Amicus Curiae Brief — Danny Richard Rivers, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 23-1345

IN THE

Supreme Court of the United States

________________

DANNY RICHARD RIVERS,

v.

Petitioner,

BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

________________

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

________________

AMICUS BRIEF OF LEGAL SCHOLARS

LEE KOVARSKY ET AL.

IN SUPPORT OF PETITIONER

________________

STEPHEN B. KINNAIRD

COUNSEL OF RECORD

VLADIMIR J. SEMENDYAI

MOLLY S. TEAGUE

PAUL HASTINGS LLP

2050 M Street, N.W.

Washington, DC 20036

(202) 551-1700

stephenkinnaird@paulhastings.com

-iQUESTION PRESENTED

Whether a second-in-time habeas claim filed while

an appeal from the judgment on an initial habeas

claim is still pending counts as a second or successive

habeas petition under 28 U.S.C. § 2244(b).

- ii TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I. THE TEXT OF THE HABEAS

STATUTE MEANS THAT SECTION

2244(B) DOES NOT APPLY TO A

HABEAS CLAIM RAISED WHILE AN

APPEAL FROM AN INITIAL

APPLICATION IS PENDING. ....................... 5

A. Historical Decisional Law Confirms

that the Term “Second or

Successive” in the Text of Section

2244(b) Excludes Claims Raised

While Initial-Application Appeals

Are Pending. ............................................. 6

B. Other Parts of the Habeas Statute

Confirm the Meaning of “Second or

Successive” in Section 2244(b). .............. 14

II. PEGGING SUCCESSIVENESS TO

THE TIME AT WHICH APPELLATE

REVIEW OF THE INITIAL HABEAS

APPLICATION BECOMES FINAL IS

CONSISTENT WITH SECTION

2244(b)’S PURPOSES. .................................. 16

- iii TABLE OF CONTENTS

(continued)

Page

A. There Is No Risk of Open-Ended

Litigation Because All Claims

Become Successive After Appellate

Review of the Initial Application

Concludes. ............................................... 17

B. There Is Little Lost in Routing

Claims Alleged During the

Pendency of a Case on Appeal to

District Courts. ....................................... 19

III. THE SECOND CIRCUIT’S RULE IS

CONSISTENT WITH GONZALEZ AND

BANISTER. ................................................... 22

CONCLUSION ......................................................... 24

- iv TABLE OF AUTHORITIES

Page(s)

Cases

Abdur’Rahman v. Bell,

537 U.S. 88 (2002) ................................................ 21

Astoria Fed. Sav. & Loan Ass’n v.

Solimino,

501 U.S. 104 (1991) ................................................ 6

Banister v. Davis,

590 U.S. 504 (2020) ........ 3–8, 11–13, 17–19, 21–23

Blair v. Armontrout,

976 F.2d 1130 (8th Cir. 1992) .............................. 11

Bolder v. Armontrout,

983 F.2d 98 (8th Cir. 1992) .................................. 11

Brewer v. Ward,

1996 WL 194830 (10th Cir. Apr. 22,

1996)...................................................................... 11

Carey v. Saffold,

536 U.S. 214 (2002) ........................................ 14, 16

Ching v. United States,

298 F.3d 174 (2d Cir. 2002) .................................... 5

Clark v. Lewis,

1 F.3d 814 (9th Cir. 1993) .................................... 11

Clay v. United States,

537 U.S. 522 (2003) .............................................. 15

-vTABLE OF AUTHORITIES

(continued)

Clerke v. Harwood,

Page

3 U.S. 342 (1797) .................................................. 13

Ex parte Cuddy,

40 F. 62 (C.C.S.D. Cal. 1889) ........................... 9, 12

Felker v. Turpin,

518 U.S. 651 (1996) ................................................ 8

Gonzalez v. Crosby,

545 U.S. 524 (2005) ............................ 3, 4, 6, 19, 22

Guinan v. Delo,

5 F.3d 313 (8th Cir. 1993) .................................... 11

Hunt v. Nuth,

57 F.3d 1327 (4th Cir. 1995) ................................ 11

Isbrandtsen Co. v. Johnson,

343 U.S. 779 (1952) ................................................ 7

Kungys v. United States,

485 U.S. 759 (1988) ................................................ 7

Lafler v. Cooper,

566 U.S. 156 (2012) .............................................. 20

Landano v. Rafferty,

897 F.2d 661 (3d Cir. 1990) .................................. 11

Lindsey v. Thigpen,

875 F.2d 1509 (11th Cir. 1989) ............................ 11

- vi TABLE OF AUTHORITIES

(continued)

Magwood v. Patterson,

Page

561 U.S. 320 (2010) ................................ 4–6, 14, 19

May v. Collins,

961 F.2d 74 (5th Cir. 1992) ............................ 11, 12

McCleskey v. Zant,

499 U.S. 467 (1991) .......................................... 8, 17

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .............................................. 12

Price v. Johnston,

334 U.S. 266 (1948) .............................................. 20

Resnover v. Pearson,

1993 WL 430159 (7th Cir. Oct. 22,

1993)...................................................................... 12

Robison v. Maynard,

958 F.2d 1013 (10th Cir. 1992) ............................ 11

Salinger v. Loisel,

265 U.S. 224, 230 (1924) .................................... 8, 9

Sanders v. United States,

373 U.S. 1 (1963) .............................................. 9, 10

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................. 5

Whab v. United States,

408 F.3d 116 (2d Cir. 2005) .................. 5, 13, 19, 20

- vii TABLE OF AUTHORITIES

(continued)

Williams v. United States,

Page

401 U.S. 667 (1971) .............................................. 18

Williams v. Whitley,

994 F.2d 226 (5th Cir. 1993) ................................ 11

Williamson v. Rison,

1993 WL 262632 (9th Cir. July 9,

1993)...................................................................... 11

Wong Doo v. United States,

265 U.S. 239 (1924) .............................................. 10

Statutes

28 U.S.C. § 2244(b) .............. 2–7, 13–18, 20–21, 23–24

28 U.S.C. § 2244(b)(1) ................................................ 16

28 U.S.C. § 2244(b)(2) .................................................. 4

28 U.S.C. § 2244(b)(3) .................................................. 4

28 U.S.C. § 2244(d)(1) ................................................ 14

28 U.S.C. § 2244(d)(1)(A) ........................................... 14

28 U.S.C. § 2254(b)(1)(A) ........................................... 16

28 U.S.C. § 2255(f)(1) ................................................. 15

28 U.S.C. § 2255(h) .................................................... 15

28 U.S.C. § 2263(a) .................................................... 15

- viii TABLE OF AUTHORITIES

(continued)

Page

Antiterrorism and Effective Death

Penalty Act of 1996 ........ 3, 7, 10, 14, 16–18, 21, 23

Other Authorities

Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of

Legal Texts (2012) .................................................. 7

Article III ................................................................... 12

Rule 37.6 ...................................................................... 1

Rule 59(e) ......................................................... 3, 17, 19

Rule 60(b) ....................................... 3, 11, 12, 19, 21, 22

Rule 60(b)(6)............................................................... 22

INTEREST OF AMICI CURIAE 1

Amici curiae are law professors and legal scholars

who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the

outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just

and timely adjudication of claims while preserving the

traditional and intended operation of the Federal

Rules of Civil Procedure. The amici are2:

•

Lee Kovarsky is the Bryant Smith Chair in

Law and the Co-Director of the Capital Punishment Center at University of Texas School of

Law.

•

Valena E. Beety is the Robert H. McKinney

Professor of Law at Indiana University Mauer

School of Law.

•

David R. Dow is the Cullen Professor of Law at

University of Houston Law Center.

•

Eric M. Freedman is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at

Maurice A. Deane School of Law at Hofstra

University.

amici states that

no counsel for a party authored this brief in whole or in part, and

no person or entity other than amici or their counsel made a monetary contribution to this brief’s preparation or submission. Pursuant to this Court’s Rule 37.2, counsel of record for all parties

received timely notice of amicis’ intention to file this brief.

2 Institutions are listed for affiliation purposes only. All signatories are participating in their individual capacity, not as representatives of their institutions.

1 Pursuant to this Court’s Rule 37.6, counsel for

-2•

Randy Hertz is the Fiorello LaGuardia Professor of Clinical Law and Vice Dean of New York

University School of Law.

•

Sheri Lynn Johnson is the James and Mark

Flanagan Professor of Law and Assistant Director of Death Penalty Project at Cornell Law

School.

•

Justin Marceau is Professor of Law at University of Denver Sturm College of Law.

•

Ira P. Robbins is the Barnard T. Welsh Scholar

and Professor of Law and Co-Director of the

Criminal Justice Practice & Policy Institute at

American University Washington College of

Law.

•

Larry W. Yackle is Professor of Law Emeritus

and Basil Yanakakis Faculty Research Scholar

at Boston University School of Law.

SUMMARY OF ARGUMENT

I. Second-in-time habeas filings that raise new

claims are not “second or successive” within the meaning of 28 U.S.C. § 2244(b) while an initial habeas application remains pending on appeal. This statutory

meaning follows from the established meaning of the

terms that the provision itself uses, and from other

text in the broader habeas statute. Section 2244(b)

does not expressly state that new claims are not successive while an initial appeal is pending, but the provision incorporates common law terminology under

which that rule prevailed. Other provisions of the habeas statute, moreover, specify that habeas judgments

are not final until appellate review concludes. Thus, a

second-in-time habeas filing does not require second-

-3or-successive treatment until appellate review of the

initial filing fully concludes.

II. Tying the successiveness determination to the

conclusion of appellate review also comports with the

gatekeeping purposes of Section 2244(b). The pendency of an appeal is a narrow window that offers little

opportunity to abuse the writ by filing serial petitions.

Accordingly, permitting second-in-time filings while

initial-application appellate review is pending does not

offend the purposes of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) generally or Section 2244(b) specifically—to conserve judicial resources, avoid piecemeal litigation, and promote finality within a reasonable time.

III. Permitting second-in-time filings until appellate review on an initial application concludes is fully

consistent with this Court’s decisions in Gonzalez v.

Crosby, 545 U.S. 524 (2005), and Banister v. Davis,

590 U.S. 504 (2020). The second-in-time filing in Gonzalez (a Rule 60(b) motion) was filed more than a year

after the prisoner’s initial habeas application was resolved on appeal. Accordingly, Gonzalez does not require second-or-successive treatment for claims raised

during the pendency of initial-application appeals. Instead, such claims are closer in kind to those at issue

in Banister (which were raised in a Rule 59(e) motion),

because they are properly understood to be part of the

initial application proceeding that is pending on appeal.

-4ARGUMENT

Section 2244(b) bars a claimant from filing

“claim[s] presented in a second or successive habeas

corpus application” without first obtaining “an order

authorizing” such a filing from “the appropriate court

of appeals.” 28 U.S.C. § 2244(b)(2), (3); accord Gonzalez, 545 U.S. at 530. This rule applies to claims raised

in new habeas petitions and through certain post-judgment motions, and imposes severe restrictions on second or successive habeas applications. Gonzalez, 545

U.S. 529–30. If a claim subject to Section 2244(b) “was

also presented in a prior application,” it “must be dismissed; if not, the analysis proceeds to whether the

claim satisfies one of two narrow exceptions” set out in

Section 2244(b)(2)(A)–(B). Gonzalez, 545 U.S. at 530.

Thus, if a post-judgment motion “constitutes a second

or successive petition, then all of § 2244(b)’s restrictions kick in,” and limit claims that can be raised

in that posture. Banister, 590 U.S. at 511. Conversely, if the motion “is instead part of resolving a

prisoner’s first habeas application—then § 2244(b)’s

requirements never come into the picture.” Id.

This case requires the Court to determine whether

Section 2244(b) mandates successive petition treatment for new claims raised while a district court’s habeas judgment is pending on appeal. The United

States Court of Appeals for the Fifth Circuit held that

it does, but such treatment is incompatible with the

statutory text and context. See Magwood v. Patterson,

561 U.S. 320, 331–32 (2010). It is also “inconsistent

with” “historical habeas doctrine and practice” and

Section 2244(b)’s “own purposes”—the “two main

places” where “this Court has looked for guidance”

-5when deciding whether a second-in-time filing is successive. Banister, 590 U.S. at 511–12.

The proper rule here is that declared by the United

States Court of Appeals for the Second Circuit: new

claims are not part of “second or successive” applications if the initial judgment is pending on appeal. See

Whab v. United States, 408 F.3d 116, 118–120 (2d Cir.

2005); Ching v. United States, 298 F.3d 174, 177–79

(2d Cir. 2002) (Sotomayor, J.)). This rule is consistent

with the statutory text and context, as well as the principles articulated in Banister, which held that Section

2244(b) did not apply to a subset of time-limited postjudgment motions that did not indefinitely extend the

window for raising claims. 590 U.S. at 511, 514. The

Court should grant certiorari, reject the Fifth Circuit’s

approach, and clarify that Banister’s logic applies

here.

I. THE TEXT OF THE HABEAS STATUTE MEANS

THAT SECTION 2244(B) DOES NOT APPLY TO

A HABEAS CLAIM RAISED WHILE AN APPEAL

FROM AN INITIAL APPLICATION IS PENDING.

As with all questions of statutory interpretation,

this Court “begin[s] with the text.” Magwood, 561 U.S.

at 331. Indeed, Banister instructs that the answer to

whether a habeas application is second or successive

lies in part in Section 2244(b)’s “own purposes,” 590

U.S. at 512, and “[t]he best evidence of th[ose] purpose[s] is the statutory text adopted by both Houses of

Congress and submitted to the President,” W. Va.

Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).

The phrase “second or successive application,” as

used in Section 2244(b), “is a ‘term of art,’ which ‘is not

self-defining.’” Banister, 590 U.S. at 511 (quoting

-6-

Slack v. McDaniel, 529 U.S. 473, 486 (2000), and Panetti v. Quarterman, 551 U.S. 930, 943 (2007)); accord

Magwood, 561 U.S. at 332. “Although Congress did

not define the phrase ‘second or successive,’ * * * it is

well settled that the phrase does not simply ‘refer to

all § 2254 applications filed second or successively in

time.’” Magwood, 561 U.S. at 331–32 (cleaned up);

Banister, 590 U.S. at 511. A second or successive filing

is one that “attacks the federal court’s previous resolution of a claim on the merits” or raises new claims

thereafter. Gonzalez, 545 U.S. at 532 (emphasis

added; second emphasis removed).

But, the statute does not expressly declare the

level of finality that must attach to an initial application before a second-in-time filing is deemed to be second or successive. See 28 U.S.C. § 2244(b). The statute, however, incorporates “historical habeas doctrine

and practice” that “is ‘given substance in [the Court’s]

prior habeas corpus cases,’” Banister, 590 U.S. at 512

(quoting Slack, 529 U.S. at 486, and Panetti, 551 U.S.

at 944), and “the statutory context” surrounding this

phrase, Magwood, 561 U.S. at 332. That historical

practice and statutory context confirm that the text of

Section 2244(b) means that a second-in-time filing is

not “second or successive” while an initial habeas application remained pending on appeal.

A. Historical Decisional Law Confirms that the

Term “Second or Successive” in the Text of Section 2244(b) Excludes Claims Raised While Initial-Application Appeals Are Pending.

“Congress is understood to legislate against a background of common-law adjudicatory principles.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104,

108 (1991); accord Isbrandtsen Co. v. Johnson, 343

-7U.S. 779, 783 (1952) (“Statutes which invade the common law * * * are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary

is evident.”); Antonin Scalia & Bryan Garner, Reading

Law: The Interpretation of Legal Texts 318 (2012)

(“Statutes will not be interpreted as changing the common law unless they effect the change with clarity.”).

“‘Where Congress uses terms that have accumulated

settled meaning under * * * the common law, a court

must infer, unless the statute otherwise dictates, that

Congress means to incorporate the established meaning of these terms.’” Kungys v. United States, 485 U.S.

759, 770 (1988) (citing NLRB v. Amax Coal Co., 453

U.S. 322, 329 (1981)).

Here, the common law abuse-of-the-writ doctrine

provides the necessary historical context to interpret

Section’s 2244(b)’s second-or-successive provision. Accordingly, to determine whether a filing equates to a

second or successive habeas petition within the meaning of Section 2244(b), this Court considers whether

that “type of later-in-time filing would have ‘constituted an abuse of the writ, as that concept is explained

in our * * * cases’” predating AEDPA. Banister, 590

U.S. at 512–13 (quoting Panetti, 551 U.S. at 947). This

Court’s “historical precedents,” id. at 513, demonstrate

that courts traditionally did not consider second-intime filings made while a first habeas application remained pending on appeal to be abuses of the writ—

or, by extension, second or successive applications.

Historically, the abuse-of-the-writ doctrine arose

to serve a similar purpose to the one animating Section

2244(b). Because “[a]t common law, res judicata did

-8not attach to a court’s denial of habeas relief” and, accordingly, such a denial “could not be reviewed,” “[s]uccessive petitions served as a substitute for appeal.”

McCleskey v. Zant, 499 U.S. 467, 479 (1991) (citations

omitted). After Congress first provided for appellate

review in habeas cases in 1867, Felker v. Turpin, 518

U.S. 651, 660 (1996), “courts began to question the continuing validity of the common-law rule allowing endless successive petitions,” McCleskey, 499 U.S. at 479

(citation omitted).

The canonical successive-application precedents

demonstrate that habeas claimants could raise new

claims while other habeas claims remained pending on

appeal without being found to abuse the writ. In other

words, for the purposes of the successive-petition inquiry, courts did not consider a like application to be

resolved until appellate review concluded. See Pet. 25.

For example, in Salinger v. Loisel, the Court observed that “a refusal to discharge on one application

is [not] without bearing or weight when a later application is being considered.” 265 U.S. 224, 230 (1924).

The Court held that habeas applications should be disposed of “in the exercise of a sound judicial discretion

guided and controlled by a consideration of whatever

has a rational bearing on the propriety of the discharge

sought.” Id. at 231. The Court explained that such

considerations may include “(a) the existence of another remedy, such as a right in ordinary course to an

appellate review in the criminal case, and (b) a prior

refusal to discharge on a like application.” Id. Significantly, turning to the facts before it, the Court observed that “the prior refusal to discharge * * * was affirmed in a considered opinion by a Circuit Court of

Appeals,” and “[h]ad the District Court disposed of the

-9later applications on that ground, its discretion would

have been well exercised” and “sustain[ed]” by this

Court. Id. at 232.

In other words, in Salinger, as this Court explained

years later, the habeas applicant’s “successive applications were properly denied because he sought to retry

a claim previously fully considered and decided

against him.” Sanders v. United States, 373 U.S. 1, 9

(1963) (emphasis added). Thus, when evaluating what

constituted “a prior refusal to discharge on a like application,” Salinger, 265 U.S. at 231, courts historically

looked to the entire proceeding on that application—

including review by the appellate court.

Ex parte Cuddy, decided by Justice Field and cited

approvingly in Salinger, likewise shows that courts

have looked to the finality of a prior application following appellate review before determining abuse of the

writ. 40 F. 62 (C.C.S.D. Cal. 1889) (quoted in 265 U.S.

at 231–32). In Cuddy, the applicant’s first habeas application was denied and that denial was affirmed by

this Court. 40 F. at 63. Thereafter, the applicant filed

a second habeas application, “suppl[ying] what was

omitted in his [first application] record.” Id. at 64. In

denying the second application, Justice Field looked to

the entirety of the proceeding on the first application,

including this Court’s decision on appeal, which featured heavily in Justice Field’s analysis.

Justice Field stressed the importance of “the fullness of the consideration given to” the first application

and explained that “an ordinary justice would [hardly]

feel like disregarding and setting aside the judgment

of a magistrate like Chief Justice Marshall, or Chief

Justice Taney, who had refused an application for a

writ after full consideration.” Id. at 66 (emphasis

- 10 added). Justice Field also suggested that the outcome

in Cuddy might have been different had the applicant

“not * * * appealed from the refusal of the district

court” to grant the first application and received a final

judgment after appellate review. Id. And while acknowledging “that the writ may often become an instrument of oppression” should an applicant be permitted to “renew” his application “indefinitely,” Justice Field recognized that such concerns would be present only after an applicant “fails on appeal.” Id. at 65.

Thus, abuse of the writ was measured against the entirety of the first proceeding, including any appeal.

Historical precedents also demonstrate that in certain circumstances, judge-made abuse-of-the-writ

rules permitted habeas applicants to add new claims

while proceedings were on appeal. See, e.g., Sanders,

373 U.S. at 15, 17 (setting down “basic rules” based on

the “judicial and statutory evolution of the principles

governing successive applications for federal habeas

corpus” and stressing that “[n]o matter how many

prior applications for federal collateral relief a prisoner has made,” “[c]ontrolling weight may [not] be

given to denial of a prior application for federal habeas

corpus” “if a different ground is presented by the new

application”).

By contrast, where this Court found an abuse of

the writ stemming from the filing of a second habeas

application, it recognized that an applicant’s first petition was “appealed to the Circuit Court of Appeals,”

which “affirmed the decision” of the district court

denying the first petition. Wong Doo v. United States,

265 U.S. 239, 240 (1924). AEDPA might have displaced this judge-made law as the source of rules about

second-in-time claims, but it largely incorporated their

- 11 -

content—specifically, it did not bar district courts from

considering new claims while older claims are pending

on appeal.

Other historical precedent establishes that Congress legislated a rule under which new claims are

given successive-petition treatment only after appellate review of the initial claims concludes. For example, this Court in Banister cited to Williamson v. Rison

and Brewer v. Ward to demonstrate that “decisions

abound dismissing Rule 60(b) motions for” raising repetitive claims. Banister, 590 U.S. at 519 (citing 1993

WL 262632, at *1 (9th Cir. July 9, 1993), and 1996 WL

194830, at *1 (10th Cir. Apr. 22, 1996)). The Court

also noted that Brewer “collect[ed] cases from multiple

Circuits” that provided additional support for its conclusion about Rule 60(b) motions. Id. (citing Brewer,

1996 WL 194830, at *1). But Williamson, Brewer, and

nearly every one of the cases cited in Brewer affirmed

a denial of a Rule 60(b) motion after the previous habeas appeal had concluded. See Williamson, 1993 WL

262632, at *1; Brewer, 1996 WL 194830, at *1; see also

Guinan v. Delo, 5 F.3d 313, 315 (8th Cir. 1993) (affirming denial of a Rule 60(b) motion after previous habeas

appeal concluded); Williams v. Whitley, 994 F.2d 226,

229 (5th Cir. 1993) (same); Clark v. Lewis, 1 F.3d 814,

819 (9th Cir. 1993) (same); May v. Collins, 961 F.2d 74,

75 (5th Cir. 1992) (same); Robison v. Maynard, 958

F.2d 1013, 1015 (10th Cir. 1992) (same); Blair v. Armontrout, 976 F.2d 1130, 1133 (8th Cir. 1992) (same);

Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir. 1992)

(same); Landano v. Rafferty, 897 F.2d 661, 665–66 (3d

Cir. 1990) (same); Lindsey v. Thigpen, 875 F.2d 1509,

1510 (11th Cir. 1989) (same); but see Hunt v. Nuth, 57

F.3d 1327, 1331, 1338–39 (4th Cir. 1995) (affirming de-

- 12 nial of a Rule 60(b) motion as successive after consolidating appeal of that denial with the prisoner’s initialapplication appeal); Resnover v. Pearson, 1993 WL

430159, at *1–2 (7th Cir. Oct. 22, 1993) (denying as

successive new habeas claims raised after the court of

appeals affirmed the denial of initial habeas claims but

before this Court denied prisoner’s petition for certiorari). Indeed, the denial of the prisoner’s Rule 60(b)

motion in May was on the merits, not because the court

held the motion to be successive or abusive. See, 961

F.2d at 76–77.

These cases show that, historically, courts have

nearly uniformly treated a habeas application as final

for purposes of successive-claim treatment only after

appellate proceedings had concluded. Courts considering subsequent applications by the same applicant

could therefore review the “fullness of the consideration given to” the first application and determine the

appropriate weight to that first judgment. Cuddy, 40

F. at 66.

This interpretation of finality accords with the general principle that there is “a distinction between judgments from which all appeals have been forgone or

completed, and judgments that remain on appeal.”

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227

(1995). As this Court explained, “[w]ithin th[e] hierarchy [created by Article III], the decision of an inferior

court is not (unless the time for appeal has expired) the

final word of the [judicial] department as a whole.” Id.

That is why this Court in Banister emphasized that

“appeals from the habeas court’s judgment (or still

later petitions to this Court) are not second or successive; rather, they are further iterations of the first habeas application.” 590 U.S. at 512 (emphasis added).

- 13 And, if there is no final determination on an initial application while an appeal is pending, then a claim

raised before appellate review concludes cannot be

given successive-claim treatment. See 28 U.S.C.

§ 2244(b).

This approach to finality also makes sense in our

judicial hierarchy because if a district court’s judgment on the first habeas application is reversed or vacated on appeal, the district court may resolve that application in favor of petitioner. By contrast, tying successiveness to a district court’s judgment on a first habeas application leads to perverse results: that judgment, which, if reversed or vacated on appeal, may “become a mere nullity,” Clerke v. Harwood, 3 U.S. 342,

343 (1797), but may have already operated to bar potentially meritorious habeas claims under Section

2244(b). The Second Circuit’s approach, which does

not give successive-petition treatment to claims raised

while appeals are pending, avoids this result. Whab,

408 F.3d at 118.

In short, traditional habeas practice and precedents show that second-in-time claims are not necessarily second-or-successive within the meaning of Section 2244(b), and that the requisite finality of the first

decision for second-or-successive-petition purposes is

the conclusion of appellate review. A pending appeal

merely extends full consideration of the original application. See Banister, 590 U.S. at 512 (“[A]ppeals * * *

are further iterations of the first habeas application.”).

A claim added while the first appeal is still pending,

therefore, remains “a part of a prisoner’s first habeas

proceeding;” while that proceeding is still pending on

appeal, it “[i]n timing and substance * * * hews closely

to the initial application.” Id. at 517.

- 14 B. Other Parts of the Habeas Statute Confirm the

Meaning of “Second or Successive” in Section

2244(b).

Multiple provisions of AEDPA, including Section

2244, associate finality with the conclusion of appellate review. For example, Section 2244 provides limitations for “an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a

State court.” 28 U.S.C. § 2244(d)(1) (emphasis added).

That “reference to a state-court judgment * * * is significant,” Magwood, 561 U.S. at 332, because Section

2244 further provides that “the date on which the judgment [of a state court] bec[omes] final” is “the conclusion of direct review or the expiration of the time for

seeking such review,” 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Accordingly, the text of Section 2244,

read as a whole, must be interpreted to require the

same level of finality—conclusion of appellate review—before triggering the second-or-successive bar.

Section 2244(d)(2) also references the same level of

finality by providing that “[t]he 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.”

Id. § 2244(d)(2) (emphasis added). And this Court has

held that a state court “application” for post-conviction

review “is pending as long as the ordinary state collateral review process is ‘in continuance,’” meaning that

“until the application has achieved final resolution

through the State’s postconviction procedures, by definition it remains ‘pending.’” Carey v. Saffold, 536

U.S. 214, 219–20 (2002). Because “the term ‘application’ cannot be defined in a vacuum,” Magwood, 561

- 15 U.S. at 332, this Court should construe the term “second or successive application” in Section 2244(b) in the

same manner. The initial habeas application is still

pending if it is still on appeal; thus, all appellate proceedings concerning an initial habeas application must

conclude before another application can be deemed

second or successive.

Section 2263, which is one of several provisions potentially applicable to state capital sentences, likewise

ties finality to the conclusion of appellate review. See

28 U.S.C. § 2263(a) (providing that the statutory time

requirements for filing a habeas application are triggered by “final State court affirmance of the conviction” (emphasis added)); id. § 2263(b)(2) (tolling the

time requirements “until the final State court disposition of” a “first petition for post-conviction review or

other collateral relief” (emphasis added)).

Similarly, the post-conviction provisions dealing

with federal sentences indicate that finality attaches

at the conclusion of appellate review. For example,

mirroring Section 2244, Section 2255 provides for “[a]

1-year period of limitation” that is triggered by “the

date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). This Court has held that

in this “postconviction * * * context[,] * * * finality

has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the

merits on direct review or denies a petition for a writ

of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522,

527 (2003). And Section 2255 refers to Section 2244’s

requirements for filing “second or successive motions,”

28 U.S.C. § 2255(h), demonstrating Congress’s intent

- 16 to treat finality the same under both sections of the

habeas statute.

The statutory exhaustion rule likewise confirms

that, under AEDPA, finality attaches only when appellate review concludes. Section 2254(b) provides that a

habeas application “shall not be granted unless * * * the applicant has exhausted the remedies

available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A). A habeas claimant doesn’t exhaust

until they go through “one complete round of the

State’s established appellate review process.” Carey,

536 U.S. at 220 (citation omitted). In the same vein,

an application for habeas relief cannot be second or

successive within the meaning of Section 2244(b) until

an initial habeas application “achieve[s] final resolution through” the appellate process. Id.

In light of the foregoing statutory context, in which

finality refers to the conclusion of appellate review, the

proper interpretation of a “second or successive habeas

corpus application” is a second-in-time filing submitted after a district court’s judgment on the initial habeas application is no longer pending on appeal. 28

U.S.C. § 2244(b)(1) (emphasis added).

II.

PEGGING SUCCESSIVENESS TO THE TIME

AT WHICH APPELLATE REVIEW OF THE

INITIAL HABEAS APPLICATION BECOMES

FINAL IS CONSISTENT WITH SECTION

2244(b)’S PURPOSES.

The problems that Section 2244(b) (and the abuseof-the-writ doctrine) aimed to solve do not require the

Fifth Circuit’s heavy-handed approach. The animating concern behind the successive petition rules is to

deter abuses of the writ that risked creating uncer-

- 17 tainty in final judgments and wasting judicial resources in the form of meritless, serial applications. As

this Court explained, “[t]he point of § 2244(b)’s restrictions * * * is to conserve judicial resources, reduce

piecemeal litigation, and lend finality to state court

judgments within a reasonable time.” Banister, 590

U.S. at 512 (cleaned up); see also McCleskey, 499 U.S.

at 481 (explaining that the abuse-of-the-writ doctrine

developed to curb “endless applications” once appellate

review of habeas petitions was available).

The Second Circuit’s rule, which gives initial-petition treatment only to claims raised while an appeal is

pending, fits squarely with Section 2244(b)’s purposes.

Indeed, just as “[n]othing in Rule 59(e) * * *conflicts

with [AEDPA’s] goals” in part because Rule 59(e) is

time-limited and triggers 2244(b) only after appellate

review has concluded, nothing in the Second Circuit’s

approach risks opening the floodgates to meritless litigation Section 2244(b) or AEDPA is intended to curb.

Banister, 590 U.S. at 515–16.

A. There Is No Risk of Open-Ended Litigation Because All Claims Become Successive After Appellate Review of the Initial Application Concludes.

In determining whether a motion is equivalent to

a second or successive petition, this Court “ha[s] considered AEDPA’s own purposes”: “to conserve judicial

resources, reduce piecemeal litigation, and lend finality to state court judgments within a reasonable time.”

Banister, 590 U.S. at 512 (cleaned up). Treating a petition for relief from judgment filed while a first habeas

application remains pending on appeal as not second

or successive does not undermine those purposes; it

advances them.

- 18 This Court’s primary concern with post-judgment

motions that raise new claims is that such motions are

“often distant in time and scope” and “threate[n] serial

habeas litigation.” Id. at 520–21; cf. Williams v.

United States, 401 U.S. 667, 691 (1971) (Harlan, J.,

concurring) (“This drain on society’s resources is compounded by the fact that issuance of the habeas writ

compels a State * * * to relitigate facts buried in the

remote past through presentation of witnesses whose

memories of the relevant events often have dimmed.”).

“[W]ithout rules suppressing abuse, a prisoner could

bring such a motion endlessly.” Banister, 590 U.S. at

521.

But permitting a prisoner to bring such a motion

while the appeal is still pending, as the Second Circuit

does, presents none of these concerns. Indeed, doing

so could “avoi[d] ‘piecemeal appellate review,’” Banister, 590 U.S. at 516 (citation omitted), 3 thereby conserving judicial resources. And the “point” of AEDPA’s

gatekeeping mechanism with respect to finality is only

to “len[d] finality to state court judgments within a

reasonable time.” Id. at 512 (emphasis added). Triggering the requirements of Section 2244(b) only upon

the conclusion of appellate review of the first habeas

application ensures finality within a “reasonable time”

and leaves little opportunity for abuse, thus fitting

firmly within Section 2244(b)’s purposes.

Indeed, the limited window available to petitioners

in this context under the Second Circuit’s rule draws a

sharp contrast to the “extended timespan” of other

3 A court of appeals may, for example, stay the appeal of a prisoner’s initial habeas application until a second-in-time filing is

resolved by the district court.

- 19 Rule 60(b) motions with which this Court was concerned in Banister, 590 U.S. at 519–20 (expressing

concern that because it can be invoked during an

“open-ended ‘reasonable time,’” “Rule 60(b) inevitably

elicits motions that go beyond Rule 59(e)’s mission of

pointing out the alleged errors in the habeas court’s

decision” and pointing to cases bringing claims years

after the final judgment). A later application brought

pursuant to the Second Circuit’s rule is much more

akin to a Rule 59(e) motion, which “gives a prisoner

only a narrow window to ask for relief.” Id. at 516.

B. There Is Little Lost in Routing Claims Alleged

During the Pendency of a Case on Appeal to

District Courts.

The proper rule adopted by the Second Circuit is

fully consistent with expeditious determination of habeas petitions.

It bears emphasizing that the gatekeeping provisions codified in Section 2244 barring “second or successive” petitions except in rare circumstances are not

the only gates through which habeas claims must pass.

“[P]rocedural-default rules continue to constrain review of claims in all applications, whether the applications are ‘second or successive’ or not.” Magwood, 561

U.S. at 340. And, to the extent an applicant invokes

Rule 60(b) for relief from judgment while an appeal is

still pending, the application must satisfy Rule 60(b)’s

stringent requirements. See Gonzalez, 545 U.S. at

535. 4 These built-in restrictions help ensure that fed4 While a post-conviction motion under Rule 60(b) raising new

claims may constitute a second or successive application if the

first application has been finally determined with no further recourse to appeal, see id. at 527, 531–32; accord Whab, 408 F.3d at

- 20 eral courts are not exposed to an “avalanche of frivolous postjudgment motions.” Id. at 534–35; cf. Lafler

v. Cooper, 566 U.S. 156, 172 (2012) (explaining that

concerns that allowing successful ineffective assistance of counsel claims in habeas petitions to reopen

rejected plea offers would “open the floodgates” are

“misplaced,” given that the prosecution and trial

courts have measures to weed out meritless claims).

The Second Circuit’s approach does not prop wide

open the courthouse door to claims that otherwise lack

merit or bear fatal procedural flaws—it merely ensures that prisoners may avail themselves of the “one

full opportunity” for collateral review to which they are

entitled. Whab, 408 F.3d at 118 (citing Ching, 298

F.3d at 177–79). No one has alleged any marked increase of meritless habeas claims filed in the Second

Circuit since the adoption of its rule.

Indeed, denying movants the ability to amend petitions when new evidence comes to light not only may

deny a habeas petitioner justice, but may also incentivize the filing of kitchen-sink and ill-supported habeas petitions, thus burdening the district courts. Cf.

Price v. Johnston, 334 U.S. 266, 293 (1948) (criticizing

“denials of petitions without leave to amend” because

“[t]hat only encourages the filing of more futile petitions”).

The Second Circuit’s rule also imposes few costs on

district courts already familiar with the facts that

would underlie post-conviction motions in habeas proceedings. This Court has previously observed that “[a]

118, it does not offend Section 2244(b) to allow such a motion to

proceed when appellate review of the first application is still

pending.

- 21 judge familiar with a habeas applicant’s claims can

usually make quick work of a meritless motion.” Banister, 590 U.S. at 517; cf. Abdur’Rahman v. Bell, 537

U.S. 88, 97–98 (2002) (Stevens, J., dissenting) (explaining that because “[t]he District Court ha[d] already heard the extensive evidence” it was “in the best

position to evaluate the equitable considerations that

may be taken into account in ruling on a Rule 60(b)

motion”). Thus, district courts will almost never have

resource-intensive hearings on claims even if they are

routed to them in the first instance.

Moreover, the costs are especially “slight” when

the district court upholds its prior decision. Banister,

590 U.S. at 517. Indeed, in Banister, the district court

disposed of petitioner’s 59(e) motion in a mere five

days. Id. “Nothing in such a process conflicts with

AEDPA’s goal of streamlining habeas cases.” Id.

By contrast, the Fifth Circuit’s alternative imposes

far greater costs. Requiring post-conviction filings

raising new claims to go to the courts of appeals as second or successive habeas applications would force an

appellate court to decide the merits of such later-intime filings “from square zero, and often without adversarial briefing.” Pet. 27–28. And if the court of appeals authorizes the later-in-time application, the district court would still have to conduct its own review of

the merits and Section 2244(b)(2)’s requirements. Id.

These harms that flow from the Fifth Circuit’s approach—dragging out proceedings unnecessarily,

wasting judicial resources, and promoting piecemeal

litigation, in direct contravention of Section 2244(b)’s

purposes—are not present in the Second Circuit’s rule,

which better reflects Section 2244(b)’s purposes.

- 22 III.

THE SECOND CIRCUIT’S RULE IS CONSISTENT WITH GONZALEZ AND BANISTER.

The Second Circuit’s rule—tied to the pendency of

appellate review of initial habeas claims—entirely

comports with this Court’s decisions in Gonzalez and

Banister. In Gonzalez, the applicant tried to add

claims in a Rule 60(b) motion over a year after an initial petition had been rejected by the district and appeals courts, and the applicant “did not file for rehearing or review of that decision.” 545 U.S. at 527. At

that time, that initial determination became final and

unappealable. The Court held that, in such circumstances, Section 2244 bars a Rule 60(b)(6) motion that

challenges “the substance of the federal court’s resolution of a claim on the merits.” Id. at 531–32.

But, not every claim raised in a post-judgment posture is the same, and Gonzalez does not require that a

claim raised during the pendency of appeal be treated

as a second or successive habeas petition. In other

words, it is the pendency of appellate proceedings that

distinguishes the posture here from that in Gonzalez.

Instead, cases like this one are much closer to Banister, because a claim raised during the pendency of appellate review is not “distant in time and scope,” does

not “always giv[e] rise to a separate appeal,” and does

not “attac[k] an already completed judgment.” 590

U.S. at 520–21. 5

5 Indeed, cases like this are not inconsistent with either

Gonzalez

or Banister, because both of those cases relied on precedent where

appeals of initial habeas applications were final. See Banister,

590 U.S. at 519 (citing Williamson, 1993 WL 262632, at *1, and

Brewer, 1996 WL 194830, at *1); Gonzalez, 545 U.S. at 531 (citing

Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir. 2003)).

- 23 *

*

*

In sum, Section 2244(b)’s text and context, interpreted in view of the historical decisional law the statute incorporates, show that second-or-successive treatment should not apply to a second-in-time habeas application until appellate review of the initial application concludes. This statutory meaning is further bolstered by Section 2244(b)’s (and AEDPA’s) purposes

and the principles this Court articulated only four

years ago in Banister.

- 24 CONCLUSION

The Court should grant the petition and hold that

second-in-time claims filed while an appeal from an initial habeas application is still pending do not run

afoul of Section 2244(b)’s bar against second or successive habeas applications.

Respectfully submitted,

STEPHEN B. KINNAIRD

Counsel of Record

VLADIMIR J. SEMENDYAI

MOLLY S. TEAGUE

PAUL HASTINGS LLP

2050 M Street, N.W.

Washington, DC 20036

(202) 551-1700

stephenkinnaird@paulhastings.com

Counsel for Amici

July 26, 2024