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Successive Petition Habeas Rule in Parole and Disciplinary Cases

Successive Petition Habeas Rule in
Parole and Disciplinary Cases

The Seventh and Ninth U.S. Circuit
Courts of Appeal, in unrelated cases, have construed and applied the "second or successive petition" rule of 28 U.S.C. § 2244(b). The rule requires that a state prisoner bringing a "second or successive petition" for habeas corpus relief under 28 U.S.C. §2254 first seek permission of the federal appeals court to file the petition.

In the Seventh Circuit, David Harris, an Indiana prisoner, was sanctioned by the prison conduct board for a rules violation and lost good-time credit, thus lengthening his imprisonment term. Harris filed a habeas petition under 28 U.S.C. §2254 claiming violation of his due process rights. The district court dismissed the petition and denied a subsequently-filed Fed.R.Civ.Proc. 60(b) motion to vacate the dismissal.

Harris appealed the dismissal and the rule 60(b) denial. The Seventh Circuit dismissed the appeal as untimely and affirmed the rule 60(b) denial. Harris then petitioned to file a "second or successive petition" on the basis of new evidence. In his application, Harris questioned whether, §2244(b) applied to §2254 petitions that arise from prison disciplinary cases.

The Seventh Circuit held that §2244(b) applies to all §2254 petitions, "because section 2254 provides the exclusive federal remedy for a person who, being in state custody pursuant to the judgment of a state court, wishes to challenge a sanction that affects the length of his custody," including later-imposed administrative sanctions. Because Harris failed to indicate what new evidence he could present to justify relief, the application was denied. See: Harris v. Cotton, 296 F.3d 578 (7th Cir. 2002).

In the Ninth Circuit, Alaska prisoner Raymond Hill sought permission to file second or successive habeas petitions challenging his conviction on double jeopardy grounds and challenging the constitutionality of Alaska's "mandatory parole" scheme, particularly the way parole release dates are calculated. Hill had previously filed "numerous habeas petitions" challenging his conviction.

The Ninth Circuit held that the phrase "second or successive petition" should not be interpreted literally. Rather, the court held, it should be interpreted "as derivative of the `abuse-of-the-writ' doctrine" used by courts prior to the Antiterrorism and Effective Death Penalty Act (AEDPA). Thus, a petition is "second or successive" solely because a prisoner had previously filed a habeas petition.

The Court held that Hill did not need permission to file a "second or successive petition" challenging Alaska's "mandatory parole" scheme. The issue, the court noted, was never previously addressed on the merits. The application for a successive petition challenging Hill's conviction was denied. See: Hill v. State of Alaska, 297 F.3d 895 (9th Cir. 2002). g

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Related legal cases

Hill v. State of Alaska

Hill v. State, 297 F.3d 895 (9th Cir. 07/19/2002)

[1] U.S. Court of Appeals, Ninth Circuit

[2] No. 01-71735

[3] 297 F.3d 895, 2002, 2 Cal. Daily Op. Serv. 6467, 2002 Daily Journal D.A.R. 8121

[4] July 19, 2002


[6] D.C. No. CV-01-00261-JKS Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding

[7] Counsel

[8] Raymond E. Hill, pro se, for the petitioner.

[9] W.H. Hawley, Jr., and Timothy W. Terrell, Assistant Attorneys General, Department of Law, Office of Special Prosecutions and Appeals, Anchorage, Alaska, for the respondent.

[10] Before: Melvin Brunetti, Stephen S. Trott, and M. Margaret McKeown, Circuit Judges.

[11] The opinion of the court was delivered by: McKEOWN, Circuit Judge


[13] Submitted June 7, 2002*fn1 Seattle, Washington


[15] This appeal requires us to decide whether an initial habeas petition challenging the calculation of the prisoner's release date, in this case a claim that Alaska's "mandatory parole" scheme is unconstitutional, is governed by the "second or successive" petition provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(b). Raymond Hill has filed numerous habeas petitions since he was convicted of robbery in 1993. He now requests this court's permission to file yet another habeas petition in district court. Because the petition at issue constitutes his first challenge to the calculation of his release date, we conclude that, as it relates to parole, Hill's petition is not second or successive under § 2244(b)(3)(A). Accordingly, no permission is required to file the petition in district court and Hill's application is dismissed as unnecessary. Hill also seeks leave to file a petition relating to his conviction. That application is denied as a successive petition.


[17] The Alaska Court of Appeals, in its denial of Hill's state habeas petition, provided a cogent summary of the background facts in this case:

[18] In 1993, Raymond E. Hill was convicted of robbery and sentenced to serve 7 years in prison. In early 1998, Hill's actual time in prison, combined with the "good time" credit that had been awarded to him under AS 33.20.010, totaled 7 years. Hill was therefore released on mandatory parole. See AS 33.20.030-.040(a). Hill v. State, 22 P.3d 24, 25 (Alaska Ct. App. 2001).

[19] Under Alaska's mandatory parole scheme, prisoners must be released when they have served their sentences minus any good-time credits they have earned. Alaska Stat. § 33.20.010. When prisoners violate their release conditions, however, the State may revoke their parole and require them to serve a sentence equivalent to any portion of the good-time offset. Alaska Stat. § 33.16.220(i); Hill, 22 P.3d at 26. Hill challenges this scheme as unconstitutional. In addition, he claims that his conviction violated double jeopardy.



[22] Despite having filed numerous habeas petitions, the petition Hill now proposes to file is his first one challenging his parole conditions. Both the State and Hill agree that such a petition should not be categorized as a second or successive petition under 28 U.S.C. § 2244(b). *fn2 We also agree and publish this short opinion because the issue is one of first impression in this circuit.

[23] [1] AEDPA does not define the terms "second or successive." The Supreme Court, the Ninth Circuit, and our sister circuits have interpreted the concept incorporated in this term of art as derivative of the "abuse-of-the-writ" doctrine developed in pre-AEDPA cases. See, e.g., Felker v. Turpin, 518 U.S. 651, 664 (1996) (stating that § 2244(b) is an evolutionary extension of the abuse of the writ doctrine); Calderon v. United States Dist. Court, 163 F.3d 530, 538 (9th Cir. 1998) (en banc) ("Abuse of the writ evolved as a judicially created equitable doctrine, but it is now codified by the AEDPA" at § 2244(b).); Crouch v. Norris, 251 F.3d 720, 723-25 (8th Cir. 2001) (applying abuse-of the-writ principles to assess prisoner's challenge to the execution of his sentence); Muniz v. United States, 236 F.3d 122, 127 (2d Cir. 2001) (defining "second or successive" "with reference to the equitable principles underlying the 'abuse-of-the-writ' doctrine"); Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (per curiam) (same). An "abuse-of-the-writ" occurs when a petitioner raises a habeas claim that could have been raised in an earlier petition were it not for inexcusable neglect. McClesky v. Zant, 499 U.S. 467, 493 (1991). "[T]he abuse-of-the-writ doctrine [has] concentrate[d] on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time." Id. at 490.

[24] [2] That a prisoner has previously filed a federal habeas petition does not necessarily render a subsequent petition "second or successive." In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per curiam). Other circuits that have considered the question presented by Hill's application have held that a prisoner's first petition challenging the calculation of release date should not be deemed successive if the prisoner did not have an opportunity to challenge the state's conduct in a prior petition. See Crouch, 251 F.3d at 725 (denying petitioner's application for permission to file a successive petition as unnecessary where petitioner's petition challenging denial of parole did not raise "a claim challenging his conviction or sentence that was or could have been raised in his earlier petition" and was not otherwise an abuse of the writ); Cain, 137 F.3d at 236-37 (same where petitioner challenged a prison disciplinary conviction and his previous petition challenged Texas Department of Criminal Justice's good-time policy.); cf. Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) (per curiam) (holding that petition was not successive where it challenged petitioner's resentencing when that resentencing was the result of the petitioner's first habeas petition challenging his conviction).

[25] The Eighth Circuit's decision in Crouch addresses a circumstance remarkably similar to the one present here. Crouch unsuccessfully challenged his conviction in a § 2254 petition. Two years later, he requested that the court of appeals permit him to file another petition in which he proposed to challenge the state's refusal to grant him parole. Crouch, 251 F.3d at 722. Crouch noted that if the expression "second or successive" were interpreted too literally, it would foreclose petitions like Crouch's (and Hill's) and "all but foreclose challenges to the constitutionality of the execution of [ ] sentences." Id. at 724. Such a result would be illogical given that, like the abuse-of-the-writ doctrine prior to AEDPA, § 2244(b) is a "modified res judicata rule," Felker, 518 U.S. at 664 (1996).

[26] [3] It also bears noting that the Supreme Court has declined to read § 2244 to preclude prisoners from bringing habeas claims that could not have been brought in earlier petitions. See Slack v. McDaniel, 529 U.S. 473, 487 (2000) ("A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as " 'any other first petition' and is not a second or successive petition."); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998) (holding that claim that petitioner was not competent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986) is not a second or successive petition). The Supreme Court's teachings on § 2244, the well-reasoned decisions of our sister circuits, and the logical application of the "second or successive" petition rule lead us to adopt the rule embraced by the Fifth and Eight Circuits in Cain and Crouch.

[27] [4] Hill's claims relating to mandatory parole challenge the calculation of his release date rather than the sentence itself.

[28] To the extent that Hill included parole-related claims in two previous habeas petitions that he filed after becoming eligible for parole, in neither of those two cases did the district court address Hill's claims on the merits. The earlier of the two petitions was filed pro se and the district court dismissed it without prejudice on account of Hill's failures to pay a $5 filing fee and to use a prescribed court form. Hill voluntarily dismissed the most recent of the two petitions so that he could exhaust state court remedies. Because the district court has never addressed Hill's claims relating to mandatory parole on the merits, and those claims could not have been included in earlier petitions challenging his conviction and sentence, Hill is not obliged to secure this court's permission prior to filing his habeas petition in the district court.


[30] Hill also requests permission to file a habeas petition in district court challenging his conviction on what he styles as "double jeopardy" grounds. Regardless of whether Hill's characterization is accurate, his double jeopardy claim, in contrast to his claim regarding mandatory parole, attacks his underlying conviction. Thus, it is a prime example of a "second or successive" petition under § 2244(b). Hill has not adduced any new evidence or cited any new rule of constitutional law that would even arguably entitle him to file a habeas petition on this claim.


[32] [5] Hill's application to file a successive habeas petition is denied as unnecessary with respect to his challenge to Alaska's mandatory parole scheme. Hill's application with respect to his double jeopardy claim is denied.



Opinion Footnotes


[34] *fn1 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

[35] *fn2 Section 28 U.S.C. § 2244(b) provides: (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless (A) the applicant shows that the claim relies on a new rule of constitutional law, 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 discovered previously through the exercise of due diligence; and (ii) 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. (3)(A) 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.

Harris v. Cotton

Harris v. Cotton, 296 F.3d 578 (7th Cir. 07/11/2002)

[1] U.S. Court of Appeals, Seventh Circuit

[2] No. 02-2550

[3] 296 F.3d 578

[4] July 11, 2002


[6] On Motion for Order Authorizing District Court to Entertain a Second Petition for Habeas Corpus

[7] Before Posner, Kanne, and Rovner, Circuit Judges.

[8] The opinion of the court was delivered by: Posner, Circuit Judge.

[9] SUBMITTED JUNE 14, 2002

[10] While an inmate in an Indiana state prison, Harris was accused of violating a prison order by inducing another inmate to send mail to a woman whom he'd been ordered not to make contact with. A prison conduct board found him guilty of the offense and imposed sanctions that included taking away good-time credits and as a result lengthening his term of imprisonment. After exhausting his state administrative remedies, Harris sought federal habeas corpus, 28 U.S.C. § 2254, contending that the administrative proceeding denied him due process of law. The district court dismissed his suit and also denied his motion under Fed. R. Civ. P. 60(b) to vacate the dismissal.

[11] He appealed. We affirmed the denial of the 60(b) motion but dismissed the appeal from the dismissal of the suit because it was untimely. Harris v. Miller, No. 02-1095 (7th Cir. March 20, 2002) (unpublished order). Harris has now asked us for permission to file a second habeas corpus petition, based on newly discovered evidence. The initial question, on which we have had no occasion to rule previously, perhaps because the answer is obvious, is whether second or successive petitions under section 2254 are subject to section 2244(b)--which requires our permission to file "a second or successive habeas corpus application under section 2254"--if the petition challenges not the judgment of the state court pursuant to which the petitioner is in state custody but instead, as in this case, a sanction imposed in a prison disciplinary proceeding. Only the Eighth Circuit has answered the question, and it has answered "yes," Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001), correctly in our view. Section 2244(b) applies by its terms to all section 2254 petitions (though not to section 2241 petitions, as we held in Valona v. United States, 138 F.3d 693 (7th Cir. 1998)), so the only question is whether Harris is correct to so characterize his petition. He is, because section 2254 provides the exclusive federal remedy for a person who, being in state custody pursuant to the judgment of a state court, wishes to challenge a sanction that affects the length of his custody. Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000); Greene v. Tennessee Dept. of Corrections, 265 F.3d 369, 371 (6th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001). The sanction need not be the one imposed by the state court that placed him in state custody, but can be an administrative sanction imposed on him later for misbehavior while in custody pursuant to the state court's judgment. E.g., Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir. 2001); Walker v. O'Brien, supra, 216 F.3d at 633; Greene v. Tennessee Dept. of Corrections, supra, 265 F.3d at 371.

[12] So Harris does need our permission to file a second petition, and we deny it because he does not indicate what new evidence he has discovered that might justify relief under section 2244(b)(2)(B), the only possibly applicable subsection of the successive-petition provision.

[13] A further wrinkle to this case is worth noting. Remember that Rule 60(b) motion that Harris filed? Actually he described it as a "verified petition for permission of court to file a successive petition of previous writ of habeas corpus for collateral review" pursuant to section 2244(b). The district court, rather than relabeling it a Rule 60(b) motion, should have taken Harris at his word and dismissed the application as having been filed in the wrong court, since the permission of the court of appeals rather than that of the district court is required to file a second or successive petition for habeas corpus. 28 U.S.C. § 2244(b)(3). Prisoners are not allowed to avoid the restrictions that Congress has placed on collateral attacks on their convictions or other custody-creating or -enhancing punishments by styling their collateral attacks as motions for reconsideration under Rule 60(b). Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999); Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997); cf. Calderon v. Thompson, 523 U.S. 538, 553 (1998). There must be no circumvention of those restrictions by classifying a collateral attack as a Rule 60(b) motion.