No. 98-6322: Slack v. McDaniel




No. 98-6322


In the Supreme Court of the United States

ANTONIO TONTON SLACK, PETITIONER

v.

ELDON MCDANIEL, WARDEN, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217





QUESTIONS PRESENTED

The Court has invited the Solicitor General to express the views of theUnited States on the following questions:

1. Do the provisions of the Antiterrorism and Effective Death Penalty Actof 1996 (AEDPA), specifically including 28 U.S.C. 2253(c) and 28 U.S.C.2244(b) (Supp. III 1997), control the proceedings on appeal?

2. If AEDPA does control the proceedings on appeal, may a certificate ofappealability issue under 28 U.S.C. 2253(c) (Supp. III 1997)?






In the Supreme Court of the United States

No. 98-6322
ANTONIO TONTON SLACK, PETITIONER
v.
ELDON MCDANIEL, WARDEN, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE





INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court's order inviting the SolicitorGeneral to file a brief expressing the views of the United States.





STATEMENT

In 1990, petitioner was convicted of second degree murder with the use ofa deadly weapon in violation of Nevada law and sentenced to life imprisonmentwith the possibility of parole. J.A. 25. The Nevada Supreme Court dismissedhis appeal. J.A. 3-4.
In 1991, petitioner filed a pro se petition for a writ of habeas corpusunder 28 U.S.C. 2254 in the United States District Court for the Districtof Nevada. J.A. 6 (Slack v. Director, Case No. CV-N-91-561-HDM). The districtcourt dismissed the petition without prejudice for failure to exhaust allstate remedies. J.A. 21-22. Petitioner then filed a petition for post-convictionrelief in state trial court. J.A. 25. The state trial court denied the petition,J.A. 24-30, and the Nevada Supreme Court dismissed petitioner's appeal,J.A. 31-33.
On May 30, 1995, petitioner returned to federal court and filed a pro sepetition for writ of habeas corpus under 28 U.S.C. 2254. J.A. 35 (Slackv. McDaniel, Case No. CV-N-95-00194-DWH). On October 8, 1996, he filed anamended petition. J.A. 96. On February 13, 1997, the district court appointedcounsel and ordered him to file an amended petition or a notice indicatinghis intent to proceed with the first amended petition. J.A. 64-65. On June10, 1997, petitioner filed a second amended petition. Pet. App. 190. OnDecember 3, 1997, acting on respondents' motion for a more definite statement,the district court gave petitioner 20 days to file a third amended petition.Id. at 196.
On December 24, 1997, petitioner sought (and the district court subsequentlygranted) leave to file a third amended petition. J.A. 66. On March 30, 1998,the district court dismissed several of the claims in the third amendedpetition for abuse of the writ because petitioner had not included thoseclaims in his 1991 federal habeas petition. J.A. 152, 156. The court dismissedthe remainder of the petition without prejudice because one of the remainingclaims had still not been exhausted. J.A. 157-158.
In taking those actions, the court determined that the Antiterrorism andEffective Death Penalty Act of 1996 (AEDPA), which went into effect on April26, 1996, "is not applicable to this case" because the case "wascommenced March 27, 1995." J.A. 156. The court therefore applied thepre-AEDPA abuse-of-the-writ doctrine reflected in Rule 9(b) of the RulesGoverning Section 2254 Cases. J.A. 156.
On April 29, 1998, petitioner filed a notice of appeal, J.A. 161, and, onMay 11, 1998, he applied for a certificate of probable cause, J.A. 163.The district court denied the certificate. J.A. 182-183. The Ninth Circuitassigned the case docket number 98-15943. See App., infra, 1a. On July 7,1998, a two-judge panel of that court denied the certificate, and the courtentered that judgment on its docket. Id. at 2a.
On February 22, 1999, this Court granted the petition for a writ of certiorarilimited to the following question:
If a person's petition for habeas corpus under 28 U.S.C. § 2254 isdismissed for failure to exhaust his state remedies and he subsequentlyexhausts his state remedies and refiles the § 2254 petition, are claimsincluded within that petition that were not included within his initial§ 2254 filing "second or successive" habeas applications?
J.A. 198. That question was briefed, and the case was argued on October4, 1999. On October 18, 1999, the Court restored the case to the calendarfor reargument and called for briefing on whether 28 U.S.C. 2253(c) and28 U.S.C. 2244(b) (Supp. III 1997) of AEDPA control the proceedings on appeal,and if so, whether a certificate of appealability may issue under 28 U.S.C.2253(c) (Supp. III 1997).




SUMMARY OF ARGUMENT

I. This Court has determined that the general amendments to the law of habeascorpus in Chapter 153 of Title 28, United States Code, made by the Antiterrorismand Effective Death Penalty Act of 1996 (AEDPA or Act), Pub. L. No. 104-132,110 Stat. 1214, were not made applicable to habeas cases pending on thedate of enactment of AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). TheCourt reached that result by drawing an inference from AEDPA's Section 107(c):since Congress specifically provided that Chapter 154's provisions for habeasreview of certain state capital cases were made applicable to "casespending on or after the date of enactment of this Act," § 107(c),110 Stat. 1226, Congress did not intend the Chapter 153 amendments to applyto pending cases. The first question here is whether two of the provisionsof Chapter 153 as amended by AEDPA, 28 U.S.C. 2253(c) and 28 U.S.C. 2244(b)(Supp. III 1997), are applicable to the appellate proceedings. Petitionerhere filed his underlying habeas petition before enactment of AEDPA, butamended it to include new claims, and sought to appeal the district court'sdismissal of those claims, after enactment of AEDPA.
Lindh's analysis and general principles of habeas law indicate that AEDPA'srequirement that a petitioner obtain a certificate of appealability (COA),Section 2253(c), is applicable to petitioner's appellate proceedings. Asthis Court made clear in Hohn v. United States, 524 U.S. 236 (1998), anapplication for a certificate of appealability is itself a "case,"and that case is not "pending" until leave to appeal is requested.The negative implication of Section 107(c), i.e., that the provisions ofChapter 153 are not applicable to pending cases, is therefore not relevantto applications for authorization to appeal that are made after the effectivedate of AEDPA.
The same cannot be said, however, about the second-or-successive provisionsof amended Section 2244(b). Those provisions include substantive restrictionson when second or successive habeas applications may be made and proceduralrequirements that establish a gatekeeping mechanism administered by thecourts of appeals. If a habeas petition is filed before AEDPA's effectivedate, none of those provisions of Section 2244(b) is applicable, even ifthe habeas petitioner seeks to appeal after AEDPA's effective date. To holdotherwise would mean that the district court's adjudication of the caseunder pre-AEDPA law, as required under Lindh, would be nullified by appellatereview under AEDPA's new legal standards. If, however, a second or successivehabeas application is initiated after AEDPA's effective date, that "case"is controlled by Section 2244(b).
The issue here is whether petitioner's new claims in his post-AEDPA amendedpetition can properly be treated as a separate "case" that issubject to AEDPA's restrictions on second or successive petitions. In ourview, they cannot. Such treatment is inconsistent with the usual meaningof "case," which applies to an entire proceeding rather than toseparate claims for relief within it. It is also inconsistent with AEDPA'sseparate use of the terms "case" and "claim" and withtraditional habeas practice, which has not treated amendments to a habeaspetition as second or successive petitions.

II. If AEDPA's COA provisions are applicable, the second question presentedis whether a COA may issue when a petitioner argues that the district courtcommitted a non-constitutional procedural error that foreclosed considerationof an underlying constitutional claim arising from the state criminal proceedings.Under AEDPA, a COA may issue only if the applicant makes "a substantialshowing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).That showing has two components: first, that the petitioner's underlyinghabeas case contains a claim of a constitutional violation that is "debatableamong jurists of reason," Lozada v. Deeds, 498 U.S. 430, 432 (1991)(per curiam), and, second, if procedural obstacles exist that may bar reliefon that claim, that there is a reasonably debatable argument that the petitionercan surmount those procedural obstacles.
Because of those requirements, a petitioner who claims that the districtcourt has denied his habeas application on procedural grounds cannot obtaina COA simply because the procedural ruling is reasonably open to question;that, standing alone, would not demonstrate a "substantial showingof the denial of a constitutional right." By the same token, however,the fact that the procedural ruling on which the district court denied reliefis non-constitutional in character does not preclude the issuance of a COA.If there is a possibly meritorious claim of constitutional error in thestate criminal proceedings, and the claim of procedural error by the habeascourt is reasonably debatable, a COA may issue to decide whether adjudicationof the underlying constitutional claim was foreclosed by the habeas court'sprocedural error.




ARGUMENT

I. AEDPA'S CERTIFICATE OF APPEALABILITY PROVISIONS APPLY TO THE PROCEEDINGSIN THE COURT OF APPEALS, BUT AEDPA'S PROVISIONS GOVERNING SECOND OR SUCCESSIVEPETITIONS DO NOT

Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPAor Act), Pub. L. No. 104-132, 110 Stat. 1214, made substantial revisionsto federal law governing petitions for collateral relief. Sections 101 through106 of AEDPA amended 28 U.S.C. 2244 and 2253-2255 (collectively, Chapter153), which generally govern post-conviction review proceedings in federalcourts.1 110 Stat. 1217-1221. Section 107 created a new Chapter 154 concerninghabeas proceedings in state capital cases. Chapter 154 contains more stringentprocedural and substantive limitations on relief in capital cases but isapplicable only if the State meets certain conditions. 110 Stat. 1221-1226.Congress provided, in Section 107(c) of AEDPA, that "Chapter 154 ** * shall apply to cases pending on or after the date of enactment of thisAct." 110 Stat. 1226.
In Lindh v. Murphy, 521 U.S. 320, 336 (1997), this Court held that the negativeimplication of Section 107(c) is that AEDPA's amendments to Chapter 153"generally apply only to cases filed after the Act became effective,"April 24, 1996. The Court specifically held that amended Section 2254(d)in Chapter 153, which prescribes standards for granting federal habeas reliefto a state prisoner, did not apply to Lindh, who had filed his habeas petitionand his appeal before AEDPA's enactment. 521 U.S. at 322-323. The Courtdid not provide further clarification concerning when a "case"is "pending" within the meaning of Section 107(c) so that theamendments to Chapter 153 do not apply to it.
Petitioner here filed his petition for habeas corpus before the advent ofAEDPA, but, unlike in Lindh, the petition was amended to add new claims,and appellate proceedings were commenced, after the advent of AEDPA. Thequestion before the Court is whether those post-AEDPA events trigger theapplicability of two of AEDPA's provisions: the certificate of appealability(COA) provisions, which control whether a habeas petitioner may bring anappeal to the court of appeals, 28 U.S.C. 2253(c), and the provisions governingthe filing of a second or successive application for habeas relief, 28 U.S.C.2244(b). We believe that the COA provisions are applicable to petitioner'sappeal-authorization proceedings, but AEDPA's second-or-successive provisionsare not.

A. The COA Provisions In Amended 28 U.S.C. 2253(c) Apply To The ProceedingsIn The Court Of Appeals

As amended by AEDPA, 28 U.S.C. 2253(c) provides that "an appeal maynot be taken to the court of appeals" from the denial of a petitionfor collateral relief filed by a state or federal prisoner, "[u]nlessa circuit justice or judge issues a [COA]." Section 2253(c) furtherprovides that a COA may issue "only if the applicant has made a substantialshowing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2).The COA requirements govern only the threshold screening proceeding in whicha petitioner seeks authorization to appeal; they have no application tothe underlying collateral relief proceedings in district court.
The application for a certificate, rather than the case in district court,is thus the relevant "case" for purposes of applying to the COAprovisions the negative implication of AEDPA's Section 107(c). In Hohn v.United States, 524 U.S. 236, 241 (1998), this Court held that an "applicationfor a [COA] constitutes a case under [28 U.S.C. 1254(1) (1994)]," whichgives the Court jurisdiction to review "[c]ases in the courts of appeals"(ibid.). It is logical to apply the same approach to hold that the applicationfor a COA is also a case within the meaning of Section 107(c). As the EighthCircuit explained in Tiedeman v. Benson, 122 F.3d 518, 521 (1997), thereis "no reason why a new provision exclusively directed towards appealprocedures would depend for its effective date on the filing of a case ina trial court, instead of on the filing of a notice of appeal or similardocument." In accord with that reasoning, this Court has applied amendmentsto the Federal Rules of Appellate Procedure to "all proceedings inappellate cases thereafter commenced." 517 U.S. 1257 (1996) (emphasisadded).2
Treating an application for a certificate as the relevant "case"under Section 107(c) is consistent with that term's ordinary legal meaning."Case" is "[a] general term for an action, cause, suit, orcontroversy, at law or in equity" and includes "any proceedingjudicial in its nature." Black's Law Dictionary 215 (6th ed. 1990)(emphasis added). See also Random House Dictionary of the English Language321 (2d ed. 1987) ("10. Law: a suit or action at law"). The analysisin this Court's precedent supports the same approach. The Court in Hohndid not attach any special meaning to the term "case" in Section1254(1) but instead relied on the term's usual meaning. See 524 U.S. at241 (citing Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871) ("case"is "a proceeding in court, a suit, or action")). The Court alsoobserved that the courts of appeals treat applications for certificatesas they treat other cases, i.e., by assigning a docket number, submittingthe matter to a panel, and entering judgment. 524 U.S. at 242.3
An application for a COA is "pending" within the meaning of Section107(c) once the application or a notice of appeal is filed. See Fed. R.App. P. 22(b) ("If no express request for a certificate is filed, thenotice of appeal constitutes a request addressed to the judges of the courtof appeals."); Black's Law Dictionary 1134 (6th ed. 1990) ("[A]naction or suit is 'pending' from its inception until the rendition of finaljudgment."); Ex parte Quirin, 317 U.S. 1, 24 (1942) ("Presentationof the petition for judicial action is the institution of a suit.").
Petitioner filed his notice of appeal on April 29, 1998, and applied fora certificate of probable cause (CPC) (the pre-AEDPA predecessor to a COA)on May 11, 1998. J.A. 161, 163. Because neither his notice of appeal norhis application for a certificate had been filed by AEDPA's effective date,his "case" seeking authorization to appeal was not "pending"at that time. Therefore, the negative implication of Section 107(c), whichthe Court relied on in Lindh, does not preclude application of the COA provisionsto the proceedings in the court of appeals.4
Nor would application of the COA provisions to those proceedings have "retroactiveeffect." Landgraf v. USI Film Prods., 511 U.S. 249, 280 (1994). Therequirement that petitioner obtain a COA was in place before petitionerwas obliged to seek one. Indeed, petitioner addressed whether AEDPA appliedin his application for a CPC. See J.A. 166-167. Application of the COA provisionsis therefore prospective and raises no retroactivity concerns.
Finally, the COA requirement applies to the proceedings in the court ofappeals whether or not respondents properly preserved the claim that itapplies. Section 2253(c) provides that "an appeal may not be takento the court of appeals" absent a COA. In Hohn, this Court termed issuanceof a COA "a threshold prerequisite for court of appeals jurisdiction."524 U.S. at 248. That view accords with the Court's longstanding positionthat the absence of a CPC deprived an appellate court of the power to reviewa denial of habeas corpus relief. See, e.g., Bilik v. Strassheim, 212 U.S.551 (1908) (dismissing appeal for want of jurisdiction, under Act of March10, 1908, ch. 76, 35 Stat. 40, a forerunner of Section 2253(c), which requiredcertification of probable cause before appeal to this Court from the denialof a habeas petition). And it comports with the Court's holding that thecourts of appeals lack jurisdiction over an appeal absent the filing ofa timely, proper notice of appeal. See Torres v. Oakland Scavenger Co.,487 U.S. 312, 315 (1988); United States v. Robinson, 361 U.S. 220, 224 (1960).Appellate courts must consider jurisdictional limits on their power on theirown initiative, and those limits cannot be waived or forfeited. See, e.g.,Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998).5

B. The Provisions Restricting The Filing Of Second Or Successive PetitionsIn Amended 28 U.S.C. 2244(b) Do Not Apply To Petitioner's Third AmendedPetition

As amended by AEDPA, 28 U.S.C. 2244(b) imposes limitations on the filingof a "second or successive habeas corpus application." Those limitationsinclude both substantive standards that determine when a claim presentedin a second or successive application may form the basis for habeas relief,Section 2244(b)(1) and (2), and a procedural gatekeeping provision thatrequires authorization by a court of appeals before a second or successiveapplication may be filed in a district court, Section 2244(b)(3). See Felkerv. Turpin, 518 U.S. 651, 656-657 (1996). The question here is whether theproceedings on appeal, which were initiated after the effective date ofAEDPA, are controlled by Section 2244(b). We believe that they are not.Unlike the COA provisions, which are exclusively concerned with initiatingan appellate case, the provisions in Section 2244(b) affect the entire courseof the collateral relief proceedings, including the prisoner's ability tofile his petition for collateral relief in the district court. See Felker,518 U.S. at 662-663. Accordingly, when a habeas petition is filed beforethe effective date of AEDPA, none of Section 2444(b) is applicable to it.That is true even when the habeas petitioner seeks leave to appeal afterthe effective date of AEDPA. To hold otherwise would mean that the districtcourt's determination of the case would be governed by pre-AEDPA law, underLindh, but the appellate court would review the district court's decisionunder the different legal standards of AEDPA. That result would essentiallynullify Congress's intention to apply Chapter 153 only to habeas cases thatwere not pending at the time of AEDPA's enactment. In contrast, when a habeaspetitioner seeks to initiate a second or successive habeas application afterAEDPA's effective date, that habeas "case" is controlled by Section2244(b).
Here, petitioner's case was "pending" once he filed his petitionfor collateral relief in the district court on May 30, 1995. See Ex parteQuirin, supra; Ex parte Milligan, 71 U.S. (4 Wall.) 2, 112-113 (1866) (causecommences when habeas petition is filed); 28 U.S.C. 2254(e)(1) (discussing"a proceeding instituted by an application for a writ of habeas corpus");28 U.S.C. 1914(a) (requiring the filing fee for "instituting any civilaction" to be paid "on application for a writ of habeas corpus").That view is consistent with ordinary civil practice, see Fed. R. Civ. P.3 ("A civil action is commenced by filing a complaint with the court."),which informs proper procedure in habeas cases. See Rule 11 of the RulesGoverning Section 2254 Cases. And the majority of the courts of appealslook to the date on which the petition was filed in district court to determinewhether AEDPA applies.6
Because petitioner's case in district court was pending when AEDPA was enacted,the negative implication of Section 107(c) recognized in Lindh, supra, dictatesthat amended 28 U.S.C. 2244(b) does not apply to petitioner's third amendedhabeas petition. Respondents (Supp. Br. 9) suggest that a different resultis warranted because the third amended petition was filed after AEDPA'senactment. Respondents (id. at 15) and their amici States (Br. Amici CuriaeStates of Cal. et al. at 8, 11 (June 23, 1999)) argue that this Court shouldconstrue "case" as used in Section 107(c) and Lindh in a "claim-specificfashion," so that pre-AEDPA law applies to claims pending on AEDPA'senactment, and AEDPA governs claims presented after its enactment. We donot agree.
The suggestion that a "claim" is a "case" finds no supportin the ordinary meaning of the word "case." In ordinary usage,"case" refers to a judicial proceeding rather than a specificpleading or claim in that proceeding. See p. 9, supra (citing dictionarydefinitions for "case"). This Court has construed "case"in precisely that manner. See Hohn, 524 U.S. at 241 ("a proceedingseeking relief for an immediate and redressable injury"); Blyew, 80U.S. (13 Wall.) at 595 ("a proceeding in court, a suit, or action").
The suggestion is also inconsistent with Congress's use of the words "case"and "claim" in other provisions of AEDPA. See, e.g., 28 U.S.C.2244(b) and (d)(1); 28 U.S.C. 2254(d) and (e)(2); 28 U.S.C. 2255; 28 U.S.C.2261(a), (d) and (e); 28 U.S.C. 2262(c); 28 U.S.C. 2264; 28 U.S.C. 2265(b) and (c); 28 U.S.C. 2266(b)(1). When Congress used "case" inother provisions of AEDPA, Congress used that word in its ordinary sense,to refer to a judicial proceeding or action. See, e.g., 28 U.S.C. 2244(b)(2)(A)("a new rule of constitutional law, made retroactive to cases on collateralreview by the Supreme Court"); 28 U.S.C. 2261(e) ("a capital case");28 U.S.C. 2262(c) ("no Federal court thereafter shall have the authorityto enter a stay of execution in the case"); 28 U.S.C. 2265(c) ("casesinvolving a sentence of death"); 28 U.S.C. 2266(b)(1)(B) (if necessary,district court shall afford a hearing before "submission of the casefor decision"). Congress used the word "claim," however,to refer to a legal basis for relief within a case. See, e.g., 28 U.S.C.2244(b)(1) and (2) ("[a] claim presented in a second or successivehabeas corpus application"); 28 U.S.C. 2254(e)(2) (if applicant "failedto develop the factual basis of a claim in State court proceedings,"court shall not hold an evidentiary hearing unless specified conditionsare met). If Congress had meant AEDPA's application to turn on whether aparticular claim was pending on enactment rather than on whether the habeasproceeding was pending, Congress presumably would have used "claim"rather than "case" in Section 107(c). Because it did not, Section107(c)'s negative implication applies to a habeas "case," nota habeas "claim."
Finally, respondents' interpretation of "case" is inconsistentwith traditional habeas practice. Courts have not viewed amendments to pendinghabeas petitions as new cases subject to the limitations on second or successivepetitions, but instead have permitted amendments under Federal Rule of CivilProcedure 15. See Johnson v. United States, No. 97-2519, 1999 WL 1022126,*3 (7th Cir. Nov. 10, 1999); Bonin v. Calderon, 59 F.3d 815, 845-846 (9thCir. 1995), cert. denied, 516 U.S. 1051 (1996); see also Calderon v. Ashmus,523 U.S. 740, 750 (1998) (Breyer, J., concurring).7 In AEDPA, Congress implicitlyendorsed the traditional approach for non-capital cases when it subjectedonly amendments in capital cases under the new Chapter 154 to AEDPA's limitationson second or successive petitions. See 28 U.S.C. 2266(b)(3)(B).8 Moreover,district courts do not assign separate docket numbers when prisoners fileamendments to pending petitions, as this case illustrates. See p. 2, supra(all three amended petitions recorded under docket number assigned on filingof initial petition). Respondents and their amici have not identified, norhave we found, any court of appeals decision interpreting Section 107(c)and Lindh as they advocate.
Amici correctly point out that their theory would enable the courts to avoidsome anomalous results that might occur in cases in which a petition forcollateral relief was filed shortly before enactment of AEDPA and amendedthereafter. See Br. Amici Curiae States of Cal. et al. at 8-9 (June 23,1999). But bright-line rules often generate similar anomalies, and courtsshould not seek to avoid them by disregarding traditional principles ofstatutory construction. Moreover, any anomalies that might occur here wouldbe transitory and would end with the disposal of those petitions pendingwhen AEDPA was enacted. And respondents' approach has its own practicalflaw: it would require district courts to apply different versions of thesame provisions of law to different claims in the same case, an administrativelyburdensome task that Congress should not lightly be presumed to have imposed.9
If the Court concludes that the COA requirement of AEDPA applies to petitioner'sproceedings in the court of appeals but amended Section 2244(b) does notapply, the Court will then be presented with the question whether a COAmay issue. We now turn to that question.10


II. A COA MAY NOT ISSUE UNLESS REASONABLE JURISTS COULD CONCLUDE BOTH THATTHE HABEAS PETITION IS NOT BARRED BY ABUSE OF THE WRIT AND THAT IT PRESENTSA CONSTITUTIONAL CLAIM ON WHICH PETITIONER COULD PREVAIL

Under AEDPA, a court may issue a COA only if an applicant makes "asubstantial showing of the denial of a constitutional right." 28 U.S.C.2253(c)(2). Consistent with pre-AEDPA law, a substantial showing requiresan applicant to demonstrate that his right to relief on a claim in his habeaspetition (including his ability to overcome any procedural obstacle to relief)is "debatable among jurists of reason." Lozada v. Deeds, 498 U.S.430, 432 (1991) (per curiam). In a departure from pre-AEDPA law, the COArequirement permits appeal only when the showing is made as to a "constitutionalright" rather than a "federal right." See Barefoot v. Estelle,463 U.S. 880, 893 (1983).

1. The reference to a "constitutional" right in Section 2253(c)(2)requires that the underlying petition for collateral relief raise a constitutionalclaim, rather than a claim based on a federal statute or treaty, the othertwo bases for habeas relief, see 28 U.S.C. 2254(a). Young v. United States,124 F.3d 794, 798-799 (7th Cir. 1997), cert. denied, 524 U.S. 928 (1998);Murphy v. Netherland, 116 F.3d 97, 99-100 (4th Cir.), cert. denied, 521U.S. 1144 (1997).11 The elimination of statutory and treaty-based claimsfrom the appellate process is consistent with AEDPA's general purpose ofstreamlining habeas corpus review and with the certificate requirement'slongstanding purpose of rooting out frivolous appeals. See 141 Cong. Rec.S4590-S4593 (daily ed. Mar. 24, 1995) (Sen. Specter); 141 Cong. Rec. H1400(daily ed. Feb. 8, 1995) (Rep. McCollum); id. at H1402 (Rep. Young); Barefoot,463 U.S. at 892, 893 n.3. Although some habeas petitions have invoked treaties,e.g., Breard v. Greene, 523 U.S. 371 (1998), or federal statutes, e.g.,Reed v. Farley, 512 U.S. 339 (1994), collateral relief for non-constitutionalviolations is available only to rectify a "complete miscarriage ofjustice" or an "omission inconsistent with the rudiment[s] offair procedure." See Reed, 512 U.S. at 348. Because few statutory ortreaty claims meet that demanding standard, appeals raising those claimsare unlikely to succeed. See Young, 124 F.3d at 799.

2. The requirement in Section 2253(c)(2) that the prisoner's showing be"substantial" means that his right to prevail on the claim mustbe "debatable among jurists of reason." See Barefoot, 463 U.S.at 893 n.4; Lozada, 498 U.S. at 432. An applicant cannot make that showingif there is a clear procedural obstacle to his right to relief, even ifthere is merit to his underlying claim. Thus, when there may be a proceduralbar to recovery, an applicant for a certificate must demonstrate that boththe merits of his underlying claim and his ability to overcome the proceduralobstacle are subject to reasonable debate. See, e.g., Morris v. Horn, 187F.3d 333, 340 (3d Cir. 1999); Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.1997).
Congress could not have intended to permit appeals based solely on the abstractmerit of an underlying claim if relief on that claim would clearly be procedurallybarred. To allow such appeals would frustrate the certificate's core purposeof curbing meritless appeals. Therefore, before and after AEDPA, courtsof appeals have held that a prisoner may not obtain appellate review ofthe merits of a petition for collateral relief unless it is at least arguablethat he can overcome procedural obstacles to relief. See Murphy v. Netherland,116 F.3d at 101; Tucker v. Johnson, 115 F.3d 276, 281 (5th Cir.), cert.denied, 522 U.S. 1017 (1997); Murphy v. Johnson, 110 F.3d at 11; Hogan v.Zavaras, 93 F.3d 711, 712 (10th Cir. 1996); Sterling v. Scott, 57 F.3d 451,453 (5th Cir. 1995), cert. denied, 516 U.S. 1050 (1996). We are aware ofno decision to the contrary.

3. Several courts of appeals have held, however, that they may review aprocedural ruling denying collateral relief without a showing that an underlyingconstitutional claim has potential merit. See, e.g., Gaskins v. Duval, 183F.3d 8, 9 n.1 (1st Cir. 1999); Thomas v. Greiner, 174 F.3d 260 (2d Cir.1999); Nichols v. Bowersox, 172 F.3d 1068, 1070 n.2 (8th Cir. 1999) (enbanc); Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We do notbelieve that those decisions can be reconciled with the plain language ofSection 2253(c), which makes "a substantial showing of the denial ofa constitutional right" a prerequisite to an appeal from "thefinal order in a habeas corpus proceeding." 28 U.S.C. 2253(c) (emphasisadded). An erroneous procedural ruling by the habeas court, standing alone,does not meet that standard.12 Nor would review of a procedural ruling,absent the existence of a potentially meritorious underlying claim, accordwith the COA requirement's purpose of rooting out insubstantial appeals.There is no need to correct a district court's procedural error when thaterror prevents consideration of only meritless claims.
On the other hand, we do not agree with the view that a COA can never issuewhen a district court denies collateral relief on procedural grounds becausethat adverse procedural ruling does not deny any constitutional right. Resp.Supp. Br. 22-23; Br. Amicus Curiae States of Cal. et al. at 21 (June 23,1999). We are not aware of any court of appeals that has adopted that view.13Nor does the text of Section 2253(c) support it. Section 2253(c) requiresa "substantial showing of the denial of a constitutional right,"and a prisoner makes that showing if he demonstrates that his convictionor sentence may have been imposed in violation of the Constitution and thatthe district court may have erred in refusing him relief.
There is no evidence that Congress intended to preclude appellate reviewwhen a prisoner has a meritorious underlying constitutional claim, but thedistrict court has erroneously denied it on procedural grounds. Althoughthat limitation would reduce appeals, it would do so at the expense of meritoriousappeals. The goal of the certificate requirement, however, is to screenout "frivolous" appeals. See Barefoot, 463 U.S. at 892 & n.3;see also, e.g., 141 Cong. Rec. S4596 (daily ed. Mar. 24, 1995) (Sen. Hatch)("Habeas corpus reform must not discourage legitimate petitions thatare clearly meritorious and deserve close scrutiny."). Further, althougha prohibition on issuance of a COA when relief is denied on procedural groundswould not preclude all appellate review of procedural rulings (because thegovernment can appeal without obtaining a certificate, Fed. R. App. P. 22(b)(3)),it would increase the likelihood of divergent procedural rules among thedistrict courts. There is no warrant for attributing to Congress an intentionto foster disarray in the procedural rules governing habeas cases, giventhe interest in consistent disposition of those cases.
The COA standard that we espouse would mean that, in some cases, a courtof appeals, in deciding whether to issue a certificate, will have to passon questions that the district court has not addressed. For several reasons,however, that consideration does not warrant rejection of our proposed standard.First, an application to the court of appeals for a COA is not an appealfrom the district court's denial of a COA but an independent proceedingin the court of appeals. Viewed in that light, it is not anomalous for thecourt of appeals to address issues in the first instance.
Second, courts of appeals not infrequently must address issues that districtcourts have not discussed in written opinions. In fact, district courtssometimes summarily dismiss entire habeas petitions without written opinions.See 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practiceand Procedure § 15.2a, at 630 (3d ed. 1998) (noting that "some"courts of appeals require written opinions explaining summary dismissals).And, even though Federal Rule of Appellate Procedure 22(b) requires a districtcourt that denies an application for a COA to "state why a certificateshould not issue," the explanation may be brief and thus provide littleguidance to a court of appeals. See, e.g., J.A. 182-183.
Third, only in limited instances will a court of appeals, in passing onan application for a COA, in fact have to address the underlying claim raisedin a petition for collateral relief without any prior discussion of theclaim by the district court. The appellate court need do so only if (1)the district court has rejected the petition for collateral relief solelyon procedural grounds; (2) the district court has denied a COA solely onprocedural grounds, because it has concluded that the applicant's abilityto overcome the procedural obstacle is not even debatable; but (3) the courtof appeals disagrees with that conclusion, and therefore cannot itself disposeof the application for a COA on procedural grounds.



CONCLUSION

The Court should hold that petitioner is subject to the COA requirementsof amended 28 U.S.C. 2253(c) and therefore may not appeal from the districtcourt's dismissal of his habeas petition unless he obtains a COA. The Courtshould also hold that petitioner is not entitled to a COA unless reasonablejurists could conclude both that his habeas petition is not barred by abuseof the writ and that it presents a constitutional claim on which petitionercould prevail. The Court may wish to remand this case to the court of appealsfor application of that standard. Alternatively, the Court may wish to addressthe question on which it initially granted review in the course of decidingwhether reasonable jurists could reject the district court's finding ofabuse of the writ, and then dispose of the case accordingly.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney

DECEMBER 1999






1 Citations in this brief to sections of Title 28 of the United States Codeare to Supplement III 1997, unless otherwise indicated.

2 The Court has also applied those amendments, "insofar as just andpracticable, [to] all proceedings in appellate cases then pending."517 U.S. 1257 (1996). That action reflects the principle that new proceduralrules may generally be applied to pending litigation provided they wereenacted before the phase of the case to which they apply. See Landgraf v.USI Film Prods., 511 U.S. 244, 275 & n.29 (1994).

3 The application here, although handled under pre-AEDPA procedures requiringa certificate of probable cause, followed the same course: the court ofappeals assigned petitioner's application a separate docket number, distinctfrom his district court case, and entered judgment on that application.Compare p. 3, supra (No. 98-15943) with p. 2, supra (No. CV-N-95-00194-DWH).

4 Aside from the Eighth Circuit, the courts of appeals have not agreed withour view that the applicability of AEDPA's COA provisions depends on thedate on which the notice of appeal or application for a certificate wasfiled. Those courts have focused instead on the date when the underlyinghabeas case was filed. See, e.g., United States v. Kunzman, 125 F.3d 1363,1364 n.2 (10th Cir. 1997), cert. denied, 523 U.S. 1053 (1998); United Statesv. Skandier, 125 F.3d 178, 182 (3d Cir. 1997). As discussed above, thatview is incorrect because it fails to recognize the distinct "case"that is commenced when a habeas petitioner seeks to initiate proceedingsin the court of appeals. We note that the Eighth Circuit has declined toextend its holding in Tiedeman, which involved a state prisoner, to casesinvolving federal prisoners. See United States v. Navin, 172 F.3d 537 (1999).The court concluded that, because federal prisoners, unlike state prisoners,did not need authorization in order to appeal before enactment of AEDPA,applying the COA requirement to federal prisoners with petitions pendingin district court when AEDPA was enacted would present retroactivity concerns.Id. at 539. As we explain in the text following this note, application ofthe certificate requirement to prisoners who initiated appellate proceedingsafter AEDPA's enactment is not retroactive.

5 Cases holding that other, non-jurisdictional provisions of AEDPA, suchas 28 U.S.C. 2254(d), may be forfeited (e.g., Arnold v. Evatt, 113 F.3d1352, 1362 n.57 (4th Cir. 1997), cert. denied, 522 U.S. 1058 (1998); Emersonv. Gramley, 91 F.3d 898, 900 (7th Cir. 1996), cert. denied, 520 U.S. 1122,520 U.S. 1139 (1997)) do not alter that conclusion.

6 See, e.g., Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.), cert. denied,120 S. Ct. 502 (1999); Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999),petition for cert. pending, No. 98-10002; Williams v. Coyle, 167 F.3d 1036,1039-1040 (6th Cir. 1999); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.),cert. denied, 119 S. Ct. 2376 (1999); United States v. Marmolejos, 140 F.3d488, 489 n.1 (3d Cir. 1998); Pratt v. United States, 129 F.3d 54, 58 (1stCir. 1997), cert. denied, 523 U.S. 1123 (1998). Petitioner's case was notpending before his May 30 application was filed, even though he first fileda federal habeas petition in 1991, because the 1991 petition was dismissedbefore enactment of AEDPA. See, e.g., Libby v. Magnusson, 177 F.3d 43, 46(1st Cir. 1999); Graham, 168 F.3d at 782; Mancuso, 166 F.3d at 101. TheNinth Circuit has held that, in capital cases in which the prisoner movesfor appointment of counsel before filing a habeas petition, a case is pendingunder AEDPA Section 107(c) once the motion for counsel is filed. Calderonv. United States Dist. Court for the Cent. Dist. of Cal. (Kelly), 163 F.3d530, 540 (1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999). We disagreewith the Ninth Circuit that a motion for appointment of counsel commencesa habeas "case" within the meaning of Section 107(c), but thisCourt need not address that question here, because petitioner, who is nota capital prisoner, filed his habeas petition before he moved for counsel.See J.A. 35, 56.

7 By contrast, the abuse-of-the-writ standard has been held to apply oncethe court has disposed of the habeas petition; for example, to a motionto recall the mandate after judgment, see Calderon v. Thompson, 523 U.S.538, 553 (1998), and to a motion to amend judgment under Federal Rule ofCivil Procedure 60(b); see, e.g., In re Medina, 109 F.3d 1556, 1561 (11thCir.), cert. denied, 520 U.S. 1151 (1997). Although here the Ninth Circuitapplied the abuse-of-the-writ standard to some of the claims that petitioneradded in his third amended petition, the court did so not based on the factthat those claims were amendments to petitioner's May 30 petition, but basedon the fact that petitioner had filed a petition in 1991 that had been dismissedfor failure to exhaust state remedies. See p. 2, supra.

8 That provision states: "No amendment to an application for a writof habeas corpus under this chapter [154] shall be permitted after the filingof the answer to the application, except on the grounds specified in section2244(b)," the provision governing second and successive habeas applications.

9 One could arrive at an outcome similar to the one produced by the theoryof respondents and the amici States by reasoning that, although petitioner'scase was pending before enactment of AEDPA, that case includes only theclaims in the May 30, 1995, petition and any claims added by amendment that"relate[] back" to that filing under Federal Rule of Civil Procedure15(c). Under that reasoning, claims in the third amended petition that donot arise out of the "conduct, transaction, or occurrence" (ibid.)described in the May 30 petition are not part of the case pending beforeAEDPA's enactment; instead, they are a new case subject to the requirementsof amended Section 2244(b). That approach would be even more complex thanthe one proposed by respondents and the amici States, and it should likewisebe rejected. Section 107(c)'s reference to "cases pending" givesno indication that Congress intended the scope of those cases to be definedby Rule 15(c)'s relation back principle, which primarily applies in thestatute-of-limitations context. See Fed. R. Civ. P. 15(c)(1) (allowing relationback when "permitted by the law that provides the statute of limitationsapplicable to the action"); Fed. R. Civ. P. 15(c) Advisory CommitteeNotes On 1966 Amendment ("Relation back is intimately connected withthe policy of the statute of limitations."); Baldwin County WelcomeCtr. v. Brown, 466 U.S. 147, 150 n.3 (1984) ("The rationale of Rule15(c) is that a party who has been notified of litigation concerning a particularoccurrence has been given all the notice that statutes of limitations wereintended to provide.").

10 On the other hand, if the Court agrees with respondents and their amiciStates that amended Section 2244(b) applies, then presumably the gatekeepingprovision of that Section, under which second or successive habeas applicationsmay not be filed in district court without leave of the court of appeals,applies as well. See 28 U.S.C. 2244(b)(3)(A). Because of the prohibitionin 28 U.S.C. 2244(b)(3)(E) against certiorari review of gatekeeping decisions,it would not be appropriate for this Court to treat the court of appeals'disposition in this case as a gatekeeping determination. Rather, the Courtshould either remand the case to the court of appeals with instructionsto construe petitioner's notice of appeal as a gatekeeping motion, see,e.g., Pratt v. United States, 129 F.3d 54, 59 (1st Cir. 1997), cert. denied,523 U.S. 1123 (1998), or dismiss the petition for a writ of certiorari andallow petitioner to pursue any remedies he might have under Section 2244(b),such as formally filing a gatekeeping motion in the court of appeals. Inpassing on a gatekeeping motion, that court could decide whether petitioner'sclaims are "second or successive" within the meaning of Section2244(b). Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 641-642 (1998).

11 Some courts of appeals have suggested that the substitution of "constitutional"for "federal" was not intended to alter the pre-AEDPA standard.See, e.g., Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997); Lyonsv. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir.), cert. denied,520 U.S. 1224 (1997). The language of Section 2253(c)(2) makes that viewuntenable.

12 Conceivably, a procedural error of constitutional dimension in the habeasproceedings might constitute the denial of a "constitutional right."Although Section 2253(c) could be read to cover that situation, the normalfocus of a habeas petition, and any appeal, is on redressing the claimeddenial of rights in the underlying state criminal process.

13 Instead, appellate courts have continued to review procedural issues,sometimes explicitly holding that they have the power to do so, as in thecases we cite on pages 21-22, supra, and, at other times, implicitly assumingthat power, see, e.g., Breard v. Greene, 523 U.S. 371 (1998); Morris, 187F.3d at 340 (citing cases).







APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Docket No. 98-15943
ANTONIO TONTON SLACK, PETITIONER-APPELLANT

v.

E. K. MCDANIEL, ATTORNEY GENERAL OF
THE STATE OF NEVADA, RESPONDENT-APPELLEE*

DOCKET ENTRIES

_________________________________________________
DATE DOCKET PROCEEDINGS
NUMBERS
_________________________________________________
5/22/98 1 Filed request for a certificate of appealability. Date COA deniedin DC: 5/19/98. DC file included (y/n): yes (MOATT).
5/22/98 2 Rec'd original DC file in 2 vol pldgs to (MOATT). ( jr.)

_________________________________________________
DATE DOCKET PROCEEDINGS
NUMBERS
_________________________________________________
5/22/98 3 Rec'd (coa pending) certificate of record. RT filed in DC none.[98-15943] (jr)
6/29/98 5 Case to motions panel. [98-15943] (rc) [Entry date 07/07/98]
7/7/98 6 Order filed, the request for a COA is DENIED. (Procedurally TerminatedAfter Other Judicial Action; Certificate of Appealability. David R. THOMPSON;Edward LEAVY, author) [98-15943] (rc)
7/8/98 7 District court casefile returned. (ups) (stev)
10/13/98 8 Received notice from Supreme Court: petition for certiorari filedSupreme Court No. 98-6322 filed on 10/7/98. (Casefiles) [98-15943] (gva)[Entry date 10/15/98]






* So in original.

APPENDIX B

RELEVANT STATUTES AND RULES

1. Section 107(c) of the Antiterrorism and Effective Death Penalty Act of1996, Pub. L. No. 104-132, 110 Stat. 1226, provides:
Chapter 154 of title 28, United States Code (as added by subsection (a))shall apply to cases pending on or after the date of enactment of this Act.

2. Section 2244 of Chapter 153 of Title 28, United States Code (Supp. III1997), provides in relevant part:
* * * * *
(b)(1) A claim presented in a second or successive habeas corpus applicationunder section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus applicationunder section 2254 that was not presented in a prior application shall bedismissed unless-
(A) the applicant shows that the claim relies on a new rule of constitutionallaw, 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 discoveredpreviously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of theevidence as a whole, would be sufficient to establish by clear and convincingevidence that, but for constitutional error, no reasonable factfinder wouldhave found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this sectionis filed in the district court, the applicant shall move in the appropriatecourt of appeals for an order authorizing the district court to considerthe application.
(B) A motion in the court of appeals for an order authorizing the districtcourt to consider a second or successive application shall be determinedby a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successiveapplication only if it determines that the application makes a prima facieshowing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file asecond or successive application not later than 30 days after the filingof the motion.
(E) The grant or denial of an authorization by a court of appeals to filea second or successive application shall not be appealable and shall notbe the subject of a petition for rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or successiveapplication that the court of appeals has authorized to be filed unlessthe applicant shows that the claim satisfies the requirements of this section.
* * * * *
(d)(1) A 1-year period of limitation shall apply to an application for awrit of habeas corpus by a person in custody pursuant to the judgment ofa State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of directreview or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created byState action in violation of the Constitution or laws of the United Statesis removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognizedby the Supreme Court, if the right has been newly recognized by the SupremeCourt and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presentedcould have been discovered through the exercise of due diligence.
* * * * *

3. Section 2253(c) of Chapter 153 of Title 28, United States Code (Supp.III 1997), provides:
(1) Unless a circuit justice or judge issues a certificate of appealability,an appeal may not be taken to the court of appeals from -
(A) the final order in a habeas corpus proceeding in which the detentioncomplained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only ifthe applicant has made a substantial showing of the denial of a constitutionalright.
(3) The certificate of appealability under paragraph (1) shall indicatewhich specific issue or issues satisfy the showing required by paragraph(2).

4. Section 2254 of Chapter 153 of Title 28, United States Code (1994 &Supp. III 1997), provides in relevant part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a districtcourt shall entertain an application for a writ of habeas corpus in behalfof a person in custody pursuant to the judgment of a State court only onthe ground that he is in custody in violation of the Constitution or lawsor treaties of the United States.
* * * * *
(d) An application for a writ of habeas corpus on behalf of a person incustody pursuant to the judgment of a State court shall not be granted withrespect to any claim that was adjudicated on the merits in State court proceedingsunless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonableapplication of, clearly established Federal law, as determined by the SupremeCourt of the United States; or
(2) resulted in a decision that was based on an unreasonable determinationof the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeascorpus by a person in custody pursuant to the judgment of a State court,a determination of a factual issue made by a State court shall be presumedto be correct. The applicant shall have the burden of rebutting the presumptionof correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claimin State court proceedings, the court shall not hold an evidentiary hearingon the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateralreview by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discoveredthrough the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clearand convincing evidence that but for constitutional error, no reasonablefactfinder would have found the applicant guilty of the underlying offense.
* * * * *

5. Section 2255 of Chapter 153 of Title 28, United States Code (Supp. III1997), provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congressclaiming the right to be released upon the ground that the sentence wasimposed in violation of the Constitution or laws of the United States, orthat the court was without jurisdiction to impose such sentence, or thatthe sentence was in excess of the maximum authorized by law, or is otherwisesubject to collateral attack, may move the court which imposed the sentenceto vacate, set aside or correct the sentence.
* * * * *
A 1-year period of limitation shall apply to a motion under this section.The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmentalaction in violation of the Constitution or laws of the United States isremoved, if the movant was prevented from making a motion by such governmentalaction;
(3) the date on which the right asserted was initially recognized by theSupreme Court, if that right has been newly recognized by the Supreme Courtand made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presentedcould have been discovered through the exercise of due diligence.
* * * * *
A second or successive motion must be certified as provided in section 2244by a panel of the appropriate court of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in light of theevidence as a whole, would be sufficient to establish by clear and convincingevidence that no reasonable factfinder would have found the movant guiltyof the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateralreview by the Supreme Court, that was previously unavailable.

6. Section 2261 of Chapter 154 of Title 28, United States Code (Supp. III1997), provides in relevant part:
(a) This chapter shall apply to cases arising under section 2254 broughtby prisoners in State custody who are subject to a capital sentence. Itshall apply only if the provisions of subsections (b) and (c) [establishingprocedures for appointment of counsel in State post-conviction proceedings]are satisfied.
* * * * *
(d) No counsel appointed pursuant to subsections (b) and (c) to representa State prisoner under capital sentence shall have previously representedthe prisoner at trial or on direct appeal in the case for which the appointmentis made unless the prisoner and counsel expressly request continued representation.
(e) The ineffectiveness or incompetence of counsel during State or Federalpost-conviction proceedings in a capital case shall not be a ground forrelief in a proceeding arising under section 2254. * * *

7. Section 2262(c) of Chapter 154 of Title 28, United States Code (Supp.III 1997), provides in relevant part:
If one of the conditions in subsection (b) [specifying circumstances underwhich a stay of execution shall expire] has occurred, no Federal court thereaftershall have the authority to enter a stay of execution in the case, unlessthe court of appeals approves the filing of a second or successive applicationunder section 2244(b).

8. Section 2264 of Chapter 154 of Title 28, United States Code (Supp. III1997), provides:
(a) Whenever a State prisoner under capital sentence files a petition forhabeas corpus relief to which this chapter applies, the district court shallonly consider a claim or claims that have been raised and decided on themerits in the State courts, unless the failure to raise the claim properlyis-
(1) the result of State action in violation of the Constitution or lawsof the United States;
(2) the result of the Supreme Court's recognition of a new Federal rightthat is made retroactively applicable; or
(3) based on a factual predicate that could not have been discovered throughthe exercise of due diligence in time to present the claim for State orFederal post-conviction review.
(b) Following review subject to subsection (a), (d), and (e) of section2254, the court shall rule on the claims properly before it.

9. Section 2265 of Chapter 154 of Title 28, United States Code (Supp. III1997), provides in relevant part:
(a) For purposes of this section, a "unitary review" proceduremeans a State procedure that authorizes a person under sentence of deathto raise, in the course of direct review of the judgment, such claims ascould be raised on collateral attack. * * *
* * * * *
(b) * * * No counsel appointed to represent the prisoner in the unitaryreview proceedings shall have previously represented the prisoner at trialin the case for which the appointment is made unless the prisoner and counselexpressly request continued representation.
(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation to casesinvolving a sentence of death from any State having a unitary review procedurethat qualifies under this section. * * *

10. Section 2266 of Chapter 154 of Title 28, United States Code (Supp. III1997), provides in relevant part:
* * * * *
(b)(1)(A) A district court shall render a final determination and entera final judgment on any application for a writ of habeas corpus broughtunder this chapter in a capital case not later than 180 days after the dateon which the application is filed.
(B) A district court shall afford the parties at least 120 days in whichto complete all actions, including the preparation of all pleadings andbriefs, and if necessary, a hearing, prior to the submission of the casefor decision.
* * * * *
(3) * * *
(B) No amendment to an application for a writ of habeas corpus under thischapter shall be permitted after the filing of the answer to the application,except on the grounds specified in section 2244(b).

11. Rule 22(b) of the Federal Rules of Appellate Procedure provides:
(1) In a habeas corpus proceeding in which the detention complained of arisesfrom process issued by a State court, or in a 28 U.S.C. § 2255 proceeding,the applicant cannot take an appeal unless a circuit justice or a circuitor district judge issues a certificate of appealability under 28 U.S.C.§ 2253(c). If an applicant files a notice of appeal, the district judgewho rendered the judgment must either issue a certificate of appealabilityor state why a certificate should not issue. The district clerk must sendthe certificate or statement to the court of appeals with the notice ofappeal and the file of the district-court proceedings. If the district judgehas denied the certificate, the applicant may request a circuit judge toissue the certificate.
(2) A request addressed to the court of appeals may be considered by a circuitjudge or judges, as the court prescribes. If no express request for a certificateis filed, the notice of appeal constitutes a request addressed to the judgesof the court of appeals.
(3) A certificate of appealability is not required when a State or its representativeor the United States or its representative appeals.

12. Section 1914(a) of Title 28, United States Code (Supp. III 1997), provides:
The clerk of each district court shall require the parties instituting anycivil action, suit or proceeding in such court, whether by original process,removal or otherwise, to pay a filing fee of $150, except that on applicationfor a writ of habeas corpus the filing fee shall be $5.

13. Rule 11 of the Rules Governing Section 2254 Cases in the United StatesDistrict Courts provides:
The Federal Rules of Civil Procedure, to the extent that they are not inconsistentwith these rules, may be applied, when appropriate, to petitions filed underthese rules.

14. Rule 3 of the Federal Rules of Civil Procedure provides:
A civil action is commenced by filing a complaint with the court.

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