 |
|||||
|
|
|
|
|
||
|
|
|||||
|
|
|
|
|
||
Petitioner's statement of the first question presented in this case is whether "every Rule 60(b) Motion constitutes a prohibited 'second or successive' habeas petition as a matter of law." Brief for Petitioner i. No such stark rule is necessary to decide this case. There may be extreme circumstances not presented in this case that would call for a different result. Cf. Calderon v. Thompson, 523 U. S. 538, 557 (1998) (noting that fraud on the court might be different); Thompson v. Calderon, 151 F. 3d 918, 920, n. 3 (CA9 1998) (later proceedings in same case, noting that prosecution misconduct depriving petitioner of evidence to make the §2244(b)(2) showing might be a ground for Rule 60(b) relief). Instead, the case can be decided on the well-established principle that the Federal Rules of Civil Procedure (3) do not apply where application would be contrary to the habeas rules or statutes or the specialized needs of habeas proceedings. In particular, Rule 60(b) cannot be used to evade the successive petition rule. The overwhelming majority of the Courts of Appeals have so held. See Dunlap v. Litscher, No. 02-1960 (CA7, Sept. 6, 2002), p. 3 (collecting cases).
Although habeas corpus is nominally a civil proceeding, that label is "gross and inexact." Harris v. Nelson, 394 U. S. 286, 293-294 (1969). "Essentially, the proceeding is unique." Id., at 294. As originally promulgated, the Civil Rules had "very limited application to habeas proceedings." Id., at 295. Civil Rule 81(a)(2) simply continued the application of civil rules to habeas proceedings to the extent they had been applied before the promulgation of the rules, but not further. Id., at 294. To the extent the Civil Rules introduced procedural innovations, such as broad discovery, they did not apply to habeas. See id., at 295. The Harris Court also noted "the unsuitability of applying to habeas corpus provisions which were drafted without reference to its peculiar problems." Id., at 296. Discovery as it exists in federal civil litigation was unsuited, because it would "do violence to the efficient and effective administration of the Great Writ." Id., at 297. Habeas Rule 11 is "intended to conform with the Supreme Court's approach in the Harris case." Advisory Committee's Notes on Habeas Rule 11, 28 U. S. C., p. 479 (2000 ed.).
Harris was applied specifically to Rule 60(b) in Pitchess v. Davis, 421 U. S. 482 (1975) (per curiam). A habeas petitioner successfully obtained a new trial, but then sought to preclude a retrial. He asked the Federal District Court to change its judgment from a conditional to an unconditional writ. Id., at 484-485. Under the circumstances, the basis of this claim could not be exhausted in state court until the post-trial appeal. See id., at 488. The Court held that Rule 60(b) could not be used to evade the exhaustion rule. Civil Rule 81(a)(2) precluded use of the Civil Rules in a manner contrary to the habeas statutes. "Since the exhaustion requirement is statutorily codified, even if Rule 60(b) could be read to apply to this situation it could not alter the statutory command." Id., at 489.
Rule 60 "attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done." 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2851, p. 227 (2d ed. 1995) (cited below as "Wright & Miller"). Rule 60 was drafted with civil litigation in mind and therefore strikes that balance in the way thought appropriate for civil litigation. Criminal cases also raise the problem of balance between finality and error correction. The factors to be considered differ, however, and so a different rule addressing those concerns has evolved for habeas corpus. That different rule is the successive petition rule.
Taken as a whole, criminal procedure tilts the finality/justice balance sharply in the defendant's favor. For the criminal defendant, exclusively among all litigants, a favorable jury verdict is absolutely final and unreviewable. No matter how clearly erroneous, an acquittal cannot be overturned. See, e.g., United States v. Scott, 437 U. S. 82, 91 (1978). Criminal defendants alone, of all litigants, can have the lower federal courts review claims that state courts erred on federal questions. The prosecution cannot and civil litigants cannot. See, e.g., Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 286 (1970). Even when that review is concluded, res judicata as such does not apply to the denial of habeas relief. See infra, at 11.
The claim that unsuccessful habeas petitioners should be afforded relief from judgment on the same basis as civil litigants must be evaluated in this context. The entire proceeding is an additional layer of review no other litigant receives, and the judgment from which relief is sought is not res judicata.
The direct effect of a judgment denying habeas relief is merely to leave the status quo intact. There is nothing to relieve. The prisoner remains in prison under the original judgment of conviction, not the judgment denying habeas. The need for relief only arises from the indirect effects. A second petition is subject to the limits of 28 U. S. C. §2244(b). In addition, because the statute of limitations is not tolled during the pending of the first federal petition, see Duncan v. Walker, 533 U. S. 167, 181-182 (2001), the second petition might be time-barred. Congress has considered those possibilities and made its decision as to the appropriate balance. Exceptions for newly discovered facts, see 28 U. S. C. §2244(b)(2)(B)(i); §2244(d)(1)(D), retroactive new rules, see §2244(b)(2)(A) and (d)(1)(C), state-created impediments, see §2244(d)(1)(B), and actual innocence, see §2244(b)(2)(B)(ii), are built into the statute where and to the extent Congress thought them appropriate.
In the Thompson case, both this Court and the Ninth Circuit noted possible extreme cases where the state would have no legitimate expectation of finality. A party who procured a judgment by fraud upon the court would not have a legitimate judgment, Calderon v.Thompson, 523 U. S., at 557, and hence no entitlement to the finality of a judgment. Where the petitioner cannot meet the exceptions to the statutory rule because the state's misconduct prevents him from doing so, that misconduct could conceivably estop the state from asserting the bar. See Thompson v. Calderon, 151 F. 3d, at 921, n. 3. Such rare circumstances can be addressed when and if they arise. The present case is a routine request to relitigate based on new legal authority. Nothing in petitioner's Rule 60(b) argument would confine use of the rule to any narrow subset of habeas cases. To hold that Rule 60(b) is generally applicable to habeas cases, or to the large class of cases where at least one claim was denied on the basis of default, would be to create a second, broad set of exceptions in addition to the narrow ones Congress decided upon when the issue was squarely before it. That is precisely what Harris, Pitchess, Civil Rule 81(a)(2), and Habeas Rule 11 forbid.
The rule on consideration of a second petition after denial of the first has evolved from unlimited allowance at common law to prohibition with only narrow exceptions under 28 U. S. C. §2244(b). This evolution has been a response to other changes in the law of habeas corpus.
At common law, the denial of habeas relief had no preclusive effect at all, and the petitioner could apply to a different judge for de novoreconsideration. See McCleskey v. Zant, 499 U. S. 467, 479 (1991). This rule was needed because there was no appellate review of the denial. See ibid. The rule was not a burden because of the extremely narrow scope of issues which could be considered on habeas. "As applied to criminal cases, habeas corpus was a pretrial remedy. . . . After conviction, the writ was not available to attack judgments of courts of competent jurisdiction." Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 928 (1998) (footnotes omitted). The rule that denial of habeas was not res judicata presented no threat whatever to the finality of convictions, because the judgment of conviction itself was res judicata. See id., at 930; Ex parte Watkins, 3 Pet. (28 U. S.) 193, 203, 209 (1830).
Both the unreviewability of habeas decisions and the narrow scope of habeas issues are long gone, and the wide-open allowance of successive petitions is gone with them. Denial of federal habeas relief is reviewable by appeal to the court of appeals, 28 U. S. C. §2253, rehearing en banc in that court, Fed. Rule App. Proc. 35, and certiorari in this Court. See 28 U. S. C. §1254. The scope of issues now includes almost all constitutional questions, the only exception being the Fourth Amendment exclusionary rule. See, e.g., Withrow v.Williams, 507 U. S. 680 (1993) (declining to extend rule of Stone v. Powell, 428 U. S. 465 (1976) to Miranda claim). Constitutional claims, furthermore, have been vastly expanded beyond the basic requirements of fundamental fairness. See Rose v. Lundy, 455 U. S. 509, 543-544 (1982) (Stevens, J., dissenting). In capital cases, enormous amounts of time and money go into litigating alleged noncompliance with a complex and constantly changing web of rules governing the discretionary sentencing decision, rules having nothing whatever to do with guilt or eligibility for the death sentence. There is no limit to the number of such challenges creative lawyers could bring if allowed to do so, and hence without a successive petition rule capital sentences could never be carried out.
From the early twentieth century through the Antiterrorism and Effective Death Penalty Act of 1996, the law of habeas corpus evolved in the direction of greater finality, although not without " 'some backing and filling.' " Cf. Teague v. Lane, 489 U. S. 288, 308 (1989) (plurality opinion) (quoting Fay v. Noia, 372 U. S. 391, 411-412 (1963)). Salinger v. Loisel, 265 U. S. 224 (1924) was the first recognition of the rule in this Court. While rejecting the government's argument that a prior denial was res judicata, see id., at 230, the Court held, "Among the matters which may be considered, and even given controlling weight, are . . . (b) a prior refusal to discharge on a like application." Id., at 231. This was a very broad discretionary rule with no firm criteria for application. The Court indicated it would have affirmed if the District Court had denied relief on this basis, but it proceeded to the merits because the District Court had done so. Id., at 232. Either resolution was proper.
When Congress enacted a new judiciary code, it included §2244 on finality of determination. The original section was the same as the present subdivision (a), except that it applied to both state and federal prisoners. See 28 U. S. C. §2244 (1964 ed.). In keeping withSalinger, the rule was discretionary. See S. Rep. No. 1559, 80th Cong., 2d Sess., 9 (1948). At the same time this bill was moving through Congress, this Court decided Price v. Johnston, 334 U. S. 266 (1948). Price limited Salinger to the situation "when a laterhabeas corpus application raising the same issues is considered." Id., at 289. That is, Price distinguished the "successive" application in the narrow sense from the "abuse of the writ" defense.
Sanders v. United States, 373 U. S. 1 (1963) was the final chapter of "a trilogy of 'guideline' decisions" on habeas corpus. Id., at 23 (Harlan, J., dissenting). "The over-all effect of this trilogy . . . [was] to relegate to a back seat . . . the principle that there must be some end to litigation." Ibid. Sanders sharply limited the Salinger rule regarding successive applications. "Controlling weight may be given to denial of a prior application for federal habeas corpus or §2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Id., at 15 (footnote omitted).
In Sanders' case, his prior application had been denied for stating "only bald legal conclusions with no supporting factual allegations." Id., at 19. Denial of the petition based on this defect in pleading without giving the petitioner an opportunity to amend was not considered a disposition on the merits. Ibid.
Congress soon acted to reduce successive petitions. The problem was not the number of cases in which relief was being granted but rather the burdens of the litigation. See H. R. Rep. No. 1892, 89th Cong., 2d Sess., 5 (1966); S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966). In addition, Congress found "disconcerting . . . the delays in executing State court sentences in capital cases as a result of habeas corpus applications seeking review of State court action . . . ." H. R. Rep. No. 1892, supra, at 5. Various proposals were considered to deal with this problem. See id., at 5-6. One that survived in the final bill was "to add to section 2244 . . . provisions for a qualified application of res judicata." Id., at 8. Subdivision (b) was added to provide that "after an evidentiary hearing on the merits of a factual issue, or after a hearing on the merits of an issue of law . . . a subsequent application . . . need not be entertained" unless based on a new ground which was not deliberately withheld or otherwise abusive.
Despite the clear intent of Congress to change the law in the direction of greater finality, see S. Rep. No. 1797, supra, at 2, it was another 20 years before this Court reexamined Sanders. Unfortunately, Kuhlmann v. Wilson, 477 U. S. 436 (1986) has no majority on the successive petition question. The plurality opinion reviews the history of the 1966 amendment. Id., at 448-452. It then weighs the prisoner's interest in the "fundamental justice of his incarceration" versus the state's interest in finality. Id., at 452-453. The plurality adopted Judge Friendly's "colorable claim of innocence" requirement for successive petitions. Id., at 454. "A 'successive petition' raises grounds identical to those raised and rejected on the merits on a prior petition." Id., at 444, n. 6. Five years later, McCleskey v.Zant reexamined the abuse-of-the-writ aspect of Sanders and adopted the cause-and-prejudice test for second petitions with claims omitted from the first. See 499 U. S., at 490.
In 1996, Congress decided that Kuhlmann and McCleskey had not gone far enough in restricting repeated rounds of habeas litigation. Just as in 1966, the concern was not with excessive grants of relief, but rather with the burden and especially the delay from the multiple rounds of litigation. In one notorious case, the McCleskey rule had not been clear enough to prevent the issuance of a stay of execution to entertain a fifth federal challenge to a death sentence on an obviously defaulted claim. See Gomez v. United States Dist. Court for the Northern Dist. of Cal. (Harris), 503 U. S. 653, 653-654 (1992) (per curiam). Senator Hatch cited the Andrews case, which took 18 years and 30 appeals. See 141 Cong. Rec. 15,062, col. 2 (1995). That case took almost three years on the second round of federal habeas. SeeAndrews v. Deland, 943 F. 2d 1162, 1168 (CA10 1991) (petition filed July 19, 1989), cert. denied, 502 U. S. 1110 (1992), rehearing denied, 503 U. S. 967 (March 30, 1992). This was in a case involving "no question of Andrews' participation in the crimes," 943 F. 2d, at 1186, an almost unbelievably horrific case of sadistic torture and multiple murder. See State v. Pierre, 572 P. 2d 1338, 1343-1344 (Utah 1977).
To preclude more than one round of federal review in all but the rarest cases, Congress clamped down hard on "second or successive" habeas corpus applications in its revision of §2244(b). See Tyler v. Cain, 533 U. S. 656, 661-662 (2001). Subdivision (1) forbids without exception claims "presented in a prior application," i.e., what has traditionally been called a "successive" petition. Subdivision (2) applies to claims "not presented in a prior application," i.e., the "abuse of the writ" scenario. Only two narrow exceptions are allowed: (1) retroactive new rules; and (2) newly discovered facts and actual innocence. The references to the "merits" in former subdivision (b) are not present in the new subdivision.
Congress's intent to preclude the second round of litigation, not merely to enable the state to prevail in that round, is further implemented by the extraordinary procedural measures in subdivision (b)(3). Subdivision (b)(3)(A) requires leave of the court of appeals to even file the petition, and subdivision (b)(3)(B) requires that decision to be made by a three-judge panel. This is to preclude shopping for a single judge to authorize filing and grant a stay. Subdivision (b)(3)(D) requires a decision in 30 days, and (b)(3)(E) forbids rehearing or certiorari review of that decision. The clear purpose here is that, in nearly all cases, the attempt to begin a second or subsequent round of federal review will be over in 30 days. In most capital cases, the state should be able to set an execution date the month following final disposition of the first federal habeas petition.
The intent of Congress would be subverted if the limits on successive habeas petitions could be circumvented merely by invoking a different procedural device. Twice this Court has rebuffed such attempts. In Gomez, the habeas petitioner withheld his challenge to the use of cyanide gas until the eve of execution and then filed the claim as a civil rights action under 42 U. S. C. §1983. See 503 U. S., at 653. "This action is an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991) to bar this successive claim for relief." Ibid. The Court held that Harris had made no showing of cause, ibid., impliedly holding that the McCleskey standard applied.
Calderon v. Thompson, 523 U. S. 538 (1998) is similar. "Thompson filed a motion with the Court of Appeals to recall its mandate denying habeas relief." Id., at 546. He also filed a Rule 60(b) motion in the District Court. See id., at 547. An en banc panel of the Court of Appeals recalled the mandate. It "asserted it did not recall the mandate on the basis of Thompson's later motion for recall, but did so sua sponte on the basis of the claims and evidence presented in Thompson's first federal habeas petition." Id., at 548.
Regarding recalls of habeas mandates in response to a petitioner's motion, the Thompson Court said, "In a §2254 case, a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of §2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, §2244(b)(1), or the bar against litigation of claims not presented in a prior application, §2244(b)(2). If the court grants such a motion, its action is subject to AEDPA irrespective of whether the motion is based on old claims (in which case §2244(b)(1) would apply) or new ones (in which case §2244(b)(2) would apply)." Id., at 553 (emphasis added).
This statement is dictum, since the Court went on to hold that the sua sponte recall on the original petition was not subject to §2244(b). See id., at 554. Even so, it is an important statement of principle, and one on which the Court appeared to be unanimous. See id., at 569, n. 1 (Souter, J., dissenting).
Gomez and Thompson are applications of the more general principle that when Congress has provided a specific procedure for the resolution of particular controversies and placed limitations on it, those limitations cannot be evaded simply by choosing a different and more general procedure. Even though a challenge to the fact or duration of custody by state officers may fall within the broad language of the civil rights remedy statute, 42 U. S. C. §1983, it cannot be used in lieu of habeas for such a challenge. See Spencer v. Kemna, 523 U. S. 1, 20 (1998) (Souter, J., concurring). Despite the broad wording of the All Writs Act, it cannot be used when another "statute specifically addresses the particular issue at hand . . . ." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34, 43 (1985).
The successive petition rule is a "modified res judicata rule," well within the power of Congress to enact. See Felker v. Turpin, 518 U. S. 651, 664 (1996). Courts can weigh the competing interests of habeas petitioners and the state in the absence of a statute or in construing a vague statute, as this Court did in Sanders, Kuhlmann, and McCleskey, see Lonchar v. Thomas, 517 U. S. 314, 323 (1996), but the balance struck judicially is always subject to legislative revision. Congress has deliberately moved the mark, and the wisdom of its choice is not for courts to decide. See id., at 328. Neither is the statute a mere inconvenience to be evaded.
Congress meant to give habeas petitioners one round of federal review, i.e., decision by the district court, appeal to the court of appeals, and certiorari to this Court. The end of that first round was meant to be the end in all but the rarest cases, with a highly expedited process for determining whether a case was one of the rare ones. A holding that Rule 60(b) is generally available would destroy this system. Even if nearly all Rule 60(b) motions are denied, unless they are subject to the requirements of §2244(b) the litigation of them will become the second round of review that Congress meant to prevent.
|
|
||||
|
|
|
|
||
3. For brevity, we will refer to these rules as the "Civil Rules" and the Rules Governing Section 2254 Cases in the United States District
Courts as the "Habeas Rules."