by Dale Chappell

In the name of finality, federal courts are reluctant to undo criminal judgments of the state courts—especially repeated attempts by petitioners to do so under federal habeas corpus. When the Antiterrorism and Effective Death Penalty Act (“AEDPA”) came along in 1996, codifying longstanding rules prohibiting multiple attempts at habeas relief, Congress slammed the door shut for nearly all petitions filed after a first habeas petition is denied. We’ll briefly go over what it takes to get another “bite at the apple” in the federal habeas court.

What Is a Second or Successive Habeas Petition?

Before we get into what a second or successive habeas corpus petition (“SOS petition”) is, let’s talk about what it’s not. Not every habeas petition by a state prisoner under 28 U.S.C. § 2254 after a first petition is denied will be a SOS petition. In Magwood v. Patterson, 561 U.S. 320 (2010), the U.S. Supreme Court held that a habeas petition that attacks a new judgment is not a SOS petition. This means that if you had a successful habeas petition earlier, a petition attacking the new criminal judgment would not be a SOS petition.

However, the courts are split over whether a petition attacking the new judgment can also raise issues that had existed at the time of the first petition. Some courts allow an attack on not only the new judgment, but also any errors that existed at the time of the old judgment. See Insignares v. Sec’y Dept. of Corr., 755 F.3d 1273 (11th Cir. 2014).

If the court dismissed your first petition without prejudice, then another petition raising the same claims would not be an SOS petition. The term “without prejudice” simply means that there’s nothing against you filing another petition. A good example of this kind of dismissal happens when a state prisoner fails to exhaust post-conviction remedies in state court prior to filing a habeas petition in federal court. A state prisoner is required to exhaust any avenues in state court first. If not, then the federal petition is dismissed without prejudice to allow the petitioner to come back with the same petition once state remedies are completed.

Certain claims might not have been “ripe” at the time when the first habeas petition was filed and may be raised in another petition once ripe. An example of this would be a claim where a state prisoner serving a death sentence raises a claim that his mental condition has deteriorated over the years and he’s now unable to be executed. In In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court held that it’s unconstitutional to execute the “insane.” The Court then held in Panetti v. Quarterman, 551 U.S. 930 (2007), that a Ford claim is not an SOS petition, because a petitioner could not have known at the time of the first petition that he would become incompetent enough not to be executed.

So, what is a “second or successive” petition? The term “second or successive” may seem redundant, but it’s actually two legal terms with different meanings. The term “second” is another form of “abuse of the writ,” which occurs when a petitioner should have raised the claim earlier but did not. This was once used as a tactic to keep the habeas option open if the original petition failed to bring relief. The term “successive” refers to a petition that has the same claims as an earlier petition that was denied. See Kuhlman v. Wilson, 477 U.S. 436 (1986), for a good explanation of this.

Authorization to File an SOS Petition Is Jurisdictional

The AEDPA added a provision to the federal habeas statutes that any SOS petition must be authorized by the applicable Court of Appeals before it’s filed in the District Court: “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

This provision is a jurisdictional bar preventing the district court from even hearing your SOS petition. “A district court, faced with an unapproved second or successive habeas petition, must either dismiss it or transfer it to the appropriate court of appeals.” Pratt v. United States, 129 F.3d 54 (1st Cir. 1997).

Use the Form Provided and Attach Your Petition

Every Court of Appeals uses a form for requesting permission to file a second or successive habeas petition, and it’s provided by the clerk at no cost. This form is actually the “motion” that is filed to invoke the provisions under § 2244. Its purpose is for the court to screen your request, without having to dig through a long motion drafted from scratch. Some courts have local rules that require use of the form, and some say it’s fine to forgo the form if you follow the same format with your own motion.

Even if it’s not required, it’s a good idea to attach your proposed SOS petition for the District Court to your form filed in the Court of Appeals. Anything you file with your application may be considered by the court in support of authorizing a SOS petition.

When Is an SOS Habeas Petition Considered ‘Filed?’

Most courts consider your SOS petition “filed” when you file your motion in the Court of Appeals for authorization. In Gilmore v. Berghuis, 2015 U.S. App. LEXIS 4501 (6th Cir. Jan. 30, 2015) (unpublished), the Court provided some valid reasons why attaching your proposed SOS petition to the form is a very good idea. In that case, the government argued the form wasn’t the actual petition, and so, it wasn’t “filed” until the approved petition was filed in the District Court. Pointing to 28 U.S.C. § 2242, the Court disagreed and said that a habeas petition is considered “filed” when it is addressed to a judge on the Court of Appeals with an explanation of why it couldn’t have been filed in the District Court. The form provided that explanation, and so, the attached petition was filed when the application was filed.

But in Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002), the Fifth Circuit ruled that the form filed in the Court of Appeals is not the “motion” required by the statute, and therefore, the actual petition wasn’t “filed” until it was in the District Court. Note that it’s the rule in the Fifth Circuit that the proposed SOS petition is attached to the form filed in the Court of Appeals. See In re Epps, 127 F.3d 364 (5th Cir. 1997).

There’s a Time Limit to File an SOS Habeas Petition

Under the AEDPA, there’s a one-year time limit for any habeas petition filed by a state prisoner. § 2244(d). This includes any SOS petition authorized by the Court of Appeals. But unless the petition, if authorized, would “clearly” be out of time, most courts say it’s best left up to the District Court to determine the timeliness of an SOS petition. See In re McDonald, 514 F.3d 539 (6th Cir. 2008).

An SOS Habeas Petition Is Screened by Both Courts

Your request to file an SOS petition in the District Court gets screened by both the Court of Appeals and the District Court to determine whether it meets the strict criteria to file such a petition. First, the Court of Appeals is required to dismiss any claims that were “presented in a prior application.” § 2244(b)(1). For any new claims, the court determines whether the motion makes a prima facie showing that it meets the SOS criteria under § 2244(b)(2) (see below). This determination is made by a panel of three judges and “not later than 30 days.” § 2244(b)(3)(C)-(E). However, the 30-day limit is not a hard rule, and courts frequently go beyond that deadline. Ezell v. United States, 778 F.3d 762 (9th Cir. 2015).

Criteria for Filing an SOS Habeas Petition

There are two narrow circumstances that allow the filing of an SOS petition in the District Court, and there haven’t been any exceptions to this in the more than 25 years the AEDPA has existed. The first circumstance allows a claim that “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2244(b)(2)(A). There are two parts to this requirement. First, it has to be a new constitutional decision by the Supreme Court that is substantive. This would be a ruling that declares part of a criminal law unconstitutional and now prohibits certain people from being punished by that law. Johnson v. United States, 576 U.S. 591 (2015), is an example of such a case.

In the second circumstance, the Supreme Court itself has to make its decision retroactive on collateral review. While the Court hardly ever says when its decision is retroactive, if it applies the decision to a collateral review case, it’s considered retroactive. See Tyler v. Cain, 533 U.S. 656 (2001).

Section 2244(b)(2)(B) allows a claim where: “The factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and 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.”

In other words, you have to provide new evidence that you could not have found earlier through reasonable means and that would convince the court by more than a 50/50 chance that you’re not guilty of the offense. A recent case provides some instruction on how all of this would work where the prosecutor withheld crucial evidence that would have undermined the jury’s finding of guilt. In re Jackson, 12 F.4th 604 (6th Cir. 2021). Note that this was the petitioner’s fourth attempt at federal habeas relief. Never give up!

Erroneous Transfer of a Non-SOS Habeas Petition

If you filed a habeas petition in the District Court and it transferred it to the Court of Appeals for authorization as an SOS petition, you don’t appeal the District Court’s transfer. Instead, you must file in the Court of Appeals where the petition was transferred to a “motion to remand,” asking the court to send your petition back to the District Court because it’s not an SOS petition.

Appealing the Denial of an SOS Habeas Petition

If your application to file an SOS petition was denied by the Court of Appeals, you may not appeal that decision, nor can you file a motion for a rehearing. § 2244(b)(3)(E). However, you can “suggest” that the Court rehear its denial, since the Court has the power to do this on its own. See In re Johnson, 814 F.3d 1259 (11th Cir. 2016).

If your application was approved and then the District Court denied relief, even if that court says you couldn’t meet the SOS criteria, you file an appeal the same way you would for any first habeas petition. Once your petition is approved by the Court of Appeals, it’s a normal habeas petition, and all the same rules apply.

Conclusion

Filing a second or successive habeas petition in federal court is not an easy task. There are lots of steps to take, and one wrong step can prevent the chance for any relief, regardless of how strong your claims may be. Take some time to understand these steps, so you have the best possible chance of obtaining relief.  

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