Opposition Brief — Bruce Anderson, Petitioner v. Kenneth Lizotte, Superintendent, Massachusetts Correctional Institution at Norfolk

Supreme Court briefNov 21, 2025

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No. 25-5486

In the Supreme Court of the United States

_________________

BRUCE ANDERSON,

Petitioner,

KENNETH LIZOTTE,

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

_______________

BRIEF IN OPPOSITION

_______________

ANDREA JOY CAMPBELL

Attorney General for the

Commonwealth of Massachusetts

JENNIFER ZALNASKY*

ANDRE JANISZEWSKI

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

jennifer.zalnasky4@mass.gov

(617) 963-2026

Counsel for Respondent

*Counsel of Record

November 21, 2025

QUESTION PRESENTED

Whether Petitioner’s second-in-time federal habeas petition, which asserts an

ineffective-assistance-of-counsel claim against the attorney that represented him at

trial, on direct appeal, and in the first round of federal habeas proceedings,

constitutes an impermissible “second or successive habeas corpus application” under

28 U.S.C. § 2244(b)(2).

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .................................................................................................... iii

INTRODUCTION ........................................................................................................................1

STATEMENT ...............................................................................................................................4

REASONS TO DENY THE WRIT .........................................................................................11

No True Circuit Split Exists as to Whether Petitioner’s Subsequent Habeas

Petition is a Second-or-Successive Petition under 28 U.S.C. § 2244(b)(2). ......... 11

Petitioner’s Claim of a Split in Authority Mischaracterizes the Third

Circuit’s Holding in Lesko. ....................................................................... 11

In Lesko, the Question Presented Here Was a Secondary Issue

Addressed by the Third Circuit in Dicta. .................................................. 13

No Other Federal Court of Appeals has Adopted the Third Circuit’s

Approach to the Question Presented. ........................................................ 15

II.

This Case has an Unusual Procedural History and Does Not Present a Clean

Vehicle for Review by this Court. ........................................................................ 17

III.

The Decision Below Is Correct. ...................................................................... 20

The First Circuit correctly applied this Court’s framework

for determining whether Petitioner’s second-in-time

habeas petition constituted an impermissible second or

successive application. ......................................................................... 20

Historical habeas practice would treat Pettioner’s

new petition as an abuse of the writ. ...............................21

AEDPA’s purposes confirm that Petitioner’s new

petition is an impermissible second or successive

application. .............................................................................25

Petitioner’s contrary arguments fail to afford due respect

for historical practice or AEDPA’s purposes. ................................. 27

CONCLUSION ...........................................................................................................................32

iii

TABLE OF AUTHORITIES

Cases

Page

Alston v. Garrison,

720 F.2d 812 (4th Cir. 1983)

Anderson v. Butler,

858 F.2d 16 (1st Cir. 1988)

6, 29

Anderson v. Butler,

23 F.3d 593 (1st Cir. 1994)

6, 29, 32

Anderson v. Divris,

138 F.4th 625 (1st Cir. 2025)

B&B Hardware, Inc. v. Hargis Industries, Inc.,

575 U.S. 138 (2015)

Banister v. Davis,

590 U.S. 504 (2020)

11, 24, 26

Banister and Panetti v. Quarterman,

551 U.S. 930 (2007)

16, 32

Bloomer v. United States,

162 F.3d 187 (2d Cir. 1998)

Bonin v. Calderon,

77 F.3d 1155 (9th Cir. 1996)

Booker v. Wainwright,

764 F.2d 1371 (11th Cir. 1985)

Boivin v. Black,

225 F.3d 36 (1st Cir. 2000)

Bowles v. Russell,

551 U.S. 205 (2007)

Brecht v. Abrahamson,

507 U.S. 619 (1993)

Brown v. Muniz,

889 F.3d 661 (9th Cir. 2018)

Burton v. Stewart,

549 U.S. 147 (2007) (per curiam)

Carrasquillo v. Hampden Cnty. Dist. Cts.,

142 N.E.3d 28 (2020)

Christeson v. Roper,

574 U.S. 373 (2015)

Coleman v. Thompson,

501 U.S. 722 (1991)

Commonwealth v. Anderson,

501 N.E.2d 515 (Mass. 1986)

Commonwealth v. Anderson,

563 N.E.2d 1353 (Mass. 1990)

Commonwealth v. Francis,

147 N.E.3d 491 (2020)

Commonwealth v. Gunter,

945 N.E.2d 386 (Mass. 2011)

Delo v. Stokes,

495 U.S. 320 (1990) (per curiam)

Deputy Chief Couns. for Pub. Def. Div. of Comm. for Pub. Couns.

Servs. v. Acting First Just. of Lowell Div. of Dist. Ct. Dep’t,

74 N.E.3d 1250 (2017)

Dodd v. United States,

545 U.S. 353 (2005)

Drew v. MacEachern,

620 F.3d 16 (1st Cir. 2010)

Ford v. Wainwright,

477 U.S. 399 (1986)

Gideon v. Wainwright,

372 U.S. 335 (1963)

In re Magwood,

113 F.3d 1544 (11th Cir. 1997)

15, 16

In re Davis,

565 F.3d 810 (11th Cir. 2009)

Irving v. Hargett,

59 F.3d 23 (5th Cir. 1995)

King v. Morgan,

807 F.3d 154 (6th Cir. 2015)

Lesko v. Secretary of Pennsylvania Department of Corrections,

34 F.4th 211 (3d Cir. 2022)

1, 2, 11, 13, 14, 15,

Magwood v. Patterson,

561 U.S. 320 (2010)

2, 4, 12, 13, 15

Maples v. Thomas,

565 U.S. 266 (2012)

Martinez v. Ryan,

566 U.S. 1 (2012)

16, 28, 29, 30

McCleskey v. Zant,

499 U.S. 467 (1991)

21, 23, 27, 28

McQuiggin v. Perkins,

569 U.S. 383 (2013)

Moran v. McDaniel,

80 F.3d 1261 (9th Cir. 1996)

Murray v. Carrier,

477 U.S. 478 (1986)

22, 27

Nevius v. Sumner,

105 F.3d 453 (9th Cir.1996)

15, 16

Panetti v. Quarterman,

551 U.S. 930 (2007)

21, 25

Pennsylvania v. Finley,

481 U.S. 551 (1987)

24, 28

Riner v. Owens,

764 F.2d 1253 (7th Cir. 1985)

Rivers v. Guerrero,

605 U.S. 443 (2025)

Shinn v. Ramirez,

596 U.S. 366 (2022)

30, 31

Slack v. McDaniel,

529 U.S. 473 (2000)

16, 20, 31

Stephens v. Kemp,

846 F.2d 642 (11th Cir. 1988)

Stewart v. Martinez-Villareal,

523 U.S. 637 (1998)

16, 21

Tyler v. Cain,

533 U.S. 656 (2001)

Washington v. Delo,

51 F.3d 756 (8th Cir. 1995)

Statutes

28 U.S.C. § 2244

3, 13, 14, 16

28 U.S.C. § 2244(b)

1, 4, 10, 13, 15, 16,

18, 20, 21, 26, 29,

30, 32

28 U.S.C. § 2244(b)(1)

vii

28 U.S.C. § 2244(b)(2)

1-3, 5, 10, 11,

12, 18-20, 25-28,

30, 31

28 U.S.C. § 2244(b)(2)(A)

28 U.S.C. § 2244(b)(2)(B)

18, 25

28 U.S.C. § 2244(b)(3)

28 U.S.C. § 2244(b)(3)(A)

2, 10, 12, 18

28 U.S.C. § 2254

1, 2, 12, 17

28 U.S.C. § 2254(a)

28 U.S.C. § 2255

24, 30

Mass. Gen. Laws ch. 211D

Mass. Gen. Laws ch. 278, § 33E

Other Authorities

Mass. R. Crim. P. 30(b)

Restatement (Second) of Judgments

6, 7, 8, 9

INTRODUCTION

Petitioner Bruce Anderson’s request for review of the First Circuit Court of

Appeal’s conclusion that his second-in-time federal habeas corpus petition qualified

as a “second or successive petition” and must be dismissed under the gatekeeping

provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.

§ 2244(b), should be denied.

Petitioner asks this Court to review the question

presented based upon a purported split in authority that does not withstand scrutiny.

In 1983, Petitioner murdered his estranged wife after finding another man in

her bedroom. After a jury trial in Worcester County, Massachusetts, Petitioner was

found guilty of first-degree murder and sentenced to life in prison without parole.

Petitioner was represented by the same lawyer at trial, on direct appeal, and during

the litigation of his first federal habeas petition under 28 U.S.C. § 2254. In 2019, in

a subsequent § 2254 habeas petition, Petitioner, then a pro se litigant, alleged that

his previous lawyer provided constitutionally ineffective assistance during both the

trial and direct appeal. Although Petitioner alleged his lawyer was operating under

a conflict of interest such that he had no “meaningful opportunity” to raise his

ineffective-assistance claims in his first habeas petition, the First Circuit correctly

rejected his argument and found the “subsequent petition” was a “second or

successive” petition requiring dismissal under § 2244(b)(2). Anderson v. Divris, 138

F.4th 625, 628 (1st Cir. 2025). Pet. App. 2a-3a.

Petitioner relies on Lesko v. Secretary of Pennsylvania Department of

Corrections, 34 F.4th 211 (3d Cir. 2022) to assert a circuit split in support of his

petition. Pet. 20-23. But Lesko does not squarely conflict with the First Circuit’s

decision here because the Third Circuit’s relevant statements in Lesko were made

only in dicta. In contrast to the question presented here, Lesko concluded that,

consistent with Magwood v. Patterson, 561 U.S. 320 (2010), a petitioner who is

resentenced is not barred from raising a new challenge to an undisturbed conviction

in a second-in-time habeas petition. Id. at 224-25. It was only as a secondary (and

unnecessary) matter that the Third Circuit considered whether the petition was a

second or successive petition on grounds that the same counsel represented Lesko

both at trial and in his first round of habeas proceedings and he was unable to raise

his claim earlier. Id. at 227. Thus, any split in authority is illusory because the Third

Circuit did not need to reach the question presented to determine its jurisdiction or

to address the merits of Lesko’s habeas petition. By contrast, the First Circuit

addressed the question presented as a necessary jurisdictional issue. Accordingly,

there is no true circuit split that warrants this Court’s attention.

Additionally, this case has an unusual procedural history in the federal court

and thus, does not present a clean vehicle for review. In 2019, when Petitioner filed

his second-in-time § 2254 habeas petition in the district court, that court granted the

Respondent’s motion to dismiss, without prejudice, treating the petition as a “second

or successive” application that had not been properly authorized by the First Circuit,

pursuant to 28 U.S.C. §§ 2244(b)(2) & (3)(A). Pet. App. 3a; 42a. Petitioner did not

appeal that dismissal; instead, in March 2020 he applied to the First Circuit for

authorization to proceed in the district court on a second or successive petition,

raising the same claims of ineffective counsel.

Id.; Pet. App. 33a.

By seeking

authorization from the First Circuit rather than appealing the dismissal, Petitioner

conceded that authorization was required under § 2244 on grounds that his habeas

Petition was “second or successive.” Pet. App. 34a-40a. 1 Petitioner is now collaterally

estopped from taking a different position here, an argument raised below that the

First Circuit acknowledged but did not decide. Id. Thus, this case does not present

a clean vehicle for review by this Court.

Finally, the decision below is correct.

The First Circuit considered the

“historical habeas corpus doctrine and practice,” as well as the “purposes” of the

federal habeas statutes to conclude Petitioner’s application must be treated as an

“second or successive habeas application,” subject to the restrictions of § 2244(b)(2).

Pet. App. 5a, 7a. As the First Circuit explained, before AEDPA’s enactment, the

abuse-of-the-writ doctrine precluded consideration of claims raised for the first time

in a second or successive habeas petition when those claims could have been raised

in an earlier petition. Id. at 5a-6a. Only a showing of cause and prejudice sufficed to

overcome abuse of the writ. Id. Several courts of appeal had considered pre-AEDPA

successive habeas petitions raising ineffective-assistance claims like Petitioner’s, and

those courts uniformly held that the petitions amounted to an abuse of the writ. Id.

at 6a.

Furthermore, Petitioner’s proposed petition tramples AEDPA’s purposes.

Section 2244(b)(2) was enacted by Congress to prevent successive challenges to state-

1 Petitioner filed an amended application on July 7, 2020, which appears at

Pet. App. 25a-31a and is the operative application for this case.

convictions, reduce delay, conserve judicial resources, and promote finality. Id. at 7a9a. Following these guideposts, the First Circuit correctly dismissed Petitioner’s

application.

Accordingly, the petition for certiorari should be denied. See Sup. Ct. R. 10.

STATEMENT

AEDPA “established a stringent set of procedures that a prisoner ‘in

custody pursuant to the judgment of a State court,’ 28 U.S.C. § 2254(a), must follow

if he wishes to file a ‘second or successive’ habeas corpus application challenging that

custody, § 2244(b)(1).” Burton v. Stewart, 549 U.S. 147, 152 (2007) (per curiam).

Second or successive habeas petitions2 are governed by § 2244(b), which requires

authorization from the court of appeals before they may proceed. Specifically, a claim

in a second or successive habeas petition not presented in a prior application will 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

(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.

2 Following this Court’s practice, Respondent uses the habeas terms “petition”

and “application” interchangeably. Magwood, 561 U.S. at 324.

28 U.S.C. § 2244(b)(2). “A three-judge panel of the court of appeals may authorize

the filing of the second or successive application only if it presents a claim not

previously raised that satisfies” one of these two grounds. Burton, 549 U.S. at 153,

(citing § 2244(b)(3)).

On July 27, 1983, Petitioner found another man with his wife in her

bedroom. Pet. App. 61a. Petitioner grabbed a butcher knife from the kitchen and

approached the man. Id. The man fled from the apartment and Petitioner gave

chase. Id. Petitioner’s wife hid in a different apartment within the building to evade

Petitioner and tried to call the police for help. Id.

Petitioner returned and forced his way into the apartment where his wife was

hiding. He killed her by repeatedly stabbing her with the butcher knife. Pet. App.

61a. Petitioner departed but returned soon after to stab her several more times. Id.

Petitioner then left the scene and eventually surrendered to police. Id.

In 1989, a jury in Worcester County, Massachusetts convicted Petitioner

of murder in the first degree on separate theories under Massachusetts law:

deliberate premeditation and extreme atrocity or cruelty. Pet. App. 61a. On appeal,

the Massachusetts Supreme Judicial Court (“SJC”) affirmed Petitioner’s conviction.

See Commonwealth v. Anderson, 563 N.E.2d 1353 (Mass. 1990). Petitioner filed a

petition for a writ of habeas corpus in the United States District Court for the District

of Massachusetts, asserting claims of error in the trial court’s jury instructions. Pet.

App. 3a. The district court denied habeas relief, the First Circuit affirmed the denial

of habeas relief by a 2-1 vote, and this Court denied certiorari. See Anderson v. Butler,

23 F.3d 593 (1st Cir.), cert. denied, 513 U.S. 934 (1994). Petitioner was represented

by Attorney Stepehen Hrones at trial, on direct appeal to the SJC, and in the federal

habeas proceedings. 3 Pet. App. 3a.

Having unsuccessfully sought federal relief in 1994, Petitioner, after

waiting nine years, embarked on a decades-long quest to challenge his conviction in

the Massachusetts state courts. 4

In 2003, following Petitioner’s request for the

appointment of counsel to screen his case and to potentially file a motion for new trial

pursuant to Mass. R. Crim. P. 30(b) (“Rule 30(b) motion”) in the trial court, the

Committee for Public Counsel Services (“CPCS”), Massachusetts’ public defender

agency, screened the case for potential grounds for post-conviction relief. 5 See C.A.

3 This 1989 conviction was not Petitioner’s first conviction for murdering his

wife. A jury initially convicted Petitioner of first-degree murder in 1984; at that time,

Petitioner was represented by Attorney Ettenberg.

Attorney Hrones began

representing Petitioner on his direct appeal in 1986. Petitioner’s conviction was

affirmed on direct appeal. Commonwealth v. Anderson, 501 N.E.2d 515 (Mass. 1986).

Petitioner, still represented by attorney Hrones, then filed a federal habeas petition

in the district court. After that court denied relief, the First Circuit reversed,

concluding that Petitioner received ineffective assistance of counsel at trial when his

then-counsel (Ettenberg) failed to deliver evidence promised in his opening

statement. Anderson v. Butler, 858 F.2d 16, 17-19 (1st Cir. 1988). After the First

Circuit’s grant of habeas relief, the Commonwealth opted to retry Petitioner.

Attorney Hrones continued to represent Petitioner during his second trial, direct

appeal, and first habeas petition after his second conviction.

4 The procedural history in this section is drawn from Petitioner’s Appendix

filed in the First Circuit below, docket number 23-1533. Respondent cites to that

Appendix here as “C.A. App. [page number].”

5 CPCS “is responsible for planning, overseeing, and coordinating the delivery

of criminal and certain noncriminal legal services by salaried public counsel, bar

advocate and other assigned counsel programs and private attorneys serving on a per

(footnote continued)

App. 48. Petitioner offered three potential reasons for seeking a new trial: (1) he was

suffering from Hepatitis C in the 1980s, which diminished his criminal responsibility;

(2) he believed that there was an offer for him to plead guilty to manslaughter that

his counsel should have accepted; and (3) a witness at his trial improperly referred to

“the last trial,” thereby inappropriately alerting the jury to his first trial Id. at 4950. Petitioner offered no challenge to Attorney Hrones’ effectiveness at that time.

Ultimately, CPCS concluded that these claims were not likely to succeed, so no

attorney was appointed to litigate a Rule 30(b) motion. C.A. App. 49-51.

In August of 2005 and again in May of 2013, Petitioner filed two separate Rule

30(b) motions. C.A. App. 52-54, 71. Each alleged ineffective assistance of counsel on

the part of Attorney Hrones, but neither advanced the specific claim that Petitioner

advanced below in his second federal habeas petition, concerning Attorney Hrones’s

failure to object to aspects of the prosecutor’s closing argument. Id. at 57-58, 75-135.

Each of the two motions was referred to CPCS for screening. Id. at 66-68, 139. A

screening attorney determined that the August 2005 motion lacked merit and

case basis on behalf of indigent criminal defendants and other litigants who are

entitled to counsel.” Carrasquillo v. Hampden Cnty. Dist. Cts., 142 N.E.3d 28, 38

(2020) (quotations and brackets omitted). It “has the sole authority under [Mass.]

G[en]. L[aws] c[h]. 211D for the assignment of counsel to indigent criminal

defendants.” Deputy Chief Couns. for Pub. Def. Div. of Comm. for Pub. Couns. Servs.

v. Acting First Just. of Lowell Div. of Dist. Ct. Dep’t, 74 N.E.3d 1250, 1252 (2017). In

the post-conviction context, when an indigent inmate seeks appointment of counsel,

CPCS may refer the inmate’s case to an attorney for screening to assess whether

there is an issue worthy of appointment and litigation. See Commonwealth v.

Francis, 147 N.E.3d 491, 514 (2020) (discussing the process by which CPCS screens

cases in the post-conviction context to determine whether to appoint counsel).

Petitioner voluntarily withdrew it. Id. at 69-70. Counsel was appointed for the May

2013 motion but later determined the specific legal argument was undercut by

subsequent legal developments and that motion was withdrawn. Id. at 139-48.

In August 2016, Petitioner filed another pro se Rule 30(b) motion for new trial

and again requested the appointment of counsel. C.A. App. 149. He launched a

myriad of ineffective-assistance challenges to Attorney Hrones’ performance. Id. at

151-52. For the first time—and twenty-seven years after his conviction in the trial

court—Petitioner asserted that Attorney Hrones was ineffective for not objecting to

the prosecutor’s closing argument. Id. at 208. In December 2016, CPCS again

screened Petitioner’s case and in February 2017, screening counsel notified CPCS

that, in her opinion, the prosecutor had made four improper comments in his closing

argument that warranted post-conviction relief. Id. at 222; 228-31. That screening

counsel was appointed by CPCS to represent Petitioner, and she noticed her

appearance in state court. Id. at 233-34.

In February 2018, Petitioner, represented by counsel, filed a new Rule 30(b)

motion, specifically arguing that Attorney Hrones was ineffective for failing to object

to the prosecutor’s closing argument. Id. C.A. App. 235-64. Petitioner also contended

that Attorney Hrones, as appellate counsel, was ineffective for not raising a preserved

issue relating to the admission of blood evidence. Id. at 257-60. In July 2018, the

state trial court denied Petitioner’s motion. Id. at 287. In doing so, the trial court

also recognized that the SJC had previously reviewed the entire record pursuant to

Mass. Gen. Laws ch. 278, § 33E and affirmed the conviction in 1990. 6 Id. Petitioner

filed a notice of appeal. Id. at 288.

Then, in July 2018, as required by § 33E, Petitioner filed a “gatekeeper

petition” seeking leave to appeal the denial of his Rule 30(b) motion with a single

justice of the SJC. C.A. App. 289. On October 15, 2018, the Single Justice denied the

petition, concluding that Petitioner’s ineffective-assistance claims were not new

within the meaning of § 33E because they could have been raised earlier. Id. at 33435; see supra, n. 6

On October 11, 2019, Petitioner, proceeding pro se, filed a second habeas

petition in the district court to challenge his 1989 conviction. Pet. App. 44a, 58a.

Petitioner sought relief on the basis that Attorney Hrones rendered ineffective

assistance by not objecting to the prosecutor’s closing argument, and by not raising

an appellate issue regarding the admission of certain blood evidence. Id. at 48a-50a.

Defendants appealing first-degree murder convictions in Massachusetts

bypass the intermediate appellate court and receive broad, plenary review directly by

the SJC. See Mass. Gen. Laws ch. 278, § 33E (“[T]he entry in the [SJC] shall transfer

to that court the whole case for its consideration of the law and the evidence. Upon

such consideration the court may, if satisfied that the verdict was against the law or

the weight of the evidence, or because of newly discovered evidence, or for any other

reason that justice may require (a) order a new trial or (b) direct the entry of a verdict

of a lesser degree of guilt . . . .”); see also Commonwealth v. Gunter, 945 N.E.2d 386,

391-93 (Mass. 2011) (explaining the “uniquely thorough review of first degree murder

convictions” (quotation marks omitted)). After receiving this § 33E review, a

defendant “may not appeal to the SJC from a decision on a postconviction motion

unless that motion raises a ‘new and substantial’ question as set forth in a

‘gatekeeper’ petition to a single justice of the SJC. If the single justice determines

that the petitioner raises both ‘new and substantial’ issues, the justice will grant the

petitioner leave to appeal to the full SJC for review.” Drew v. MacEachern, 620 F.3d

16, 17 (1st Cir. 2010) (quotation marks and citations omitted).

The respondent moved to dismiss the petition because it was a “second or successive”

petition under § 2244(b), and he noted alternatively that the grounds for relief were

procedurally defaulted. C.A. App. 420. The respondent’s motion to dismiss was

allowed by the district court on second-or-successive grounds. Id. at 8, 440. Petitioner

did not file a notice of appeal.

Petitioner then filed an application for authorization to file a second or

successive habeas petition in the court of appeals. See 28 U.S.C. § 2244(b)(3)(A); Pet.

App. 25a (amended operative application).

The First Circuit concluded that

Petitioner’s application could not satisfy the gatekeeping provisions of 28 U.S.C. §

2244(b)(2).

Pet. App. 22a.

Nevertheless, given the nature of the ineffective-

assistance claims raised, the court transferred the application to the district court for

consideration in the first instance of, among other things, whether Petitioner’s

application was a “second or successive” application at all. Id. at 22a-23a. The

district court denied Petitioner’s application and issued a certificate of appealability.

Id. at 14a, 20a. Petitioner appealed.

In a unanimous opinion, the First Circuit held that Petitioner’s

application was “a second or successive habeas corpus application” under § 2244(b)(2)

and must be dismissed. Pet. App. 11a-12a. The court recognized that a second-intime habeas petition alleging ineffective-assistance against counsel who represented

a petitioner in the state courts and first habeas proceedings did not fit within any

previously recognized exemption from the § 2244(b)(2) framework.

Id. at 5a.

Applying this Court’s two-part test to determine whether a petition is impermissibly

second or successive, as set forth in Banister v. Davis, 590 U.S. 504, 512 (2020), the

court examined historical habeas practice and AEDPA’s purposes. Pet. App. 5a-9a.

The court concluded that “both guideposts” favored treating Petitioner’s application

as an improper second or successive habeas petition. Id. at 5a.

REASONS TO DENY THE WRIT

No “compelling reason[]” for granting certiorari exists here. Sup. Ct. R. 10.

This Court should deny the petition because it fails to demonstrate a true conflict

with any decision of another court of appeals, and this case is a poor vehicle for

considering whether Petitioner’s second-in-time federal habeas petition constitutes

an impermissible “second or successive habeas corpus application” under 28 U.S.C. §

2244(b)(2). Moreover, the decision below was correct.

No True Circuit Split Exists as to Whether Petitioner’s Subsequent

Habeas Petition is a “Second or Successive” Petition under 28 U.S.C. §

2244(b)(2).

This Court should deny certiorari because the question presented does not

present a real circuit split as contemplated by Supreme Court Rule 10.

Petitioner’s Claim of a Split in Authority Mischaracterizes the

Third Circuit’s Holding in Lesko.

Petitioner’s claim of a “clear” circuit split mischaracterizes the jurisdictional

holding of Lesko. Pet. at 20-23. Petitioner fails to acknowledge that the Third Circuit

did not need to reach the question presented here to find jurisdiction to address the

merits of the second-in-time habeas petition.

Like Petitioner, Lesko had been

represented continuously by the same attorney in state court and through his first

federal habeas litigation. 134 F.4th at 226. But, unlike Petitioner, Lesko was granted

habeas relief in the form of a new sentencing trial and, therefore, a new judgment

entered in the state court before Lesko filed his second-in-time petition. Id. at 223.

Lesko’s second petition raised the complicated jurisdictional question of whether

Lesko should be permitted to proceed with a second-in-time § 2254 federal habeas

petition that challenged both his guilt-phase trial from 1981 and his re-sentencing

trial from 1995. Id. at 222.

The Third Circuit acknowledged, as a general matter, that a district court lacks

jurisdiction to consider claims in a “second or successive habeas corpus application”

under § 2244(b)(2) without pre-authorization from the court of appeals, as required

by § 2244(b)(3)(A). Id. Lesko did not seek nor obtain such authorization before filing

his second-in-time petition in the district court. Id. Given that Lesko had been

granted relief following his first habeas petition in the form of resentencing, his case

included a new intervening judgment on his death-penalty sentence. Id. It was on

these grounds that the Third Circuit correctly drew comparisons to this Court’s

decision in Magwood. Id. at 223-25.

The petitioner in Magwood had been convicted of murder and sentenced to

death in state court but was later granted federal habeas relief that vacated his death

sentence.

Magwood, 561 U.S. at 323.

After the state court conducted a new

sentencing hearing, and again sentenced him to death, the petitioner in Magwood

filed a second § 2254 habeas petition, claiming that he did not have “fair-warning”

that he could be punished by death for his conduct.

Id. at 327.

This Court,

interpreting § 2244(b), held that, where “there is a new judgment intervening

between the two habeas petitions, . . . an application challenging the resulting

judgment is not ‘second or successive’ at all.” Id. at 341-42 (internal quotation and

citation omitted).

Acknowledging that Lesko’s petition challenged both his guilt-phase and

resentencing

judgments,

whereas

Magwood’s

petition

only

challenged

his

resentencing judgment, the Third Circuit took the opportunity to weigh in on the

“post-Magwood debate about how to interpret § 2244.” Lesko, 34 F.4th at 224-25.

Explaining it was “compelled” by Magwood, the Third Circuit held that “a prisoner

who receives relief as to his sentence is not barred from raising, in a second-in-time

habeas petition, a challenge to an undisturbed conviction.”

Id.

Applying this

reasoning from Magwood specifically to Lesko’s petition, the Third Circuit concluded

that because Lesko was “resentenced as to all counts of his conviction . . . his guiltphase claims are not barred as second-or-successive.” Id. at 225. Ultimately, the

Third Circuit held that the district court had jurisdiction to decide the merits of the

entire petition because it was not barred by § 2244(b) based on the new judgment. Id.

at 227.

In Lesko, the Question Presented Here Was a Secondary Issue

Addressed by the Third Circuit in Dicta.

Because the Third Circuit held that the petition was not “second or successive”

based on its interpretation of Magwood, the discussion of whether the petitioner’s

guilt-phase claims of ineffective assistance were not subject to § 2244(b), on other

grounds, is dicta. 34 F.4th at 225-27. The Third Circuit had already determined it

had jurisdiction to address the merits of both the 1981 guilt-phase claims and the

1995 resentencing claims based on the existence of an intervening judgment. Thus,

it was not necessary for the court to reach the question of whether Lesko’s “guiltphase claims” of ineffective-assistance were “not barred for a second reason.” Id. at

225.

True, the Third Circuit recognized the “circumstances” of Lesko’s ineffective

claim “to be unique,” such that it “requested additional briefing on how the term

‘second or successive’ should be construed” and whether counsel “could be expected to

argue his own ineffectiveness.” 34 F.4th at 226-27. But that does not make the

discussion any less dicta; the key is that the court only addressed this ineffective

claim after holding the entire petition was exempted from § 2244 because of Lesko’s

resentencing following his initial habeas petition, which created a new judgment as

to each count of conviction for which a new or altered sentence was imposed. Id. And

then, even when the court turned to Lesko’s ineffective assistance arguments, it

“stressed the narrowness” of its statements, explaining that they only apply in this

“rare circumstance” “where a conflict of interest … makes it impossible to bring a

claim of trial effectiveness in a first habeas petition[.]” Id. at 227, n. 9.

The First Circuit correctly recognized that the “conflicted-counsel holding” in

Lesko “was an alternate ground for the Third Circuit’s ruling, and did not depend on

the fact that there had been an intervening judgment.” Pet. App. 10a n.10 (emphasis

added); see id. (noting the ineffective-assistance claim in Lesko “was not subject to

section 2244(b)’s restrictions for the separate reason that his prior habeas petition

had succeeded in vacating the criminal judgment”) (citing Lesko, 34 F.4th at 223-25).

That the First Circuit was not persuaded by the Third Circuit’s dicta does not create

a split in authority in the way Petitioner presents or in a manner that this Court need

address.

No Other Federal Court of Appeals has Adopted the Third

Circuit’s Approach to the Question Presented.

The alternative holding in Lesko fails to support a true circuit split on the

question presented. As the First Circuit aptly noted, “[n]o other federal court of

appeals has adopted Lesko’s approach.” Pet. App. 10a-11a. Indeed, this specific issue

of second or successive petitions arising from these types of ineffective-assistance

claims has not been addressed directly by any other courts of appeals, which

highlights how infrequently this situation arises.

The First Circuit identified only two other post-AEDPA cases that considered

“a later-filed habeas petition asserting an ineffective assistance claim,” and while

neither squarely addresses the question presented here, the First Court recognized

that both cases support its reasoning and conclusion and not that of Third Circuit.

Id. at 11a (citing Nevius v. Sumner, 105 F.3d 453 (9th Cir.1996) and In re Magwood,

113 F.3d 1544 (11th Cir. 1997) (per curiam)). 7 Like the First Circuit, in Nevius, the

7 The First Circuit also noted that in pre-AEDPA cases, circumstances like

these were unusual but “when the federal courts were presented with petitions like

Anderson’s, they consistently treated them as second or successive applications

subject to screening for abuse of the writ.” Pet. App. 6a (collecting cases in note 6).

Ninth Circuit rejected Nevius’s contention that his “first petition should not count”

because it was filed by his original trial counsel, who he claimed could not assert their

own ineffectiveness. 105 F.3d at 458-59. Similarly, in Magwood, the Eleventh Circuit

rejected that petitioner’s argument that “his ineffective assistance of appellate

counsel claim should not be considered successive because his appellate counsel also

represented him during the first federal habeas proceeding.” 113 F.3d at 1550.

Accordingly, no other circuit courts have gone so far as to interpret § 2244(b)

in the same way as the Third Circuit did in dicta in Lesko. And Lesko does not purport

to cite any other circuit decisions coming out the same way. Instead, the Third Circuit

premised its decision on a finding that the counsel’s “conflict of interest” made it

impossible to raise the ineffectiveness claim earlier. Lesko, 34 F.4th at 226. To justify

this result, the Third Circuit extended the holdings in Stewart v. Martinez-Villareal,

523 U.S. 637, 644-45 (1998), Slack v. McDaniel, 529 U.S. 473, 487-88 (2000),

combined with reasoning from Martinez v. Ryan, 566 U.S. 1, 12 (2012) regarding

claims of ineffective-assistance, to carve out a single claim-based exception to §

2244(b). 34 F.4th at 226-27. In Slack and Stewart, discussed infra at 21-22, 33, this

Court made limited exceptions to § 2244(b), in part, because the merits of the claims

had not been reached in the first petition due to different procedural bars. Pet. App.

5a, 10a.

But these two cases “do not exempt from section 2244’s restrictions every

claim that a petitioner could not previously have raised.” Id. at 638 (emphasis added).

By contrast, the First Circuit engaged in an analysis as instructed by this

Court in Banister and Panetti v. Quarterman, 551 U.S. 930 (2007) to conclude that

such an exception is not consistent with of the historical practices and purposes of

the federal habeas statute. Pet. App. 5a-10a. By relying on the Banister framework,

the First Circuit, unlike the Third Circuit, came to a conclusion that is consistent

with other circuit court authority.

Given the non-binding nature of the Third Circuit’s discussion of Lesko’s

ineffective-assistance claim, and the lack of any other conflicting appellate decision,

there is no true circuit split warranting this Court’s review. The petition should be

denied.

II.

This Case has an Unusual Procedural History and Does Not Present a

Clean Vehicle for Review by this Court.

In addition to the lack of a true circuit split, contrary to Petitioner’s suggestion,

this case is a poor vehicle for considering the question presented. Although this case

does involve an issue of statutory interpretation, the unusual procedural history in

the courts below make for an unclean vehicle for this court to consider. 8

In 2019, Petitioner, then a pro se inmate, filed his second-in-time § 2254 habeas

petition in district court to challenge his 1989 conviction, alleging that his Attorney

Hrones was ineffective during both the trial and direct appeal. Pet. App. 44a-58a.

8 Petitioner does not acknowledge any vehicle problems but instead claims, in

a conclusory manner, that this case “provides an appropriate vehicle” because of its

“profound consequences for the criminal justice system at the Federal and State

levels.” Pet. 29. This assertion is not only overblown—Petitioner simultaneously

recognizes that the circumstances giving rise to the Petition are “uncommon” and the

courts below recognized the situation as “rare”—but ignores Petitioner’s own failures

to properly get the question presented before this Court.

Respondent filed a motion to dismiss on grounds that the petition was an

unauthorized second or successive habeas petition. In response, Petitioner requested

that the district court transfer his petition to the First Circuit for authorization. See

C.A. App. 8. The district court declined that request and instead dismissed the

petition without prejudice in January 2020—treating the petition as a “second or

successive habeas corpus application” that required authorization by the court of

appeals, pursuant to § 2244(b)(2) and (3)(A). Pet. App. 3a-4a, 42a.

Crucially, Petitioner did not appeal that dismissal. Pet. App. 3a-4a. Instead,

in March 2020, he filed an “Application for Authorization to File a Second or

Successive Habeas Corpus Petition” and in July 2020 he filed an amended petition,

with supporting affidavit. Pet. App. 34a-41a; 25a-32a. In his application, Petitioner

sought to present the same claims of ineffective assistance of counsel during his trial

and direct appeal that he raised in the district court, but this time was seeking preauthorization to proceed. Id. 9 Because Petitioner failed to appeal the final judgment

dismissing his 2019 petition as an unauthorized second or successive application, he

is collaterally estopped from arguing that his second-in-time petition is not “second

or successive” within the meaning of § 2244(b). That is, by choosing to go directly to

the court of appeals, rather than appealing the district court’s dismissal, Petitioner

already conceded his petition is “second or successive” requiring authorization to

9 In his amended application, he expressly invoked the newly discovered

evidence provision within § 2244(b)(2)(B) as grounds for his application. Pet. App.

22a, 29a.

proceed on his ineffective-assistance claims; and is not exempted from the

gatekeeping provisions of § 2244(b)(2) on any other grounds. 10 Petitioner’s question

presented to this Court ignores that concession.

Collateral estoppel, or issue preclusion, is generally analyzed under the

Restatement (Second) of Judgments. B&B Hardware, Inc. v. Hargis Industries, Inc.,

575 U.S. 138, 147-48 (2015). “The general rule is that ‘[w]hen an issue of fact or law

is actually litigated and determined by a valid and final judgment, and the

determination is essential to the judgment, the determination is conclusive in a

subsequent action between the parties, whether on the same or a different claim.’”

Id. at 148 (quoting Restatement (Second) of Judgments s. 27, p. 250 (1980)). Whether

Petitioner’s claims of ineffective assistance required pre-authorization as “second or

successive” by the court of appeals was squarely presented by Respondent’s motion

to dismiss. Petitioner had the opportunity to fully litigate this question through an

appeal of the district court’s dismissal and entry of final judgment. The First Circuit

acknowledged, but bypassed, this argument because it decided the entire case in

Respondent’s favor. Pet. App. 5a n.4 (“[Respondent] also argues that [Petitioner] is

collaterally estopped from arguing that his petition is not “second or successive”

because the issue was previously resolved against him and, rather than appeal,

Anderson sought authorization from this Court to file a “second or successive”

10 The court found Petitioner’s ineffective-assistance claims did not satisfy the

gatekeeping provisions of § 2244(b)(2). Pet. App. 22a. The court did not dismiss the

matter, as required by the statute, and instead transferred it to the district court. Id.

petition. Given our disposition in favor of [Respondent] for other reasons, we do not

address this argument.”). Nevertheless, it remains a live procedural issue and results

in an exceptionally poor vehicle for this Court to review whether Petitioner’s secondin-time filed habeas petition is an impermissible “second or successive petition”

subject to the gatekeeping provisions § 2244(b).

III.

The Decision Below Is Correct.

This Court should deny the petition for the further reason that the First Circuit

did not err. It correctly concluded that Petitioner was not entitled to bypass the

gatekeeping provisions in § 2244(b)(2) when he asserted ineffective-assistance claims

against Attorney Hrones in a second habeas petition.

The First Circuit correctly applied this Court’s framework for

determining whether Petitioner’s second-in-time habeas

petition constituted an impermissible second or successive

application.

The First Circuit correctly concluded that Petitioner’s second-in-time petition

required preauthorization to proceed. It neither falls within a particular recognized

exception to the second-or-successive bar, nor satisfies this Court’s more general test

for assessing whether a petition should be treated as second or successive.

This Court has identified two particular circumstances in which a subsequent

habeas petition that challenges the same judgement as an earlier petition is not

considered second or successive requiring pre-authorization. First, if the earlier

petition was dismissed without consideration of the merits for reasons such as want

of exhaustion, then the subsequent petition proceeds as if the first had never been

filed. Slack, 529 U.S. at 487-88. Second, a petitioner is permitted to assert a newly

ripened competency-to-be-executed claim pursuant to Ford v. Wainwright, 477 U.S.

399 (1986), in a subsequent petition. See Panetti, 551 U.S. at 946-47 (declining to

apply § 2244(b) to a competency claim that was not ripe upon filing of first petition);

Stewart, 523 U.S. at 643-44 (holding that competency claim that was “previously

dismissed as premature” would not be considered second or successive). Petitioner’s

second application plainly falls in neither category.

Nor does Petitioner’s petition satisfy this Court’s more general test for

assessing whether a petition should be treated as second or successive. This Court

“look[s] for guidance in two main places” to determine whether a subsequent petition

should be treated as “second or successive:” (1) whether the later-filed petition would

have constituted an abuse of the writ in pre-AEDPA practice, and (2) “AEDPA’s own

purposes.” Banister, 590 U.S. at 512 (citing Panetti, 551 U.S. at 947). The First

Circuit rightly concluded that both historical precedent and AEDPA’s purposes cut

against permitting claims like Petitioner’s to proceed in a subsequent petition.

Historical habeas practice would treat Petitioner’s new petition

as an abuse of the writ.

Historically, Petitioner’s second-in-time petition would have been deemed an

abuse of the writ. Before Congress enacted AEDPA, “[t]he doctrine of abuse of the

writ define[d] the circumstances in which federal courts decline[d] to entertain a

claim presented for the first time in a second or subsequent petition for a writ of

habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470 (1991). The government could

satisfy its burden of pleading abuse of the writ “if, with clarity and particularity, it

note[d] petitioner’s prior writ history, identifie[d] the claims that appear[ed] for the

first time, and allege[d] that petitioner ha[d] abused the writ.”

Id. at 494.

petitioner then would be required to demonstrate cause and actual prejudice for his

failure to raise the claim in the first petition. 11 Id. Cause required a showing that

“some objective factor external to the defense impeded counsel’s efforts” to raise the

claim at an earlier proceeding. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Under certain circumstances, the failure to bring a claim in a prior habeas

petition (if the claim was then-available) constituted an abuse of the writ. See Delo

v. Stokes, 495 U.S. 320, 321-22 (1990) (per curiam). This is true even where a

petitioner raises “a claim in a subsequent petition that he could have raised in his

first, regardless of whether the failure to raise it earlier stemmed from a deliberate

choice.” McCleskey, 499 U.S. at 489. See id. at 498 (“Abuse of the writ doctrine

examines petitioner’s conduct: the question is whether petitioner possessed, or by

reasonable means could have obtained, a sufficient basis to allege a claim in the first

petition and pursue the matter through the habeas process” (emphasis in original)).

Against these principles, the First Circuit rightly concluded that “if preAEDPA courts screened later-filed petitions asserting ineffective assistance claims in

circumstances like those present here for abuse of the writ, they first would have

11 Aside

from demonstrating cause and prejudice, habeas petitioners could

prevail under the “extraordinary instance[ ]” where “a constitutional violation

probably has caused the conviction of one innocent of the crime”—a “fundamental

miscarriage of justice.” McCleskey, 499 U.S. at 494.

determined them to be ‘second or successive.’” Pet. App. 6a (quoting § 2244(b)(2)).

Ineffective-assistance claims like Petitioner advances in his second petition were

“unusual” but not unprecedented in pre-AEDPA practice, and they were uniformly

held to abuse the writ. Id. For example, in Moran v. McDaniel, the petitioner

asserted that, because “he had the same counsel for his direct and initial state and

federal post-conviction petitions,” a “conflict of interest existed which precluded his

counsel from asserting his own ineffectiveness on direct appeal in his first postconviction petition.” 80 F.3d 1261, 1271 (9th Cir. 1996). The Ninth Circuit concluded

that such a circumstance was not “cause” to overcome abuse of the writ because there

was no Sixth Amendment right to effective counsel in habeas proceedings,

notwithstanding his counsel’s inability “to litigate his own alleged ineffectiveness.”

Id. Other circuits presented with the same question were in accord, and Petitioner’s

suggestion to the contrary, Pet. 28, is simply incorrect. 12 See, e.g., Irving v. Hargett,

In contrast, some pre-AEDPA courts found “cause” in a first habeas

proceeding for the failure to raise an ineffective-assistance claim in state court when

the petitioner was represented by the same lawyer at trial and on direct appeal. See,

e.g., Stephens v. Kemp, 846 F.2d 642, 651 (11th Cir. 1988); Riner v. Owens, 764 F.2d

1253, 1257-58 (7th Cir. 1985); Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983).

Respondent is aware of only one case that excused the failure to raise an ineffective

claim in the first habeas petition—albeit under 28 U.S.C. § 2255—when the petitioner

was continuously represented by his trial attorney at the first habeas proceeding. See

Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998). As the First Circuit

rightly observed, Bloomer offers little support to Petitioner because its holding was

based on circuit precedent regarding ineffective-assistance claims presented in

federal court, which does not implicate the same federalism concerns that exist in

excusing a procedural default in state court. See Pet. App. 7a n.7. And even if

Bloomer had more force, it is an outlier: “What matters is that . . . all (but one) [federal

circuit courts] treated [petitions like Petitioner’s] as successive . . . .” Banister, 590

U.S. at 515.

59 F.3d 23, 25-26 (5th Cir. 1995); Washington v. Delo, 51 F.3d 756, 760 (8th Cir. 1995);

Booker v. Wainwright, 764 F.2d 1371, 1377-78 (11th Cir. 1985). See also Pet. 28.

Underpinning these decisions—correctly cited by the court below—is the key

precept that there exists no constitutional right to effective counsel in habeas

proceedings. Coleman, 501 U.S. at 755; Pennsylvania v. Finley, 481 U.S. 551, 555

(1987); see Irving, 59 F.3d at 26; Booker, 764 F.2d at 1378. Absent that right,

Petitioner “has no constitutional right to insist on . . . procedures which were designed

solely to protect” it.

Finley, 481 U.S. at 557.

“[C]ounsel’s ineffectiveness will

constitute cause only if it is an independent constitutional violation.” Coleman, 501

U.S. at 755. Attorney Hrones’s failure to raise his own ineffectiveness in Petitioner’s

first federal habeas petition was not an independent constitutional violation because

Petitioner had no right to that counsel at all; thus, Petitioner could not use that

failure as cause to excuse his successive petition. See Bonin v. Calderon, 77 F.3d

1155, 1159-60 (9th Cir. 1996) (applying similar reasoning to ineffective claim

presented in successive petition against counsel that represented petitioner on direct

appeal and first round of habeas review). Simply put, Petitioner could “have obtained

additional counsel or proceeded pro se” in order to raise his ineffective-assistance

claims during the first habeas proceeding. Booker, 764 F.2d at 1378. See Boivin v.

Black, 225 F.3d 36, 43 (1st Cir. 2000) (“[T]he suggestion that prisoners who proceed

pro se do not have a meaningful opportunity to prosecute their claims is highly

debatable.”).

In sum, although Attorney Hrones could not argue his own ineffectiveness

during the habeas proceedings, he was “acting in [Petitioner’s] interest and

presumably at his direction, [and] litigated the [first] petition to a judgment on the

merits.” Pet. App. 7a.

Nothing in pre-AEDPA practice permits Petitioner to now

“disavow his first petition wholesale.” Id. The First Circuit correctly held that

Petitioner’s second-in-time habeas petition alleging ineffective-assistance against

counsel who represented him in state court and the first round of federal habeas

proceedings would have been dismissed as an abuse of the writ in pre-AEDPA

practice.

AEDPA’s purposes confirm that Petitioner’s new petition is an

impermissible second or successive application.

The First Circuit correctly concluded that an “[e]xamination of AEDPA’s

purposes confirms” that the instant petition may not proceed without adhering to §

2244(b)(2). Pet. App. 7a-8a. Indeed, AEDPA “does not take kindly to repeat requests

for habeas relief.” King v. Morgan, 807 F.3d 154, 155 (6th Cir. 2015). The statute

“aimed to prevent serial challenges to a judgment of conviction, in the interest of

reducing delay, conserving judicial resources, and promoting finality.” Banister, 590

U.S. at 515.

It also sought “to conserve judicial resources, reduc[e] piecemeal

litigation,” and “lend[ ] finality to state court judgments within a reasonable time.”

Id. at 512 (quoting Panetti, 551 U.S. at 945-46)). “Plainly [§ 2244(b)(2)(B)] was

designed, among other reasons, to bring some finality and certainty to the seemingly

never-ending collateral attack process.” In re Davis, 565 F.3d 810, 817 (11th Cir.

2009). By enacting § 2244(b), Congress was clearly concerned about “prevent[ing]

habeas petitioners from having successive ‘bites at the apple.’” Id. at 817-18 (quoting

statements of Senators Dole, Feinstein, Kennedy, and Biden during congressional

debates around AEDPA’s passage). In short, AEDPA reflects a preference for claims

to be raised at the earliest possible time, not one-at-a-time, over time. Cf. Rivers v.

Guerrero, 605 U.S. 443, 445 (2025) (“If the second-or-successive line is drawn at the

end of the appellate-review period, a petitioner could file any number of new

applications raising new claims during the pendency of appeal or certiorari review,

thereby prolonging the case seemingly indefinitely”).

Permitting the instant petition to be exempted from AEDPA’s second-orsuccessive restrictions runs roughshod over these principles.

See Pet. App. 8a

(“Exempting [Petitioner’s] petition from section 2244(b)(2) would not serve any of

AEDPA’s purposes”). Creating an exception to § 2244(b), where a petitioner seeks to

challenge his prior attorney’s performance, risks piecemeal litigation, because clever

habeas petitioners could retain their trial and/or appellate counsel in the first round

of habeas proceedings, only to later get a second bite at the federal-court apple to

assert an ineffective-assistance claim. See id. (“Adopting [Petitioner’s] position would

provide such petitioners with at least two” rounds of federal habeas review). Nothing

in AEDPA’s purposes countenance this end-run around § 2244(b).

Moreover, principles of finality would erode. There are “significant costs of

federal habeas corpus review.” McCleskey, 499 U.S. at 490-91. “Finality has special

importance” in the habeas context because “[r]eexamination of state convictions on

federal habeas ‘frustrates . . . ‘both the States' sovereign power to punish offenders

and their good-faith attempts to honor constitutional rights.’” Id. at 491 (quoting

Murray, 477 U.S. at 487). The First Circuit rightly recognized that this concern is

heightened further when a petitioner waits years or decades to assert his claim, as

occurred here. See Pet. App. 8a; Statement ¶ 4, supra. A contrary result would

encourage needless delay in the adjudication of an ineffective-assistance claim that

was clearly available and ripe in the first habeas proceeding.

Further, authorizing the instant petition would prejudice the state by calling

a state-court conviction into question decades after the completion of one full round

of federal habeas review and would impose “significant social costs,” like “the erosion

of memory and dispersion of witnesses that accompany the passage of time.” Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).

Authorizing a second or successive habeas petition containing ineffectiveassistance claims that were available and ripe at the time of the first petition, thus,

serves none of AEDPA’s purposes. “Perpetual disrespect for the finality of convictions

disparages the entire criminal justice system.” McCleskey, 499 U.S. at 492. The First

Circuit correctly applied these principles in treating Petitioner’s application as

impermissibly second or successive.

Petitioner’s contrary arguments fail to afford due respect for

historical practice or AEDPA’s purposes.

Petitioner maintains that his second-in-time petition is not subject to the

strictures of § 2244(b)(2) because he did not have a meaningful opportunity to raise

his claims in his first petition. Pet. 8, 26. In Petitioner’s view, because his prior

habeas counsel could not assert the ineffective-assistance claims against himself, the

First Circuit’s decision impermissibly construed § 2244(b)(2) in a manner that

prevented him from litigating the claim in his second petition. Pet. 25-29. The First

Circuit rightly dispensed with these contentions.

There is no doubt that “[t]he right to the effective assistance of counsel at trial

is a bedrock principle in our justice system,” Martinez, 566 U.S. at 12, enshrined by

the Constitution’s Sixth Amendment, Gideon v. Wainwright, 372 U.S. 335, 339-44

(1963). But this Court has “never held that prisoners have a constitutional right to

counsel when mounting collateral attacks upon their convictions.” Finley, 481 U.S.

at 555. Petitioner was not entitled to habeas counsel free from conflict because he

had no constitutional or statutory right to that counsel at all. See id. at 556 (whether

right to counsel is constitutionally guaranteed depends upon “the source of that right

to a lawyer’s assistance, combined with the nature of the proceedings”).

True,

Attorney Hrones could not argue his own ineffectiveness during Petitioner’s first

habeas proceeding. See Christeson v. Roper, 574 U.S. 373, 378 (2015). But were

Petitioner dissatisfied with Attorney Hrones’s performance at trial and on direct

appeal, Petitioner could have proceeded in federal court without him. See Pet. App.

9a (Petitioner’s “choice to retain Attorney Hrones may have limited his ability to raise

certain claims but, based on then existing information, [Petitioner] could have

balanced the potential disadvantages caused by any such limits against the benefits

of retaining Attorney Hrones”). 13

These principles dispense with Petitioner’s argument that “the gatekeeping

provisions of § 2244(b) must be read in a manner ‘that protects prisoners with a

potentially legitimate claim of ineffective assistance of trial counsel.’”

Pet. 26

(quoting Martinez, 566 U.S. at 9)). That is a “policy, not a legal, objection.” Brown v.

Muniz, 889 F.3d 661, 676 (9th Cir. 2018). Indeed, “[t]hrough § 2244(b), Congress

made the legislative choice to prioritize state-federal comity and the finality of

criminal proceedings over affording petitioners multiple opportunities to invoke the

federal courts’ jurisdiction under the same standard of review.” Id.

Martinez v. Ryan does not compel a contrary conclusion. Pet. 25-26. Martinez

involved the question of whether ineffective assistance of counsel during collateral

postconviction proceedings could constitute cause for defaulting a claim of ineffective

assistance of trial counsel, where an Arizona rule prohibited a convicted person from

bringing an ineffective-assistance-of-counsel claim on direct appeal and instead

required them to raise the claim in collateral proceedings. 566 U.S. at 4. That scheme

“significantly diminishe[d] prisoners’ ability to file” ineffective-assistance claims. Id.

13 As noted earlier, Attorney Hrones successfully represented Petitioner in

securing habeas relief from the First Circuit after Petitioner’s first conviction in 1984.

See Anderson, 858 F.2d at 19. Then, during Petitioner’s first habeas appeal after his

second conviction, while still being represented by Attorney Hrones, the First Circuit

affirmed the denial of habeas relief by a 2-1 vote. See Anderson, 23 F.3d at 598. The

First Circuit correctly noted that there was good reason, then, for Petitioner to retain

Attorney Hrones. See Pet. App. 9a.

at 13.

This Court held that ineffective assistance of counsel in postconviction

proceedings can constitute cause for procedural default, provided that certain

circumstances are present, including that the ineffective-assistance claim is

substantial and that it could only be raised in a collateral (as opposed to direct) review

proceeding under state law. Id. at 16-17. Without discounting the constitutional

importance of effective counsel in state criminal proceedings, this Court’s concerns in

Martinez about raising ineffective-assistance claims are simply not relevant here.

And Petitioner was not subject to any rule similar to the Arizona rule at issue in

Martinez.

Petitioner also complains that the First Circuit improperly adopted a narrow

construction of § 2244(b)(2). Pet. 27-28. But, as explained above, the First Circuit’s

decision is entirely consistent with AEDPA. And, of course, AEDPA “is a statute that”

the courts have “no authority to amend.” Shinn v. Ramirez, 596 U.S. 366, 384-85

(2022). See Dodd v. United States, 545 U.S. 353, 359 (2005) (despite fact that Court’s

interpretation of § 2255’s limitations period produced difficult results for habeas

petitioners, Court was “not free to rewrite the statute that Congress has enacted”);

Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001) (declining to construe § 2244(b)(2)(A) to

permit retroactive application of rule because “even if [the Court] disagreed with the

legislative decision to establish stringent procedural requirements for retroactive

application of new rules, we do not have license to question the decision on policy

grounds”). Nor do they have “authority to create equitable exceptions to jurisdictional

requirements”—like § 2244(b). Bowles v. Russell, 551 U.S. 205, 214 (2007). “Where

Congress has erected a constitutionally valid barrier to habeas relief, a court cannot

decline to give it effect.” Shinn, 596 U.S. at 385, (quoting McQuiggin, 569 U.S. at 402

(Scalia, J., dissenting) (emphasis in original)). This Court has consistently eschewed

judicial rewriting of the habeas statute; any equitable appeal to Petitioner’s position

is best left for Congress to remedy.

No statute or case supports a broad interpretation of AEDPA’s bar on second

or successive habeas petitions either. 14 State prisoners are only “entitled to one fair

opportunity to seek federal habeas relief” and AEDPA “made the limits on

entertaining second or successive habeas applications more stringent than before.”

Banister, 590 U.S. at 507, 515.

A fair opportunity requires a chance to have

constitutional claims adjudicated on the merits in federal court in an initial habeas

petition. See Slack, 529 U.S. at 487-88 (second-in-time habeas petition would proceed

in ordinary course after initial mixed petition was dismissed on exhaustion grounds).

The court below correctly recognized that § 2244(b)(2) “is meant to bar many claims

that a petitioner did not have an opportunity to litigate.” Pet. App. 8a (citing, as

examples of barred claims, “a claim in a later-filed petition based on newly discovered

14 To that end, Petitioner’s reliance on Maples v. Thomas, 565 U.S. 266 (2012),

adds little to the discussion. Pet. 27-28. There, this Court excused a petitioner’s

procedural default of an ineffective-assistance claim where he was abandoned by two

different sets of attorneys. 565 U.S. at 283. Nothing remotely as troubling occurred

here. Attorney Hrones did not abandon Petitioner. He ably represented Petitioner,

including obtaining habeas relief, in a criminal case that contained overwhelming

evidence of guilt. And although Petitioner rightly states that he has never waived

the ineffective-assistance claims contained in his second petition, Pet. 28, the First

Circuit correctly observed that § 2244(b)(2) is meant to bar most claims that could not

have been litigated earlier. Pet. App. 8a.

evidence that did not bear on the petitioner’s innocence or on a new and nonretroactive rule of constitutional law” (emphasis omitted)). Petitioner can hardly

assert that he was denied a fair opportunity to litigate his first habeas petition with

the same counsel that obtained habeas relief for him once before and that nearly

secured habeas relief again. See Anderson, 23 F.3d at 598 (Stahl, J., dissenting). It

is entirely consistent with the demanding limitations on second or successive habeas

petitions to impart knowledge upon a petitioner that his ability to assert claims

against his state-court counsel will be hampered if he retains that same counsel in

federal habeas proceedings.

See Pet. App. 9a (Petitioner “cannot say that the

ineffective assistance of counsel claims that he seeks to raise now were truly

unavailable to him when he filed his first petition.”). A ruling to the contrary, as the

court below noted, would “undermine” Congress’ intent to bar most claims raised in

a second habeas petition. Id. at 8a-9a.

***

The First Circuit correctly concluded that historical habeas practice and the purposes

of AEDPA command treating Petitioner’s second-in-time federal habeas petition,

asserting ineffective-assistance-of-counsel claims against prior counsel who

represented him in state and federal proceedings, as a “second or successive habeas

corpus application” under 28 U.S.C. § 2244(b).

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

ANDREA JOY CAMPBELL

Attorney General for the

Commonwealth of Massachusetts

JENNIFER ZALNASKY*

ANDRE JANISZEWSKI

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

Jennifer.zalnasky4@mass.gov

(617) 963-2026

Counsel for Respondent

*Counsel of Record

November 21, 2025

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.