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Federal Habeas Corpus: Jurisdictional Pitfalls When Seeking Habeas Relief

by Dale Chappell

Jurisdiction has many meanings, but in federal habeas corpus, it refers to the federal court’s authority to grant relief. While there’s all sort of “shalls” and “musts” in the federal habeas statutes, not all of them are jurisdictional bars to relief. In fact, most of these directives can be waived or ignored to allow relief, though a few are fatal. Let’s examine the differences.

Filing a Federal Habeas Petition in the Correct Court is Jurisdictional

It’s clear under 28 U.S.C. § 2255 that a federal prisoner’s motion is filed in the sentencing court. But for state prisoners, there are some options when filing for federal habeas relief under § 2254. Section 2241(d) says that a state with “two or more federal judicial districts” allows a state prisoner to file a habeas petition in any district court within those districts. Bridges v. Chambers, 425 F.3d 1048 (7th Cir. 2005). In reality, though, state prisoners usually file in the federal court closest to the state trial court.

This choice of court, or “venue,” is not an absolute jurisdictional bar for state prisoners. Instead, this jurisdictional requirement is more like “personal” jurisdiction, which can be waived or forfeited by the State. Rumsfeld v. Padilla, 542 U.S. 426 (2004). However, federal prisoners must file in the sentencing court, which is an absolute bar to relief since it’s mandated in the statute.

Being in Custody Is a Jurisdictional Requirement for Federal Habeas Relief

For both state and federal prisoners, the habeas statutes say that a federal court cannot entertain a habeas petition unless the petitioner is “in custody.” The Supreme Court has said that this “in custody” requirement implicates subject-matter jurisdiction, which is an absolute bar to relief because that type of jurisdiction establishes whether the court can hear the case at all. Maleng v. Cook, 490 U.S. 488 (1989).

But custody doesn’t mean physically locked up in prison. The Supreme Court defined “custody” for habeas purposes as being “subject to restraints not shared by the public generally.” Hensley v. Mun. Ct., 411 U.S. 345 (1973). Being on probation or supervised release constitutes “custody” and so does being on the sex-offender registry or being civilly committed in some states. See Piasecki v. Ct. of Common Pleas, 917 F.3d 161 (3d Cir. 2018) (Pennsylvania’s sex-offender registry conditions constitute custody for habeas purposes); Rubio v. Davis, 907 F.3d 860 (5th Cir. 2018) (civil commitment is custody for habeas purposes).

If a petitioner is released from custody while the habeas petition is pending, it theoretically could become moot, since the relief sought (usually release from prison) cannot be granted. But an unlawful conviction carries “collateral consequences,” such as problems with employment, housing, and the risk of an enhanced sentence for a future conviction. Carafas v. Lavallee, 391 U.S. 234 (1968). This can be enough to require a court to follow through with a federal habeas case even if the petitioner is released.

A habeas petitioner is also considered “in custody” for any future, consecutive sentence he wants to challenge, even though he’s not technically in custody under that sentence yet. The same is true for a challenge to an expired sentence that could affect the release date of the current sentence. Peyton v. Rowe, 391 U.S. 54 (1968); DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005).

Naming the Correct Respondent in a Habeas Petition Is Jurisdictional

Courts have dismissed habeas petitions simply because the petitioner named the wrong respondent. Rule 2(a) of the Rules Governing Section 2254 Proceedings says that “the petition must name as respondent the state officer who has custody” of the petitioner. The courts say this must be the person who can receive “service of process” in a habeas case. Often, this is not the warden.

For example, state prisoners in Florida filing for habeas relief in federal court name the “Secretary of Department of Corrections” as the respondent, not the warden. However, federal prisoners relying on classic habeas corpus under § 2241 must name the warden as respondent, and if they move, the respondent changes to the new warden.

If a state prisoner is challenging future state custody, Rule 2(b) explains who the respondents should be:

*If a petitioner is not yet in custody—but may be subject to future custody—under the state-court judgment being contested, the petition must name as respondents both the officer who has current custody and the attorney general of the state where the judgment was entered.

*If a state prisoner gets transferred while the habeas petition is pending, then the respondent changes to the new custodian—if there is a new one. It seems that naming the “attorney general” as a respondent, without actually using the person’s name, has been sufficient under Rule 2(b).

*If a federal prisoner gets transferred while his § 2241 habeas petition is pending (not the § 2255 motion), the name of the new warden is substituted as the respondent. This is usually done by the Government, not the petitioner.

In any case where the transfer removes the petitioner from the federal court’s territorial jurisdiction, the court retains jurisdiction if it still has jurisdiction over the respondent. In In re Hall, 988 F.3d 376 (7th Cir. 2021), the court ruled that a federal habeas court retains jurisdiction as long as it “may direct the writ [of habeas corpus relief] to any respondent within its jurisdiction who has legal authority to effectuate the prisoner’s release.” This will often be true for federal prisoners because the Government can release a federal prisoner from any institution across the country. But for state prisoners, a transfer to another state or judicial district might require the transfer of the habeas case to the new federal district court. See 28 U.S.C. § 1631.

The Supreme Court has held that naming the proper respondent in a federal habeas petition is more “like personal jurisdiction” and therefore not an absolute jurisdictional bar, like it would be with subject-matter jurisdiction. Personal jurisdiction can be waived or forfeited by the Government, whereas subject-matter jurisdiction cannot. See Smith v. Idaho, 392 F.3d 350 (9th Cir. 2004) (allowing the State to waive naming wrong respondent in a habeas case).

Filing the Habeas Petition Invokes the Federal Court’s Jurisdiction

Almost every federal court has held that the court lacks jurisdiction to do anything with a habeas case until the petition is actually filed. This often happens when petitioners request an extension of time with the one-year deadline coming up. The courts say they can’t grant an extension for a case that’s not even pending. United States v. Leon, 203 F.3d 162 (2d Cir. 2000); but see United States v. Thomas, 713 F.3d 165 (3d Cir. 2013) (§ 2255 is continuation of criminal case to allow extension of time before motion filed).

Certain Procedures for a Habeas Appeal Are Jurisdictional

Under Federal Rule of Appellate Procedure 4(a), a state prisoner has 30 days to file a notice of appeal in a habeas case, and a federal prisoner has 60 days. This statute of limitations is grounded in a federal statute, 28 U.S.C. § 2107(a), and the courts say this makes it jurisdictional. Bowles v. Russell, 551 U.S. 205 (2007). Even being late by a single day is too late. Bilal v. Rewarts, 2019 U.S. App. LEXIS 22196 (6th Cir. July 24, 2019).

The certificate of appealability (“COA”) requirement, under 28 U.S.C. § 2253(c)(1), says that “an appeal may not be taken” unless a COA is issued. However, the Supreme Court has held that the lack of a COA only bars a Court of Appeals from ruling on the merits of a habeas appeal but doesn’t entirely preclude an appeal. Miller-El v. Cockrell, 537 U.S. 322 (2003).

Meeting the Requirements to File a Second or Successive Habeas Petition Is Jurisdictional

Filing a second or successive (“SOS”) habeas petition requires authorization by the Court of Appeals for both state and federal prisoners. §§ 2244(b)(3), 2255(h). However, courts have held that this jurisdictional bar is not for the entire petition but only for each claim in the petition. For example, in United States v. Sumner, 2022 U.S. Dist. LEXIS 58700 (D.D.C. Mar. 30, 2022), the district court found that only one of the two claims had been authorized by the Court of Appeals and dismissed the claim added after the Court of Appeals’ authorization, saying it lacked jurisdiction to hear that claim.

Things That Seem Jurisdictional in Federal Habeas Corpus but Aren’t

Some things about federal habeas corpus had initially seemed jurisdictional after the Antiterrorism and Effective Death Penalty Act (“AEDPA”), but the federal courts eventually decided they aren’t. Prior to the AEDPA, the Supreme Court in Rose v. Lundy, 455 U.S. 509 (1982), created the “total exhaustion” rule, requiring state prisoners to take their claims to state court before going to federal court. The AEDPA later codified this rule in § 2254(b), and courts initially said the AEDPA made the exhaustion rule a jurisdictional bar. But the Supreme Court clarified in Rhines v. Weber, 544 U.S. 269 (2005), that this isn’t a jurisdictional bar and that federal courts could stay a habeas case to allow a petitioner to exhaust state-court remedies.

The AEDPA’s one-year time limits for filing a federal habeas petition are also not jurisdictional. In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court said that the word “shall” in the habeas statute of limitations isn’t jurisdictional and may be waived or forfeited by the Government. §§ 2244(d), 2255(f).

Criminal cases pending on direct appeal also don’t deprive a district court of jurisdiction to hear a habeas petition. The Advisory Committee Notes to Rule 5 of the Rules Governing Section 2255 Proceedings clarified that “there is no jurisdictional bar to the district court’s entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances.”

So while it may be premature for a federal prisoner to file a § 2255 motion during a direct appeal, the district court has the authority to hear such a motion in the right situation.

Conclusion

Jurisdictional bars in federal habeas corpus can be like handling snakes: some can kill you, and some might only hurt a little. Knowing the difference between the two can lead to a better outcome in both situations. 

Dale Chappell has hundreds of published articles on federal habeas corpus and is the author of the Insider’s Guide series of post-conviction books, including Federal Habeas Corpus for State Prisoners and Habeas Corpus for Federal Prisoners.

 

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Related legal cases

Piasecki v. Ct. of Common Pleas

Rubio v. Davis

United States v. Thomas

Smith v. Idaho

 

 

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