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When is a habeas petition “second or successive”?

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court cleared out both of last week’s new relists with dispatch. The court granted cert in Federal Bureau of Investigation v. Fazaga, 20-828, involving whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978, which creates procedures for people to seek to suppress FISA evidence that will be introduced against them, displaces the common-law state-secrets privilege. The court has granted relatively few cases for next term, but two of them involve that privilege, both arising out of the U.S. Court of Appeals for the 9th Circuit. The petitioners in National Coalition for Men v. Selective Service System, 20-928, challenging the constitutionality of male-only draft registration, were not so lucky. The court denied review without noted dissent. Justice Sonia Sotomayor wrote a separate opinion concurring in the denial of cert, joined by Justices Stephen Breyer and Brett Kavanaugh. While noting that “[t]he role of women in the military has changed dramatically since” the Supreme Court upheld male-only draft registration in Rostker v. Goldberg, the concurrence explained that Congress was even then considering ending the restrictions, and it concluded that “at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.”

The court has newly relisted just one case this week: Balbuena v. Cates, 20-1207. Balbuena once again raises a question involving the Antiterrorism and Effective Death Penalty Act of 1996, which places limits on federal judges’ ability to grant relief to prisoners seeking collateral review of their criminal convictions. As Sotomayor wrote while a judge on the U.S. Court of Appeals for the 2nd Circuit, AEDPA “ensures every prisoner one full opportunity to seek collateral review.” But the act imposes even more exacting restrictions on “second or successive” petitions.

California state prisoner Alexander Balbuena maintains that lower courts are split over when the first habeas proceeding ends and subsequent filings are deemed “second or successive.” Balbuena contends that in two circuits, courts have held that the first habeas proceeding is not complete while the district court’s denial of relief is still open on appeal, and therefore attempts to amend the petition are not subject to restrictions on “second or successive” petitions. And yes, then-judge Sotomayor wrote an opinion adopting that position. The petition contends that five other circuits treat a district court’s merits denial of a habeas petition as the “terminal point” of the first habeas proceeding and thus characterize as a “second or successive” petition any effort to amend the underlying petition while review of the denial is pending on appeal.

In Balbuena’s case, detectives interviewing Balbuena in an interrogation room advised him of his right to an attorney “prior to” questioning, and also was told that he “ha[d] the right to an attorney.” Balbuena then confessed his role in a murder. On direct appeal and on collateral review through his first petition, courts rejected Balbuena’s argument that his confession was involuntary. As the appeal of the denial of his first habeas petition was pending at the 9th Circuit, Balbuena received permission in the district court to amend his petition, and he introduced a new argument: The detectives had violated Miranda v. Arizona by not advising him of his right to counsel during interrogation. Because the district court had already ruled on Balbuena’s first petition, the 9th Circuit held that his new argument in the amended filing was a barred “second or successive” petition. Arguing that other circuits would have allowed him to make his new argument, Balbuena asks the Supreme Court to weigh in.

That’s all for this week. Stay safe!

New Relist

Balbuena v. Cates, 20-1207
Issue: Whether a district court filing that seeks to amend a habeas petition pending on appeal constitutes a “second or successive” petition under the Antiterrorism and Effective Death Penalty Act of 1996.

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30, May 13, May 20 and May 27 conferences)

Dunn v. Reeves, 20-1084
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.
(relisted after the May 20 and May 27 conferences)

Hernandez v. Peery, 20-6199
Issues: (1) Whether a Certificate of Appealability (“COA”) should routinely be granted where the state courts and state judges have divided on the merits of the constitutional question as held by the 5th and 7th Circuits, several District Courts and three justices of this Court, or should courts deny a COA despite the dispute among reasonable state jurists as held by the 9th Circuit and District Court below; (2) whether, as a threshold matter, Petitioner made a showing that reasonable jurists could debate whether his petition should have been resolved in a different manner where the California Supreme Court’s published opinion created a split with every state and lower federal court since Perry v. Leeke, which have held that a trial court order that violates the “defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” is structural error, reversible per se; and (3) whether the 9th Circuit improperly looked beyond the threshold inquiry of whether a COA is merited and decided the merits without jurisdiction in contravention of this Court’s holding in Buck v. Davis, where different state court judges reached opposite conclusions on Petitioner’s constitutional claim and where all lower federal and state court authority disagrees with the California Supreme Court’s holding on this constitutional claim.
(relisted after the May 20 and May 27 conferences)

Recommended Citation: John Elwood, When is a habeas petition “second or successive”?, SCOTUSblog (Jun. 8, 2021, 5:54 PM),