Respondents Brief — Gregory Dean Banister, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefOct 18, 2019
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No. 18-6943
In the Supreme Court of the United States
G REGORY D EAN B ANISTER ,
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
BRIEF FOR RESPONDENT
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
MATTHEW H. FREDERICK
Deputy Solicitor General
NATALIE D. THOMPSON
Assistant Solicitor General
TREVOR W. EZELL
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Kyle.Hawkins@oag.texas.gov
(512) 936-1700
Q UE S TIO N PR E S E N T E D
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).
(I)
TA B LE O F C O N TE N T S
Page
Question Presented .............................................................. I
Table of Authorities ............................................................ V
Opinions Below ..................................................................... 1
Jurisdiction ........................................................................... 1
Statutory Provisions Involved ............................................ 1
Introduction .......................................................................... 1
Statement .............................................................................. 3
I. State Trial and Direct Review ................................ 3
II. State Habeas Review ............................................... 5
III. Federal Habeas Review .......................................... 5
Summary of the Argument ................................................. 8
Argument ............................................................................ 10
I. A Rule 59(e) Motion Is a Second or
Successive Habeas Application When It
Presents a Habeas Claim That Has Been or
Could Have Been Adjudicated..............................10
A. AEDPA broadly circumscribes federal
review of habeas “claims” presented in an
“application” that is “second or successive”
to “a prior application.” ...................................11
B. Gonzalez holds that habeas claims in a
post-judgment motion render that motion
a second or successive habeas application. ....13
C. Gonzalez’s text-based rule confirms that a
Rule 59(e) motion is a second or successive
habeas application when it re-urges habeas
claims that were already rejected. .................20
D. There is no principled reason to exempt
Rule 59(e) motions containing habeas
(III)
IV
claims
from
AEDPA’s
second-orsuccessive requirements. .................................22
1. Principles of finality and the law of
judgments show why Rules 59(e) and
60(b) warrant the same treatment
under AEDPA. ...........................................23
2. Post-judgment motions in the district
court are fundamentally different from
post-judgment motions in the court of
appeals. ........................................................29
3. Common law analogues do not require
a different outcome. ...................................32
4. AEDPA trumps contrary rules of
procedure. ...................................................36
II. A Rule 59(e) Motion That Is an Unauthorized
Second or Successive Habeas Application
Does Not Extend the Time to Appeal..................38
A. Authorization
is
a
jurisdictional
prerequisite for filing a second or
successive application. .....................................39
B. A filing the district court lacks jurisdiction
to accept and entertain cannot extend the
time to appeal. ..................................................40
C. This case does not implicate the
recharacterization issue the Court
addressed in Castro. ........................................43
D. The second-or-successive hurdles are part
of the federal habeas review that AEDPA
provides a state prisoner. ................................46
V
III. The Fifth Circuit Had No Jurisdiction to
Entertain Banister’s Untimely Appeal ................53
Conclusion ........................................................................... 57
TABLE OF AUTHORITES
Page(s)
Cases
Acosta v. La. Dep’t of Health & Human Res.,
478 U.S. 251 (1986) (per curiam)................................. 27
Aderhold v. Murphy,
103 F.2d 492 (10th Cir. 1939) ...................................... 35
Agostini v. Felton,
521 U.S. 203 (1997) ....................................................... 21
Ama v. United States,
149 F. Supp. 3d 1323 (D. Utah 2016) .......................... 37
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ......................................................... 45
Artuz v. Bennett,
531 U.S. 4 (2000) ............................................... 14, 42, 43
Ball v. City of Chicago,
2 F.3d 752 (7th Cir. 1993) ............................................ 26
Banister v. Davis,
139 S. Ct. 2742 (2019) ..................................................... 8
Banister v. State,
No. 07-04-0479-CR, 2006 WL 2795250
(Tex. App.—Amarillo Sept. 29, 2006,
pet ref’d) .......................................................................... 4
VI
Banister v. Texas,
552 U.S. 825 (2007) ......................................................... 5
Bankers Mortg. Co. v. United States,
423 F.2d 73 (5th Cir. 1970) .................................... 27, 28
Blystone v. Horn,
664 F.3d 397 (3d Cir. 2011) ...................................... 8, 24
Borrero v. City of Chicago,
456 F.3d 698 (7th Cir. 2006) ........................................ 26
Bowles v. Russell,
551 U.S. 205 (2007) ....................................................... 49
Bowman v. Lopereno,
311 U.S. 262 (1940) ....................................................... 42
Brannigan v. United States,
249 F.3d 584 (7th Cir. 2001) ........................................ 12
Browder v. Dir., Dep’t of Corr.,
434 U.S. 257 (1978) ..................................... 32, 34, 35, 36
Brown v. Allen,
344 U.S. 443 (1953) ....................................................... 52
Brumley v. Wingard,
269 F.3d 629 (6th Cir. 2001) .................................. 25, 28
Buchanan v. Stanships, Inc.,
485 U.S. 265 (1988) (per curiam)................................. 41
Budinich v. Becton Dickinson & Co.,
486 U.S. 196 (1988) ....................................................... 21
Burton v. Stewart,
549 U.S. 147 (2007) .............................................. passim
Bushell’s Case (1670),
124 Eng. Rep. 1006; Vaugh. 135 (C.P.) ...................... 33
VII
Calderon v. Thompson,
523 U.S. 538 (1998) ........................................... 17, 29, 31
Calhoun v. Bergh,
769 F.3d 409 (6th Cir. 2014) ........................................ 16
Castro v. United States,
540 U.S. 375 (2003) ................................. 1, 43, 44, 45, 46
Coleman v. Thompson,
501 U.S. 722 (1991) ....................................................... 49
Coleman v. Tollefson,
135 S. Ct. 1759 (2015) ............................................. 24, 30
Communist Party of Indiana v. Whitcomb,
414 U.S. 441 (1974) ....................................................... 23
Cristin v. Brennan,
281 F.3d 404 (3d Cir. 2002) .......................................... 12
Curry v. United States,
307 F.3d 664 (7th Cir. 2002) .................................... 8, 27
Day v. McDonough,
547 U.S. 198 (2006) ....................................................... 51
Dep’t of Banking v. Pink,
317 U.S. 264 (1942) (per curiam)........................... 24, 40
Duncan v. Walker,
533 U.S. 167 (2001) ....................................................... 51
Evans v. Chavis,
546 U.S. 189 (2006) ....................................................... 55
Ex parte Banister,
No. WR-70,854-03, 2012 WL 1554200
(Tex. Crim. App. May 2, 2012) (per curiam)................ 5
Ex parte Watkins,
28 U.S. (3 Pet.) 193 (1830) ........................................... 33
VIII
Fay v. Noia,
372 U.S. 391 (1963) ....................................................... 50
FCC v. League of Women Voters,
468 U.S. 364 (1984) ................................................. 23, 41
Felker v. Turpin,
518 U.S. 651 (1996) ........................................... 33, 35, 39
Ford v. Wainwright,
477 U.S. 399 (1986) ....................................................... 18
Gonzalez v. Crosby,
545 U.S. 524 (2005) .............................................. passim
Gonzalez v. Thaler,
565 U.S. 134 (2012) ................................................. 13, 39
Grantham v. Ohio Cas. Co.,
97 F.3d 434 (10th Cir. 1996) ........................................ 27
Greene v. Fisher,
565 U.S. 34 (2011) ......................................................... 49
Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56 (1982) (per curiam)................................... 27
Guenther v. Holt,
173 F.3d 1328 (11th Cir. 1999) .................................... 45
Gypsy Oil Co. v. Escoe,
275 U.S. 498 (1927) ....................................................... 41
Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13 (2017) ....................................................... 39
Harrington v. Richter,
562 U.S. 86 (2011) ......................................................... 49
Harris v. Nelson,
394 U.S. 286 (1969) ....................................................... 50
IX
Hill v. Johnson,
114 F.3d 78 (5th Cir. 1997) .......................................... 56
Hohn v. United States,
524 U.S. 236 (1998) ....................................................... 51
Howard v. United States,
533 F.3d 472 (6th Cir. 2008) .................................... 8, 27
Hubbell v. United States,
171 U.S. 203 (1898) ....................................................... 24
Hunt v. Palao,
45 U.S. 589 (1846) ......................................................... 30
Indian Head Nat’l Bank of Nashua v.
Brunelle,
689 F.2d 245 (1st Cir. 1982) ......................................... 28
In re Cline,
531 F.3d 1249 (10th Cir. 2008) (per curiam) .............. 45
In re Morris,
363 F.3d 891 (9th Cir. 2004) ........................................ 16
In re SDDS, Inc.,
225 F.3d 970 (8th Cir. 2000) ........................................ 21
Jackson v. Sloan,
800 F.3d 260 (6th Cir. 2015) ........................................ 45
Jacobs v. Tempur-Pedic Int’l, Inc.,
626 F.3d 1327 (11th Cir. 2010) .................................... 16
Janus v. Am. Fed’n of State, Cty., & Mun.
Emps., Council 31,
138 S. Ct. 2448 (2018) ................................................... 32
Jennings v. Rivers,
394 F.3d 850 (10th Cir. 2005) ...................................... 26
X
Johnson v. United States,
196 F.3d 802 (7th Cir. 1999) .................................. 16, 17
Langley v. Prince,
926 F.3d 145 (5th Cir. 2019) (en banc)........................ 33
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) ....................................................... 21
Limtiaco v. Camacho,
549 U.S. 483 (2007) ....................................................... 52
Liriano v. United States,
95 F.3d 119 (2d Cir. 1996) (per curiam) ..................... 45
Littlejohn v. Artuz,
271 F.3d 360 (2d Cir. 2001) .......................................... 16
Magwood v. Patterson,
561 U.S. 320 (2010) ..................................... 19, 35, 39, 51
Mayle v. Felix,
545 U.S. 644 (2005) ....................................................... 16
McCleskey v. Zant,
499 U.S. 467 (1991) ................................................. 35, 53
Melton v. United States,
359 F.3d 855 (7th Cir. 2004) ........................................ 12
Miller v. Marriott Int’l, Inc.,
300 F.3d 1061 (9th Cir. 2002) ...................................... 25
Miller-El v. Cockrell,
537 U.S. 322 (2003) ....................................................... 47
Morris v. Unum Life Ins. Co. of Am.,
430 F.3d 500 (1st Cir. 2005) ......................................... 41
Morse v. United States,
270 U.S. 151 (1926) ....................................................... 42
XI
Murray v. Carrier,
477 U.S. 478 (1986) ....................................................... 48
Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
138 S. Ct. 617 (2018) ..................................................... 11
New York v. Printz,
521 U.S. 898 (1997) ....................................................... 48
Nunez v. United States,
96 F.3d 990 (7th Cir. 1996) .......................................... 45
Nutraceutical Corp. v. Lambert,
139 S. Ct. 710 (2019) ......................................... 23, 25, 41
Opinion on the Writ of Habeas Corpus (1758),
97 Eng. Rep. 29; Wilm. 77 (K.B.) ................................ 33
Pace v. DiGuglielmo,
544 U.S. 408 (2005) ..................................... 42, 49, 51, 55
Panetti v. Quarterman,
551 U.S. 930 (2007) ........................................... 18, 19, 20
Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship,
507 U.S. 380 (1993) ....................................................... 21
“R” Best Produce, Inc. v. DiSapio,
540 F.3d 115 (2d Cir. 2008) .................................... 25, 28
Rhines v. Weber,
544 U.S. 269 (2005) ................................................. 51, 55
Rishor v. Ferguson,
822 F.3d 482 (9th Cir. 2016) .................................... 8, 36
Robinson v. Johnson,
313 F.3d 128 (3d Cir. 2002) .......................................... 45
Rodwell v. Pepe,
324 F.3d 66 (1st Cir. 2003) ........................................... 21
XII
Romo v. Gulf Stream Coach, Inc.,
250 F.3d 1119 (7th Cir. 2001) ...................................... 26
Rose v. Lundy,
455 U.S. 509 (1982) ........................................... 18, 48, 55
Ryan v. Valencia Gonzales,
568 U.S. 57 (2013) ......................................................... 51
Santos-Santos v. Torres-Centeno,
842 F.3d 163 (1st Cir. 2016) ......................................... 25
Schriro v. Landrigan,
550 U.S. 465 (2007) ....................................................... 51
Slack v. McDaniel,
529 U.S. 473 (2000) ................................................. 18, 19
Smith v. Missouri,
804 F.3d 919 (8th Cir. 2015) ........................................ 25
Stewart v. Martinez-Villareal,
523 U.S. 637 (1998) ................................................. 18, 19
Stokeling v. United States,
139 S. Ct. 544 (2019) ..................................................... 32
Stone v. I.N.S.,
514 U.S. 386 (1995) ................................................. 25, 56
Thompson v. I.N.S.,
375 U.S. 384 (1964) ....................................................... 41
Tiberg v. Warren,
192 F. 458 (9th Cir. 1911)............................................. 35
Tyler v. Cain,
533 U.S. 656 (2001) ....................................................... 39
United States v. $23,000 in U.S. Currency,
356 F.3d 157 (1st Cir. 2004) ......................................... 26
XIII
United States v. Denedo,
556 U.S. 904 (2009) ....................................................... 28
United States v. Fiorelli,
337 F.3d 282 (3d Cir. 2003) .......................................... 26
United States v. Ibarra,
502 U.S. 1 (1991) (per curiam)..................................... 23
United States v. Key,
205 F.3d 773 (5th Cir. 2000) (per curiam) .................. 45
United States v. Lambros,
404 F.3d 1034 (8th Cir. 2005) ........................................ 7
United States v. Martin,
132 F. App’x 450 (4th Cir. 2005) (per
curiam) ............................................................................. 7
United States v. Morgan,
346 U.S. 502 (1954) ....................................................... 28
United States v. Nelson,
465 F.3d 1145 (10th Cir. 2006) .................................... 16
United States v. Orr,
643 F. App’x 680 (10th Cir. 2016) ............................... 37
United States v. Pedraza,
466 F.3d 932 (10th Cir. 2006) ........................................ 7
United States v. Sellner,
773 F.3d 927 (8th Cir. 2014) ........................................ 16
United States v. Swan,
327 F. Supp. 2d 1068 (D. Neb. 2004) .......................... 30
Uranga v. Davis,
893 F.3d 282 (5th Cir. 2018) ........................................ 37
Wainwright v. Sykes,
433 U.S. 72 (1977) ......................................................... 48
XIV
Ward v. Norris,
577 F.3d 925 (8th Cir. 2009) .......................................... 7
West v. Brashear,
39 U.S. 51 (1840) ........................................................... 29
Williams v. Kelley,
858 F.3d 464 (8th Cir. 2017) (per curiam) .................. 56
Williams v. Taylor,
529 U.S. 420 (2000) ................................................. 50–51
Williams v. Thaler,
602 F.3d 291 (5th Cir. 2010) ................................ 6, 7, 55
Woodford v. Garceau,
538 U.S. 202 (2003) ................................................. 12, 51
York Grp, Inc. v. Wuxi Taihu Tractor Co.,
632 F.3d 399 (7th Cir. 2011) ........................................ 28
Statutes and Rules
An Act for the Better Secureing the Liberty of
the Subject and for Prevention of
Imprisonments Beyond the Seas,
31 Car. 2 c. 2 (1679) ...................................................... 33
Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1217................ 1
XV
28 U.S.C.
§ 1254(1) .......................................................................... 1
§ 1291 ............................................................................. 47
§ 1331 ............................................................................. 48
§ 1631 ............................................................................. 45
§ 2107(a) .............................................................. 1, 43, 49
§ 2242 ............................................................................. 16
§ 2244 ............................................................. 1, 10, 11, 33
§ 2244(b) ............................................................... passim
§ 2244(b)(1) ........................................................... passim
§ 2244(b)(2) ............................................ 11, 15, 36, 37, 40
§ 2244(b)(2)(A) .............................................................. 13
§ 2244(b)(2)(B) .............................................................. 13
§ 2244(b)(3) ............................................................ 2, 3, 22
§ 2244(b)(3)(A) ..................................................... passim
§ 2244(b)(3)(B)–(C) ....................................................... 39
§ 2244(b)(3)(E) ........................................................ 31, 39
§ 2244(b)(4) ................................................................ 2, 39
§ 2244(d) ........................................................................ 50
§ 2244(d)(1) .................................................................... 49
§ 2244(d)(2) .............................................................. 42, 45
§ 2253 ......................................................................... 1, 17
§ 2253(a) ........................................................................ 56
§ 2253(c) ................................................................... 43, 56
§ 2253(c)(1)–(2) ............................................................. 48
§ 2254 ......................................................................... 1, 10
§ 2254(a) ........................................................................ 54
XVI
§ 2254(b)(1)(A) .............................................................. 48
§ 2254(b)(3) .................................................................... 47
§ 2254(d) ...................................................... 12, 49, 53, 54
§ 2254(d)(1) .................................................................... 49
§ 2254(d)(2) .................................................................... 49
§ 2254(e)(1) .................................................................... 47
§ 2254(e)(2) .................................................................... 47
§ 2254 R. 12 ............................................................... 1, 37
§ 2255 ............................................................................. 44
§ 2255(h) ........................................................................ 44
§ 2266(b)(3)(B) .............................................................. 16
§ 2266(c)(1)(B) ............................................................... 31
Sup. Ct. R.
11.3 ................................................................................. 23
13.1 ................................................................................. 49
Fed. R. App. P.
4 ............................................................................. passim
4(a) ................................................................................... 1
4(a)(1)(A) ................................................................. 49, 56
4(a)(4)(A) ..................................................... 28, 29, 40, 41
4(a)(4)(A)(vi) .................................................................. 25
4(a)(4)(B)(i).................................................................... 27
4(a)(4)(B)(i)–(ii) ............................................................. 56
22(b)(2)........................................................................... 56
41(b) ............................................................................... 31
41(c) ................................................................................ 30
Fed. R. Civ. P.
15(a) ............................................................................... 16
XVII
23 .................................................................................... 23
26(b)(1)........................................................................... 47
38(a) ............................................................................... 47
53(a)(1)(B) ..................................................................... 47
59 ................................................................................ 1, 35
59(e) ...................................................................... passim
60 ...................................................................................... 1
60(b) ...................................................................... passim
60(b)(1)........................................................................... 26
60(b)(2)........................................................................... 21
60(b)(6)..................................................................... 22, 46
60(c) ................................................................................ 21
62 .............................................................................. 24, 30
81(a)(4) ..................................................................... 11, 37
Fed. R. Crim. P. 33............................................................. 43
Fed. R. Evid. 402 ................................................................ 47
Tex. Code Crim. P. art. 11.07 .............................................. 5
Tex. Penal Code
§ 12.33(a) ......................................................................... 4
§ 12.42(b) ......................................................................... 4
§ 22.02 .............................................................................. 3
§ 49.08 .............................................................................. 3
Other Authorities
Banister v. Davis, No. 5:14-cv-00049-C (N.D.
Tex. June 6, 2014), ECF No. 9-3................................... 5
Banister v. Davis, No. 5:14-cv-00049-C (N.D.
Tex. June 6, 2014), ECF No. 10-9................................. 5
XVIII
Banister v. Davis, No. 5:14-cv-00049-C (N.D.
Tex. June 6, 2014), ECF No. 10-19 ........................... 4, 5
Black’s Law Dictionary (10th ed. 2014) ..................... 16, 29
3 William Blackstone, Commentaries .............................. 34
R.C. Dale, Adoption of the Common Law by
the American Colonies,
30 Am. L. Reg. 553 (1882)............................................ 32
2 Matthew Hale, Historia Placitorum Coronæ
(1st ed. 1736) ................................................................. 34
Giles Jacob, A New Law-Dictionary (1st ed.
1729) ............................................................................... 34
Restatement (Second) of Judgments
§ 13 cmt. F (Am. Law Inst. 1982) ............................... 24
William Renwick Riddell, New Trial at the
Common Law, 26 Yale L.J. 49 (1916) ........................ 34
11 Wright & Miller, Federal Practice &
Procedure § 2810.1 (3d ed. 2019) .......................... 21, 22
18A Wright & Miller, Federal Practice and
Procedure § 4432 (3d ed. 2019) ................................... 24
O PIN IO N S B E LO W
The order of the court of appeals denying a certificate
of appealability (J.A. 303–06) is not reported. The district
court’s orders denying habeas relief (J.A. 158–218) and
denying Banister’s Rule 59(e) motion (J.A. 254) are likewise unreported.
J UR I S D IC T IO N
The district court had jurisdiction to entertain Banister’s initial application for habeas corpus relief, but no
jurisdiction to entertain his Rule 59(e) motion. 28 U.S.C.
§ 2244(b)(3)(A). The court of appeals correctly determined that it had no jurisdiction to entertain Banister’s
appeal. Id. § 2107(a). This Court has jurisdiction under
28 U.S.C. section 1254(1), notwithstanding AEDPA’s
limitations on certiorari review. See Castro v. United
States, 540 U.S. 375, 379–81 (2003).
S TA T U TO R Y PR O V IS I O N S IN V O LV E D
The text of 28 U.S.C. §§ 2244, 2253, and 2254, Federal
Rules of Civil Procedure 59 and 60, Federal Rule of Appellate Procedure 4(a), and Rule 12 of the Rules Governing Section 2254 Cases are provided in an appendix to
this brief.
IN T R O D U C T IO N
The Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1217 (“AEDPA”),
circumscribes federal court review of state criminal convictions, particularly where a state prisoner files a “second or successive” application for habeas relief. When a
state prisoner has been denied habeas relief by a federal
district court, he cannot seek the same relief again in a
post-judgment motion under Federal Rule of Civil
(1)
2
Procedure 60(b)—at least not without first obtaining appellate court permission, 28 U.S.C. § 2244(b)(3), and then
showing that his claim falls within one of two narrow exceptions, id. § 2244(b)(4). See Gonzalez, 545 U.S. at 529–
30. That result follows from AEDPA’s plain text, and it
necessarily applies to any motion that seeks to relitigate
federal habeas claims that have already been rejected in
a final judgment.
As four courts of appeals correctly recognize, Gonzalez controls post-judgment motions filed under Rule
59(e). After all, Rules 59(e) and 60(b) provide similar
(and sometimes identical) vehicles for asserting habeas
claims after a district court has entered judgment denying relief. Whatever formal vehicle the habeas petitioner
may choose, a post-judgment motion presenting a habeas
claim that has been or could have been adjudicated is a
second or successive habeas application. See 28 U.S.C.
§ 2244(b).
Banister asks this Court to single out Rule 59(e) motions for special treatment, but nothing about Rule 59(e)
justifies an exemption from AEDPA’s clear limits on second or successive habeas applications. Banister notes,
for example, that Rule 59(e) motions must be filed within
28 days of judgment and that such motions extend the
time to appeal. But Rule 60(b) motions can do the very
same thing. Banister has not identified any principled rationale for exempting Rule 59(e) motions. And there is
none; recognizing that Rule 59(e) motions—like Rule
60(b) motions—can assert second or successive habeas
claims and requiring those that do to comply with section 2244(b) follows from AEDPA’s text, this Court’s
3
precedent, basic principles of judgments and finality,
and common-law habeas practice.
That reality dooms Banister’s appeal here. Banister
failed to obtain the Fifth Circuit’s permission before
making a second request for habeas relief. Id.
§ 2244(b)(3). Accordingly, the district court had no power
to accept his Rule 59(e) motion. And even if he had
sought permission, it would have been denied. Banister’s
motion simply reasserted claims the district court had
just rejected. Under AEDPA, “[a] claim presented in a
second or successive habeas corpus application . . . that
was presented in a prior application shall be dismissed.”
Id. § 2244(b)(1).
Because the district court had no jurisdiction to consider it, Banister’s Rule 59(e) motion never extended the
appeal deadline. He filed his notice of appeal more than
60 days after the district court entered final judgment
dismissing his habeas petition with prejudice. The Fifth
Circuit correctly concluded it lacked jurisdiction over
that untimely appeal. This Court should affirm.
S TA TE M E N T
I. State Trial and Direct Review
Gregory Banister hit and killed a bicyclist with his
car. J.A. 10. When Texas law enforcement officers arrived at the scene, Banister consented to a blood draw.
Ibid. Blood tests showed he had been using cocaine. J.A.
11. The State charged Banister with intoxicated manslaughter and, later, aggravated assault. See Tex. Penal
Code §§ 22.02, 49.08; J.A. 18 n.6.
4
Trial counsel urged Banister to plead guilty, but Banister refused because he considered the charges “just a
bunch of bull-shit.” See Banister v. Davis, No. 5:14-cv00049-C (N.D. Tex. June 6, 2014), ECF No. 10-19, at 48.
At trial, witnesses testified that when a deputy sheriff
asked why Banister was in jail, Banister replied that he
had been charged with intoxicated manslaughter. J.A.
11. Then he volunteered a question of his own: “How can
they charge me with Intoxicated Manslaughter when I
wasn’t drunk, when I was on cocaine at the time?” J.A.
12, 15.
The jury convicted Banister of aggravated assault
with a deadly weapon. J.A. 159. Normally, a second-degree felony like aggravated assault would carry a maximum sentence of twenty years in prison. See Tex. Penal
Code § 12.33(a). But the trial court sentenced Banister to
thirty years because his prior felony conviction for trafficking cocaine required him to be punished for a firstdegree felony. J.A. 11, 158–59; Tex. Penal Code
§ 12.42(b).
On appeal, Banister argued the trial court erred by
admitting both his confession and expert testimony regarding the effects of cocaine withdrawal. J.A. 10. The
Texas Court of Appeals for the Seventh District disagreed, concluding that the introduction of both pieces of
evidence complied with the Constitution and state rules
of evidence and procedure. J.A. 13, 20. The Texas Court
of Criminal Appeals denied discretionary review. See
Banister v. State, No. 07-04-0479-CR, 2006 WL 2795250
(Tex. App.—Amarillo Sept. 29, 2006, pet ref ’d). This
5
Court denied certiorari. See Banister v. Texas, 552 U.S.
825 (2007).
II. State Habeas Review
Banister then sought relief in state habeas proceedings. See Tex. Code Crim. P. art. 11.07. Banister’s state
habeas application spanned nearly 100 pages and raised
65 claims. See Banister v. Davis, No. 5:14-cv-00049-C
(N.D. Tex. June 6, 2014), ECF No. 9-3 at 35–124.
The Texas Court of Criminal Appeals directed the
trial court to conduct factfinding on Banister’s claim that
trial counsel was ineffective. See Banister v. Davis, No.
5:14-cv-00049-C (N.D. Tex. June 6, 2014), ECF No. 10-9.
It ordered the court to determine whether trial counsel
had misadvised Banister, causing him to refuse the
State’s plea offers. See Order, Ex parte Bannister, No.
WR-70,854-03, 2012 WL 1554200, at *2 (Tex. Crim. App.
May 2, 2012) (per curiam).
The trial court concluded Banister’s claim lacked
merit. It found that trial counsel repeatedly conveyed the
State’s plea offers, the State left its pre-trial offer open
throughout the trial, and counsel encouraged Banister to
accept it. See Banister v. Davis, No. 5:14-cv-00049-C
(N.D. Tex. June 6, 2014), ECF No. 10-19, at 7–11.
The Texas Court of Criminal Appeals issued a postcard denial rejecting Banister’s application. J.A. 42.
III. Federal Habeas Review
A. Banister then filed a federal habeas petition raising 53 claims. J.A. 43–157. Some of those claims were unexhausted. For example, Banister never argued to the
state courts that trial counsel was ineffective for not
6
moving to strike a certain prosecution expert’s testimony. J.A. 63.
Rather than dismissing Banister’s mixed petition for
lack of exhaustion, the district court denied relief on the
merits. J.A. 217–18. (It is hard to fault the district court
for that mistake, given that Banister’s filings totaled
nearly 300 pages and were sometimes stylized as “a play
or short story.” J.A. 165.) The district court entered final
judgment dismissing Banister’s habeas claims with prejudice on May 15, 2017. J.A. 6.
Twenty-seven days later, Banister filed a Rule 59(e)
motion reasserting claims the district court had already
rejected. J.A. 219. He raised no new claims. In his own
words, his motion focused “on the most obvious errors”
in the district court’s analysis. Ibid. Throughout the motion, Banister urged the court to revisit its merits determinations. See, e.g., J.A. 227 (“re-evaluate Banister’s
claims”), 230 (“revisit this claim”), 238 (“revisit this
ground”), 243 (“revisit this ground”), 247 (“revisit this
ground”), 250 (“revisit [this] claim under the proper
standard”). The district court denied the motion on June
20, 2017. J.A. 254.
Sixty-six days after the district court entered final
judgment, on July 20, 2017, Banister filed a notice of appeal. J.A. 255. Relying on circuit precedent nearly a decade old, the Fifth Circuit held that Banister’s Rule 59(e)
motion was a second or successive application because it
“merely attacked the merits of the district court’s reasoning in denying the § 2254 petition.” J.A. 306 (citing
Williams v. Thaler, 602 F.3d 291, 302–04 (5th Cir. 2010)).
7
Accordingly, the motion did not extend the time to appeal, and Banister’s appeal was untimely.
B. The Fifth Circuit is one of four courts of appeals to
hold that the principle articulated in Gonzalez applies
with equal force to motions filed pursuant to Rule 59(e).
See Williams, 602 F.3d at 303; Ward v. Norris, 577 F.3d
925, 935 (8th Cir. 2009); United States v. Pedraza, 466
F.3d 932, 934 (10th Cir. 2006); United States v. Martin,
132 F. App’x 450, 451 (4th Cir. 2005) (per curiam) (decided before Gonzalez). They reason that both Rule 59(e)
and 60(b) motions can contain habeas claims and attack
a final judgment, and when they do, they are subject to
AEDPA’s strictures on second or successive habeas petitions. See, e.g., Ward, 577 F.3d at 933–35. Both motions
“permit the same relief—a change in judgment.” Williams, 602 F.3d at 303. 1
The Ninth Circuit agrees that a Rule 59(e) motion can
contain habeas claims. But it treats such a motion as a
second or successive application only when it asserts “entirely new claims,” not when it urges reconsideration of
1
Petitioner attempts to segregate the Eighth and Tenth
Circuits from this group because their decisions dealt with
Rule 59(e) motions attacking the denial of a Rule 60(b) motion.
Pet’r BOM 28 n.8. Banister asserts this is a “materially different situation.” Ibid. But he does not explain why that is so.
And it is not. A Rule 59(e) motion can raise a habeas claim
whether it attacks the judgment initially denying habeas relief
or a judgment denying a subsequent Rule 60(b) motion. The
Eighth and Tenth Circuits recognized as much. See United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (observing that the Rule 59(e) motion “sought ultimately to resurrect
the denial of ” habeas relief); Pedraza, 466 F.3d at 933 (same).
8
the claims already denied (as Banister’s did). Rishor v.
Ferguson, 822 F.3d 482, 492–93 (9th Cir. 2016).
Three courts of appeals have held a Rule 59(e) motion
is never a second or successive habeas application, even
when it contains habeas claims. See Blystone v. Horn,
664 F.3d 397 (3d Cir. 2011); Howard v. United States, 533
F.3d 472 (6th Cir. 2008); Curry v. United States, 307 F.3d
664 (7th Cir. 2002) (decided pre-Gonzalez).
This Court granted certiorari. Banister v. Davis, 139
S. Ct. 2742 (2019).
S U M M AR Y O F TH E A R G U M E N T
AEDPA’s text controls this case. Section 2244(b) imposes a bar on second or successive habeas “applications.” See infra Part I.A. A post-judgment motion is a
habeas application when it contains a “claim” for relief
from the underlying state court judgment. Gonzalez, 545
U.S. at 531–32. Though sometimes an application filed
later is not “second or successive,” the nature of the exceptions demonstrates why a Rule 59(e) motion must
clear AEDPA’s second-or-successive hurdles: In every
case, the claim was not—and never could have been—adjudicated in the prior application. See infra Part I.B. The
Gonzalez principle applies with equal force to Rule 59(e)
motions. See infra Part I.C.
There is no principled reason to exempt Rule 59(e)
motions that contain habeas claims from AEDPA’s second-or-successive requirements. See infra Part I.D.
First, Banister argues that a Rule 59(e) motion is different from a Rule 60(b) motion because it “suspends the
finality of the judgment.” But the same can be true of
9
Rule 60(b) motions. Both motions suspend finality only
for purposes of the appeal deadline, not “finality” writ
large. See infra Part I.D.1. Banister next attempts distinction by analogy. He contends a Rule 60(b) motion is
equivalent to a motion to recall an appellate court’s mandate, while a Rule 59(e) motion is akin to a motion for
rehearing in the court of appeals. But this argument misunderstands appellate procedure. See infra Part I.D.2.
Banister then relies on the common law rule allowing a
court to reconsider its judgment during the term. A comprehensive view of common law procedure, however,
provides no help to Banister. He may not pick up and set
down the common law when it suits him. See infra Part
I.D.3. Finally, Banister asks the Court to exempt Rule
59(e) motions because doing so would permit district
courts to promptly correct errors. That exalts the ordinary rules of procedure over AEDPA—precisely what
courts may not do. See infra Part I.D.4.
A prisoner must obtain permission from the court of
appeals before filing a second or successive application.
See 28 U.S.C. § 2244(b)(3)(A). This permission is jurisdictional; without it, the district court cannot entertain
the filing. See infra Part II.A. And a filing the district
court lacks jurisdiction to entertain cannot extend the
deadline to appeal under Appellate Rule 4. See infra Part
II.B. Recognizing this involves no “recharacterization.”
A late appeal is a jurisdictional defect that no recharacterization created and no recharacterization can cure.
See infra Part II.C. And jurisdictional limits are part and
parcel of habeas review under AEDPA. See infra Part
II.D.
10
Here, Banister attempted to use Rule 59(e) to re-argue the same claims for habeas relief that had just been
denied in a final judgment. That constituted a second or
successive application for habeas relief. J.A. 6, 219–53.
AEDPA therefore required Banister to obtain authorization before filing his Rule 59(e) motion. He did not do
so (and there is no argument his claims would qualify under section 2244(b) even if he had). The district court
therefore lacked jurisdiction to entertain his Rule 59(e)
motion, and that motion could not reset the deadline to
appeal. Banister’s appeal was untimely. See infra Part
III.
The judgment of the court of appeals should be affirmed. J.A. 305–06.
AR G UM E N T
I. A Rule 59(e) Motion Is a Second or Successive Habeas Application When It Presents a Habeas
Claim That Has Been or Could Have Been Adjudicated.
The text of AEDPA and the Federal Rules of Civil
Procedure control this case. When a district court issues
a final judgment, a post-judgment motion urging habeas
claims already adjudicated (or that could have been adjudicated) is a second or successive habeas application.
See 28 U.S.C. §§ 2244, 2254. This follows not only from
the statutory text, but also from Gonzalez v. Crosby,
which held that Rule 60(b) motions that present habeas
claims are second or successive habeas applications.
Gonzalez’s analysis, squarely grounded in AEDPA’s
text, controls Rule 59(e) motions, too.
11
Banister asks this Court to create a special doctrine
for Rule 59(e) motions and exempt them from AEDPA’s
strictures. But he provides no basis for doing so. His arguments run contrary to AEDPA’s text, this Court’s
precedent, common-law precepts, and the law of judgments. At core, Banister asks this Court to disregard the
bedrock principle that when AEDPA conflicts with the
Federal Rules of Civil Procedure, AEDPA prevails. Fed.
R. Civ. P. 81(a)(4); Gonzalez, 545 U.S. at 530.
A. AEDPA broadly circumscribes federal review of
habeas “claims” presented in an “application”
that is “second or successive” to “a prior application.”
When interpreting any statute, this Court’s “inquiry
begins with the statutory text.” Nat’l Ass’n of Mfrs. v.
Dep’t of Def., 138 S. Ct. 617, 631 (2018). That principle
applies fully in AEDPA cases, as this Court demonstrated in Gonzalez. See 545 U.S. at 528–29.
Here, the relevant statute is 28 U.S.C. section 2244,
which generally governs federal review of “claims” presented in a “habeas corpus application” that is “second
or successive.” 28 U.S.C. § 2244(b)(1), (2). The terms
claim, application, and second or successive are not defined in AEDPA’s text. But this Court broadly construed
each of those terms in Gonzalez.
Claim. AEDPA uses “claim” to mean “an asserted
federal basis for relief from a state court’s judgment of
conviction.” Gonzalez, 545 U.S. at 530–31; see also id. at
532 & n.4 (adjudication “of a claim on the merits” means
“a determination that there exist or do not exist grounds
entitling a petitioner to habeas corpus relief ”). Other
12
cases similarly treat the term “claim” broadly. See, e.g.,
Cristin v. Brennan, 281 F.3d 404, 418 (3d Cir. 2002) (“a
substantive request for the writ of habeas corpus”);
Brannigan v. United States, 249 F.3d 584, 588 (7th Cir.
2001) (similar).
Application. The term “application” is also broad; it
refers to “a filing that contains one or more ‘claims.’”
Gonzalez, 545 U.S. at 530; see also Woodford v. Garceau,
538 U.S. 202, 207 (2003) (under section 2254(d), an application is a filing that seeks “an adjudication on the merits
of the petitioner’s claims”). A filing does not have to be
labeled “application for writ of habeas corpus” to qualify.
“Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita
querela, certiorari, capias, habeas corpus, ejectment,
quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls.” Melton v. United
States, 359 F.3d 855, 857 (7th Cir. 2004). AEDPA’s text
is concerned with a filing’s objective, not its label.
Second or successive. As Gonzalez recognized,
AEDPA does not define “second or successive,” but instead pairs that term alongside its antonym: “a prior application.” 28 U.S.C. § 2244(b)(1). Gonzalez said little
else about the meaning of “second or successive” because
it did not need to: Gonzalez took it as obvious that an
“application” presented after final judgment is “second
or successive.” 545 U.S. at 530. That is because a “prior
application” presenting the same “claims” has already
been finally rejected by the district court. Id. at 530–31.
13
Indeed, AEDPA’s treatment of “second or successive” applications underscores that term’s meaning. Before a prisoner may file a second or successive application in district court, he first “shall move in the appropriate court of appeals for” authorization. 28 U.S.C.
§ 2244(b)(3)(A). A district court lacks jurisdiction to even
consider a second or successive application absent that
authorization. See Gonzalez v. Thaler, 565 U.S. 134, 142
(2012).
Whether the court of appeals may grant authorization to file a second or successive application depends on
whether the claim in that application “was presented in
a prior application.” 28 U.S.C. § 2244(b)(1). If so, it “shall
be dismissed.” Ibid.
If the claim was not “presented in [the] prior application,” it also “shall be dismissed” unless it meets one of
two narrow exceptions: (A) The claim “relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” id. § 2244(b)(2)(A); or (B) “the factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence,” and
considering that factual predicate “no reasonable factfinder would have found the applicant guilty,” id.
§ 2244(b)(2)(B).
B. Gonzalez holds that habeas claims in a postjudgment motion render that motion a second
or successive habeas application.
Against that statutory backdrop, the Gonzalez Court
reached two conclusions relevant here. First, it held that
post-judgment motions may be habeas “applications”
14
insofar as they contain habeas claims. 545 U.S. at 530–
32. Second, such a filing—even if “couched in the language of ” a post-judgment motion—is a “second or successive” application. Id. at 531. Even though a Rule 60(b)
motion is filed in the original district court proceeding,
it is second or successive because it follows the district
court’s earlier entry of judgment adjudicating the claims.
See id. at 531 (“claim previously denied”), ibid. (“previous denial of a claim”), id. at 532 (“previous resolution of
a claim”). Those conclusions support the controlling principle here: When a “prior application” has been reduced
to final judgment, a post-judgment motion presenting
habeas “claims” that were or could have been adjudicated is a “second or successive” habeas “application.”
Id. at 530–52.
1. In Gonzalez, a federal district court dismissed the
prisoner’s first federal habeas petition as time-barred by
AEDPA’s one-year statute of limitations under thencontrolling circuit precedent. 545 U.S. at 526–27. He was
denied a certificate of appealability and did not seek review in this Court. Id. at 527. But later that year, this
Court abrogated the circuit precedent that barred his
claim. See ibid. (citing Artuz v. Bennett, 531 U.S. 4
(2000)). Gonzalez returned to the district court and filed
a “Motion to Amend or Alter Judgment” asking for reconsideration in light of this Court’s new precedent. Ibid.
That filing made its way to this Court, which construed
it as a Rule 60(b) motion, id. at 527 n.1, and proceeded to
address how Rule 60(b) operates in a case controlled by
AEDPA.
15
The Court hypothesized both Rule 60(b) motions raising new habeas claims and Rule 60(b) motions re-urging
old ones. It concluded that both would count as habeas
applications because AEDPA’s limits on second-or-successive applications govern both kinds of claims.
As to the first type, “[u]sing Rule 60(b) to present
new claims for relief from a state court’s judgment of
conviction . . . circumvents AEDPA’s requirement that a
new claim be dismissed unless it relies on either a new
rule of constitutional law or newly discovered facts.” Id.
at 531 (citing 28 U.S.C. § 2244(b)(2)). As to the second, a
motion that “attacks the federal court’s previous resolution of a claim on the merits” can also be a claim. Id. at
531–32. That is because “alleging that the court erred in
denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is . . . entitled
to habeas relief.” Ibid. Allowing such a claim to be raised
under Rule 60(b) would circumvent AEDPA’s requirement that any previously adjudicated claim be dismissed.
Ibid. (citing 28 U.S.C. § 2244(b)(1)).
But Gonzalez made clear there is still room for Rule
60(b) motions in federal habeas. If a motion filed pursuant to Rule 60(b) raises “some defect in the integrity of
the federal habeas proceedings” (as opposed to seeking
“an adjudication on the merits of the petitioner’s
claims”), it would not come within AEDPA’s ambit. Id. at
530, 532. That was the case with Gonzalez’s motion, which
attacked the district court’s dismissal of his habeas application as time-barred. Id. at 533–34.
2. Gonzalez thus stands for the proposition that the
dividing line between a “prior application” and a “second
16
or successive” application is a final judgment—the
“court’s last action” that “disposes of all issues in controversy.” Black’s Law Dictionary 971 (10th ed. 2014); see
Gonzalez, 545 U.S. at 531. “A motion is caught by
§ 2244(b) . . . only if it is second or successive to a proceeding that ‘counts’ as the first. A petition that has
reached final decision counts for this purpose.” Johnson
v. United States, 196 F.3d 802, 805 (7th Cir. 1999) (emphasis added).
This explains why motions to amend the pleadings,
first amended complaints, and the like are not second or
successive applications. See, e.g., Mayle v. Felix, 545 U.S.
644, 655 (2005); Calhoun v. Bergh, 769 F.3d 409, 411 (6th
Cir. 2014); In re Morris, 363 F.3d 891, 893 (9th Cir. 2004)
(per curiam); Littlejohn v. Artuz, 271 F.3d 360, 362–63
(2d Cir. 2001) (per curiam); cf. 28 U.S.C. §§ 2242,
2266(b)(3)(B). Such motions are “filed before the district
court renders judgment.” United States v. Sellner, 773
F.3d 927, 931 (8th Cir. 2014); accord Jacobs v. TempurPedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010)
(“Rule 15(a), by its plain language, governs amendment
of pleadings before judgment is entered; it has no application after judgment is entered.”). But where “judgment has been entered” on a petitioner’s habeas application, “it cannot be disputed that” even a motion to amend
“is a second or successive” application. United States v.
Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006) (emphasis
added).
One of the cases Banister relies on proves that a final
judgment is the dividing line. In Johnson v. United
States, a federal prisoner attempted to amend his
17
application to include four additional bases for relief
“[b]efore the judge could make a final decision.” 196 F.3d
at 803. The district court concluded the motion was a second or successive application the prisoner had no permission to file. Ibid. The Seventh Circuit reversed because
the court had not yet entered final judgment: “A prisoner
receives one complete round of litigation, which as in
other civil suits includes the opportunity to amend a
pleading before judgment.” Id. at 805 (emphasis added).
Where a court has entered judgment, however, a subsequent motion “can be a ‘second or successive’ ” application even “in a case already on file.” Ibid. (quoting 28
U.S.C. § 2244(b)).
What is true at the district court level is likewise true
at the appellate court level. Initial requests for relief
from a higher tribunal are part and parcel of the first application. Notices of appeal, certiorari petitions, and
merits briefs all seek review of the initial application
from a higher tribunal. See 28 U.S.C. § 2253 (permitting
appeal from a “final order” denying habeas relief). They
are not second or successive because they do not ask a
tribunal for relief a second time after that tribunal has
already entered a final judgment. By contrast, a motion
to recall the mandate—which is a renewed request for
relief at the same level of review after that court has entered final judgment—is a second or successive application. See Calderon v. Thompson, 523 U.S. 538, 554 (1998);
see infra Part I.D.2.
Whether viewed from the vantage of a district court,
Gonzalez, 545 U.S. at 531, or an appellate court, Calderon, 523 U.S. at 554, the governing principle remains the
18
same. Entry of final judgment is the dividing line between a first and a second application.
3. This Court’s precedent recognizes a limited exception to this general rule. A habeas application filed after
final judgment might not be second or successive when it
presents a claim that could not have been adjudicated in
the prior judgment. In those rare and narrow circumstances, AEDPA’s second-or-successive bar does not apply. This Court has applied the exception in two narrow
circumstances—ripeness and exhaustion.
First, claims that were not ripe until after final judgment can be raised later because such claims could not
have been adjudicated before.
For example, in Stewart v. Martinez-Villareal, 523
U.S. 637 (1998), a prisoner argued in his initial application that he was incompetent to be executed under Ford
v. Wainwright, 477 U.S. 399 (1986). The district court
dismissed that claim as premature because the State had
not set an execution date. 523 U.S. at 640. Once the State
did so, the prisoner moved to reopen his initial habeas
proceedings to assert the ripened Ford claim. Id. at 643.
The motion was not second or successive because it
raised a claim that previously could not have been adjudicated: “There was only one application for habeas relief, and the District Court ruled (or should have ruled)
on each claim at the time it became ripe.” Id. at 643; see
also Panetti v. Quarterman, 551 U.S. 930, 946–47 (2007).
Second, claims that were dismissed for failure to exhaust may be raised in a later application. A district court
must dismiss a habeas application containing both exhausted and unexhausted claims. See Rose v. Lundy, 455
19
U.S. 509, 522 (1982). In Slack v. McDaniel, 529 U.S. 473
(2000), this Court suggested that a prisoner who returns
to federal court with a subsequent, newly exhausted habeas application would not run into the second-or-successive bar. Id. at 486–87. Because dismissal of an application for lack of exhaustion occurs “before the district
court [has] adjudicated any claims,” the new application
should be “treated as ‘any other first petition’ [rather
than] a second or successive petition.” Id. at 487.
In every case, this Court emphasized that something
prevented the prisoner from obtaining an adjudication of
his habeas claim in the earlier application. See MartinezVillareal, 523 U.S. at 645 (noting “the habeas petitioner
d[id] not receive an adjudication of his [unripe] claim”);
Panetti, 551 U.S. at 946 (noting “federal courts [would
not] be able to resolve a prisoner’s [unripe] Ford claim”);
Slack, 529 U.S. at 487 (noting prisoner’s application was
dismissed “before the district court adjudicated any
claims”); accord Magwood v. Patterson, 561 U.S. 320,
331–32 (2010) (a federal district court could not have adjudicated claims arising under a judgment that did not
yet exist).
So the general rule is limited in one sense; it may not
apply to post-judgment applications if the judgment did
not adjudicate—and could not have adjudicated—the
claim. But that limitation does not allow a habeas petitioner to re-raise claims that have been adjudicated on
the merits to final judgment. See Burton v. Stewart, 549
U.S. 147, 155 (2007) (per curiam) (noting prisoner’s initial
application “in fact was adjudicated on the merits”). That
is why Gonzalez had no trouble concluding that a Rule
20
60(b) motion re-urging habeas claims already adjudicated is a second or successive habeas application. See
545 U.S. at 531–32. Banister agrees that his Rule 59(e)
motion contained only claims that the district court already adjudicated in its final judgment. Pet’r BOM 44.
His Rule 59(e) motion falls squarely within the general
rule.
Because Rule 60(b) and Rule 59(e) motions are filed
only after the district court enters judgment, in the
mine-run case those motions will be filed after the prisoner’s habeas claims have been (or could have been) “adjudicated,” Burton, 549 U.S. at 155, or “resolved,” Panetti, 551 U.S. at 946. That is what happened here. Banister obtained a district court adjudication on his habeas
claims. J.A. 217–18. That adjudication was memorialized
in a judgment dismissing his claims with prejudice. J.A.
6. Any subsequent motion raising those same claims is a
second or successive application.
C. Gonzalez’s text-based rule confirms that a Rule
59(e) motion is a second or successive habeas
application when it re-urges habeas claims that
were already rejected.
There is no reason to treat Rule 59(e) motions differently from Rule 60(b) motions. Both provide vehicles to
assert habeas claims.
In ordinary civil cases, both Rule 59(e) and Rule 60(b)
provide a means to seek reconsideration of the district
court’s judgment. Rule 59(e) requires that any “motion
to alter or amend a judgment must be filed no later than
28 days after the entry of judgment.” Rule 60(b) says a
party may ask the district court to “relieve” it “from a
21
final judgment” based on five enumerated circumstances
or “any other reason that justifies relief.” A Rule 60(b)
motion “must be made within a reasonable time,” and
certain grounds for relief must be raised within a year.
Fed. R. Civ. P. 60(c).
Though the two rules are similar in that both allow
reconsideration of the judgment, they have distinct applications. A Rule 59(e) motion can seek “reconsideration
of matters properly encompassed in a decision on the
merits,” Budinich v. Becton Dickinson & Co., 486 U.S.
196, 200 (1988), but “a Rule 60(b) motion cannot be used
to relitigate the merits of a district court’s prior judgment,” In re SDDS, Inc., 225 F.3d 970, 972 (8th Cir.
2000); see also Agostini v. Felton, 521 U.S. 203, 257
(1997) (Ginsburg, J., dissenting). Rule 60(b), however,
“deals primarily with some irregularity or procedural defect in the procurement of the judgment.” Rodwell v.
Pepe, 324 F.3d 66, 70 (1st Cir. 2003). And Rule 60(b) motions are used to address circumstances that arose or
came to light after the judgment was entered. See, e.g.,
id. at 255–56; Pioneer Inv. Services Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 393 (1993); Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847, 863–
64 & n.11 (1988).
As with Rule 60(b), the text of Rule 59(e) is plainly
broad enough to be used to present habeas claims. It allows any motion to “alter or amend a judgment” in any
way. Like a Rule 60(b) motion, a Rule 59(e) motion might
“seek leave to present ‘newly discovered evidence.’ ”
Gonzalez, 545 U.S. at 531 (quoting Fed. R. Civ. P.
60(b)(2)); see 11 Wright & Miller, Federal Practice &
22
Procedure § 2810.1 n.17 (3d ed. 2019) (collecting cases).
Like a Rule 60(b) motion, a Rule 59(e) motion might
“contend that a subsequent change in substantive law is
a ‘reason justifying relief ’ from the previous denial of a
claim.” Gonzalez, 545 U.S. at 531 (quoting Fed. R. Civ. P.
60(b)(6)); see 11 Wright & Miller, supra, § 2810.1 n.20
(collecting cases). And like a Rule 60(b) motion, a Rule
59(e) motion might “attack[] the federal court’s previous
resolution of a claim on the merits” by “alleging that the
court erred in denying habeas relief.” Gonzalez, 545 U.S.
at 532; see 11 Wright & Miller, supra, § 2810.1 n.15 (collecting cases).
In short, a Rule 59(e) motion—just like a Rule 60(b)
motion—can “assert[] [a] federal basis for relief from a
state court’s judgment of conviction.” Gonzalez, 545 U.S.
at 530. When it does, it contains a “claim” and therefore
constitutes an “application” under 28 U.S.C. § 2244(b).
See ibid.
The next step follows ineluctably. When a Rule 59(e)
motion presents habeas claims that were already adjudicated in the final judgment, the motion is a second or successive application. Like any other second or successive
application, a Rule 59(e) motion containing habeas claims
must comply with AEDPA’s strictures. See 28 U.S.C.
§ 2244(b)(3).
D. There is no principled reason to exempt Rule
59(e) motions containing habeas claims from
AEDPA’s second-or-successive requirements.
To exempt Rule 59(e) motions from section 2244(b),
Banister must establish they are materially different
from Rule 60(b) motions. They are not. The law of
23
judgments, appellate procedure, common law habeas
procedure, and AEDPA’s trump card over the civil rules
all point to the same outcome.
1. Principles of finality and the law of judgments show why Rules 59(e) and 60(b) warrant the same treatment under AEDPA.
Banister argues that Rule 59(e) motions are different
because they “suspend[] the finality of the original judgment.” Pet’r BOM 23 (quoting FCC v. League of Women
Voters, 468 U.S. 364, 373 n.10 (1984)); see id. at 27–33. To
be sure, the Court has said filing a “motion for reconsideration” “renders an otherwise final decision of a district
court not final for purposes of appeal.” Nutraceutical
Corp. v. Lambert, 139 S. Ct. 710, 717 (2019) (emphasis
added) (quotation marks omitted) (addressing a “motion
for reconsideration” challenging an order certifying a
class under Rule 23). 2
The fundamental problem with Banister’s argument
is that the same is true of a Rule 60(b) motion filed within
28 days of judgment. Moreover, it disregards the limited
2
The Court has used similar language in other decisions,
but always in reference to finality for purposes of appeal and,
notably, never with reference to Rule 59(e). See United States
v. Ibarra, 502 U.S. 1, 6 (1991) (per curiam) (addressing a motion for rehearing of the denial of a motion to suppress in a
criminal case); League of Women Voters, 468 U.S. at 373 n.10
(discussing Supreme Court Rule 11.3); Communist Party of
Indiana v. Whitcomb, 414 U.S. 441, 445 (1974) (addressing a
motion for reconsideration of a three-judge panel decision in
an election case).
24
context in which a Rule 59(e) motion affects the judgment’s finality.
a. This Court’s references to Rule 59(e)’s ability to
“suspend the finality” refer to finality for purposes of the
appeal deadline. It does not mean the judgment is not
final in any sense. The judgment that a party seeks to
“alter” (Rule 59(e)) or obtain “relief from” (Rule 60(b)) is
final; the parties can execute it immediately. The motion
merely suspends the appeal deadline to allow the district
court to reconsider its final judgment. See Dep’t of Banking v. Pink, 317 U.S. 264, 266 (1942) (per curiam).
And “a Rule 59(e) motion does not suspend the finality of a judgment for purposes of claim or issue preclusion.” Blystone, 664 F.3d at 414 n.10. In fact, the district
court’s judgment has claim- and issue-preclusive effect
not only during the 28-day period, but even while a
timely Rule 59(e) motion is pending. See Coleman v.
Tollefson, 135 S. Ct. 1759, 1764 (2015); 18A Wright & Miller, supra, § 4432; Restatement (Second) of Judgments
§ 13 cmt. f; accord Hubbell v. United States, 171 U.S. 203,
210 (1898) (doubting “whether the pendency of a motion
for a new trial would interfere in any way with the operation of the judgment as an estoppel”).
A judgment is also final in that it is immediately subject to execution. “Unless a court issues a stay, a trial
court’s judgment . . . normally takes effect despite a
pending appeal.” Coleman, 135 S. Ct. at 1764. To avoid
execution of a judgment against him, a losing party must
seek a stay of execution. See ibid.; Fed. R. Civ. P. 62.
That a final judgment can be divested of finality for
25
purposes of the appeal clock does not mean it loses finality for other purposes.
Moreover, a distinction based on the appeal deadline
would contravene Gonzalez. Parties may—and do—file
Rule 60(b) motions within 28 days. See Stone v. I.N.S.,
514 U.S. 386, 401 (1995); see, e.g., Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 167 n.6 (1st Cir. 2016);
Smith v. Missouri, 804 F.3d 919, 920 (8th Cir. 2015) (per
curiam); “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115,
121–22 (2d Cir. 2008); Miller v. Marriott Int’l, Inc., 300
F.3d 1061, 1064 (9th Cir. 2002); Brumley v. Wingard, 269
F.3d 629, 637 (6th Cir. 2001). And since 1993, the Rules
of Appellate Procedure have given such a filing the same
effect on finality as a Rule 59(e) motion. See Fed. R. App.
P. 4(a)(4)(A)(vi). When filed within 28 days, a Rule 60(b)
motion also “renders an otherwise final decision of a district court not final for purposes of appeal.” Nutraceutical, 139 S. Ct. at 717. Yet the Gonzalez Court made no
distinction between a Rule 60(b) motion filed within 28
days of judgment and a Rule 60(b) motion filed years
later.
By the time this Court decided Gonzalez in 2005, Rule
60(b) motions had been included for over a decade in Appellate Rule 4’s list of motions that extend the time to
appeal. There can be no serious argument that Gonzalez,
which spoke about Rule 60(b) in blanket terms, intended
its decision to apply to only some Rule 60(b) motions. Accordingly, there is no reason to apply one rule for 60(b)
motions filed within 28 days but a different rule for 59(e)
motions. Suspended finality for purposes of extending
26
the appeal deadline provides no distinction between the
two types of motions.
In a footnote, Banister acknowledges that a Rule
60(b) motion can also be filed within 28 days. Pet’r BOM
31 n.9. He brushes this aside with the observation that
“courts treat the Rule 60(b) motion as substantively
equivalent to a Rule 59(e) motion.” Ibid.; see also Professor Br. at 24 n.6. That distorts how the rules operate today. The two motions serve similar purposes and often
run in parallel, but they are not substantively equivalent.
The two types of motions are substantively distinct.
As one court explained, “a Rule 59(e) motion is normally
granted only to correct manifest errors of law or to present newly discovered evidence,” while a Rule 60(b) motion can be granted under the particular circumstances
contemplated by that Rule, such as “counsel’s mistake,
inadvertence, or excusable neglect.” Jennings v. Rivers,
394 F.3d 850, 854–57 (10th Cir. 2005) (citing Fed. R. Civ.
P. 60(b)(1)); see also, e.g., United States v. $23,000 in U.S.
Currency, 356 F.3d 157, 165 (1st Cir. 2004); United
States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003); Romo
v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n.3 (7th
Cir. 2001).
There is also a historical explanation for why courts
of appeals sometimes conflate the two types of motions.
That history hurts Banister. The lower courts began
treating Rule 60(b) motions filed within the Rule 59(e)
deadline as filed pursuant to Rule 59(e) in order to eliminate uncertainty regarding the deadline to appeal. See,
e.g., Ball v. City of Chi., 2 F.3d 752, 760 (7th Cir. 1993).
That uncertainty arose under the 1979 version of Rule 4,
27
which reset the deadline to appeal after a timely Rule
59(e) motion, but not after a Rule 60(b) motion filed
within the same timeframe. See Borrero, 456 F.3d at 701–
02 (explaining the origins of the practice); Grantham v.
Ohio Cas. Co., 97 F.3d 434, 435 (10th Cir. 1996) (same).
Litigants could not mitigate their risk with a protective notice of appeal because, until 1993, a premature notice of appeal was void. See Acosta v. La. Dept. of Health
& Human Res., 478 U.S. 251, 253–54 (1986) (per curiam);
Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 61 (1982) (per curiam). That problem has been eliminated by further amendment to the Rules. See Fed. R.
App. P. 4(a)(4)(B)(i) advisory committee’s note to 1993
amendments. As of 1993, a premature notice of appeal is
not void, but will take effect only after the district court
disposes of the deadline-extending motion. Fed. R. App.
P. 4(a)(4)(B)(i).
In short, the conflation of Rule 59(e) and 60(b) motions arose from their erstwhile disparate effects on the
appeal deadline. And, as explained, that has no impact on
whether the motion contains a second or successive
“claim.” Gonzalez, 545 U.S. at 531. There is no principled
reason to exempt a Rule 59(e) motion from AEDPA while
requiring compliance for a Rule 60(b) motion filed on the
same day.
b. Some courts of appeals have exempted Rule 59(e)
motions from AEDPA’s second-or-successive requirements by reasoning that such a motion is not a “collateral
attack” on the judgment, but that a Rule 60(b) motion is.
See Howard, 533 F.3d at 475; Curry, 307 F.3d at 665.
That reasoning is faulty. A Rule 60(b) motion is “a
28
continuation of the original suit,” not a collateral attack.
Bankers Mortg. Co. v. United States, 423 F.2d 73, 78 (5th
Cir. 1970); see also Indian Head Nat’l Bank of Nashua
v. Brunelle, 689 F.2d 245, 249 (1st Cir. 1982); cf. United
States v. Denedo, 556 U.S. 904, 913 (2009); United States
v. Morgan, 346 U.S. 502, 511 (1954) (describing a request
for coram nobis as “[c]ontinuation of litigation after final
judgment”). Neither a Rule 59(e) motion nor a Rule 60(b)
motion is a collateral attack.
This rationale also suffers from the same deficiency
that dooms Banister’s reliance on the suspension of finality under Appellate Rule 4(a)(4)(A). Even assuming a
Rule 60(b) motion is a “collateral attack” on the judgment, the same would be true of Rule 59(e). Both ask the
district court to revisit the same judgment, and both can
render it “not final” for purposes of the appeal deadline.
It did not matter to the Gonzalez Court that a Rule 60(b)
motion is a “continuation of the original suit.” Banker’s
Mortg., 423 F.2d at 78. It should not matter for habeas
claims couched in Rule 59(e) motions either.
Banister also supposes that appeal of a Rule 59(e) denial brings up the underlying judgment for review, while
appeal of a Rule 60(b) denial does not. See Pet’r BOM 24,
31. That blanket statement is untrue. When a Rule 60(b)
motion is filed within 28 days of final judgment, it is reviewed along with that judgment. See, e.g., “R” Best Produce, 540 F.3d at 121–22; Brumley, 269 F.3d at 637; cf.
York Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399,
401 (7th Cir. 2011) (a Rule 60(b) motion “filed later” than
28 days from judgment is separately appealable). An
29
early-filed 60(b) motion, just like a timely 59(e) motion,
“merges” with the underlying judgment.
Because both Rule 59(e) and Rule 60(b) motions can
precede appeal, applying the same AEDPA standards to
both is in keeping with AEDPA’s goal of speedy and final
disposition. A prisoner can appeal the final judgment after disposition of his Rule 59(e) motion, and he can likewise appeal the final judgment after disposition of his
Rule 60(b) motion when it is filed promptly. The Gonzalez Court did not view that possibility as a reason to exempt Rule 60(b) motions from AEDPA’s strictures.
2. Post-judgment motions in the district court
are fundamentally different from post-judgment motions in the court of appeals.
Banister also tries to differentiate Rule 59(e) and
Rule 60(b) by drawing an analogy between trial and appellate procedures. See Pet’r BOM 33–37. He says a Rule
60(b) motion is like a motion to recall the mandate, which
this Court has suggested could be a second or successive
habeas petition. Id. at 33–36 (citing Calderon, 523 U.S.
538). And a Rule 59(e) motion, he says, is similar to a motion for rehearing in the court of appeals. Id. at 34–36.
Because a motion for rehearing is not considered a second or successive petition even if it contains “claims,” he
concludes that a Rule 59(e) motion cannot be a second or
successive petition either. Ibid. Banister’s argument has
no grounding in the reality of trial or appellate court
practice.
First, the notion that a Rule 60(b) motion is “the district court equivalent of a motion to recall the mandate,”
Pet’r BOM 33, ignores the different functions of an
30
appellate court mandate and a district court judgment. A
mandate is “[a]n order from an appellate court directing
a lower court to take a specified action.” Black’s Law Dictionary 1105 (10th ed. 2014); accord West v. Brashear, 39
U.S. 51, 53 (1840) (“The mandate is the judgment of the
Supreme Court, transmitted to the Circuit Court.”).
There is no equivalent in the district court. The district
court hearing a habeas application is not an appellate
court; there is no lower court to which it could send direction in the form of a mandate. Cf. Hunt v. Palao, 45
U.S. 589, 590 (1846) (holding the Court could not review
a petition from a decision of a territorial court where that
court had subsequently been dissolved because “there is
no tribunal to which we are authorized to send a mandate”). Banister’s analogy between a Rule 60(b) motion
and a motion to recall the mandate is inapt.
Second, the analogy confuses finality concepts. A district court judgment is final when it is entered. See Coleman, 135 S. Ct. at 1764. It has immediate finality for purposes of issue preclusion, see ibid., and it can be executed. Cf. Fed. R. Civ. P. 62 advisory committee’s notes
to 2018 amendments. But when a court of appeals enters
its judgment, that judgment is not final until the mandate issues. See Fed. R. App. P. 41(c) advisory committee’s note to 1998 amendments (“A court of appeals’
judgment or order is not final until issuance of the mandate; at that time the parties’ obligations become
fixed.”); see, e.g., United States v. Swan, 327 F. Supp. 2d
1068, 1072 (D. Neb. 2004) (“[U]ntil the mandate . . . issues, this court is not obliged to follow the dictates of [the
Eighth Circuit’s] decision.”).
31
But to the extent a Rule 60(b) motion resembles a motion to recall the mandate on appeal, that analogy necessarily extends to Rule 59(e) motions, as well. In the court
of appeals, a motion for rehearing always precedes finality because it precedes the issuance of the mandate. See
Fed. R. App. P. 41(b). Motions under Rules 59(e) and
60(b), however, both come after the entry of final judgment in the district court. In that sense, both Rule 59(e)
and Rule 60(b) motions are akin to motions to recall the
mandate because all three come after the pertinent
court’s judgment has attained finality at that level of review.
Finally, AEDPA expressly contemplates motions for
rehearing in the court of appeals, making it unsurprising
that they are not considered second or successive habeas
applications. Section 2244 specifies that a certain type of
order—“[t]he grant or denial of an authorization by a
court of appeals to file a second or successive application”—“shall not be the subject of a petition for rehearing.” See 28 U.S.C. § 2244(b)(3)(E). The negative implication is that in other contexts a motion for rehearing is
proper and consistent with AEDPA. See also id.
§ 2266(c)(1)(B). Banister recognizes as much. See Pet’r
BOM 35.
AEDPA makes no similar reference to Rule 59(e) motions, Rule 60(b) motions, motions to recall the mandate,
writs of coram nobis, or any other vehicle in which a prisoner might seek to bring a habeas claim after judgment.
When such a motion seeks a different merits determination after finality attaches, it is a second or successive
habeas application. See Gonzalez, 545 U.S. at 531; cf.
32
Calderon, 523 U.S. at 553–54. Allowing that application
to bypass the second-or-successive requirements would
be inconsistent with AEDPA.
3. Common law analogues do not require a different outcome.
Perhaps recognizing that AEDPA’s text and this
Court’s precedent do not support him, Banister relies on
common-law antecedents that he imagines animate Rule
59 and differentiate Rule 60. Specifically, he argues that
Rule 59 grows out of a common law court’s ability to revisit its own judgments during the term in which it issued
them. That practice, he says, shows that the court’s
power to reopen judgments was part of one continuous
proceeding. See Pet’r BOM 21–22; see also Professor Br.
14–24. And he claims that Rule 59 “is thoroughly consistent with the spirit of the habeas statutes.” Browder
v. Director, Dep’t of Corr., 434 U.S. 257, 271 (1978); see
Pet’r BOM 25–27. But when both points are considered
in the proper context, they provide no support for Banister’s argument.
a. Courts do not borrow legal concepts without being
mindful of the soil from which they are lifted or the soil
where they will be transplanted. See R.C. Dale, The
Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 569 (1882); cf. Stokeling v.
United States, 139 S. Ct. 544, 551 (2019). Banister and
his amici may not engage in “halfway originalism” by
plucking up the common-law rules they think will help
while ignoring those that hurt. Janus v. Am. Fed’n of
State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448,
33
2470 (2018). And a comprehensive view of common-law
practice most assuredly hurts Banister.
“The writ of habeas corpus known to the Framers
was quite different from that which exists today.” Felker
v. Turpin, 518 U.S. 651, 663 (1996). At common law Banister could never have collaterally attacked his conviction. See Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202–03
(1830). Of course, any prisoner could petition a court for
the writ of habeas corpus ad subjiciendum. That court
would issue the writ to the jailer, ordering him to “return” a lawful reason for confining the prisoner. See An
Act for the Better Secureing the Liberty of the Subject
and for Prevention of Imprisonments Beyond the Seas,
31 Car. 2 c. 2 (1679). But a prisoner who, like Banister,
was confined pursuant to a final criminal conviction could
not obtain the “privilege”—i.e., the remedy of release—
from a habeas court because a criminal judgment entered after a full-fledged trial was a lawful reason for
confinement. See Bushell’s Case (1670), 124 Eng. Rep.
1006, 1009–10; Vaugh. 135, 142–43 (C.P.); see also Langley v. Prince, 926 F.3d 145, 153–54 (5th Cir. 2019) (en
banc).
Even if the claim Banister asserts today were cognizable at common law (it was not), it would not have led
to a new trial. Habeas proceedings were purely summary. Opinion on the Writ of Habeas Corpus (1758), 97
Eng. Rep. 29, 43; Wilm. 77, 107 (K.B.) (“The writ is not
framed or adapted to litigating facts: it is a summary
short way of taking the opinion of the Court upon a matter of law.”). The court issued a writ and the custodian
brought back a return. The prisoner, however, could not
34
“impeach” (or contest) the truthfulness of the jailer’s return. See ibid. There was nothing like a trial to be renewed.
The closest actual analogue—ordinary criminal proceedings—confirms Banister’s error. The new-trial
mechanism was not available in cases involving crimes
like Banister’s. At England’s criminal assizes of Gaol Delivery and Oyer and Terminer, commissioners were
tasked with inquiring into treasons, felonies, and trespasses. See Gaol Delivery and Oyer and Terminer, Giles
Jacob, A New Law-Dictionary (1st ed. 1729). “It is quite
certain that the commissioners of [those assizes] had no
power to grant a new trial. In cases of felony there was
no power anywhere to grant a new trial.” William Renwick Riddell, New Trial at the Common Law, 26 Yale
L.J. 49, 57–58 (1916) (emphasis added).
And even if a prisoner could have challenged a final
judgment in habeas and sought a new trial, the common
law still does not help Banister. Only appellate courts
could utilize the new-trial mechanism: “[I]f any defect of
justice happened at the trial . . . the party may have relief
in the court above, by obtaining a new trial.” 3 William
Blackstone, Commentaries *387 (emphasis added); see
Riddell, supra, at 49, 60. There is no common-law basis
for Banister’s imagined same-term power of trial courts
to revisit their own judgments in post-conviction habeas
proceedings. Accord 2 Matthew Hale, Historia Placitorum Coronæ 306, 308 (1st ed. 1736) (recognizing newtrial power only where an intoxicated jury returns an acquittal).
35
b. Banister also misreads Browder. He focuses on
this Court’s statement that Rule 59 “is thoroughly consistent with the spirit of the habeas corpus statutes.” 434
U.S. at 271. That much is true. But what Banister neglects to mention is that Browder involved a late appeal
from the habeas respondent—the Director of the Illinois
Department of Corrections. Id. at 258. It had nothing to
do with a prisoner seeking to alter or amend the federal
district court’s judgment. It goes without saying that
AEDPA’s second-or-successive bar, and the abuse-ofthe-writ doctrine that it replaced, are not concerned with
repetitive filings by prison wardens. See Felker, 518 U.S.
at 664; McCleskey v. Zant, 499 U.S. 467, 490 (1991) (noting the abuse-of-the-writ doctrine “concentrate[s] on a
petitioner’s acts”).
The Browder Court did not address the only question
that matters here: whether repeated post-judgment requests for habeas relief by prisoners are consistent with
AEDPA. Even if the abuse-of-the-writ doctrine defined
the full scope of AEDPA’s second-or-successive bar, but
see Magwood, 561 U.S. at 337–38 (opinion of Thomas, J.),
Browder said nothing about it.
That is not the only problem with Banister’s reliance
on Browder. The Browder Court applied the civil rules to
constrict, not to expand, the appeal deadline. While the
warden argued no rules applied, this Court held that, together, Rule 59 and Appellate Rule 4 made the government’s appeal late. See 434 U.S. at 270 (noting the “combined application” of those rules “has resulted in dismissal of appeals”). Moreover, the habeas cases this Court
cited in support of Rule 59’s compatibility with habeas
36
practice involved executive detention, not post-conviction challenges to a judgment. See id. at 270–71 (citing
Aderhold v. Murphy, 103 F.2d 492 (10th Cir. 1939) and
Tiberg v. Warren, 192 F. 458 (9th Cir. 1911)).
And even if this Court could cherry pick the common
law, ignore the procedural posture in Browder, and give
Banister the benefit of every serious doubt, his termtime rule still cannot differentiate Rule 60(b). A Rule
60(b) motion filed within 28 days of judgment bears as
much affinity to term-time reopening as a motion under
Rule 59(e). See supra Part I.D.1.
4. AEDPA trumps contrary rules of procedure.
Banister makes one final argument. He asks the
Court to adopt the Ninth Circuit’s “hybrid” approach,
under which a Rule 59(e) motion is not a second or successive application if it re-raises the identical claims just
rejected. That argument wrongly elevates the federal
rules over AEDPA.
Banister complains that subjecting motions like his to
second-or-successive treatment strikes at Rule 59(e)’s
“most common” use—asking the district court to revisit
its merits determination. Under the Ninth Circuit’s approach, however, the second-or-successive restrictions
do not apply to a Rule 59(e) motion that “asks the district
court to reconsider a previously adjudicated claim on
grounds already raised.” Rishor, 822 F.3d at 493. Instead, they apply “only when the motion raises entirely
new claims.” Ibid. That approach, as Banister sees it,
would preserve the core function of Rule 59(e).
37
But AEDPA’s second-or-successive rules apply to
claims already raised and claims never raised. Claims
“presented in a prior application” must always be dismissed. 28 U.S.C. § 2244(b)(1). New claims, or claims
“not presented in a prior application,” must be dismissed
unless they fit into two narrow categories. Id.
§ 2244(b)(2); see supra Part I.A. Thus, the hybrid approach reads half of the second-or-successive rule out of
AEDPA by allowing a prisoner to use a Rule 59(e) motion
for claims that would be subject to § 2244(b)(1), but not
those that would be subject to § 2244(b)(2).
This distinction reveals the fundamental problem
with the Ninth Circuit’s hybrid approach: It elevates the
general rules of civil procedure over AEDPA. When the
two conflict, AEDPA controls—not the other way
around. See Gonzalez, 545 U.S. at 529; 28 U.S.C. § 2254
R. 12 (reprinted at App. 20); Fed. R. Civ. P. 81(a)(4). Banister would have this Court permit AEDPA to work only
where it does not conflict with Rule 59(e)’s ordinary function.
Even taken on its own terms, Banister’s argument is
incorrect. Applying AEPDA’s second-or-successive principles to Rule 59(e) filings does not reduce Rule 59(e) to
a nullity. Contra Pet’r BOM 36–40. A Rule 59(e) motion
attacking the integrity of the federal proceedings itself
would not be a second or successive habeas application.
So there is ample room for the district court to “correct
[its] own alleged errors.” Pet’r BOM 39; see, e.g., Uranga
v. Davis, 893 F.3d 282, 284 (5th Cir. 2018) (concluding a
Rule 59(e) motion was not second or successive under
Gonzalez); United States v. Orr, 643 F. App’x 680, 681
38
(10th Cir. 2016) (same); Ama v. United States, 149 F.
Supp. 3d 1323, 1325–26 (D. Utah 2016) (same).
*
*
*
A post-judgment motion filed pursuant to Rule 59(e)
can contain habeas claims. When those claims were or
could have been adjudicated, then the Rule 59(e) motion
is a second or successive habeas application. There is no
valid reason to treat Rule 59(e) motions differently than
post-judgment motions for reconsideration filed pursuant to Rule 60(b). Both can be filed immediately after the
district court enters judgment, both can extend the appeal deadline, and both can be used to re-urge habeas
claims that were already rejected. That a Rule 60(b) motion can also be filed after appeal is immaterial. AEDPA
streamlined review by putting a stop to repeat filings in
the district court once that court has entered judgment.
II. A Rule 59(e) Motion That Is an Unauthorized Second or Successive Habeas Application Does Not
Extend the Time to Appeal.
Under AEDPA, a prisoner must obtain court of appeals authorization before filing a second or successive
application. If he does not, the district court lacks jurisdiction entirely. And a filing that “the District Court
never had jurisdiction to consider . . . in the first place”
may not extend the prisoner’s time to appeal under Appellate Rule 4. Burton, 549 U.S. at 152. So motions like
Banister’s have no effect on the appeal deadline even if
they would be proper Rule 59(e) motions in ordinary civil
litigation. That outcome is no anomaly. AEDPA is riddled with hurdles that circumscribe the scope of federal
habeas review.
39
A. Authorization is a jurisdictional prerequisite
for filing a second or successive application.
AEDPA requires that a second or successive habeas
application be authorized by a court of appeals “[b]efore
[it] is filed in the district court.” 28 U.S.C.
§ 2244(b)(3)(A). The court of appeals must decide
whether the prisoner has made “a prima facie showing”
that he presents a new claim that relies on new law or
new facts. Id. § 2244(b)(3)(B)–(C); see supra p.13. If the
court of appeals denies authorization, the prisoner may
not appeal that decision. 28 U.S.C. § 2244(b)(3)(E); see
Felker, 518 U.S. at 657. Even if the court of appeals
grants authorization, the district court may consider the
prisoner’s claims on the merits only if it determines that
the prisoner actually “satisfies the requirements of ” section 2244(b). 28 U.S.C. § 2244(b)(4); see Tyler v. Cain,
533 U.S. 656, 660–61 n.3 (2001).
The authorization requirement is not a mere “mandatory claim-processing rule.” See Hamer v. Neighborhood
Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). It is a jurisdictional prerequisite—just like a certificate of appealability. See Gonzalez, 565 U.S. at 142. If the court of appeals does not authorize a second or successive application, “the district court never had jurisdiction to consider
[the application] in the first place.” Burton, 549 U.S. at
152; see also Magwood, 561 U.S. at 331 (“[I]f Magwood’s
application was ‘second or successive,’ the District Court
should have dismissed it in its entirety because he failed
to obtain the requisite authorization from the Court of
Appeals.”).
40
In Burton, for example, a prisoner filed his second
habeas application directly in federal district court believing it was not second or successive. 549 U.S. at 151–
52. This Court held that the application was successive,
so AEDPA “required [him] to receive authorization from
the Court of Appeals before filing” it. Id. at 153. Because
“Burton neither sought nor received authorization,”
however, “the District Court was without jurisdiction to
entertain” the petition. Id. at 157. This Court vacated the
Ninth Circuit’s judgment denying relief on the merits
and “remanded with instructions to direct the District
Court to dismiss the habeas petition for lack of jurisdiction.” Ibid.
This Court’s precedent thus confirms that the statutory text means what it says: “[B]efore the district court
may accept a successive petition for filing, the court of
appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)’s
new-rule or actual-innocence provisions.” Gonzalez, 545
U.S. at 530. Absent authorization, then, a district court
may not “accept a successive petition for filing.” Ibid.
B. A filing the district court lacks jurisdiction to
accept and entertain cannot extend the time to
appeal.
A state prisoner’s notice of appeal is due 30 days after
entry of final judgment. He cannot change that by submitting a document the district court has no jurisdiction
to consider, such as an unauthorized second or successive
habeas application.
Under Appellate Rule 4, “[i]f a party files [a Rule
59(e) motion] in the district court,” then “the time to file
41
an appeal runs . . . from the entry of the order disposing
of the” motion. Fed. R. App. P. 4(a)(4)(A). The premise
is that a Rule 59(e) motion resets the appeal clock while
the district court “further determin[es] whether the
judgment should be modified.” Pink, 317 U.S. at 266; see
Fed. R. App. P. 4(a)(4)(A) advisory committee’s note to
1979 amendments (extension of time operates “during
pendency of the motion”), 1993 amendments (extension
of time operates “while a posttrial motion is pending”
(emphasis added)). Upon completion of review, the clock
starts anew. Nutraceutical Corp., 139 S. Ct. at 717.
A motion that needs—but lacks—appellate court authorization, however, may not be “file[d] in the district
court.” 28 U.S.C. § 2244(b)(3)(A). The court may not accept it, review it, or otherwise consider it. Gonzalez, 545
U.S. at 530. It is not “pending.” And it cannot extend the
time to appeal. See Gypsy Oil Co. v. Escoe, 275 U.S. 498,
499 (1927) (per curiam). In other words, an unauthorized
application couched in a Rule 59(e) motion has no legal
significance for the appeal deadline.
That is the rule for an untimely Rule 59(e) motion
even in ordinary civil litigation: “A motion made after the
time allowed by the Civil Rules will not qualify as a motion that, under Rule 4(a)(4)(A), re-starts the appeal
time.” Fed. R. App. P. 4 advisory committee’s note to
2016 amendments. A late motion is a “nullity.” Morris v.
Unum Life Ins. Co. of Am., 430 F.3d 500, 502 (1st Cir.
2005); see Thompson v. I.N.S., 375 U.S. 384, 389–90
(1964) (Clark, J., dissenting). It is also the rule for a Rule
59(e) motion that does not ask a district court to alter its
judgment: The extension of time “applies only when such
42
a motion actually seeks an ‘alteration of the rights adjudicated’ in the court’s first judgment.” League of Women
Voters, 468 U.S. at 373 n.10; see Buchanan v. Stanships,
Inc., 485 U.S. 265, 268–69 (1988) (per curiam).
There is no reason to apply a different rule to a motion the prisoner has no permission to file and the district
court has no jurisdiction to accept. Indeed, this Court applied that very rule to a motion like Banister’s in Morse
v. United States, 270 U.S. 151 (1926) (Taft, C.J.). There
the plaintiff sought to file a subsequent motion for a new
trial “after the first motion for a new trial had been overruled.” Id. at 154. At that point, however, he needed
“leave of the Court of Claims” to file the motion. Ibid.
Because the Court of Claims never granted leave, “no
motion for a new trial could be duly and seasonably
filed,” and the plaintiff’s motion could not suspend “the
running of the period limited for the allowance of an appeal.” Ibid.; see also Bowman v. Lopereno, 311 U.S. 262,
266 (1940).
So too here: Banister needed “leave” of the Court of
Appeals to file his Rule 59(e) motion containing habeas
claims. Morse, 270 U.S. at 154. Because he did not obtain
it, his motion “could [not] be duly and seasonably filed.”
Ibid. And it therefore could not extend the appeal deadline.
This Court’s precedent on statutory tolling under
AEDPA is instructive. AEDPA provides that a “properly
filed application for State post-conviction or other collateral review” tolls the time to file a federal habeas petition. 28 U.S.C. § 2244(d)(2). A state collateral review application may be properly filed, and thus toll the federal
43
limitations period, even if it fails to comply with a “condition to obtaining relief.” Bennett, 531 U.S. at 10–11.
But a state application does not toll the time to appeal if
it fails to comply with a “condition to filing.” Pace v.
DiGuglielmo, 544 U.S. 408, 412–13 (2005).
Rules specifying the necessary form of a document,
imposing time limits for filing, specifying the proper recipient, and requiring the payment of filing fees all constitute conditions to filing. Bennett, 531 U.S. at 8. So does
a “precondition[] imposed on particular abusive filers,”
like AEDPA’s authorization requirement. Id. at 8–9 (citing 28 U.S.C. § 2253(c)). An obligation to obtain permission to file is the quintessential “condition to filing.” Banister’s motion would not toll his time to file a petition if
this were a statutory tolling case. It does not extend his
time to appeal here.
The district court had no jurisdiction to entertain the
motion that Banister relies on to contend his late appeal
was timely. See 28 U.S.C. § 2244(b)(3)(A). Accordingly,
the court of appeals lacked jurisdiction over Banister’s
untimely appeal. See 28 U.S.C. § 2107(a).
C. This case does not implicate the recharacterization issue the Court addressed in Castro.
Contrary to Banister’s argument, this case does not
involve “recharacterization” of Rule 59(e) motions as second or successive habeas applications. See Pet’r BOM
47–52. Applying AEDPA’s clear rules does not require
recharacterization of Banister’s motion. Even accepting
it as a Rule 59(e) motion, it did not extend the time to
appeal. See supra Part II.B.
44
The question of recharacterization at issue in Castro
therefore does not arise here. In Castro, a federal prisoner filed a motion for a new trial under Federal Rule of
Criminal Procedure 33. 540 U.S. at 378. Because the district court thought the motion was actually an effort to
vacate his sentence, it “referred to it as a § 2255 motion.”
Ibid. When Castro filed a section 2255 motion a year
later, he ran into the second-or-successive hurdles because the federal courts construed his earlier filing as his
first § 2255 motion. Id. at 379; 28 U.S.C. § 2255(h).
This Court reversed. The majority concluded that before recharacterizing a habeas application, a court must
(1) notify the movant that it intends to recharacterize the
motion, (2) warn the movant that a subsequent motion
would be subject to the second-or-successive hurdles,
and (3) provide the movant an opportunity to withdraw
or amend the motion. Castro, 540 U.S. at 383. The concurrence objected to routine recharacterization of a “litigant’s choice of procedural vehicle.” Id. at 385–86
(Scalia, J., concurring in part and concurring in the judgment). But it agreed that recharacterization is pernicious
where “the patronized litigant will be harmed rather
than assisted by the court’s intervention.” Id. at 386.
Those concerns are not implicated here. The State
does not argue that Banister’s was not a “true” Rule
59(e) motion. Gonzalez, 545 U.S. at 531; id. at 539, 545
(Stevens, J., dissenting). Taking Banister’s motion on its
face, Castro, 540 U.S. at 385 (Scalia, J., concurring in part
and concurring in the judgment), it is a Rule 59(e) motion. It just happens to be subject to AEDPA’s secondor-successive bar because it contains claims for habeas
45
relief that were already rejected. So Banister was required to obtain appellate court permission before he
could file it. Without permission, he could not file the motion. It “involves no similar ‘recharacterization’ to recognize” that, whatever Banister’s motion is, it did not extend the time to appeal. Burton, 549 U.S. at 156 n.3.
Moreover, the prophylaxis Castro designed makes
scant sense in this posture. Castro’s insight is that a
court faced with a mislabeled motion could permit the
movant to withdraw or amend the motion. 540 U.S. at
383. Here, neither the district court nor the Fifth Circuit
had jurisdiction to take any action on Banister’s motion.
Because Banister’s motion was not authorized, the
district court lacked jurisdiction to entertain it. Burton,
549 U.S. at 157. All it had power to do was dismiss, see
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)
(per curiam); Guenther v. Holt, 173 F.3d 1328, 1330–32
(11th Cir. 1999); Nunez v. United States, 96 F.3d 990, 991
(7th Cir. 1996), or perhaps transfer the motion to the
court of appeals under 28 U.S.C. section 1631, see Jackson v. Sloan, 800 F.3d 260, 260 (6th Cir. 2015); In re
Cline, 531 F.3d 1249, 1251–52 (10th Cir. 2008) (per curiam); Robinson v. Johnson, 313 F.3d 128, 139–40 (3d
Cir. 2002); Liriano v. United States, 95 F.3d 119, 122–23
(2d Cir. 1996) (per curiam). Similarly, the sole question
before the court of appeals was whether Banister’s appeal was timely. If not, then it had no jurisdiction to act
on the appeal—much less to direct the district court to
permit Banister to amend or withdraw. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 73 (1997).
46
Finally, it is Banister’s view—not the State’s—that
creates a Castro problem. He fails to account for the nature of the motion at issue in Gonzalez: The post-judgment motion was “title[d] ‘Motion to Alter or Amend
Judgment’ suggest[ing] that petitioner was relying on
Federal Rule of Civil Procedure 59(e).” Gonzalez, 545
U.S. at 527 n.1. This Court nevertheless recharacterized
the motion because “the substance of the motion made
clear that petitioner sought relief under Rule 60(b)(6).”
Ibid.
If Banister is right—that is, if Rule 60(b) is subject to
the second-or-successive hurdles, but Rule 59(e) is not—
then the Court would have recharacterized the motion to
Gonzalez’s detriment by forcing him to use a rule that is
subject to the second-or-successive gauntlet (Rule 60(b))
that he should have been permitted to avoid (Rule 59(e)).
Banister’s argument implies that this Court did in Gonzalez what it said courts should not do in Castro.
The better view is that Rule 59(e), just like Rule
60(b), may be subject to the second-or-successive hurdles. See supra Part I. Only then could this Court have
recharacterized Gonzalez’s Rule 59(e) motion without
“harm[ing]” him. Castro, 540 U.S. at 385 (Scalia, J., concurring in part and concurring in the judgment).
D. The second-or-successive hurdles are part of the
federal habeas review that AEDPA provides a
state prisoner.
Congress conditioned federal habeas review of state
judgments on specific substantive and procedural requirements that do not apply in ordinary civil proceedings. Failure to satisfy those conditions can, and often
47
does, prevent review of federal habeas claims on the merits. So a prisoner’s first collateral attack on a state
court’s judgment is in many ways fundamentally different from “every [other] civil case.” Pet’r BOM 21.
1. A habeas petitioner is not, as Banister suggests,
entitled to file any “motion[ ] authorized by the Rules of
Civil Procedure” so long as it is “filed in [his] first habeas
proceeding.” Pet’r BOM 21. A habeas petitioner is not
entitled to invoke any rule, in any proceeding, if it conflicts with AEDPA.
For instance, AEDPA strictly limits a prisoner’s ability to marshal facts in support of his claims. As to the
existing record, the state court gets the benefit of the
doubt: “[A] determination of a factual issue made by a
State court shall be presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). If a prisoner thinks the facts are otherwise,
he has the burden of rebutting the presumption by “clear
and convincing evidence.” Ibid. New facts are even
harder to come by. Where a prisoner failed to develop
the facts in state court, a federal court may not hold an
evidentiary hearing unless (1) the prisoner’s claim relies
on new law or new facts and (2) the facts the prisoner
hopes to develop in an evidentiary hearing would establish his innocence “by clear and convincing evidence.” Id.
§ 2254(e)(2). These limitations, of course, are inconsistent with the ordinary rules. See, e.g., Fed. R. Evid.
402 (“Relevant evidence is admissible.”); Fed. R. Civ. P.
26(b)(1) (scope of discovery), 38(a) (jury right),
53(a)(1)(B) (appointing masters).
Similarly, AEDPA restricts a prisoner’s ability to appeal an adverse judgment. Before doing so, he must first
48
obtain a certificate of appealability by making “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(1)–(2); see Miller-El v. Cockrell, 537
U.S. 322, 335–36 (2003). Once again, this looks nothing
like the blanket statutory right to appeal that other civil
litigants possess. See 28 U.S.C. § 1291.
The differences do not end there. A prisoner may be
barred from even beginning his first round of federal review if he denies the state courts the first opportunity to
address his claims. AEDPA requires a state prisoner to
“exhaust[] the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). A court may not find
this exhaustion requirement waived “unless the State,
through counsel, expressly waives” it. Id. § 2254(b)(3).
The rule dooms even exhausted claims listed alongside
unexhausted claims in a mixed petition. See Lundy, 455
U.S. at 510. 3 This exhaustion requirement has no analogue in an ordinary civil case. The typical civil litigant
may avail himself of federal question jurisdiction without
first presenting his constitutional claim to fully competent state court tribunals. See 28 U.S.C. § 1331; New
York v. Printz, 521 U.S. 898, 907 (1997) (discussing the
Madisonian Compromise).
This requirement to give state courts the first opportunity points to yet another hurdle. Procedural default
principles may bar federal habeas review where a
3
As explained above, Banister’s petition would not have
cleared this hurdle. See supra at 4. His federal petition was a
mixed petition containing both exhausted and unexhausted habeas claims.
49
prisoner failed to comply with state procedures. See
Wainwright v. Sykes, 433 U.S. 72 (1977). That failure
could occur at any stage of state-court review: at trial, on
appeal, and on collateral review. Murray v. Carrier, 477
U.S. 478, 489–90 (1986). “In all cases in which a state
prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice.” Coleman v. Thompson, 501
U.S. 722, 750 (1991).
And AEDPA generally bars relitigation of a petitioner’s claims when they have been rejected on the merits by a state court. 28 U.S.C. § 2254(d). In that scenario,
the federal courts may not grant habeas relief unless the
prisoner can first show that the state court’s decision
flouted the law, id. § 2254(d)(1), or flouted the facts, id.
§ 2254(d)(2). In the usual case, section 2254(d) bars a
prisoner from “relitigat[ing]” the very claim he wants the
federal court to hear. See Harrington v. Richter, 562
U.S. 86, 100 (2011); Greene v. Fisher, 565 U.S. 34, 39–40
(2011).
Finally, a host of federal laws impose time limits for
obtaining review at every stage. AEDPA imposes a oneyear limitations period for filing a habeas petition. See 28
U.S.C. § 2244(d)(1). Appellate Rule 4 (and the statute it
implements) imposes a 30-day deadline to appeal a denial
of habeas relief. See 28 U.S.C. § 2107(a); Fed. R. App. P.
4(a)(1)(A). And this Court imposes a 90-day deadline to
seek certiorari review. See Sup. Ct. R. 13.1. Every day,
litigants who fail to comply with these deadlines miss the
50
opportunity to see federal habeas review through to completion. See, e.g., Pace, 544 U.S. at 419 (untimely habeas
petition under § 2244(d)); Bowles v. Russell, 551 U.S.
205, 206–08 (2007) (untimely habeas appeal under Appellate Rule 4).
Habeas petitioners are plainly not entitled to do anything a normal civil litigant can do. Contra Pet’r BOM at
21. Characterizing a habeas proceeding as a “civil” one is
technically correct but “inexact,” as “the proceeding is
unique.” Harris v. Nelson, 394 U.S. 286, 293–94 (1969).
It should be unsurprising, then, that Rule 59(e) has limited applicability in habeas proceedings.
Just as Congress decided to require exhaustion of
state remedies and condition appeal on a “substantial
showing of a constitutional right,” it decided that repetitive habeas filings are permissible only under certain
narrow circumstances. Congress imposed these requirements on habeas claims however they arise. See Gonzalez, 545 U.S. at 530–31. There is nothing unique about requiring a Rule 59(e) motion asserting habeas claims to
clear the hurdles required of other second or successive
habeas applications.
A failure to satisfy AEDPA’s requirements does not
mean a prisoner has been deprived of his “one full round”
of habeas review. Contra Pet’r BOM 1, 11, 16, 19, 21, 29,
41. These requirements are part of the “one full round”
Congress has provided. A prisoner who comes up against
a procedural hurdle has still received all the review to
which he was entitled.
2. These requirements further the purposes that animated AEDPA. Before AEDPA, the federal courts
51
exercised their authority to review state judgments for
constitutional error by conducting de novo review of
state courts’ constitutional rulings. See Fay v. Noia, 372
U.S. 391, 461 (1963) (Harlan, J., dissenting) (discussing
Brown v. Allen, 344 U.S. 443 (1953)). Aiming “to further
comity, finality, and federalism,” Congress responded
with AEDPA. Williams v. Taylor, 529 U.S. 420, 421
(2000); see Duncan v. Walker, 533 U.S. 167, 178 (2001).
AEDPA imposed procedural barriers to federal habeas
review and did away with de novo re-litigation of constitutional challenges in federal court.
In practical terms, AEDPA had the “acknowledged
purpose” of “ reduc[ing] delays in the execution of state
and federal criminal sentences.” Schriro v. Landrigan,
550 U.S. 465, 475 (2007) (alteration in original); see also
Garceau, 538 U.S. at 206. It aimed to “streamlin[e] federal habeas proceedings,” Rhines v. Weber, 544 U.S. 269,
277 (2005), and eliminate “the shameful overloading of
our federal criminal justice system,” Hohn v. United
States, 524 U.S. 236, 264–65 (1998) (Scalia, J., dissenting); see Ryan v. Gonzales, 568 U.S. 57, 76 (2013); Day v.
McDonough, 547 U.S. 198, 205–06 (2006); Pace, 544 U.S.
at 427.
Subjecting Rule 59(e) motions to AEDPA’s secondor-successive bar furthers these goals. The capacity to
interrupt and delay federal habeas proceedings by engaging in “gamesmanship” is obvious. Magwood, 561
U.S. at 334. To appeal the denial of habeas relief, a prisoner must first obtain a certificate of appealability
(“COA”). That requires him to “ma[ke] a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
52
§ 2253(c)(2). A prisoner may naturally be tempted to buy
extra time to flesh out his COA application.
Imagine the prisoner who waits until day 28 to file a
100-page Rule 59(e) motion in the district court. His primary goal might not be relief; it might be to postpone the
deadline for his motion for a COA. On Banister’s reading,
Appellate Rule 4 would buy that prisoner time for as long
as the district court is searching through his 100-page
filing. Even if the motion recycles arguments the prisoner previously raised, a dutiful district court judge will
read carefully just to make sure. See Limtiaco v.
Camacho, 549 U.S. 483, 488 (2007) (disapproving “filings
used as delaying tactics”).
The burdens these filings impose on district courts is
especially pernicious because it may crowd out a district
court’s consideration of other meritorious cases. By the
time Banister filed his Rule 59(e) motion, he had already
subjected the district court and the Texas Attorney General to a 300-page filing styled in part as a stage play.
J.A. 165. His Rule 59(e) motion recycled 14 different
grievances in more than 30 pages. See J.A. 219–53. Every
post-trial motion further “inundate[s] the docket of the
lower courts,” burying meritorious petitions “in a flood”
of initial filings and post-trial motions. Brown v. Allen,
344 U.S. 443, 536 (1953) (Jackson, J., dissenting). And
with every post-trial motion a prisoner files, “states are
compelled to default or to defend the integrity of their
judges and their official records.” Id. at 537. Banister’s
rule is not “efficient” for States or district courts. Contra
Pet’r BOM 2, 13, 23, 36.
53
It is difficult to quantify the scope of the problem. But
Banister insists that his motion is the “prototypical use
of Rule 59(e).” Pet’r BOM 47. If so, incentivizing filings
like Banister’s will only interrupt federal habeas review,
which itself interrupts the repose of a state conviction.
III. The Fifth Circuit Had No Jurisdiction to Entertain Banister’s Untimely Appeal.
These principles apply here in a straightforward way.
Banister filed an application containing claims for habeas
relief. J.A. 43–157. The district court denied relief because Banister had “not demonstrated that the state
court’s adjudication of his claims was contrary to or an
unreasonable application of clearly established Supreme
Court law as required by 28 U.S.C. § 2254(d).” J.A. 217.
The same day, the court entered final judgment dismissing Banister’s application with prejudice. J.A. 6. By any
measure, his claims were “presented,” “adjudicated,”
and “determined.” McCleskey, 499 U.S. at 484–84; Burton, 549 U.S. at 155.
Then Banister filed a Rule 59(e) motion, again asserting claims for habeas relief. J.A. 219–53. This renewed request, as Banister concedes, “ask[ed] for a second chance to have the merits determined favorably.”
Gonzalez, 545 U.S. at 532 n.5. In his own telling, the motion “merely addresses itself to correcting the alleged errors made by the district court in its consideration of earlier claims.” Pet’r BOM 44 (quotation omitted). All Banister sought to do was “ask[] the district court to correct
54
its errors,” id. at 46, and revisit its “adverse decision”
denying him relief, id. at 46–47. 4
That is a textbook attack on “the federal court’s previous resolution of a claim on the merits.” Gonzalez, 545
U.S. at 532. The district court “determin[ed] that
there . . . do not exist grounds entitling [Banister] to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).”
Id. at 532 n.4. Banister’s motion argued the district court
made “manifest errors of law and fact” in coming to that
conclusion. J.A. 219. That motion was a subsequent “application” containing “claim[s]” for habeas relief. See supra Part I.
AEDPA required Banister to secure authorization
from the court of appeals before filing that application in
the district court. 28 U.S.C. § 2244(b)(3)(A). He never
sought authorization. Accordingly, the district court had
no power to entertain—or even accept—the motion. That
filing was never pending and could not extend Banister’s
time to appeal from the date the district court entered its
final judgment denying habeas relief. So Banister’s appeal had to be noticed within 30 days of the district
court’s final judgment. Banister’s notice of appeal, filed
more than 60 days after the entry of judgment, was untimely. See supra Part II.A–B.
There is no dispute a prisoner could properly raise the same
arguments in a request for a COA. See Pet’r BOM 38. This illustrates how applying AEDPA to Rule 59(e) motions furthers Congress’s goals: It “reduce[s] delays in the execution of state . . . criminal sentences,” Woodford, 538 U.S. at 206, and “streamlin[es] federal habeas proceedings,” Rhines, 544 U.S. at 277.
4
55
Banister’s only remaining response is to complain
that this outcome is unfair. After all, he says, the court
did not tell him that his motion would not extend the time
to appeal until it was already “too late to adjust.” Pet’r
BOM 48. But fairness concerns cannot displace
AEDPA’s clear text. In Burton, for example, this Court
made no exception for a prisoner’s confusion. Even
though Burton “misread[]” AEDPA’s deadline and even
though he filed his first petition while his state court conviction was still pending on direct review, section 2244(b) barred his second filing. Burton, 549 U.S. at
156–57.
Even taking Banister’s concerns on their face, however, they are overblown. First, no one took Banister by
surprise. The Fifth Circuit’s rule that Rule 59(e) motions
are subject to the same rules as motions under Rule 60(b)
has been the law of the circuit for nearly ten years. See
Williams, 602 F.3d at 301–04. It has been the rule in
other circuits for even longer. See supra p.7.
In any event, what Banister sees as a problem has an
easy, tried-and-true solution: File a protective petition or
application for a COA. In the exhaustion context, for example, this Court has required federal courts to dismiss
“mixed petitions”—those containing both exhausted and
unexhausted claims—rather than simply adjudicate the
exhausted portions. See Lundy, 455 U.S. at 510. That
rule, however, created the risk that prisoners forced to
exhaust in state court might discover that their newly exhausted petition was time-barred when they returned to
federal court. See Rhines, 544 U.S. at 274–75. The solution was a protective petition: The federal court could
56
stay and abey the initial filing while the prisoner exhausted. Id. at 275–77.
So too in the statutory tolling context. Properly filed
applications for state collateral review may toll a prisoner’s deadline for filing a federal habeas petition. 28
U.S.C. § 2244(d)(2). But sometimes a prisoner will not
know whether his state filings complied with state rules
until after the time to file his federal petition has lapsed.
See, e.g., Evans v. Chavis, 546 U.S. 189, 191–92 (2006).
Once again, this Court concluded that a prisoner “might
avoid this predicament . . . by filing a ‘protective’ petition
in federal court” and requesting a stay and abeyance.
Pace, 544 U.S. at 416.
Those cases show the way forward here. A prisoner
bent on filing a Rule 59(e) motion in the district court
may simply file a protective appeal within 28 days of the
judgment. See Fed. R. App. P. 4(a)(1)(A); 28 U.S.C.
§ 2253(a), (c). Courts routinely construe a timely filed
COA request as a timely notice of appeal if a COA is
granted. See, e.g., Hill v. Johnson, 114 F.3d 78, 81 (5th
Cir. 1997) (citing Fed. R. App. P. 22(b)(2)).
The prisoner may then file what he believes is a nonsuccessive Rule 59(e) motion in the district court. Under
Appellate Rule 4, the earlier-filed appeal would not divest the district court of jurisdiction. See Fed. R. App. P.
4(a)(4)(B)(i)–(ii); Stone, 514 U.S. at 402. If the prisoner is
right, the district court may entertain the motion, and
any appeal will follow based on the already-filed notice of
appeal. If he is wrong, the district court will dismiss or
transfer the motion. In either case, the earlier-filed appeal will be timely.
57
Other prisoners and courts have already taken this
approach. See, e.g., Williams v. Kelley, 858 F.3d 464,
466–67, 475 (8th Cir. 2017) (per curiam) (consolidating
COA application with the transferred 60(b) motion).
Banister could have done that here. He simply chose not
to do so despite long-settled circuit precedent.
C O N C L U S IO N
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
KEN PAXTON
Attorney General of
Texas
KYLE D. HAWKINS
Solicitor General
Counsel of Record
JEFFREY C. MATEER
First Assistant
Attorney General
MATTHEW H. FREDERICK
Deputy Solicitor General
NATALIE D. THOMPSON
Assistant Solicitor General
TREVOR W. EZELL
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
kyle.hawkins@oag.texas.gov
(512) 936-1700
OCTOBER 2019
Appendix
1
28 U.S.C. § 2244. Finality of determination:
(a) No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been
determined by a judge or court of the United States
on a prior application for a writ of habeas corpus,
except as provided in section 2255.
(b)
(1) A claim presented in a second or successive
habeas corpus application under section 2254
that was presented in a prior application shall be
dismissed.
(2) A claim presented in a second or successive
habeas corpus application under section 2254
that was not presented in a prior application shall
be dismissed unless -(A) the applicant shows that the claim relies on a
new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(B)
(i) the factual predicate for the claim could
not have been discovered previously
through the exercise of due diligence;
and
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(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish
by clear and convincing evidence that,
but for constitutional error, no
reasonable factfinder would have found
the applicant guilty of the underlying
offense.
(3)
(A) Before a second or successive application
permitted by this section is filed in the
district court, the applicant shall move in the
appropriate court of appeals for an order
authorizing the district court to consider the
application.
(B) A motion in the court of appeals for an order
authorizing the district court to consider a
second or successive application shall be
determined by a three-judge panel of the
court of appeals.
(C) The court of appeals may authorize the filing
of a second or successive application only if
it determines that the application makes a
prima facie showing that the application
satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive
application not later than 30 days after the
filing of the motion.
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(E) The grant or denial of an authorization by a
court of appeals to file a second or successive
application shall not be appealable and shall
not be the subject of a petition for rehearing
or for a writ of certiorari.
(4) A district court shall dismiss any claim presented
in a second or successive application that the
court of appeals has authorized to be filed unless
the applicant shows that the claim satisfies the
requirements of this section.
(c) In a habeas corpus proceeding brought in behalf of a
person in custody pursuant to the judgment of a State
court, a prior judgment of the Supreme Court of the
United States on an appeal or review by a writ of
certiorari at the instance of the prisoner of the
decision of such State court, shall be conclusive as to
all issues of fact or law with respect to an asserted
denial of a Federal right which constitutes ground for
discharge in a habeas corpus proceeding, actually
adjudicated by the Supreme Court therein, unless the
applicant for the writ of habeas corpus shall plead and
the court shall find the existence of a material and
controlling fact which did not appear in the record of
the proceeding in the Supreme Court and the court
shall further find that the applicant for the writ of
habeas corpus could not have caused such fact to
appear in such record by the exercise of reasonable
diligence.
(d)
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a
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person in custody pursuant to the judgment of a
State court. The limitation period shall run from
the latest of-(A) the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an
application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant
was prevented from filing by such State
action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this
subsection.
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28 U.S.C. § 2253. Appeal:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order
shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in
a proceeding to test the validity of a warrant to
remove to another district or place for commitment
or trial a person charged with a criminal offense
against the United States, or to test the validity of
such
person’s
detention
pending
removal
proceedings.
(c)
(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from-(A) the final order in a habeas corpus proceeding
in which the detention complained of arises
out of process issued by a State court; or
(B) the final order in a proceeding under section
2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
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28 U.S.C. § 2254. State custody; remedies in Federal
courts:
(a) The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(b)
(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that-(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)
(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such
process ineffective to protect the rights
of the applicant.
(2) An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available
in the courts of the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from
reliance upon the requirement unless the State,
7
through counsel,
requirement.
expressly
waives
the
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,
within the meaning of this section, if he has the right
under the law of the State to raise, by any available
procedure, the question presented.
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim-(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
(e)
(1) In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a
determination of a factual issue made by a State
court shall be presumed to be correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and
convincing evidence.
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(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the
claim unless the applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made
retroactive to cases on collateral review
by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing
evidence
that
but
for
constitutional
error,
no
reasonable
factfinder would have found the applicant
guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the
evidence adduced in such State court proceeding to
support the State court’s determination of a factual
issue made therein, the applicant, if able, shall
produce that part of the record pertinent to a
determination of the sufficiency of the evidence to
support such determination. If the applicant, because
of indigency or other reason is unable to produce such
part of the record, then the State shall produce such
part of the record and the Federal court shall direct
the State to do so by order directed to an appropriate
State official. If the State cannot provide such
pertinent part of the record, then the court shall
9
determine under the existing facts and circumstances
what weight shall be given to the State court’s factual
determination.
(g) A copy of the official records of the State court, duly
certified by the clerk of such court to be a true and
correct copy of a finding, judicial opinion, or other
reliable written indicia showing such a factual
determination by the State court shall be admissible
in the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled
Substances Act, in all proceedings brought under this
section, and any subsequent proceedings on review,
the court may appoint counsel for an applicant who is
or becomes financially unable to afford counsel,
except as provided by a rule promulgated by the
Supreme Court pursuant to statutory authority.
Appointment of counsel under this section shall be
governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a
proceeding arising under section 2254.
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Fed. R. App. P. 4(a). Appeal as of Right—When Taken
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with
the district clerk within 30 days after entry
of the judgment or order appealed from.
(B) The notice of appeal may be filed by any
party within 60 days after entry of the
judgment or order appealed from if one of
the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued
in an official capacity; or
(iv) a current or former United States
officer or employee sued in an individual
capacity for an act or omission occurring
in connection with duties performed on
the United States’ behalf--including all
instances in which the United States
represents that person when the
judgment or order is entered or files the
appeal for that person.
(C) An appeal from an order granting or denying
an application for a writ of error coram nobis
is an appeal in a civil case for purposes of
Rule 4(a).
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(2) Filing Before Entry of Judgment. A notice of
appeal filed after the court announces a decision
or order—but before the entry of the judgment
or order—is treated as filed on the date of and
after the entry.
(3) Multiple Appeals. If one party timely files a
notice of appeal, any other party may file a notice
of appeal within 14 days after the date when the
first notice was filed, or within the time otherwise
prescribed by this Rule 4(a), whichever period
ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party files in the district court any of the
following motions under the Federal Rules
of Civil Procedure—and does so within the
time allowed by those rules—the time to file
an appeal runs for all parties from the entry
of the order disposing of the last such
remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual
findings under Rule 52(b), whether or
not granting the motion would alter the
judgment;
(iii) for attorney’s fees under Rule 54 if the
district court extends the time to appeal
under Rule 58;
(iv) to alter or amend the judgment under
Rule 59;
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(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is
filed no later than 28 days after the
judgment is entered.
(B)
(i) If a party files a notice of appeal after
the court announces or enters a
judgment—but before it disposes of any
motion listed in Rule 4(a)(4)(A)—the
notice becomes effective to appeal a
judgment or order, in whole or in part,
when the order disposing of the last
such remaining motion is entered.
(ii) A party intending to challenge an order
disposing of any motion listed in Rule
4(a)(4)(A), or a judgment’s alteration or
amendment upon such a motion, must
file a notice of appeal, or an amended
notice of appeal—in compliance with
Rule 3(c)—within the time prescribed
by this Rule measured from the entry of
the order disposing of the last such
remaining motion.
(iii) No additional fee is required to file an
amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file
a notice of appeal if:
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(i) a party so moves no later than 30 days
after the time prescribed by this Rule
4(a) expires; and
(ii) regardless of whether its motion is filed
before or during the 30 days after the
time prescribed by this Rule 4(a)
expires, that party shows excusable
neglect or good cause.
(B) A motion filed before the expiration of the
time prescribed in Rule 4(a)(1) or (3) may be
ex parte unless the court requires otherwise.
If the motion is filed after the expiration of
the prescribed time, notice must be given to
the other parties in accordance with local
rules.
(C) No extension under this Rule 4(a)(5) may
exceed 30 days after the prescribed time or
14 days after the date when the order
granting the motion is entered, whichever is
later.
(6) Reopening the Time to File an Appeal. The
district court may reopen the time to file an
appeal for a period of 14 days after the date when
its order to reopen is entered, but only if all the
following conditions are satisfied:
(A) the court finds that the moving party did not
receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment
or order sought to be appealed within 21
days after entry;
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(B) the motion is filed within 180 days after the
judgment or order is entered or within 14
days after the moving party receives notice
under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be
prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes
of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a)
does not require a separate document,
when the judgment or order is entered
in the civil docket under Federal Rule of
Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a)
requires a separate document, when the
judgment or order is entered in the civil
docket under Federal Rule of Civil
Procedure 79(a) and when the earlier of
these events occurs:
•
the judgment or order is set forth
on a separate document, or
•
150 days have run from entry of the
judgment or order in the civil
docket under Federal Rule of Civil
Procedure 79(a).
(B) A failure to set forth a judgment or order on
a separate document when required by
15
Federal Rule of Civil Procedure 58(a) does
not affect the validity of an appeal from that
judgment or order.
16
Fed. R. Civ. P. 59. New Trial; Altering or Amending a
Judgment:
(a) In General.
(1) Grounds for New Trial. The court may, on
motion, grant a new trial on all or some of the
issues--and to any party--as follows:
(A) after a jury trial, for any reason for which a
new trial has heretofore been granted in an
action at law in federal court; or
(B) after a nonjury trial, for any reason for
which a rehearing has heretofore been
granted in a suit in equity in federal court.
(2) Further Action After a Nonjury Trial. After a
nonjury trial, the court may, on motion for a new
trial, open the judgment if one has been entered,
take additional testimony, amend findings of fact
and conclusions of law or make new ones, and
direct the entry of a new judgment.
(b) Time to File a Motion for a New Trial. A motion for
a new trial must be filed no later than 28 days after
the entry of judgment.
(c) Time to Serve Affidavits. When a motion for a new
trial is based on affidavits, they must be filed with the
motion. The opposing party has 14 days after being
served to file opposing affidavits. The court may
permit reply affidavits.
(d) New Trial on the Court’s Initiative or for Reasons
Not in the Motion. No later than 28 days after the
entry of judgment, the court, on its own, may order a
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new trial for any reason that would justify granting
one on a party’s motion. After giving the parties
notice and an opportunity to be heard, the court may
grant a timely motion for a new trial for a reason not
stated in the motion. In either event, the court must
specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment. A motion to
alter or amend a judgment must be filed no later than
28 days after the entry of the judgment.
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Fed. R. Civ. P. 60. Relief From a Judgment or Order:
(a) Corrections Based on Clerical Mistakes;
Oversights and Omissions. The court may correct a
clerical mistake or a mistake arising from oversight
or omission whenever one is found in a judgment,
order, or other part of the record. The court may do
so on motion or on its own, with or without notice. But
after an appeal has been docketed in the appellate
court and while it is pending, such a mistake may be
corrected only with the appellate court's leave.
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the court
may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by
an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be
made within a reasonable time--and for reasons
(1), (2), and (3) no more than a year after the
entry of the judgment or order or the date of the
proceeding.
(2) Effect on Finality. The motion does not affect
the judgment’s finality or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not limit
a court’s power to:
(1) entertain an independent action to relieve a party
from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant
who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are
abolished: bills of review, bills in the nature of bills of
review, and writs of coram nobis, coram vobis, and
audita querela.
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RULES GOVERNING SECTION 2254 CASES IN
THE UNITED STATES DISTRICT COURTS:
*
*
*
Rule 12. Applicability of the Federal Rules of Civil
Procedure:
The Federal Rules of Civil Procedure, to the extent that
they are not inconsistent with any statutory provisions or
these rules, may be applied to a proceeding under these
rules.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.