NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 6: Capital Punishment Handbook: Habeas Corpus Proceedings

        6.2 Habeas Corpus Procedure
              6.2.1  First Petition Filing Deadlines
                         6.2.1.1  Retroactivity Of First Petition Filing Deadlines
              6.2.2  Successive Petition Filing Authorization
                         6.2.2.1  Retroactivity Of Successive Petition Filing Authorization
              6.2.3  Federal Procedural Default -- Subsequent Petitions
                        6.2.3.1  Petitions Raising Same Grounds: General Principles And Authorities
                                      6.2.3.1.1  Ends Of Justice Exception: General Principles 
                                                      And Authorities
                                      6.2.3.1.2  Recalling The Mandate: General Principles And Authorities
                                      6.2.3.1.3  Rule 60(b)
                       6.2.3.2  Petitions Raising Different Grounds: General Principles And Authorities
                                      6.2.3.2.1  Retroactivity Of §§ 2244(b)(2): General Principles And 
                                                      Authorities
                                        6.2.3.2.2  Types of Claims Constituting Cause and Prejudice 
                                                      Under Pre-AEDPA Law
                                                       6.2.3.2.2.1  Types Of Claims Constituting Cause And 
                                                                          Prejudice Under Pre-AEDPA 
                                                                          Law: New Fact Claims: General Principles
                                                      6.2.3.2.2.2  New Law Claims
                                                      6.2.3.2.2.3  Tactically Withheld Claims
                                     6.2.3.2.3  Exception To Procedural Default Bar: Miscarriage 
                                                     Of Justice
                                     6.2.3.2.4  Burden Of Proof – Abuse Of The Writ: General Principles
                                     6.2.3.2.5  Successive Motions Under 2241(c)
              6.2.4  Amended Petitions: General Principles
              6.2.5  State Procedural Default -- Adequate And Independent State Ground
                        6.2.5.1  Independent State Ground
                                     6.2.5.1.1  Alternative Rulings On Federal Law Do Not Negate 
                                                     Independent State Ground: General Principles
                                     6.2.5.1.2  Ambiguous Rulings Presumed Not Independent
                        6.2.5.2  Adequate State Ground
                                     6.2.5.2.1  Firmly Established, Regularly Applied
                        6.2.5.3  State Ruling On Merits Negates Procedural Default
                        6.2.5.4  Waiver: General Principles
                        6.2.5.5  Estoppel: General Principle
                        6.2.5.6  Exception to Procedural Default Bar: Cause and Prejudice
                                     6.2.5.6.1  Exception To Procedural Default Bar: Cause 
                                                     and Prejudice--Cause
                                                     6.2.5.6.1.1  Cause: New Law/Novel Claims
                                                     6.2.5.6.1.2  Cause: Futility Not An Excuse
                                                     6.2.5.6.1.3  Cause: Incompetence Of Defendant
                                                     6.2.5.6.1.4  Cause: State Withholding Necessary 
                                                                         Information
                                                     6.2.5.6.1.5  Cause: Ineffective Assistance Of Counsel
                                     6.2.5.6.2  Cause And Prejudice: Actual Prejudice
                        6.2.5.7  Exception To Procedural Default Bar: Miscarriage Of Justice
             6.2.6  Authorization Of Petition On Petitioner’s Behalf
                       6.2.6.1  Next Friend Standing
             6.2.7  Representation By Foreign State
             6.2.8  Right To And Payment Of Counsel, Experts, And Investigators
                       6.2.8.1  State Exhaustion and Clemency Proceedings
             6.2.9  Petitioner’s Presence At Habeas Proceedings
             6.2.10  5th Amendment Privilege Against Self Incrimination
             6.2.11  Expedited Procedures
             6.2.12  Discovery
                         6.2.12.1  Protective Orders
             6.2.13  Evidentiary Hearings
             6.2.14  Stays Of Execution
                         6.2.14.1  Standard For Granting Stay
                         6.2.14.2  Jurisdiction To Enter Stay
             6.2.15  Appellate And Supreme Court Review
                         6.2.15.1  Certificate Of Probable Cause/Certificate Of Appealability
                                          6.2.15.1.1  Retroactivity Of New Certificate Of Appealability 
                                                            Requirement
                                          6.2.15.1.2  Ninth Circuit Rule 22-1
                         6.2.15.2  Jurisdictional Requirement: Resolution of all Guilt Phase Claims
                         6.2.15.3  Appellate Standards of Review
                                         6.2.15.3.1  Grant or Denial of Habeas Relief
                                         6.2.15.3.2  Factual vs. Legal Findings
                                         6.2.15.3.3  Stay of Order Granting Habeas Relief
                                         6.2.15.3.4  Dismissal of Second or Successive Habeas Petition
                                         6.2.15.3.5  State Exhaustion
                                         6.2.15.3.6  Discovery
                                         6.2.15.3.7  Batson Claims
                          6.2.15.4  Writ of Mandamus
                          6.2.15.5  Writ of Certiorari
             6.2.16   Special Procedures for “Opt-In” States
                          6.2.16.1  “Opt-In” Requirements
                          6.2.16.2  Mandatory Stay of Execution
                                         6.2.16.2.1  No Subsequent Stay Unless Successive 
                                                           Petition Authorized
                          6.2.16.3  Filing Deadlines
                          6.2.16.4  Amended Petitions
                          6.2.16.5  Federal Court Priorities and Deadlines for Adjudication
                          6.2.16.6  Exhaustion of State Remedies

The AEDPA created statutes of limitations for filing § 2254 or § 2255 petitions in federal court. For general petitions, the deadline is one year from the date on which: (1) the judgment became final; (2) the removal of the impediment, created by the state or federal government, to filing; (3) the Supreme Court recognized the right asserted and made the right retroactively applicable to cases on collateral review, or (4) the factual predicate of the claim could have been discovered by due diligence. In Clay v. United States, 537 U.S. 522 (2003), the United States Supreme Court held that a petitioner’s judgment of conviction becomes “final” within the meaning of 28 USC 2255 paragraph 6(1) one year after the time for filing a petition for a writ of certiorari expires.

For capital habeas petitions in cases falling under the “opt-in” provisions, however, the time limit for a § 2254 petition is 180 days from “final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.” See infra § 6.2.16.3.

Tolling of the one-year or 180-day time limitations may occur while a state postconviction or other collateral review is pending. The Supreme Court has held that “other collateral review” is modified by “state;” consequently, § 2254 does not allow for tolling when a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167 (2001).

The Supreme Court also has held that a state postconviction application is “properly filed,” pursuant to 28 USC 2244(d)(2), when its “delivery and acceptance are in compliance with the applicable laws and rules governing filing.” Artuz v. Bennett, 531 U.S. 4 (2000). Answering a question reserved by the Artuz Court, the Supreme Court held that a state postconviction petition rejected by a state court as untimely is not “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005). The Court said that a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more “properly filed” than a petition filed after a time limit that permits no exception and that under petitioner’s theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. Id. at 1812.

In Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283 (9th Cir. 1997), cert. denied, 522 U.S. 1099, cert. denied, 523 U.S. 1061, and overruled en banc on other grounds, 163 F.3d 530 (9th Cir. 1998), the Ninth Circuit held that a court may equitably toll AEDPA’s limitation provisions where “extraordinary circumstances” are present.

Because the one-year limitation is not jurisdictional and may be subject to equitable tolling, the Ninth Circuit, in accordance with the Second, Fifth and Tenth Circuits, has held that AEDPA’s one-year statute of limitation does not violate the Suspension Clause. Green v. White, 223 F.3d 1001(9th Cir. 2000). However, the Eleventh Circuit has suggested that the statute of limitations could violate the Supremacy Clause if a petitioner was asserting an actual innocence claim. Wyzkowski v. Department of Corrections, 226 F.3d 1213 (11th Cir. 2000).

Some courts have avoided AEDPA’s statute of limitations and the associated tolling issues by “relating back” the filing of an untimely federal habeas proceeding to the filing of a previously filed federal habeas proceeding pursuant to Federal Rule of Civil Procedure 15(c). The “relation back” doctrine is currently a source of conflicting opinion among the courts. See § 6.2.4, infra.

In Lonchar v. Thomas, 517 U.S. 314 (1996), the Supreme Court held that serious delay in filing a federal habeas corpus petition does not constitute a violation of general “equitable” rules separate from established habeas corpus statutes and precedent.

Evans v. Chavis, 126 S. Ct. 846 (2006) (holding in noncapital case that unexplained delay of at least six months between California Court of Appeal’s denial of state noncapital habeas petition and the filing of notice of appeal from that decision in the California Supreme Court could not be “reasonable” under state law and thus state habeas petition was not timely filed and statute of limitations under AEDPA was not tolled; also holding that absent clear direction or explanation from the California Supreme Court about the meaning of “reasonable time” in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Ninth Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness).

Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005) (holding in noncapital case that state postconviction petition rejected by state court as untimely is not “properly filed” within the meaning of § 2244(d)(2)) and that petitioner’s federal habeas petition was time barred).

Johnson v. United States, 125 S. Ct. 1571 (2005) (in the case of a prisoner’s collateral attack on a federal sentence (noncapital) on the ground that the state conviction used to enhance that sentence was later vacated, holding that the state court order is a matter of “fact” supporting a claim under 28 USC 2255, discovery of which triggers the refreshed 1-year limitations period under the fourth paragraph of § 2255; also holding that the statute of limitations in § 2255 para. 6(4) begins to run when the petitioner receives notice of the order vacating the prior conviction provided, however, that petitioner sought the state court order vacating the sentence with due diligence, after entry of judgment in the federal case with the enhanced sentence).

Clay v. United States, 537 U.S. 522 (2003) (holding in noncapital case that for purpose of starting the clock on § 2255's one-year limitation period, the judgment becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction).

Carey v. Saffold, 536 U.S. 214 (2002) (holding that (1) as used in 28 USC 2244(d)(2), “pending” covers time between lower state court’s decision and filing notice of appeal to higher state court; and (2) same “pending” rule applies to California’s unique collateral review system, even though that system involves not notice of appeal but filing within “reasonable time” of further original state habeas petition in higher court; rejecting contention that state petition is not “pending” during interval between lower court’s entry of judgment and timely filing of notice of appeal in next court as being inconsistent with ordinary meaning of “pending,” which means in present context, until completion of collateral review process; remanding to Ninth Circuit to reconsider timeliness issue, with instructions to evaluate any special conditions justifying petitioner’s delay in filing in state court and any other relevant considerations).

Duncan v. Walker, 533 U.S. 167 (2001) (holding that a federal habeas petition is not an “application for State post-conviction or other collateral review,” and therefore does not toll the 28 USC 2244(d)(2) statute of limitations).

Artuz v. Bennett, 531 U.S. 4 (2000) (holding that a state postconviction application is “properly filed,” pursuant to 28 USC 2244(d)(2), when its “delivery and acceptance are in compliance with the applicable laws and rules governing filing; declining to adopt state’s position that § 2244(d)(2) requires an application in state court to be free of procedural bars to qualify as “properly filed”).

Lonchar v. Thomas, 517 U.S. 314 (1996) (holding that a district court may not dismiss a petition for delay based on ad hoc “equitable” reasons separate from habeas corpus statutes and precedent; rather, Rule 9 governs).

Sawyer v. Whitley, 505 U.S. 333 (1992) (stating that “[w]e of course do not in the least condone, but instead condemn, any efforts on the part of habeas petitioners to delay their filings until the last minute.”).

Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653 (1992) (dismissing petition, stating “[t]his claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.”).

Vasquez v. Hillery, 474 U.S. 254, 264–65 (1986) (holding state must show it was prejudiced in its ability to respond to allegations in petition; prejudice to state's ability to successfully convict petitioner again is irrelevant).

Welch v. Carey, 350 F.3d 1079 (9th Cir. 2003) (en banc) (distinguishing Carey v. Saffold, 536 U.S. 214 (2002), and holding in noncapital case that a state petition was not “pending” for purposes of tolling of the statute of limitations under 28 USC 2244(d)(2) when there was a four-and-one-half-year gap between a petition in the California Superior Court and a petition, raising different claims, in the California Supreme Court), cert denied, 541 U.S. 1078 (2004).

Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (holding based on unique facts of noncapital murder case that the statute of limitations, 28 USC 2244(d), was equitably tolled where an attorney was retained to prepare and file a habeas petition, failed to do so, and disregarded requests to return files pertaining to the case until well after the petition was due.)

Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.) (holding that a district court must stay capital habeas proceedings during the petitioner’s incompetence, rather than appointing a “next friend” and requiring the friend to pursue the habeas petition on the petitioner’s behalf; following Calderon v. U.S. District Court (Kelly V), 163 F.3d 530 (9th Cir. 1998) (en banc), and distinguishing Whitmore v. Arkansas, 495 U.S. 149 (1990), the panel construed 21 USC 848(q)(4)(B) (providing for statutory right to counsel in habeas proceedings) to incorporate a statutory right to competence, and held that the denial of the stay violated this right because the petitioner raised claims that could potentially benefit from his ability to communicate rationally), cert. denied, 540 U.S. 1069 (2003).

Jenkins v. Johnson, 330 F.3d 1146 (9th Cir. 2003) (holding that for purposes of determining whether the statute of limitations was tolled under 28 USC 2254(d)(2), the petitioner’s Oregon state court petition for postconviction relief was “properly filed” even though it was dismissed either as untimely or as successive and remanding for the district court to consider whether: (1) the post-conviction petition was pending for a sufficient period even though the petitioner’s appeal to the Oregon Court of Appeals was untimely; or (2) the petitioner was entitled to equitable tolling due to the state court’s failure to mail a notice of judgment to petitioner’s counsel; but see dissent of O’Scannlain, J. in which he stated that Or. Rev. Stat. § 138.510, Oregon’s timeliness requirement for postconviction petitions, was a “condition to filing,” rather than a “condition to obtaining relief” and that Oregon law was not ambiguous as to whether the timeliness requirement contained a good cause exception).

Smith v. Ratelle, 323 F.3d 813 (9th Cir. 2003) (holding in a noncapital case that pro se petitioner was entitled to equitable tolling because district court had erroneously dismissed his earlier, timely habeas petition due to failure to exhaust one remaining claim without first giving him opportunity to file amended petition withdrawing unexhausted claim as alternative to dismissal), cert. denied, 542 U.S.945 (2004). 

Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002) (en banc) (holding that state court petitions attacking earlier conviction could toll statute of limitations under § 2244(d)(2) because even though earlier conviction was not “pertinent judgment” attacked in federal habeas petition, federal petition claimed that petitioner’s current sentence was inappropriately enhanced by the earlier conviction and thus, state court petitions made “pertinent claim” under § 2244(d)(2)).

Jiminez v. Rice, 276 F.3d 478 (9th Cir. 2001) (holding that 28 USC 2244(d)(2) does not toll AEDPA limitations period while federal habeas petition is pending). 

Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001) (holding that state habeas corpus petition is deemed filed for purposes of equitable tolling under AEDPA when prisoner hands petition to prison officials for mailing to state court, and diligently follows up with state court once prisoner fails to receive disposition within reasonable period of time, even if petition was never received or filed by state court).

Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001) (holding in noncapital case that miscalculation of limitations period by habeas petitioner’s retained counsel and his negligence in general did not constitute extraordinary circumstances sufficient to warrant equitable tolling of limitations period under AEDPA), cert. denied, 535 U.S. 1055 (2002).

Jorss v. Gomez, 266 F.3d 955 (9th Cir. 2001) (holding that statute of limitations is equitably tolled when district court’s erroneous dismissal of prior habeas corpus petition accounts for petitioner’s failure to timely file petition).

Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001) (holding that state claim is no longer “pending” for purposes of tolling limitations period for filing federal habeas corpus petition under AEDPA when petitioner’s appeal in state court is denied, and petitioner fails to appeal denial within the prescribed time), cert. denied, 534 U.S. 1143 (2002).

Bunney v. Mitchell, 262 F.3d 973 (9th Cir. 2001) (per curiam) (as to petitioner whose conviction became final before AEDPA was enacted, statute of limitations for filing federal petition for habeas corpus was tolled until 30 days after decision of California Supreme Court summarily denying her petition for habeas corpus was filed).

Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001) (holding that although district court has authority to raise AEDPA statute of limitations sua sponte, court must give federal habeas corpus petitioner prior notice and opportunity to respond before dismissing petition as time-barred).

Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001) (remanding for hearing to establish when, with exercise of due diligence, factual predicate could have been discovered to support ineffective assistance of counsel claim, in turn allowing for a timely filing pursuant to 28 USC 2254(d)(1)(D)).

Tillema v. Long, 253 F.3d 494 (9th Cir. 2001) (holding tolling of limitations period applies to time when state petition pending, notwithstanding that state petition did not include claim later asserted in federal petition; alternatively holding that equitable tolling applied to time after court dismissed petition to exhaust without giving option to petitioner to proceed with exhausted claims pursuant to Rose v. Lundy).

Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000) (holding mailbox rule properly applied to state postconviction petition to determine tolling of federal statute of limitation), cert. denied, 533 U.S. 941 (2001).

Whalem/Hunt v. Early, 233 F. 3d 1146 (9th Cir. 2000) (en banc) (remanding for evidentiary hearing to determine whether petitioner is entitled to an “impediment” finding or to equitable tolling where petitioner’s declaration stated that the prison library did not contain the 1996 AEDPA until June 1998, petitioner’s conviction became final on July 23, 1996 and petitioner filed his first state postconviction petition in December 1997).

Green v. White, 223 F.3d 1001 (9th Cir. 2000) (holding that AEDPA’s one-year statute of limitation does not violate the Suspension Clause, because the one-year limitation is not jurisdictional and may be subject to equitable tolling).

Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) (holding that the period of direct review in § 2244(d) includes the period within which a petitioner can file a petition for writ of certiorari from the U.S. Supreme Court whether or not the petitioner actually files such a certiorari petition).

Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999) (finding extraordinary circumstances sufficient to justify equitable tolling of the AEDPA's statute of limitations where prison officials failed to honor inmate's timely request to draw the habeas filing fee from his prison trust account and mail the fee and petition to the district court for filing; noting, in dicta, that the prison mailbox rule “would appear to apply” to habeas petition filed under the AEDPA, and recognizing that a majority of other circuits have determined that the mailbox rule so applies).

Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999) (concluding that for purposes of § 2244(d) the time for filing habeas petition is tolled for the entire period during which petitioner is pursuing and exhausting state remedies–through proper use of the state courts–including the intervals between dispositions at one state level and filing of a petition at the next), cert. denied, 529 U.S. 1104 (2000).

Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530 (9th Cir. 1998) (en banc) (holding that prisoner's incompetency is an “extraordinary circumstance beyond the prisoner's control” such that where there is a threshold showing of incompetency, a sufficient showing has been made for equitably tolling the statute of limitation; determining that a court order or judicial error, depriving petitioner of opportunity to bring petition, tolls the statute), cert. denied, 526 U.S. 1060 (1999).

Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288–89 (9th Cir. 1997) (holding that one-year statute of limitation for filing of habeas petitions can be equitably tolled if “extraordinary circumstances” beyond a prisoner's control make it impossible to file a petition on time), cert. denied, 522 U.S. 1099, cert. denied, 523 U.S. 1061, and overruled en banc on other grounds, 163 F.3d 530 (9th Cir.1998).

Caldwell v. Amend, 30 F.3d 1199 (9th Cir. 1994) (applying Houston rule to Rule 50(b) filing; stating that “the adversity of interests between prisoners and prison officials central to Houston and its progeny . . . commends extension of Houston’s filing exception for pro se habeas petitioners).

Telink, Inc. v. United States, 24 F.3d 42 (9th Cir. 1994) (citing Pulley and stating that in order for laches to bar writ of error coram nobis, government must first make prima facie showing of prejudice as result of petitioner's delay; respondent's showing shifts burden to petitioner to show either no prejudice, or reasonable diligence in filing claim).

Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990) (holding petitioner's Ake claim barred for delay under Rule 9(a) where petitioner had background material relied upon for claim more than five years after Ake; delay prejudiced state because petitioner's trial psychiatrists now unavailable).

Harris v. Pulley, 885 F.2d 1354, 1366 (9th Cir. 1988) (applying Rule 9(a) “laches” and finding respondent prejudiced by delay due to witness' inability to recall important facts but also finding that petitioner's counsel acted with reasonable diligence because nothing in trial record would have put him on notice of the claim at an earlier date). 

Guizar v. Estelle, 843 F.2d 371 (9th Cir. 1988) (holding that court may accept resubmitted petition with only exhausted claims nunc pro tunc to date of original filing).

Dennis v. Woodford, 65 F. Supp.2d 1093 (N.D. Cal. 1999) (denying without prejudice petitioner’s motion for extension of time to file habeas petition; holding petitioner’s motion–to equitably toll § 2241(d) statute of limitation based on nine month delay in appointing counsel–premature because petitioner failed to make a factual showing as to why the petition could not be prepared in the remaining three months).

Barrett v. Yearwood, 63 F. Supp.2d 1245 (E.D. Cal. 1999) (disagreeing with the Central District and reading § 2244(d)(2)’s “properly filed application for State postconviction or other collateral review” language to include a properly filed federal petition, and holding that the AEDPA’s statute of limitations is tolled during the time a federal habeas petition is pending).

McClain v. Hill, 52 F. Supp. 2d 1133 (C.D. Cal. 1999) (barring amendment to habeas petition where original petition was filed prior to expiration of the AEDPA's statute of limitations, and the amendment after expiration, because amended claims did not “relate back” to original petition).

Sperling v. White, 30 F. Supp. 2d 1246 (C.D. Cal. 1998) (reading § 2244(d)(2)’s “properly filed application for State postconviction or other collateral review” language to exclude a properly filed federal habeas petition, and holding that the AEDPA’s limitations period was not tolled during the time petitioner’s prior federal habeas petition, dismissed for failure to exhaust, was pending; discussing and disapproving “relation back” doctrine).

United States v. Zuno-Arce, 25 F. Supp. 2d 1087 (C.D. Cal. 1998) (stating that foreclosure of a constitutional claim where there has been a colorable factual innocence showing would likely constitute a due process violation or an improper suspension of habeas relief; extending the miscarriage of justice gateway to claims otherwise barred by the AEDPA's statute of limitation).

Bolds v. Newland, No. C 97-2103, 1997 WL 732529 (N.D. Cal. Nov. 12, 1997) (holding ignorance of law and lack of legal assistance do not constitute extraordinary circumstances which toll the statute of limitations).

United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997) (determining that inability to secure transcripts from court reporters and lockdowns at prison lasting several days allegedly eliminating access to law library were not extraordinary circumstances justifying equitable tolling of limitations period).

Wyzykowski v. Department of Corrections, 226 F.3d 1213 (11th Cir. 2000) (remanding for determination of whether petitioner could make showing of actual innocence before reaching constitutional question of whether Suspension Clause required exception to statute of limitations for actual innocence.)

28 USC 2244(d)(1) (2000) (setting one-year filing deadline).

28 USC 2255 (2000) (setting one-year filing deadline for § 2255 cases).

Alan Ellis, Peter Goldberger & Nancy Simmons, It’s Not Too Late: Time Period for Filing § 2255 Motions Under the New Habeas Corpus Reform Law, The Champion, July 1996, at 21 (addressing constitutional and procedural issues of new § 2255 filing deadlines).

Notice of Adoption of Interim Local Rules 22.1 and 22.2, United States Court of Appeals for the First Circuit, Massachusetts Lawyers Weekly at 27 (Sept. 30, 1996) (adopting interim rules accommodating new time limitations and procedural rules of AEDPA).

Peter Sessions, Note, Swift Justice?: Imposing a Statute of Limitations on the Federal Habeas Corpus Petitions of State Prisoners, 70 S. Cal. L. Rev. 1513 (1997) (arguing that the AEDPA’s statute of limitations is fundamentally flawed; conceding its probable constitutionality and, in light of that conclusion, making a policy argument against its implementation).

Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699 (2002) (discussing apparently unintended consequences of AEDPA’s successive petition provisions, including the foreclosure of certain types of constitutional claims and the injection of numerous procedural complexities that arguably undermine reliability and fairness).

Most courts have determined that the AEDPA’s statutes of limitation have retroactive effect under Landgraf and that, in light of Lindh, the limitations periods do not run against prisoners prior to the AEDPA’s enactment date. Most courts have determined that the one-year limit begins on the day after AEDPA’s enactment (April 25, 1996) and that a “reasonable time” is the one-year time period. See §§ 6.1.1, 6.2.2.1 and 6.2.3.2.1.

Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2002 ) (holding that Fed R. Civ. P. 6(a) governs the calculation of the one-year grace period afforded prisoners whose convictions became final before AEDPA’s enactment; holding one-year grace period commences on April 25, 1996–the day after AEDPA’s enactment).

Calderon v. United States District Ct. for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997) (holding that AEDPA's one-year deadline does not run against state prisoner prior to AEDPA's enactment because such application would attach “new legal consequences to events completed prior to enactment” and thus would have impermissible retroactive effect), cert. denied 522 U.S. 1099, cert. denied, 523 U.S. 1061, and overruled en banc on other grounds, 163 F.3d 530 (9th Cir. 1998).

A petitioner must pass the AEDPA’s “gatekeeping” hurdle before filing a second or successive (SOS) § 2254 habeas petition or § 2255 habeas motion in district court. The petitioner must obtain an order authorizing the second or successive filing from a three judge appellate court panel. The circuit court evaluates petitioner's request for authorization according to the following statutory criteria set forth in § 2244(b)(3), which provides:

(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.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.  

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. [i.e. requirements of § 2244(b)(2) for granting review, see infra § 6.2.4.1].

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.

Section 2255, in relevant part, provides the following requirements as to second or successive § 2255 motions:

A second or successive motion must be certified as provided in § 2244 by a panel of the appropriate court of appeals to contain–

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or  

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

The law is somewhat unclear as to exactly what circumstances render a petition “second or successive” for purposes of the AEDPA. The Supreme Court held that a habeas petition, filed in district court after an initial petition was unadjudicated and dismissed for failure to exhaust state remedies, and which contained claims that were not contained in the initial unadjudicated petition, is not a second or successive petition. Slack v. McDaniel, 529 U.S. 473 (2000). The Supreme Court also vacated and remanded a Ninth Circuit decision in light of Slack. Shellmon v. Cambra, 531 U.S. 1005 (2000). The appellate decision that was reversed held that a petition–originally containing one exhausted and several exhausted claims–should be dismissed with prejudice after the one exhausted claim was denied on the merits.

In Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), the Supreme Court held that where the petitioner presented a Ford claim (incompetence to be executed) in his initial petition–which was dismissed as not ripe because his execution was stayed at the time–petitioner could bring a subsequent Ford claim without running afoul of the prohibitions against successive petitions. The Court followed and affirmed the analysis of the Ninth Circuit in Martinez-Villareal v. Stewart (Martinez-Villareal II), 118 F.3d 628 (9th Cir. 1997), and compared the unripe Ford claim to one initially dismissed for failure to exhaust and subsequently refiled after completion of state proceedings. See In re Turner, 101 F.3d 1323 (9th Cir. 1997). Ultimately, the Court held that a renewed Ford claim, previously dismissed as unripe, was not really a second petition.  

However, in Calderon v. Thompson, 523 U.S. 538 (1998), the Supreme Court held that a motion to recall an appellate court mandate can be considered “second or successive,” triggering application of the AEDPA's restrictions. See infra §§ 6.2.3.1 and 6.2.3.2.

In United States v. Villa-Gonzalez, 208 F. 3d 1160 (9th Cir. 2000) (per curiam), the Ninth Circuit held that § 2244(b)(4) requires the district court to dismiss a claim if, after appellate court authorization pursuant to § 2244(b)(3)(A), the district court conducts a thorough review and finds that the motion does not meet the § 2244(b)(2) second or successive motion requirement.

Castro v. United States, 540 U.S. 375 (2003) (holding that federal court cannot recharacterize a pro se litigant’s motion as a first § 2255 motion unless: it first informs the litigant of its intent to recharacterize; warns the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on “second or successive” motions; and provides the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims that the litigant believes he or she has).

Shellmon v. Cambra, 531 U.S. 1005 (2000) (granting certiorari, vacating and remanding Ninth Circuit’s judgment that petition–containing one exhausted claim denied on the merits and several unexhausted claims–should be dismissed with prejudice; remanded in light of Slack v. McDaniel).

Slack v. McDaniel, 529 U.S. 473 (2000) (holding that a habeas petition, filed in district court after an initial petition was unadjudicated on the merits and dismissed for failure to exhaust state remedies, and which contained claims that were not contained in the initial unadjudicated petition, is not a second or successive petition).

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (affirming the Ninth Circuit in holding that Ford claim, previously dismissed as unripe, is not second or successive petition within meaning of 28 USC 2244(b)(2)).

Calderon v. Thompson, 523 U.S. 538 (1998) (determining that a prisoner's motion to recall an appellate court mandate on the basis of the underlying merits in a capital habeas case can be regarded as second or successive and, if the court grants the motion, its action is subject to the AEDPA irrespective of whether the motion is based on new or old claims; if, in recalling the mandate, the appellate court considers new claims or evidence presented in a successive application, it is proper to regard the court's action as based on that application triggering the AEDPA's application regardless of whether the court labels the action as sua sponte).

Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam) (rejecting petitioner’s contention in capital case that his petition was not second or successive because claim was presented in his first petition, but district court erroneously failed to decide it on its merits; finding that petitioner, who now alleged that his trial counsel was ineffective for not adequately investigating confession of another person to murders and calling that person to stand to testify during petitioner’s murder trial, had only obliquely referred to that person’s confession in his first petition’s claim of ineffective assistance of counsel and reference was insufficient to identify that petitioner was raising distinct claim of ineffective assistance of trial counsel based on that confession).

United States v. Villa-Gonzalez, 208 F.3d 1160 (9th Cir. 2000) (per curiam) (holding that § 2244(b)(4) requires the district court to dismiss a claim if, after appellate court authorization pursuant to § 2244(b)(3)(A), the district court conducts a thorough review and finds that the motion does not meet the § 2244(b)(2) second or successive motion requirement).

LaGrand (Karl) v. Stewart, 170 F.3d 1158, 1160 (9th Cir. 1999) (extending Martinez Villareal II in holding that a section 2244(b)(2) motion for leave to file a second or successive petition is unnecessary as to claim–that lethal gas is an unconstitutional execution method–brought in first petition but dismissed as unripe.

Thompson v. Calderon, 151 F.3d 918 (9th Cir.) (treating petitioner's Rule 60(b) motion for relief from judgment as a successive petition governed by the AEDPA; holding that en banc court was authorized to determine petitioner's request for successive petition authorization; finding that § 2244(b) permits a successive petition to establish deathineligibility, but that petitioner did not satisfy the § 2244(b)(2)(B)(ii) actual innocence requirement), cert. denied, 524 U.S. 965 (1998).

Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998) (holding that a Lackey (length of capital confinement) claim, not raised in a first § 2254 petition, does not fall within either exception to the AEDPA's bar against subsequent claims), cert. denied, 526 U.S. 1123 (1999).

Gretzler v. Stewart, 146 F.3d 675 (9th Cir.) (affirming dismissal of second petition asserting Lackey claim; reasoning that petitioner could have included claim in first petition amended in 1992; rejecting contention that claim is not ripe until execution is imminent), cert. denied, 524 U.S. 912 (1998).

Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (finding that inmate failed to make a prima facie showing to justify successive petition authorization; holding that, because there is no constitutional right to a clemency hearing, petitioner's claim that formerattorneys involvement as prosecutors at his clemency hearing presented a constitutional conflict of interest was not cognizable in a second petition under the AEDPA).

Martinez-Villareal v. Stewart (Martinez-Villareal II), 118 F.3d 628, 632 (9th Cir. 1997) (holding the § 2244 “gatekeeping” provisions inapplicable to Ford claims), aff'd, 523 U.S. 637 (1998).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (concluding that if petitioner makes a prima facie showing for authorization of one successive claim, then he may proceed upon entire application in district court), cert. denied, 523 U.S. 1082 (1998).

Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir.) (dismissing request for order authorizing consideration of successive petition under § 2244(b)(2); finding no new rule of constitutional law made retroactive by the Supreme Court in claim that lethal injection for crime of first degree murder is unconstitutional), cert. denied, 519 U.S. 1103 (1997).

Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir.) (holding that § 2244(b)(2)(B) forecloses all successive petition reviews of constitutional claims unrelated to guilt or innocence), cert. denied, 519 U.S. 1102 (1997).

Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996) (interpreting § 2244(b)(3)(C) to mean authorization of entire successive petition, not just those claims meeting § 2244's requirements), cert. denied, 527 U.S. 1006 (1999).

In re Turner, 101 F.3d 1323 (9th Cir. 1997) (holding that § 2244(b)(3) does not apply to subsequent petitions where first petition was dismissed without prejudice for failure to exhaust).

Poland v. Stewart, 41 F. Supp. 2d 1037 (D. Ariz. 1999) (holding that petitioner may bring a Ford claim in a subsequent petition without complying with the AEDPA's successive petition requirements because the reasoning of Martinez-Villareal II applied with equal force to the case despite petitioner's failure to raise the claim in his initial petition).

United States v. Kashiwabara, 962 F. Supp. 1278 (D. Haw. 1996) (reading § 2255's reference to § 2244 to incorporate authorization “procedures” only).

28 USC 2244(b)(2) (2000) (providing “gatekeeping” requirements for SOS petitions).

28 USC 2244(b)(3) (2000) (providing authorization requirement for SOS petitions).

28 USC 2255 (2000) (providing authorization requirement for SOS § 2255 petitions).

In Williams v. Calderon, 83 F.3d 281 (9th Cir. 1996), the Ninth Circuit held that the petitioner did not have to obtain authorization under 28 USC 2244 when the petitioner filed a successive petition prior to the AEDPA's enactment date, which is April 24, 1996. That decision is consistent with the Supreme Court's subsequent decision, in Lindh v. Murphy, 521 U.S. 320 (1997), that the AEDPA does not apply to cases pending at the time of the AEDPA's enactment.

The Ninth Circuit held in U.S. v. Villa-Gonzalez, 208 F.3d 1160 (9th Cir. 2000), that 28 USC 2244 authorization applied to a successive § 2255 motion filed after the AEDPA’s enactment, notwithstanding that the initial § 2255 motion was filed pre-AEDPA.

Lindh v. Murphy, 521 U.S. 320 (1997) (holding that the AEDPA does not apply to habeas cases pending at the time of enactment).

Felker v. Turpin, 518 U.S. 651 (1996) (applying the AEDPA to prisoner’s second petition despite the fact that prisoner filed first petition prior to AEDPA’s enactment).  

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (setting forth standard for retroactivity of new statutes; preventing retroactive application of statute where doing so attaches new legal consequences to events completed before enactment).

Lindh v. Murphy, 521 U.S. 320 (1997) (holding that the AEDPA does not apply to habeas cases pending at the time of enactment).

Felker v. Turpin, 518 U.S. 651 (1996) (applying the AEDPA to prisoner’s second petition despite the fact that prisoner filed first petition prior to AEDPA’s enactment).

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (setting forth standard for retroactivity of new statutes; preventing retroactive application of statute where doing so attaches new legal consequences to events completed before enactment).

Poland v. Stewart, 41 F. Supp. 2d 1037 (D. Ariz. 1999) (noting the court's prior order that petition alleging new Ford claim be filed as a new habeas action, not subject to the AEDPA's successive petition restrictions, but otherwise subject to the AEDPA, where petitioner filed his initial petition (without the Ford claim) prior to the AEDPA's enactment).

Although res judicata is inapplicable in a habeas proceeding, Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999), 28 USC 2244 limits federal court consideration of any § 2254 petition filed subsequent to the first federal habeas petition. Prior to the AEDPA, § 2244(b) permitted a district court to dismiss a subsequent petition unless the petitioner predicated the writ on new grounds and the petitioner had not “abused the writ.”

In 1996 the AEDPA significantly changed the standard of review requiring dismissal of all successive petitions, see § 6.2.3.1, and dismissal of abusive petitions unless the petitioner satisfies the standard set forth in § 2244(b). See § 6.2.3.2. 

In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that a habeas petition–filed after an initial petition was unadjudicated and dismissed for failure to exhaust state remedies–is not a second or successive petition, notwithstanding that additional claims were included in the subsequent petition. Even though both of Slack’s petitions were filed before AEDPA’s enactment, the Court’s analysis probably applies to post-AEDPA petitions as well: “[W]e do not suggest the definition of second or successive would be different under AEDPA.” Id. at 486.

Castro v. United States, 540 U.S. 375 (2003) (holding that federal court cannot recharacterize a pro se litigant’s motion as a first § 2255 motion unless: it first informs the litigant of its intent to recharacterize; warns the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on “second or successive” motions; and provides the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims that the litigant believes he or she has; also holding that if these warning are not given, the motion cannot be considered to have been a § 2255 motion for purposes of applying to later motions the law’s “second or successive” restrictions).

Slack v. McDaniel, 529 U.S. 473 (2000) (holding that a habeas petition–filed after an unadjudicated initial petition was dismissed for failure to exhaust state remedies–is not a second or successive petition, notwithstanding that additional claims were included in the subsequent petition).

Angelone v. Bennett, 519 U.S. 959 (1996) (Stevens, J., dissenting) (stating that legislative reforms limiting federal court authority to entertain successive petitions increases the importance of full and fair first petition review and thus federal court should give greater, rather than less, scrutiny to capital inmates’ first petitions).

United States v. Seesing, 234 F.3d 456 (9th Cir. 2001) (stating that when a prisoner files a pro se request of the court, the court cannot recharacterize the req