the court to open the

judgment, amend its findings of fact and conclusions

of law, and direct the entry of a new judgment. Id.

Substantively, courts interpreted Rule 59 to encompass all requests that the court rehear or reconsider final orders regardless of whether there had

been a trial, holding that the rule encompassed what

were formerly petitions in equity. See Jusino, 139

F.2d at 948; Safeway Stores, 136 F.2d at 774. In 1946,

21

Rule 59(e) was added to the Federal Rules to confirm

this understanding. See Fed. R. Civ. P. 59 advisory

committee’s notes to 1946 amendment (citing Boaz v.

Mut. Life Ins. Co. of N. Y., 146 F.2d 321 (8th Cir.

1944)).

The Rule eliminated, however, reliance on court

“terms,” originally mandating instead that Rule 59

motions be served within 10 days after entry of the

judgment. See Fed. R. Civ. P. 59 advisory committee’s

note to 1946 amendment; see also 28 U.S.C. § 452.

The time period for a Rule 59(e) motion is now 28 days.

The concept that a court has a limited period of time

in which to consider motions to alter or amend a judgment nevertheless remains an animating feature of

Rule 59. See Browder v. Dir., Dep’t of Corr. of Ill., 434

U.S. 257, 271 (1978) (“The Rules, in abolishing the

term rule did not substitute indefiniteness. On the

contrary, precise times, independent of the term, were

prescribed.” (citation omitted)).

Moreover—and also like previous motions at law

and equity—when a motion to alter or amend a judgment is under consideration, the motion suspends the

finality of the judgment for purposes of appeal. See

Fed. R. App. P. 4(a)(4)(A)(iv). Rule 59 thus allows

courts, for a limited time after the entry of judgment,

to perfect that single, final judgment prior to appeal.

B. In Contrast, Rule 60(b) Evolved from

Mechanisms Allowing Courts to Set

Aside Judgments After the Conclusion of

the Court Term, and Even After All

Appeals Were Exhausted.

Rule 60(b), in contrast to Rule 59(e), incorporates

courts’ equitable powers dating back to their English

22

origins to modify judgments after the term had ended.

And Rule 60(b), like its antecedents, does not toll the

time to appeal a judgment. A Rule 60(b) motion is, in

essence, an attack on an already perfected judgment.

1. In English courts both at law and at equity, certain ancillary remedies were available to give relief to

parties after the close of the term. These included, for

instance, the common law writs of coram nobis (or vobis) and audita querela, and the equitable bill of review and bill in the nature of a bill of review. See generally 12 Moore’s Federal Practice Civil § 60 App. 101;

Bankers Mortg. Co. v. United States, 423 F.2d 73, 78

(5th Cir. 1970); Fraser v. Doing, 130 F.2d 617, 620

(D.C. Cir. 1942).

Early in this country’s history, courts similarly

recognized these exceptions to the “term rule”—that

under some circumstances courts would correct errors

even after the expiration of the term. See Bronson,

104 U.S. at 415-18 (surveying development of these

principles in state and federal courts through the

1800s); Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 244 (1944) (“[U]nder certain circumstances, . . . relief will be granted against judgments

regardless of the term of their entry.”); Mayer, 235

U.S. at 67 (similar).

2. Because they lacked time limitations—and in

contrast to new trial motions and motions under Equity Rule 69, see supra Part II.A.4—these remedies

generally did not toll the time for appeal. Indeed,

their very function was to attack the final judgment

independent of the ordinary course of an appeal. Prisoners could, for instance, use the common law writs to

obtain post-judgment relief while in prison or even after having fully served a sentence. See, e.g., United

23

States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000)

(coram nobis); United States v. Ayala, 894 F.2d 425,

429 (D.C. Cir. 1990) (audita querela); Korematsu v.

United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (vacating conviction of Fred Korematsu after he served

his sentence for violating Japanese exclusion laws

during WWII). And bills of review, depending on the

precise nature of the challenge, would ordinarily be

filed either within the same timeframe as the appeal

or after appeal was taken, and only after the time period for filing a petition for rehearing had passed.

Thomas v. Brockenbrough, 23 U.S. 146, 149-51 (1825);

Obear-Nester Glass Co. v. Hartford Empire Co., 61

F.2d 31, 33 (8th Cir. 1932); Fraser, 130 F.2d at 620;

see Moore & Rogers, 55 Yale L.J. at 664, 674-81.

3. Rule 60(b) incorporates these ancillary remedies for challenging a judgment after the court’s term

had ended. See Bankers Morg. Co., 423 F.2d at 78;

Safeway Stores, 136 F.2d at 773-74; Fed. R. Civ. P.

60(b) advisory committee’s note to 1946 amendment;

Note, History and Interpretation of Federal Rule 60(b)

of the Federal Rules of Civil Procedure, 25 Temp. L.Q.

77 (1951). It provides that a court may “relieve a party

or its legal representative from a final judgment, order, or proceeding” for certain specified reasons including mistake, newly discovered evidence, fraud,

voided judgment, satisfied judgment, and other reasons that justify relief. Fed. R. Civ. P. 60(b) (emphases added); Crosby, 545 U.S. at 529. Its procedures

“confirm[] the courts’ own inherent and discretionary

power, firmly established in English practice long before the foundation of our Republic, to set aside a judgment whose enforcement would work inequity,” Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995)

24

(citation omitted); see also, e.g., Agostini v. Felton, 521

U.S. 203, 237-40 (1997) (under Rule 60(b)(5), vacating

continuing prospective injunction 12 years after it was

ordered by the district court, in light of subsequent

changes in Establishment Clause jurisprudence).

Rule 60(b), like its common law and equity predecessors, does not toll the time period for appeals. For

example, the Advisory Committee’s note to the 1946

amendment to Rule 60 explains that a motion under

Rule 60(b) upon the discovery of new evidence was

analogous to the procedure provided by a bill of review; and, that—unlike a motion under Rule 59 raising newly discovered evidence—it did “not affect the

finality of the judgment” or “the running of the time

for appeal,” Fed. R. Civ. P. 60(b) advisory committee’s

note to 1946 amendment.6

*****

Rule 60(b) therefore derives from courts’ authority

to grant relief from an operative final judgment, even

after direct appeals had been fully exhausted. In contrast, the origins of Rule 59(e) motions lie in a more

temporally circumscribed set of judicial powers: district courts’ authority to revisit their own judgments

during term, and before any appeal had been heard.

6 Following the 1993 and 2009 amendments to Federal Rule

of Appellate Procedure 4, today Rule 60(b) motions made within

28 days of judgment toll the time for appeal; courts typically treat

these motions as Rule 59(e) motions. See Fed. R. App. P.

4(a)(4)(A)(vi) & advisory committee’s note to 1993 amendment.

25

III. RULE 59(E) IS CONSISTENT WITH HABEAS

PROCEEDINGS UNDER § 2244(B).

As this history indicates, Rule 59(e) motions do

not present the abuse-of-the-writ concerns that

§ 2244(b) guards against. Reclassifying Rule 59(e)

motions as second or successive petitions—and thus

outside the jurisdiction of the district court—would

strip district courts of their plenary authority, exercised since the founding of this country, to protect the

integrity of their own judgments for a limited period

following the initial entry thereof. Such a step would

be entirely unjustified. “[A] prompt motion for reconsideration is well suited to the special problems and

character of [habeas] proceedings.” Browder, 434 U.S.

at 271 (citation omitted); see generally id. at 270-71.

1. AEDPA’s restrictions on second or successive

petitions were motivated by concerns that prisoners

would serially abuse the writ—seeking a second bite

at the apple by re-alleging old claims or by alleging

previously available claims for the first time. At the

same time, neither § 2244(b) nor the abuse-of-the-writ

doctrine that it incorporates was ever intended to

limit prisoners’ ability to fully litigate their first federal habeas petitions, including pursuing direct appeals. See supra Part I.

As its historical origins indicate, Rule 60(b) motions are vulnerable to the type of abuse § 2244(b)

guards against. Rule 60(b) derives from remedies

available to parties after the close of the term to obtain relief from a perfected, operative final judgment.

Today, for some of the grounds specified in the Rule—

including its catch-all provision allowing the court to

vacate a judgment for “any other reason that justifies

26

relief,” Fed. R. Civ. P. 60(b)(6)—there is no time limitation for bringing an attack on a final judgment. And

a Rule 60(b) motion is almost always brought after a

prisoner’s appeal has been litigated to conclusion.

By contrast, Rule 59(e) cannot be used to cause

delay or undermine finality by serially re-alleging old

claims or by asserting claims omitted from a prior petition. Like its legal and equitable predecessors, a

Rule 59(e) motion provides a limited window for district courts to correct clear errors of law and fact. See

Hayes Family Tr. v. State Farm Fire & Cas. Co., 845

F.3d 997, 1005 (10th Cir. 2017). Rule 59(e) contains a

strict time limitation—28 days after entry of judgment. Rule 59(e)’s internal substantive requirements

track almost precisely the principles animating

§ 2244(b), insofar as a motion generally “may not be

used to relitigate old matters, or to raise arguments or

present evidence that could have been raised prior to

the entry of judgment,” Exxon Shipping Co. v. Baker,

554 U.S. 471, 486 n.5 (2008) (citation omitted). In

other words, it is a mechanism for the district court

“to rectify its own mistakes in the period immediately

following the entry of judgment,” White, 455 U.S. at

450 (citation omitted), but not to open the door to repetitive or novel claims. Moreover, because Rule 59(e)

motions toll the time for appeal, the Rule ensures that

appellate courts will review only a single, final judgment in a prisoner’s federal habeas action.

Combined, these features mean that allowing district courts to entertain Rule 59(e) motions in the context of federal habeas actions conserves, rather than

“places a heavy burden on[,] scarce federal judicial resources,” McCleskey, 499 U.S. at 491. The trial court

27

is in the best position to quickly evaluate motions related to recently-litigated cases and dispose of repetitive, previously available, or meritless arguments.

See Exxon Shipping Co., 554 U.S. at 486 n.5. At the

same time, because Rule 59(e) motions toll the time to

appeal, they allow district courts to quickly correct

their mistakes and save appellate courts from unnecessary error correction.

In sum, allowing courts to entertain Rule 59(e)

motions in habeas actions “guarantee[s] prisoners one

complete and fair course of collateral review in the

Federal System,” without allowing “use [of] the System to prevent the imposition of a just sentence [or] . . .

to delay the imposition of just punishment.” S.623

Hearing at 2, 3.

2. Consistent with these fundamental differences,

it is telling that prior to AEDPA, habeas litigants

viewed Rule 59(e) and Rule 60(b) motions differently.

As noted above, abuse of the writ was historically an

affirmative defense that state defendants had to raise.

Sanders, 373 U.S. at 10-11. Accordingly, whether preAEDPA courts were asked to adjudicate abuse-of-thewrit considerations in the Rule 59 context offers insight into how state actors—and courts—historically

understood the function of Rule 59(e) in habeas cases.

Before AEDPA, examples of courts holding a Rule

59(e) motion to be an abuse of the writ are vanishingly

rare. In fact, a thorough search for opinions so holding

between 1946 and 1996 (in other words, after Rule

59(e) had been adopted and prior to AEDPA’s adoption of a jurisdictional approach) yielded only one case.

See Bannister v. Armontrout, 4 F.3d 1434, 1445 (8th

Cir. 1993), aff’g Bannister v. Armontrout, 807 F. Supp.

516, 556-60 (W.D. Mo. 1991). And there, the district

28

and appellate courts both deemed the 59(e) motion an

abuse of the writ because the movant had sought to

litigate an entirely new ground previously available

but not raised. Id. A Rule 59(e) motion on such

grounds would automatically fail on the merits, without any need to invoke the abuse-of-the-writ doctrine.

Undersigned counsel have not located any preAEDPA cases holding a Rule 59(e) motion that asserted district-court errors of law or fact to be an

abuse of the writ.

By contrast, prior to AEDPA, cases holding a Rule

60(b) motion to be an abuse of the writ were common.

See, e.g., Brewer v. Ward, 83 F.3d 431 (10th Cir. 1996)

(collecting cases from the 3rd, 4th, 5th, 7th, 8th, 9th,

10th, and 11th Circuits).

This disparity demonstrates that courts and litigants alike have historically understood the basic distinction between these two motions. Rule 59(e), unlike Rule 60(b), is part of producing and perfecting a

single final judgment, prior to appeal, and it does not

allow repetitive, serial attacks on a final judgment.

Because Rule 59(e) motions are not inconsistent

with § 2244(b), Rule 59(e) motions should not be recharacterized as second or successive petitions. See

Fed. R. Civ. P. 81(a)(4)(A); Rule 12 Governing Section

2254 and 2255 Cases. Indeed, there is no reason

grounded in function or history to do so.

CONCLUSION

This Court should reverse the judgment of the

Fifth Circuit and hold that Rule 59(e) motions may not

be recharacterized as second or successive habeas petitions under Gonzalez, 545 U. S. 524.

29

SEPTEMBER 3, 2019

Respectfully submitted,

LEE KOVARSKY

PROFESSOR OF LAW

UNIVERSITY OF MARYLAND

FRANCIS KING CAREY

SCHOOL OF LAW

500 West Baltimore

Room 436

Baltimore, MD 21201

CHARLOTTE H. TAYLOR

Counsel of Record

KAMAILE A.N. TURČAN

DIA RASINARIU

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3872

ctaylor@jonesday.com

App. 1

APPENDIX

APPENDIX OF AMICI CURIAE 1

Valena E. Beety is Professor of Law at Arizona State

University Sandra Day O’Connor College of Law.

David R. Dow is the Cullen Professor of Law at

University of Houston Law Center.

Eric M. Freedman is the Siggi B. Wilzig Distinguished

Professor of Constitutional Rights at Maurice A.

Deane School of Law at Hofstra University.

Brandon L. Garrett is the L. Neil Williams, Jr.

Professor of Law at Duke University School of Law.

Randy A. Hertz is Professor of Clinical Law at New

York University School of Law.

Sheri Lynn Johnson is the James and Mark Flanagan

Professor of Law at Cornell Law School.

Lee Kovarsky is Professor of Law at Frances King

Carey School of Law at University of Maryland.

1 Institutions are listed for affiliation purposes only.

All

signatories are participating in their individual capacity, not as

representatives of their institutions.

App. 2

James S. Liebman is the Simon H. Rifkind Professor

of Law and Founder of the Center for Public Research

and Leadership at Columbia Law School.

Justin F. Marceau is Professor of Law at University of

Denver Sturm College of Law.

Eve Brensike Primus is Professor of Law at

University of Michigan Law School.

Ira P. Robbins is the Barnard T. Welsh Scholar and

Professor of Law and Co-Director of the Criminal

Justice Practice & Policy Institute at American

University Washington College of Law.

Jordan M. Steiker is the Judge Robert M. Parker

Endowed Chair in Law and Director of the Capital

Punishment Center at The University of Texas at

Austin School of Law.

Larry W. Yackle is Professor of Law Emeritus and

Basil Yanakakis Faculty Research Scholar at Boston

University School of Law.