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 request as a § 2255 motion without giving the prisoner either the option to consent or the option to withdraw the motion so that the prisoner does not lose the right to file a comprehensive first motion).

Neuschafer v. Whitley, 860 F.2d 1470, 1474 n.3 (9th Cir. 1988) (distinguishing “abusive” and “successive” petitions).

Jane A. Gordon, Comment, Pleading Rule 9 of the Rules Governing Habeas Corpus: Sua Sponte Departure From Precedent and Congressional Intent, 38 Emory L.J. 489 (1989) (exploring the principles governing Rule 9(a) and (b) pleading; discussing whether court may raise Rule 9 sua sponte, or whether it is affirmative defense).

John B. Morris, Jr., Note, The Rush to Execution: Successive Habeas Corpus Petitions in Capital Cases, 95 Yale L.J. 371 (1985) (analyzing various types of successive petitions and different procedural situations in which they arise).

Prior to AEDPA, 28 USC 2254 provided for the dismissal of a petition alleging the same grounds for relief as those raised in an earlier petition where the prior determination was on the merits. Section 2244(b)(1) now simply provides: “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” See supra § 6.2.2.

Calderon v. Thompson, 523 U.S. 538 (1998) (determining that 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 second or successive for purposes of § 2244(b), and that if the court grants such a motion, its action is subject to the AEDPA irrespective of whether it is based on old claims).

Alabama v. Evans, 461 U.S. 230 (1983) (vacating stay of execution based on finding that successive petition sought to re-litigate previously decided issues without justification; finding no merit to sole new claim presented).

Sanders v. United States, 373 U.S. 1 (1963) (ruling that denial of prior § 2254 petition or § 2255 motion should be given controlling weight only if (1) same ground presented in subsequent petition was determined adversely to petitioner on prior petition, (2) prior determination was on the merits, (3) ends of justice would not be served by reaching merits of subsequent petition).

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, even after the AEDPA, res judicata doctrine does not apply to a federal habeas petition regardless of the nature of the prior proceeding), cert. denied, 526 U.S. 1060 (1999).

Williams v. Calderon, 83 F.3d 281 (9th Cir. 1996) (finding no cause or prejudice sufficient to justify successive claims previously raised, or abusive claims not previously raised).

Campbell v. Blodgett, 997 F.2d 512 (9th Cir. 1992) (rejecting claims raised in prior petition as successive where subsequent claims based upon same factual and legal precedents).

Howard v. Lewis, 905 F.2d 1318 (9th Cir. 1990) (holding that dismissal of federal habeas petition on procedural default grounds is a determination on the merits for purposes of the Sanders successive petition doctrine).

Molina v. Rison, 886 F.2d 1124, 1129 (9th Cir. 1989) (stating that a successive claim is improper if gravamen of legal claim is the same, regardless of whether the basic claim is supported by new or different legal arguments).

Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989) (holding that dismissal without prejudice for exhaustion does not constitute a dismissal on merits and, thus,subsequent filing is not a successive petition in violation of Sanders).

Johnson v. Lumpkin, 769 F.2d 630, 637 (9th Cir. 1985) (holding that dismissal with prejudice of prior habeas petition does not necessarily constitute a merit decision for Sanders purposes).

In Sanders v. United States, 373 U.S. 1 (1963), the Supreme Court held that in order for a federal court to consider a claim previously addressed in a habeas proceeding, the petitioner must demonstrate that the previous decision was not on the merits or that reconsideration of the merits would serve the ends of justice. Courts typically defined the “ends of justice” by objective factors such as, but not limited to, whether a full and fair hearing occurred on the original petition or whether an intervening change in the facts or applicable law occurred. However, in Kuhlmann v. Wilson, 477 U.S. 436 (1986), a Supreme Court plurality limited consideration of the “ends of justice” to cases in which the petitioner supplements the claim with a colorable showing of factual innocence.

Moreover, the post-AEDPA version of 28 USC 2244(b)(1)–“A claim . . . that was presented in a previous application shall be dismissed”–does not include the “ends of justice” exception for previously presented claims to be raised again in a subsequent petition.

Sawyer v. Whitley, 505 U.S. 333 (1992) (holding that in order to prove actual innocence, petitioner must show fair probability that rational trier of fact would have entertained reasonable doubt re: existence of facts which are prerequisites under state or federal law for imposition of death penalty).

Kuhlmann v. Wilson, 477 U.S. 436 (1986) (plurality) (holding “ends of justice” served where exception to dismissal of successive petition made only when the petitioner supplements constitutional claim with colorable showing of factual innocence).

Sanders v. United States, 373 U.S. 1 (1963) (permitting re-litigation of successive claim where previous adjudication was not on merits, or where reconsideration of the claim serves the ends of justice).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (emphasizing that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway; petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial; “the claim is procedural, not substantive”), cert. denied, 523 U.S. 1133 (1998).

Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985) (holding that where petitioner did not appeal the denial of previously litigated claims because they were not the basis for relief, reaching those claims serves Rule 9(b) ends of justice).

George W. Sherrell IV, Note, Successive Chances for Life: Kuhlmann v. Wilson, Federal Habeas Corpus and the Capital Petitioner, 64 N.Y.U. L. Rev. 455 (1989) (summarizing Kuhlmann and arguing that standard for review of successive petitions is too restrictive).

In Calderon v. Thompson, 523 U.S. 538 (1998), the Supreme Court addressed the issue of whether a circuit court's mandate recall is subject to successive petition analysis. Although the court held AEDPA inapplicable, in reaching its holding it stated that a prisoner's motion to recall an appellate court mandate on the basis of the underlying merits in a capital habeas case would be subject to § 2244(b). The Court explained that because the Ninth Circuit acted sua sponte and recalled the mandate based on the merits of Thompson’s first petition, the mandate recall did not contravene the letter of AEDPA. However, the Supreme Court also found that while AEDPA did not govern the case, the appellate court was nevertheless required to act in a manner consistent with the statute. Accordingly, the Supreme Court held that a federal court of appeals abuses its discretion if, absent a miscarriage of justice, it recalls sua sponte a mandate to revisit the merits of an earlier decision denying habeas relief. The Court determined on the specific facts of Thompson that the Ninth Circuit abused its discretion recalling its mandate.

Bell v. Thompson, 125 S. Ct. 2825 (2005) (holding that, assuming Fed. R. App. P. 41 authorizes a stay of a mandate following a denial of certiorari and that a court may stay the mandate without entering an order, the Sixth Circuit’s decision to do so here was an abuse of discretion; also holding that Sixth Circuit did not accord appropriate level of respect to state’s judgment where it withheld its mandate for over five months--based on evidence supporting only arguable constitutional claim--while the state prepared to carry out the execution; commenting that while state’s reliance interest was not as strong in a case where, unlike Calderon v. Thompson, the mandate has not issued, the finality and comity concerns that animated Thompson were implicated in the present case).

Calderon v. Thompson, 523 U.S. 538 (1998) (determining that a motion to recall a mandate can be considered successive under the AEDPA; holding that it is an abuse of discretion for a court of appeals to recall a mandate sua sponte absent a miscarriage of justice; finding that the Ninth Circuit abused its discretion in recalling its mandate).  

Calderon v. Thompson, 523 U.S. 538 (1998) (Souter, J., dissenting) (noting that nothing in the AEDPA speaks to the courts of appeals’ inherent power to recall a mandate, so long as the power is not abused to enable litigation of otherwise forbidden SOS claims; stating that, “[w]hatever policy the court is pursuing, it is not the policy of the AEDPA”).

Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996) (denying capital habeas petitioner’s motion to recall the mandate to reopen proceedings and present new claims, recognizing that recall would undermine McCleskey and AEDPA), cert. denied, 527U.S. 1006 (1999)

Stephen Reinhardt, The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y. L. Rev. 313 (1999) (discussing the Thomas Thompson case and asserting that the Supreme Court's Calderon decision implicitly extends the rule holding defendants liable for procedural errors made by their attorneys to holding defendant's liable for procedural errors made by their judges).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

In Gonzalez v. Crosby, 125 S. Ct. 2641 (2005), the Supreme Court held that if a motion under Fed. R. Civ. P. 60(b) for relief from judgment contains one or more “claims,” it is subject to AEDPA’s restrictions on successive habeas petitions. The Court also held that a Rule 60(b) motion can be said to bring a claim if it seeks to add a new ground for relief from the state conviction or attacks the federal court’s previous resolution of a claim on the merits, but not if it merely attacks a defect in the integrity of the federal habeas proceedings. Id. at 2648. The Court concluded that if neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant’s state conviction, allowing the Rule 60(b) motion to proceed as denominated creates no inconsistency with the habeas statute or rules. Id. 

Gonzalez v. Crosby, 125 S. Ct. 2641 (2005) (holding that where neither the Rule 60(b) motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant’s state conviction, allowing the motion to proceed on its own terms creates no inconsistency with the habeas statute or rules; accordingly, a Rule 60(b) motion that challenged only the district court’s previous ruling on AEDPA’s statute of limitations was not the equivalent of a successive habeas petition and did not require a certificate of appealability).

Abdur’Rahman v. Bell, 537 U.S. 88 (2002) (per curiam) (dismissing writ of certiorari as improvidently granted; but see dissenting opinion of Stevens, J. expressing view that there was a need for clarification of the availability of Federal Rule of Civil Procedure 60(b) motions to challenge the integrity of final orders entered in habeas proceedings, and agreeing with the view that the difference between a second and successive habeas motion and a Rule 60(b) motion lies in the harm intended to be cured: a second or successive habeas petition is meant to remedy a constitutional violation, while a Rule 60(b) motion is designed to cure procedural violations in an earlier proceeding that raise questions about that proceedings integrity).

Prior to enactment of the AEDPA, Rule 9(b) of the rules governing § 2254 and § 2255 cases provided for the dismissal of a subsequent petition where the court found that petitioner's failure to assert new or different grounds in an earlier petition constituted an “abuse of the writ.” In Sanders v. United States, 373 U.S. 1 (1963), the Supreme Court ruled that a petition constitutes an “abuse of the writ” if the petitioner: (a) deliberately withheld the new grounds from a prior petition, (b) is pursuing needless piecemeal litigation, or (c) has raised the claims only to vex, harass, or delay.

In 1991, the Supreme Court substantially revised the abuse of the writ standard in McCleskey v. Zant, 499 U.S. 467 (1991). The McCleskey Court held that in order to avoid dismissal of a new claim as an abuse of the writ, a petitioner must show (1) cause for the failure to raise the claim previously and (2) prejudice resulting therefrom, or (3) a miscarriage of justice. The Court lifted this “cause and prejudice” standard from its procedural default cases. To demonstrate cause, a petitioner must show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court. The petitioner must then show actual prejudice from the claimed error. The Advisory Committee Notes to former Rule 9(b) provided that a retroactive change in the law and newly discovered evidence constituted acceptable cause for failing to raise a claim in an earlier petition.

In 1996, Congress enacted the AEDPA which amended § 2244(b)(2) to prohibit review of subsequent petitions raising new claims unless one of two conditions are met. Section 2244(b)(2) provides:  

A claim presented in a second or successive habeas corpus application under § 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.

Slack v. McDaniel, 529 U.S. 473 (2000) (holding that a pre-AEDPA 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; suggesting that the definition of second or successive would be the same under AEDPA.).

Felker v. Turpin, 518 U.S. 651 (1996) (holding that the AEDPA codified abuse of the writ doctrine in 28 USC 2244(b)).

Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653 (1992) (holding that petitioner's last-minute § 1983 claim, that execution by gas violates the Eighth Amendment, was abusive where it could have been raised in earlier habeas petitions).

McCleskey v. Zant, 499 U.S. 467 (1991) (holding that claims in subsequent petition that were not alleged in previous petitions will be dismissed as an abuse of the writ unless petitioner can show: (a) cause for failure to raise claim previously, and prejudice resulting therefrom, or (b) factual innocence).

Sanders v. United States, 373 U.S. 1 (1963) (setting forth abuse of writ standard prior to McCleskey; holding that since res judicata is not applicable in habeas proceedings, federal court must reach merits of subsequent claims unless: (a) the claims were deliberately withheld or abandoned, or (b) the purpose of the petition is to vex, harass, or delay; re-litigation of successive claim is permitted if the ends of justice is thereby served).

Babbitt v. Woodford, 177 F.3d 744 (9th Cir.) (barring petitioner's claim that trial counsel's racial bias created structural error because factual predicates underlying claim could have been discovered through exercise of due diligence and, even if proven, claims would not establish actual innocence), cert. denied, 526 U.S. 1107 (1999).  

Siripongs v. Calderon, 167 F.3d 1225 (9th Cir.) (analyzing facts and holding that petitioner's claim that prosecutors withheld exculpatory evidence did not satisfy either element of 28 USC 2244(b)(2)(B) so as to establish cause for his default), cert. denied, 525 U.S. 1131 (1999)

Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal. (Kelly V), 163 F.3d 530 (9th Cir. 1998) (stating that habeas petitioner's failure to present all possible grounds for relief in the defensive posture of an opposition to state's mandamus petition did not turn later petition into an abuse of the writ; opposition to a mandamus petition is not a substitute for a habeas petition), cert. denied, 526 U.S. 1060 (1999).

Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998) (holding that state waived abuse of writ argument by failing to raise it when it filed objections to magistrate judge's recommendations).

United States v. Allen, 157 F.3d 661 (9th Cir. 1998) (holding that a ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments; identical grounds may often be proved by different factual allegations).

Thompson v. Calderon, 151 F.3d 918 (9th Cir.) (quoting Sawyer and interpreting last “prong” of § 2244(b)(2) as permitting petitioner to show by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner death eligible under state law; finding that petitioner did not meet the § 2244(b)(2)(B)(ii) actual innocence standard), 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).

Villafuerte v. Stewart, 142 F.3d 1124 (9th Cir. 1998) (refusing to allow pursuit of new claims brought in second petition, including claim of racial bias by judge later suspended for use of racial epithets, because petitioner failed to meet § 2244(b)(2)(B)'s requirements).

Calderon v. United States Dist. Ct. for the N. Dist. of Cal. (Taylor), 134 F.3d 981 (9th Cir.) (noting that proposed second amended petition, adding newly exhausted claims to first amended petition held in abeyance while petitioner pursued unexhausted claims, could be barred as an abuse of the writ, but finding that state's challenge is premature until petitioner attempts to re-amend), cert. denied, 525 U.S. 920 (1998).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (allowing petitioner to pass through Schlup actual innocence gateway, emphasizing that petitioner need not prove that he is actually innocent, but instead must present evidence such that a court cannot have confidence in the outcome of the trial; the claim is procedural, not substantive), cert. denied, 523 U.S. 1133 (1998).

Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (precluding inmate's claims under the AEDPA where inmate failed to make a prima facie showing that he could not have uncovered the claim through prior exercise of due diligence).

United States v. Lorentsen, 106 F.3d 278 (9th Cir. 1997) (denying movant's successive § 2255 motion because it relied on new statutory interpretation, rather than new constitutional rule, and because the interpretation was not made retroactive to cases on collateral review).

Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir.) (finding no new rule of constitutional law made retroactive by the Supreme Court in claim that penalty of death by lethal injection for first degree murder is unconstitutional), cert. denied, 519 U.S. 1103 (1997).

Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997) (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. McDaniel, 104 F.3d 1120, 1121 (9th Cir. 1997) (finding that petitioner made a prima facie showing of new rule of constitutional law and granting request for leave to file a second habeas petition).

Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996) (holding that subsequent habeas corpus petition alleging “new and different” grounds for relief is subject to Rule 9(b) abuse of writ scrutiny, even though dismissal of prior petition was not based on merits), abrogated by Slack v. McDaniel, 529 U.S. 473 (2000).

Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990) (finding that McCleskey abuse of writ standard does not create new rule and thus is retroactive under Teague), cert. denied, 503 U.S. 910 (1992).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (holding that where district court granted relief from sentence on one ground, failure to appeal denial of relief on other grounds does not constitute an abuse of the writ), rev'd on other grounds, 506 U.S. 40 (1992).

Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989) (defining, prior to McCleskey, “abusive” petition as one in which petitioner has: (a) deliberately withheld the new grounds from a prior petition, (b) pursued needless piecemeal litigation, or (c) raised the claims only to vex, harass, or delay).

Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir. 1989) (stating, prior to McCleskey, that district court's decision not to dismiss petition for abuse of the writ is reviewed for abuse of discretion), vacated on other grounds, 500 U.S. 901 (1992).

Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989) (stating that re-filed petition following dismissal of prior petition without prejudice is not abusive).

Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988) (holding that petitioner did not abuse writ in bringing claims in second petition that were left out of first petition for lack of exhaustion).

Alan Ellis, et al., It's Not Too Late Part II: Filing Second and Successive 2255 Motions Under the New Habeas Corpus Reform Law, 21-Feb Champion 16 (1997) (arguing that while the AEDPA was supposedly enacted to restrict abusive petitions, it actually restricts the postconviction rights of prisoners).

Steven M. Goldstein, Application of Res Judicata Principles to Successive Federal Habeas Corpus Petitions in Capital Cases: The Search for an Equitable Approach, 21 U.C. Davis L. Rev. 45 (1987) (analyzing standards of review for successive petitions and, focusing on capital cases, attempting to resolve confusion).

David D. Kammer, Note, Restricting New-Claim Successive Applications for Federal Writs of Habeas Corpus, 60 U. Cin. L. Rev. 1405 (1992) (summarizing McCleskey and related law on successive petitions).

Andrea A. Kochan, The Anti-Terrorism and Effective Death Penalty Act of 1996: Habeas Corpus Reform?, 52 Wash. U. J. Urb. & Contemp. L. 399 (1997) (arguing that the AEDPA actually exacerbates the problems in habeas corpus jurisprudence and severely restricts prisoners' habeas corpus rights).

Mark M. Oh, The Gateway for Successive Habeas Petitions: An Argument for Schlup v. Delo's Standard for Actual Innocence Claims, 19 Cardozo L. Rev. 2341 (1998) (arguing that while the AEDPA's actual innocence standard appears to overrule the prior Supreme Court standard, the AEDPA's standard should be abandoned because it violates due process).

Deborah L. Stahlkopf, A Dark Day for Habeas Corpus: Successive Petitions under the Anti-Terrorism and Effective Death Penalty Act of 1996, 40 Ariz. L. Rev. 1115 (1998) (describing the effects of the new gatekeeper provisions under the AEDPA, how the provisions affect inmate's ability to bring successive claims, and the implications of such restrictions).

Cheryl R. Sweeney, McCleskey v. Zant, The Cause and Prejudice Standard in Capital Punishment Cases, 24 U. Tol. L. Rev. 231 (1992) (analyzing history and evolution of habeas corpus writ and new standard set forth in McCleskey).

In Felker v. Turpin, 518 U.S. 651 (1996), the Supreme Court retroactively applied § 2244(b)(2) to a petitioner who had already completed his first habeas proceeding without specifically addressing the retroactivity issue. However, the Supreme Court decided Felker prior to Lindh v. Murphy, 521 U.S. 320 (1997). In Lindh, the Court held that the AEDPA does not apply to cases that were pending at the time of the AEDPA's enactment.

In U.S. v. Villa-Gonzalez, 208 F.3d 1160 (9th Cir. 2000), the Ninth Circuit held that the application of § 2244 to a post-AEDPA successive § 2255 motion is not a retroactive application of the AEDPA, notwithstanding that the initial § 2255 motion was filed pre-AEDPA.

Lindh v. Murphy, 521 U.S. 320 (1997) (holding that negative implication of Chapter 154's retrospective application provision means that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective).

Felker v. Turpin, 518 U.S. 651 (1996) (applying new § 2244(b)(2) to pending case where petitioner had already completed first habeas corpus proceeding).

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).

U.S. v. Villa-Gonzalez, 208 F.3d 1160 (9th Cir. 2000) (holding that the application of § 2244 to a post-AEDPA successive § 2255 motion is not a retroactive application of the AEDPA, notwithstanding that the initial § 2255 motion was filed pre-AEDPA).

Mueller v. Angelone, 181 F.3d 557 (4th Cir.) (concluding that the Court in Lindh did not foreclose the possibility that in some cases filed after enactment, certain of the AEDPA's provisions might not be applicable because of an impermissible retroactive effect; conducting Landgraf analysis, however, and finding application of AEDPA proper), cert. denied, 527 U.S. 1065 (1999).

Graham v. Johnson, 168 F.3d 762 (5th Cir. 1999) (rejecting petitioner's argument that fourth habeas petition filed after enactment of AEDPA was continuation of third petition, pending at the time of enactment and subsequently dismissed; reading Lindh to recognize implicit congressional intent as satisfying Landgraf clear statement requirement and holding that AEDPA's gatekeeping provisions apply), cert. denied, 529 U.S. 1097 (2000).

In re Minarik, 166 F.3d 591 (3rd Cir. 1999) (holding that the AEDPA's ambiguity regarding retroactive application of its gatekeeping procedures to a second petition, where the first petition was filed before the AEDPA, necessitates Landgraf analysis; applying AEDPA under Landgraf because petitioner failed to show he would be permitted a second petition under pre-AEDPA law).

Prior to the AEDPA, a prisoner could excuse a federal procedural default by demonstrating sufficient cause for the failure to previously raise the claim. A subsequent petition grounded on new facts or evidence not available at the time of an earlier petition met the sufficient cause requirement under pre-AEDPA law of excusing the failure to raise the claim earlier. The Supreme Court’s opinion in Herrera v. Collins, 506 U.S. 390 (1993), however, emphasized that new evidence of innocence alone is not sufficient cause. A new innocence claim must include a claim of constitutional error. See infra § 6.3.2.5.

Herrera v. Collins, 506 U.S. 390 (1993) (holding that actual innocence claim based on new evidence is not cognizable on habeas and cannot serve as exception to abuse of writ without identification of some constitutional error).

McCleskey v. Zant, 499 U.S. 467 (1991) (holding that where petitioner had sufficient evidence to support a Massiah claim before filing first petition, new evidence discovered later was not “cause” for a Massiah claim first raised in a second petition and thus petitioner abused the writ).

Harris v. Pulley, 885 F.2d 1354, 1370–71 (9th Cir. 1988) (holding, prior to McCleskey, that newly developed scientific evidence is cause for failure to include claim in prior petition), cert. denied, 493 U.S. 1051 (1990).

Kathleen C. Boyd, Note, The Paradox of Actual Innocence in Federal Habeas Corpus After Herrera v. Collins, 72 N.C. L. Rev. 479 (1994) (reviewing Herrera and analyzing the resulting confusion regarding claims of innocence in federal habeas corpus cases).

A change in the law subsequent to the filing of the first habeas petition is sufficient cause, under pre-AEDPA law, for failing to earlier include the claim based on such law, provided that the new law is retroactive under Teague v. Lane, 489 U.S. 288 (1989). Under AEDPA, the Supreme Court would have to hold the new law should be applied retroactively.

28 USC 2244(b)(2)(A) (2000).

Prior to McCleskey v. Zant, 499 U.S. 467 (1991), the Ninth Circuit held in Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988), that a petitioner does not deliberately abuse the writ where he omitted unexhausted claims from his first petition because he believed in good faith that the claims would be barred until exhausted. Thereafter, the Supreme Court held in McCleskey that where a petitioner was aware of a ground supporting a prior petition but deliberately withheld it, the petitioner could not maintain a subsequent petition raising that ground.

McCleskey v. Zant, 499 U.S. 467 (1991) (prohibiting petitions raising grounds previously available but deliberately withheld).

Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989) (finding, prior to McCleskey, no abuse of writ where there was no affirmative indication in the record that petitioner made a conscious decision to deliberately withhold claim).

Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988) (finding, prior to McCleskey, no abuse of writ where petitioner did not bring certain unexhausted claims in a prior petition due to a good faith belief that their inclusion would require dismissal under Rose), cert. denied, 493 U.S. 906 (1989).

Ainsworth v. Vasquez, 759 F. Supp. 1467 (E.D. Cal. 1991) (adopting procedural suggestion in Judge Alarcón's Neuschafer concurrence; stating that magistrate judges have discretion to hold hearings to determine existence of additional claims, including unexhausted claims; hearings, so limited, do not unduly infringe on attorney-client privilege).

The Supreme Court in McCleskey v. Zant, 499 U.S. 467 (1991), created a “fundamental miscarriage of justice” exception to the pre-AEDPA Rule 9(b) abuse of the writ bar. The Court, however, appeared to limit the “miscarriage of justice” exception to claims of factual innocence. Subsequently, in Herrera v. Collins, 506 U.S. 390 (1993), the Court emphasized that courts may not hear a federal habeas claim of actual innocence unless the petition also alleges a federal constitutional violation.

However, in Schlup v. Delo, 513 U.S. 298 (1995)–a case involving a successive habeas petition asserting that a constitutional trial error caused the conviction of an innocent defendant–the Court held that the standard for reviewing such actual innocence claims is whether a constitutional violation “probably resulted in the conviction of one who is actually innocent,” as set forth in Murray v. Carrier, 477 U.S. 478 (1986).

The current version of 28 USC 2244(b)(2), amended by the AEDPA in 1996, does not include the “miscarriage of justice” exception to the abuse of the writ bar. Most courts having an opportunity to determine how an actual innocence claim operates post-AEDPA have avoided directly addressing the issue. In United States v. Zuno-Arce, 25 F. Supp. 2d 1087 (C.D. Cal. 1998), however, the Central District of California held 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. The court, therefore, extended the miscarriage of justice gateway to claims otherwise procedurally barred by the AEDPA's statute of limitation.

Dretke v. Haley, 541 U.S. 386 (2004) (holding in a noncapital habeas case that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default; in the present posture of the case, the Supreme Court declined to extend the actual innocence exception to procedural default of constitutional claims challenging the noncapital sentencing error). 

Calderon v. Thompson, 523 U.S. 538 (1998) (distinguishing the Schlup and Sawyer miscarriage of justice standards and finding that petitioner's new evidence did not meet either standard).

Schlup v. Delo, 513 U.S. 298 (1995) (holding that the Murray standard, rather than the more stringent Sawyer standard, governs the miscarriage of justice inquiry when a capital habeas petitioner raises an actual innocence claim to avoid procedural bar).

Herrera v. Collins, 506 U.S. 390 (1993) (holding that an actual innocence claim does not establish an exception to abuse of the writ unless accompanied by a claim of federal constitutional violation).

Sawyer v. Whitley, 505 U.S. 333 (1992) (stating that actual innocence standard for fundamental miscarriage of justice exception requires clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found petitioner eligible for death penalty under applicable state law).

McCleskey v. Zant, 499 U.S. 467 (1991) (holding that claims in subsequent petition not alleged in previous petitions will be dismissed as an abuse of writ unless petitioner can show: (a) cause and prejudice, or (b) a miscarriage of justice in the form of factual innocence).

Smith v. Murray, 477 U.S. 527 (1986) (emphasizing that the miscarriage of justice exception addresses actual, not legal, innocence).

Murray v. Carrier, 477 U.S. 478 (1986) (setting forth the “probably resulted in the conviction of one who is actually innocent” actual innocence standard).

Kuhlmann v. Wilson, 477 U.S. 436 (1986) (holding that to show “fundamental miscarriage of justice,” petitioner must make “colorable showing of actual innocence”).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (emphasizing that the Schlup gateway is a procedural mechanism for consideration of otherwise barred claims, as opposed to a substantive, independent avenue to relief; thus, petitioner need only present evidence of innocence which undermines confidence in the outcome of the trial, not establish Herrera/Sawyer actual innocence), cert. denied, 523 U.S. 1133 (1998).

Coley v. Gonzales, 55 F.3d 1385 (9th Cir. 1995) (finding no miscarriage of justice via actual innocence because no showing under Schlup).

Clark v. Lewis, 1 F.3d 814 (9th Cir. 1993) (finding no miscarriage of justice where no constitutional error occurred).

Deutscher v. Whitley, 991 F.2d 605 (9th Cir. 1993) (holding that in order to show actual innocence of death penalty in a weighing state, petitioner must show by clear and convincing evidence that, but for some constitutional error, the sentencing body would have weighed the aggravating and mitigating evidence differently and elected a sentence other than death), opinion withdrawn and superseded on reh’g, 16 F.3d 981 (9th Cir. 1994).

United States v. Zuno-Arce, 25 F. Supp. 2d 1087 (C.D. Cal. 1998) (holding 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 procedurally barred by the AEDPA's statute of limitation; finding that movant failed to make sufficient showing of actual innocence).

Harding v. Lewis, 795 F. Supp. 953 (D. Ariz. 1992) (holding that petitioner did not make necessary showing of factual innocence under miscarriage of justice exception).

See generally:

Kathleen C. Boyd, Note, The Paradox of Actual Innocence in Federal Habeas Corpus After Herrera v. Collins, 72 N.C. L. Rev. 479 (1994) (reviewing Herrera and analyzing the resulting confusion regarding innocence claims in federal habeas corpus cases).

Vernon E. Googe III, Herrera v. Collins–Federal Habeas Corpus Review and Claims of Actual Innocence, 27 Ga. L. Rev. 971 (1993) (focusing on Herrera and analyzing the dilemma for federal courts in habeas cases alleging innocence).

Robert C. Stacy II, Note, Schlup v. Delo: The Result of Curbing Unlimited Jurisdiction by Limiting Discretion, 74 N.C. L. Rev. 897 (1996) (focusing on miscarriage of justice exception to procedural default rules and Schlup standard and predicting future problems in application of Schlup because of inconsistencies in Supreme Court habeas jurisprudence).

Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303 (1993) (analyzing Herrera and Supreme Court's new “innocence-focus” in habeas cases).

Prior to the AEDPA, the Court in McCleskey v. Zant, 499 U.S. 467 (1991), held that in order to establish an abuse of the writ or successive petition bar, the state must plead with clarity and particularity. In response to the state’s pleading, the petitioner carries the burden of showing by a preponderance of the evidence that no abuse of the writ exists. While a hearing on the abuse question is not automatic, a petitioner is entitled to an opportunity to explain the alleged abuse.

The current version of 28 USC 2244(b)(3) requires a court of appeals order authorizing the filing of a subsequent petition in the district court. See § 6.2.2. Thus, for successive petitions filed pursuant to the current version of § 2244(b), the court of appeals will have already determined that a given petition under review makes a prima facie showing that the petition meets the § 2244(b)(2) requirements.

Supreme Court:

McCleskey v. Zant, 499 U.S. 467 (1991) (holding that the government satisfies its burden of pleading abuse of the writ if it notes, with clarity and particularity, petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner abused the writ; burden then shifts to petitioner to show cause for failing to raise the claim, and prejudice therefrom).

Greenawalt v. Stewart, 105 F.3d 1287, 1287–88 (9th Cir.) (holding that state prisoner may not avoid the limitations imposed on successive petitions by styling his petition as one pursuant to § 2241 rather than § 2254), cert. denied, 519 U.S. 1103 (1997).

Section 2242 of Title 28 of the United States Code provides that a petitioner may amend a petition for writ of habeas corpus pursuant to Federal Rule of Civil Procedure 15. After a brief period in which a party may amend as of right, the district court has sole discretion to grant leave to amend. In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court enumerated four factors relevant to determining whether to deny a motion for leave to amend: (1) undue delay, (2) bad faith or dilatory motive, (3) futility of amendment, and (4) prejudice to the opposing party. The Ninth Circuit, in Howey v. United States, 481 F.2d 1187 (9th Cir. 1973), held that these factors are not of equal weight and found that denial should occur only where prejudice or bad faith exists. However, in Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995), the Ninth Circuit stated that futility alone may be sufficient to deny a motion to amend.

In the context of death penalty habeas petitions, amended petitions take on special significance in light of the doctrines limiting successive and abusive petitions where the petitioner knew or should have known of the amended claims at the time of initial filing, see supra §§ 6.2.2, 6.2.3 and infra § 6.3.3, and in light of AEDPA’s statute of limitation. See supra § 6.2.1. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), cert. denied, 533 U.S. 941 (2001), the Ninth Circuit allowed for two amendments to a habeas petition. First, the petitioner moved to amend a mixed petition dismissed without prejudice, to include only the exhausted claim. The Ninth Circuit affirmed the district court’s exercise of equitable power to accept petitioner’s amendment nunc pro tunc to the date of original filing, notwithstanding that the initial petition was dismissed. The Ninth Circuit also ruled that Anthony’s later amended petition incorporating the newly exhausted claims–which by itself would be barred by the statute of limitation–related back to the date of original filing. The Anthony court felt the relation back was appropriate because the state was on notice of the newly exhausted claims since they were included in the first federal petition.

In a noncapital case, the Supreme Court held in Mayle v. Felix, 125 S. Ct. 2562 (2005), that an amended habeas petition does not relate back when it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. The Court rejected the view that the relevant transaction for purposes of Fed. R. Civ. P. 15(c)(2) was the petitioner’s state-court trial and conviction; however, the Court held that so long as the original and the amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.

Finally, if a state “opts in” to the AEDPA’s special capital provisions, see infra § 6.2.16, then, according to the AEDPA, a petitioner may amend a habeas corpus petition only if it meets the grounds for successive petitions specified in § 2244(b). See supra §§ 6.2.2 and 6.2.3.2.

Supreme Court:

Mayle v. Felix, 125 S. Ct. 2562 (2005) (holding in a noncapital case that an amended habeas petition does not relate back when it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading).

Foman v. Davis, 371 U.S. 178 (1962) (analyzing amendment of petitions under Rule 15; listing factors for consideration of amendment: undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by prior amendments, undue prejudice, futility, etc.).

Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000) (holding district court properly exercised equitable power to accept petitioner’s amendment–dismissing unexhausted claims in mixed petition–nunc pro tunc to the date of original filing, notwithstanding that the initial petition was dismissed; also holding petitioner’s later amended petition incorporating the newly exhausted claims–which by itself would be barred by the statute of limitation–related back to the date of original filing since the state was on notice of the newly exhausted claims which were included in the first habeas petition, but see Fernandez, J., dissenting), cert. denied, 533 U.S. 941 (2001).

Zarska v. Stewart, 182 F.3d 930 (9th Cir. 1999) (unpublished) (denying petitioner's motion to amend as futile).

Henry v. Lungren, 164 F.3d 1240 (9th Cir.) (holding that petitioner's second habeas petition, following dismissal of first petition for failure to exhaust, did not relate back to first petition for purpose of determining whether petitioner was “in custody” at time of second petition, notwithstanding rule permitting relation back of amended pleadings; district court did not retain jurisdiction over original petition because a dismissal without prejudice for failure to exhaust terminates the action), cert. denied, 528 U.S. 963 (1999).

Williams v. Calderon, 83 F.3d 281 (9th Cir.) (holding that post AEDPA amendment to pending petition relates back to original filing date), cert. denied, 517 U.S. 1183 (1996).

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (applying Ninth Circuit's Rule 15 amended petition policy; affirming district court’s denial of motions for leave to amend because of petitioner's abuse of the writ and the amendment's futility), cert. denied, 516 U.S. 1051 (1996).

Cacoperdo v. Demosthenes, 37 F.3d 504 (9th Cir. 1994) (noting amended petition as proper pleading to raise additional grounds for relief), cert. denied, 514 U.S. 1026 (1995).

Fetterly v. Paskett, 997 F.2d 1295, 1297 (9th Cir. 1993) (noting amended petition's potential Rose exhaustion problem), cert. denied sub nom., Arave v. Fetterly, 513 U.S. 914 (1994).

Western Shoshone Nat'l Council v. Molini, 951 F.2d 200 (9th Cir. 1991) (finding no abuse of discretion in denial of leave to file third amended complaint where delay and prejudice existed), cert. denied, 506 U.S. 822 (1992).

Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (upholding district court's denial of leave to amend where bad faith, undue delay, and prejudice were “readily apparent” and district court previously granted leave to amend).

United States v. Webb, 655 F.2d 977 (9th Cir. 1981) (following Howey and noting that where no bad faith or prejudice, court cannot determine whether denial of motion for leave to amend was abuse of discretion; remanding for further proceedings).

Howey v. United States, 481 F.2d 1187 (9th Cir. 1973) (holding that delay alone, no matter how lengthy, is insufficient to deny leave to amend; courts should deny leave to amend only where the government shows prejudice or bad faith).

United States v. Zuno-Arce, 25 F. Supp. 2d 1087 (C.D. Cal. 1998) (holding that after the government filed its opposition, movant had no right to amend his motion to assert additional claims without leave of court).

Bonin v. Vasquez, 807 F. Supp. 586 (C.D. Cal. 1992) (denying petitioner's motion to amend because of undue delay, prejudice, and abuse of the writ), aff’d, 59 F.3d 815 (9th Cir. 1995).

To preserve comity and federalism, federal courts will not review a petitioner's claim denied by a state court based on independent state law adequate to support the judgment. Thus, in Wainwright v. Sykes, 433 U.S. 72 (1977) and later in Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that where the state, by a state procedure, procedurally bars a defendant from raising a federal claim in state court, the defendant may not then raise that claim in a federal petition absent a showing of “cause” for the procedural default and “actual prejudice” from the failure to raise the claim, or a demonstration that failure of the court to consider the claims will result in a fundamental miscarriage of justice. In Sykes, the defendant failed to object at trial to the admission of statements allegedly obtained in violation of Miranda. The Court held that the state rule requiring contemporaneous objection to such evidence represented an adequate and independent state procedural ground barring federal habeas review absent a demonstration of cause and prejudice or a miscarriage of justice.

In English v. United States, 42 F.3d 473 (9th Cir. 1994), the Ninth Circuit stated that federal courts in habeas proceedings will not find a procedural bar simply because the petitioner failed to raise the claim at trial or on appeal. Procedural default is triggered by the violation of a state procedural rule, not the mere failure to raise a claim. In English, no state procedural rule required the petitioner to raise or waive his particular claim.

O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (stating that a prisoner who fails to timely present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state court, and therefore procedurally defaults his claims).

Lambrix v. Singletary, 520 U.S. 518 (1997) (stating that the independent and adequate state ground doctrine applies to bar federal habeas claims defaulted under state law, even though such doctrine is not technically jurisdictional when federal court considers state prisoner’s federal habeas petition).

Sochor v. Florida, 504 U.S. 527 (1992) (holding that pretrial motion challenging state’s “heinousness” aggravating factor does not preserve claim for federal review where defendant procedurally defaulted claim by failing to object after factor was read to jury).

Coleman v. Thompson, 501 U.S. 722 (1991) (barring petitioner from federal review where state judgment clearly relied on state rule of appellate procedure independent of federal claim and adequate to support judgment; expanding Sykes' cause and prejudice standard to all procedural defaults).

Harris v. Reed, 489 U.S. 255 (1989) (holding that state court's adequate and independent finding of procedural default bars federal review unless petitioner shows cause and prejudice for default or fundamental miscarriage of justice).

Murray v. Carrier, 477 U.S. 478 (1986) (holding that where a state prisoner defaulted on federal claims in state court pursuant to independent and adequate state procedural rule, the procedural default doctrine bars federal habeas review unless prisoner demonstrates cause for the default and actual prejudice as result of alleged violation of federal law, or that failure to consider claim will result in a fundamental miscarriage of justice).

Wainwright v. Sykes, 433 U.S. 72 (1977) (barring petitioner who failed to comply with state contemporaneous objection rule from federal relief unless he showed both cause for and prejudice from default).

Bennett v. Mueller, 322 F.3d 573 (9th Cir.) (considering whether habeas petition was procedurally defaulted and holding that California Supreme Court’s denial of state court habeas petition “on the merits and for lack of diligence” for untimeliness constituted an independent state ground; reversing on the issue whether the state ground was adequate and remanding for district court to reconsider this issue with the ultimate burden of proof on the state; noting that on this record, the court could not conclude that California had regularly and consistently applied the untimeliness bar in habeas cases), cert. denied, 540 U.S. 948 (2003).

Hill v. Roe, 321 F.3d 787 (9th Cir. 2003) (holding in noncapital case that California Supreme Court’s citation of In re Waltreus, 62 Cal.3d 218 (1965) (habeas petition “ordinarily cannot serve as a second appeal”) in denying habeas petition was neither a ruling on the merits nor a denial on procedural grounds, and therefore there was not an independent and adequate state procedural ground that would bar federal habeas review; also holding that petitioner did not have ultimate burden of proving the California Supreme Court’s citation to People v Hill, 9 Cal.3d 784 (1973) (cannot raise in state habeas an issue that has been litigated at trial and considered on direct appeal unless it relates to innocence or guilt) was not an independent and adequate state procedural ground that would bar federal review).

Kibler v. Walters, 220 F.3d 1151 (9th Cir. 2000) (finding claim procedurally defaulted notwithstanding state supreme court denied claim without stating basis for denial), cert. denied, 531 U.S. 1086 (2001).

Wood v. Hall, 130 F.3d 373, 376 (9th Cir. 1997) (holding that when a state prisoner defaults a claim by violating a state procedural rule that would constitute an adequate and independent basis to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice), cert. denied sub nom., Wood v. Cook, 523 U.S. 1129 (1998).

Forrest v. Vasquez, 75 F.3d 562 (9th Cir.) (holding that California Rule of Court 28(b) is an adequate and independent state ground barring federal habeas review), cert. denied, 519 U.S. 832 (1996).

English v. United States, 42 F.3d 473 (9th Cir. 1994) (finding no procedural default–and thus no need to evaluate cause and prejudice–in defendant's failure to earlier raise objection to magistrate presiding over jury selection because Supreme Court's Gomez case not yet a rule).

Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992) (explaining independent and adequate requirement).

Tacho v. Martinez, 862 F.2d 1376, 1380 n.5 (9th Cir. 1988) (applying Sykes cause and prejudice test to default involving a successive state habeas petition).

Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 907–09 (9th Cir. 1986) (applying Sykes standard to pro se petitioner's failure to appeal a dismissal of postconviction relief to state supreme court).

Paradis v. Arave, 667 F. Supp. 1361 (D. Idaho 1987) (noting that under Idaho law there can be no procedural default, by failure to object, arising from the sentence of death and sentencing procedure at trial level).

Carole C. Cooke, Note, Procedural Defaults at the Appellate Stage and Federal Habeas Corpus Review, Stan. L. Rev. 463 (1986) (examining standard that federal courts should use in deciding whether to review a “procedurally defaulted” state claim).

Stephanie Dest, Comment, Federal Habeas Corpus and State Procedural Default: An Abstention-Based Interest Analysis, 56 U. Chi. L. Rev. 263 (1989) (analyzing procedural default and habeas jurisprudence).

James W. Dobbins, Note, Applying Wainwright v. Sykes to State Alternative Holdings and Summary Affirmances, 53 Fordham L. Rev. 1357 (1985) (analyzing Wainwright and Supreme Court decisions on state procedural default of federal review).

Saul B. Goodman & Jonathan B. Sallet, Wainwright v. Sykes: The Lower Federal Courts Respond, 30 Hastings L.J. 1683 (1979).

Jason M. Halper, Note, Harris v. Reed: A New Look at Federal Habeas Jurisdiction Over State Petitioners, 58 Fordham L. Rev. 493 (1989) (addressing cause and prejudice standard and Harris, arguing that Harris will either eviscerate cause and prejudice test or compel changes in state court opinion writing).

Note, On the Threshold of Wainwright v. Sykes: Federal Habeas Court Scrutiny of State Procedural Rules and Rulings, 83 Mich. L. Rev. 1393 (1985) (examining specific problems raised by Sykes that must be resolved in determining whether a state ruling is based on adequate state procedural ground).

Where a state bars a federal claim based, at least in part, upon its determination of federal law, the state's bar is not an independent state ground barring federal habeas review under Sykes. In Ake v. Oklahoma, 470 U.S. 68, 74–75 (1985), the Supreme Court held that the state court's rejection of petitioner's claim under the due process clause that the state improperly denied him a court-appointed psychiatrist was dependent on the state court's antecedent ruling on federal law–that indigent defendants are not entitled to a psychiatrist–and, thus, was not an independent state ground.

Stewart v. Smith, 536 U.S. 856 (2002) (per curiam) (holding, following answering of certified question by Arizona Supreme Court, that because finding of waiver of ineffective assistance of counsel claim under Arizona’s Rule 32.2(a)(3) does not require examination of merits of claim, it is independent of federal law; reversing judgment in capital case that had held state procedural default ruling on ineffective assistance of counsel claim did not rest on independent state grounds).

Stewart v. Smith, 534 U.S. 157 (2001) (per curiam) (as to Ninth Circuit decision holding petitioner’s ineffective assistance of counsel claim not to be procedurally defaulted because Arizona’s Rule 32.2 requires that state court consider nature of claim before finding it procedurally defaulted, certifying question to Arizona Supreme Court as follows: at time of respondent’s Rule 32 petition in 1995, did question whether asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3) depend on the merits of the particular claim or merely on the particular right alleged to be violated), answer to certified question conformed to, 536 U.S. 856 (above).

Ake v. Oklahoma, 470 U.S. 68, 74–75 (1985) (holding that state procedural rule does not constitute an independent state ground where determination depended on state court's antecedent ruling on federal law).

La Crosse v. Kernan, 244 F.3d 702 (9th Cir. 2001) (holding California’s untimeliness bar is not a basis for procedurally defaulting and dismissing federal petition where state post conviction petition dismissed pursuant to state untimeliness bar before California Supreme Court decided In Re Robbins).

Washington v. Cambra, 208 F.3d 832 (9th Cir.) (following Park and reversing district court’s dismissal of petition on California’s Dixon default rule), cert denied, 531 U.S. 919 (2000).

Park v. California, 202 F.3d 1146 (9th Cir.) (holding that a federal habeas petitioner is not procedurally defaulted on federal constitutional claims where state supreme court had to make a decision on the federal merits as part of its denial on state procedural grounds; holding California’s Dixon rule not an independent state law ground), cert. denied, 531 U.S. 918 (2000).

Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999) (rejecting petitioner's claim that state's order impermissibly “interweaves” state and federal law), cert. denied, 529 U.S. 1073 (2000).

Ceja v. Stewart, 97 F.3d 1246 (9th Cir. 1996) (holding that state decision adopting mixed arguments of preclusion and waiver is not independent and adequate state law ground), cert. denied, 522 U.S. 971 (1997).

Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993) (finding that even if petitioner failed to fairly present to state supreme court, court's affirmance of death sentence necessarily included a determination of federal law and thus did not constitute an independent state ground barring habeas challenge), cert. denied sub nom., Arave v. Beam, 511 U.S. 1060 (1994).

Protsman v. Pliler, 318 F. Supp.2d 1004 (S.D. Cal. 2004) (in a case in which the noncapital habeas petitioner was tried after the Robbins decision was issued by the California Supreme Court, holding that the application of the Dixon case, barring use of habeas petition to raise claims that could have been raised on direct appeal, was not “interwoven with federal law” and thus the Dixon bar was an independent state ground barring federal review).

McClain v. Hill, 52 F. Supp. 2d 1133 (C.D. Cal. 1999) (finding that petitioner's claims were not defaulted because state's ruling was not based on independent state ground). 

Turner v. Calderon, 970 F. Supp. 781 (E.D. Cal. 1997) (noting the court’s determination that California’s Dixon rule is an independent state ground which bars federal review).

Patrik M. Griego, Note, The “Great Writ” May Once Again Deliver Justice to the Most Deserving Prisoners: An Analysis of Arizona Rule of Criminal Procedure 31.2(B) in Light of Beam v. Paskett, 39 Ariz. L. Rev. 311 (1997) (addressing question left open by Beam as to how Ninth Circuit interprets Arizona Rule 31.2(b), automatic capital appeal statute).

The Supreme Court, in Harris v. Reed, 489 U.S. 255 (1989), held that where a state court explicitly and alternatively rules on both independent state grounds and the merits of a federal claim, the independent state ground supports a procedural bar. Assuming the bar is “adequate,” federal courts may not conduct a habeas review of the federal claim. Where it is not clear that the state ground is an alternative holding, the federal courts must deem the state's decision to be based on the federal merits. See infra § 6.2.5.1.2.

Sochor v. Florida, 504 U.S. 527 (1992) (holding that a procedural bar is independent if the “state court’s opinion ‘indicates clearly and expressly’ that the state ground is an alternative holding”).

Harris v. Reed, 489 U.S. 255 (1989) (stating that “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state courts judgment, even when the state court also relies on federal law.”).

Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (holding Nevada Supreme Court’s ruling denying postconviction appeal based on state procedural bar was an independent and alternate basis for denying relief, notwithstanding that relief also denied on the merits).

McKenna v. McDaniel, 65 F.3d 1483, 1488–89 (9th Cir. 1995) (finding that state court’s refusal to entertain claims, at best, represented a refusal to exercise discretion to hear the claims, and was thus insufficient for the state to invoke the procedural bar doctrine), cert. denied, 517 U.S. 1150 (1996).

Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) (holding ineffective assistance claim procedurally defaulted where claim was not raised on direct appeal and the state supreme court denied claim on procedural grounds and the merits), cert. denied, 507 U.S. 992 (1993).

Thomas v. Lewis, 945 F.2d 1119 (9th Cir. 1991) (holding that federal court should not presume that state courts denial of habeas claim was not independent and adequate where state court denied claim on a procedural bar, but also reaches the merits).

Russell v. Rolfs, 893 F.2d 1033, 1035-36 (9th Cir. 1990) (stating, “[i]t is significant in our interpretation that the Washington Supreme Court decided not to exercise its discretionary power–as contrasted with refusing to hear [defendant]’s case because of a procedural bar”).

Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988) (holding that when state appellate court alternatively bases its ruling on the merits and procedural grounds, and state supreme court dismisses petition without explanation, there is no procedural bar to reaching merits on federal habeas review).

Karis v. Vasquez, 828 F. Supp. 1449 (E.D. Cal. 1993) (holding that state court decision regarding claims reviewable in second habeas petition appeared to rely equally on state and federal grounds and, thus, was inadequate to bar federal review).

If a state ruling leaves some question as to whether it is based upon state or federal law, it is difficult to determine whether it constitutes an independent state ground barring federal review under Sykes. In Harris v. Reed, 489 U.S. 255 (1989) and later in Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court established that where a state decision “fairly appears” to rest primarily on federal grounds or is “interwoven” with federal law, it will be presumed not to rest independently on state law unless the last state court rendering a judgment “clearly and expressly states that its judgment rests on a state ground.” In Coleman, the Court clarified that the presumption applies only to ambiguous state decisions that appear to rely on federal law and does not require all state decisions, whether or not ambiguous, to include a “clear and express” statement of the ground for judgment.

Ylst v. Nunnemaker, 501 U.S. 797 (1991) (reversing the Ninth Circuit and ruling that where one reasoned state judgment rejected a federal claim, later unexplained orders upholding that judgment or rejecting same claim are presumed to rest upon same ground).

Coleman v. Thompson, 501 U.S. 722 (1991) (stating that court will not presume independent and adequate state ground when a state court decision “fairly appears” to rest primarily on federal law, or to be interwoven with federal law, and when adequacy and independence of any state law ground is not clear from face of opinion; declining to expand Harris presumption to all state opinions, only those “fairly appearing” to rest on federal grounds or “interwoven” with federal law).

Teague v. Lane, 489 U.S. 288 (1989) (holding that Harris rule does not apply where claim was not fairly presented to the state court; in such cases federal court should apply procedural bar where state court would if given the opportunity).

Harris v. Reed, 489 U.S. 255 (1989) (holding that where state decision appears to rest primarily on federal grounds or is interwoven with federal law, decision does not rest independently on state law unless “clearly and expressly” indicated).

Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Bean), 96 F.3d 1126 (9th Cir. 1996) (finding that state court’s ambiguous order, failing to specify which of petitioner’s claims were rejected under each of two cited state doctrines, did not bar federal collateral review under procedural default doctrine), cert. denied, 520 U.S. 1204 (1997).

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) (holding that since state court did not cite to a particular procedural rule and discussed “the merits” of claim, state’s decision was not independent and adequate and did not bar federal review), cert. denied, 513 U.S. 1183 (1995).

Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (holding that when state’s decision relies on both state procedural grounds and federal grounds, state court must make “clear and express statement” of alternative reliance on state procedural grounds to avoid federal review), cert. denied, 507 U.S. 992 (1993).

Russell v. Rolfs, 893 F.2d 1033, 1035 (9th Cir. 1990) (holding that if state court does not “clearly and expressly” rely on procedural default, federal court will address merits), cert. denied, 501 U.S. 1260 (1991).

Vickers v. Ricketts, 798 F.2d 369, 373 (9th Cir. 1986) (holding that federal court may address merits, despite petitioner’s failure to request instruction at trial, because state court did not invoke procedural bar), cert. denied, 479 U.S. 1054 (1987).

Karis v. Vasquez, 828 F. Supp. 1449 (E.D. Cal. 1993) (holding that state court decision regarding claims reviewable in second habeas petition appeared to rely equally on state and federal grounds, thus ground was inadequate to bar federal review).

In order for an adequate state ground to bar federal review under Sykes, the state must apply state law that is “firmly established” and “regularly applied” at the time of the default. In Ulster County Ct. v. Allen, 442 U.S. 140, 147–50 (1979), the Court reasoned that “if neither the state legislature nor the state courts indicate that a federal claim is barred by some state procedural rule, a federal court implies no disrespect for the state by entertaining the claim.”

Ford v. Georgia, 498 U.S. 411, 423–24 (1991) (holding that only a firmly established state practice, regularly followed at the time applied, will bar habeas review). 

Dugger v. Adams, 489 U.S. 401, 410–12 n.6 (1989) (holding state procedural rule adequate because state supreme court consistently applied the rule in the “vast majority” of cases).

James v. Kentucky, 466 U.S. 341, 348–51 (1984) (holding state procedural rule not independent and adequate where defendant asked trial court for jury “admonition” and the state supreme court refused to hear appeal because defendant had not asked for an “instruction”; distinction between “admonition” and “instruction” not consistently applied by state court).

Hathorn v. Lovorn, 457 U.S. 255, 262–63 (1982) (stating that state procedural ground is not adequate unless “strictly or regularly followed”).

Harris v. Reed, 489 U.S. 255 (1989) (noting that where state fails to apply procedural rule in instant case–i.e., decides federal claim on merits–then rule is not regularly applied and is inadequate state ground to bar habeas review).

Ulster County Ct. v. Allen, 442 U.S. 140, 147–50 (1979) (holding that state procedural rule triggers Sykes only if state regularly applies it; where state court reaches merits notwithstanding procedural default, federal court may consider merits).

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (holding state procedural bar dependent and inadequate where criminal defendant “could not fairly be deemed to have been apprised of its existence,” even though it may retrospectively appear to form part of consistent procedural pattern).

Bennett v. Mueller, 322 F.3d 573 (9th Cir.) (considering in noncapital case whether habeas petition was procedurally defaulted and holding that California Supreme Court’s denial of state court habeas petition “on the merits and for lack of diligence” for untimeliness constituted an independent state ground but noting that on this record, the court could not conclude that California had regularly and consistently applied the untimeliness bar in habeas cases), cert. denied, 540 U.S. 948 (2003).

Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001) (holding that Nevada’s application of its procedural bar rule pertaining to a claim not raised in a prior proceeding is not consistently applied or well-established).

Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001) (concluding district court erred in dismissing ineffective assistance of counsel claim based on state procedural default; finding that Arizona rule requiring that ineffective assistance of counsel claim be raised on direct appeal did not bar federal habeas review because it was so unclear that it did not provide habeas petitioner with fair opportunity to seek relief in state court and that at time of purported default, no Arizona case required a defendant to raise ineffective assistance of counsel claim on appeal), cert. denied, 534 U.S. 1188 (2002).

Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (finding Nevada’s postconviction statute of limitations consistently applied in 1993).

Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000) (finding no “untimeliness” procedural default where petitioners’ California habeas petition filed two days after In Re Clark decision), cert. denied, 531 U.S. 1072 (2001).

Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999) (holding that procedural default can occur even if state case law does not specifically set out rule requiring appeal from state’s denial of postconviction relief, as opposed to bringing claim in second state petition), cert. denied, 529 U.S. 1073 (2000).

Poland v. Stewart, 169 F.3d 573 (9th Cir.) (holding that for a state procedural rule to be adequate, it must be firmly established and regularly followed at the time applied), cert. denied, 528 U.S. 845 (1999).

Fields v. Calderon, 125 F.3d 757 (9th Cir. 1997) (holding that “trigger” for deciding whether state procedural rule was firmly established is time at which state claim could have been brought, not time of federal petition), cert. denied, 523 U.S. 1132 (1998).

Binford v. Rhode, 116 F.3d 396 (9th Cir. 1997) (holding that federal claims are barred only if mandatory state law rule precluded claims as of current date; if claims could still be raised in state court, ultimate federal review was not precluded, but claims first must be exhausted).

Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Hayes), 103 F.3d 72 (9th Cir. 1996) (holding that inconsistent application of state timeliness requirement before conclusion of direct appeal precludes its use as adequate and independent state bar to relief), cert. denied, 521 U.S. 129 (1997).

Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Bean), 96 F.3d 1126 (9th Cir. 1996) (extending Morales to habeas claim filed after In re Clark because defendant’s procedural default, if any, occurred before Clark; expressing no opinion whether Clark sufficiently clarified California’s timeliness requirements to render them adequate to bar federal review; timeliness requirements were inadequate to support default), cert. denied, 520 U.S. 1204 (1997).

Morales v. Calderon, 85 F.3d 1387 (9th Cir.) (holding that, prior to December 1992 when petitioner filed his first state habeas petition, California’s habeas time requirements were not clear, consistently applied, or well-established), cert. denied, 519 U.S. 1001 (1996).

Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996) (holding that as of 1996, Nevada Supreme Court consistently applied its procedural rules to bar review of untimely claim, absent showing of cause and lack of state prejudice).

Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994) (holding that because state rule was discretionary and inconsistently enforced, it was not an adequate and independent procedural basis for default), cert. denied, 513 U.S. 1183 (1995).

Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994) (holding that state rule must be clear, consistently applied, and well-established at the time of purported default to constitute adequate and independent basis to support procedural default).

Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992) (holding that unexplained denial from state supreme court could not rest on independent and adequate state grounds), cert. denied, 510 U.S. 887 (1993).

Vickers v. Ricketts, 798 F.2d 369, 373 (9th Cir. 1986) (holding that federal court may address merits, despite petitioner’s failure to request instruction at trial, because state court did not invoke procedural bar), cert. denied, 479 U.S. 1054 (1987).

Coleman v. Calderon, No. C 89-1906, 1996 WL 83882 (N.D. Cal. Feb. 20, 1996) (questioning methodology and conclusion of Deere; stating that analysis should be based on state court opinion rather than argument; holding that California has not consistently and regularly applied timeliness rule), aff’d on other grounds, 150 F.3d 1105 (9th Cir.), rev’d on other grounds, 525 U.S. 141, and cert. denied, 525 U.S. 1058 (1998).

Deere v. Calderon, 890 F. Supp. 893 (C.D. Cal. 1995) (finding that California Supreme Court has consistently applied timeliness procedural bar in death penalty cases since In re Clark; approving application of state’s procedural bar).

Odle v. Calderon, 884 F. Supp. 1404 (N.D. Cal. 1995) (finding that California did not “regularly and uniformly” apply In re Dixon rule at time of defendant’s direct appeal and state habeas, and therefore no bar to federal review).

Karis v. Vasquez, 828 F. Supp. 1449 (E.D. Cal. 1993) (holding that California Supreme Court has not yet consistently applied its procedural rules).

When a state court does not apply an available state procedural bar, choosing instead to rule on the merits, then the court’s ruling is not based on the state procedure and does not bar federal review. But see § 6.2.5.1.1 for a discussion of when state court bases ruling on both procedural grounds and the merits.

Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (holding that if the last state court reaches the merits of a state claim, there is no procedural bar).

Walker v. Endell, 850 F.2d 470, 473–74 (9th Cir. 1987) (holding that state court’s plain error review of merits negates petitioner’s procedural default), cert. denied, 488 U.S. 926, and cert. denied, 488 U.S. 981 (1988).

Huffman v. Ricketts, 750 F.2d 798, 801 (9th Cir. 1984) (holding no bar to federal habeas review where state declines to apply procedural bar and adjudicates federal claim on merits).

In Jenkins v. Anderson, 447 U.S. 231 (1980), the Supreme Court held that a state’s failure to argue procedural default results in a waiver of the bar. The Supreme Court, in Trest v. Cain, 522 U.S. 87 (1997), reiterated the holding after the AEDPA’s enactment and additionally held that the court of appeal is not required to raise the issue of procedural default sua sponte. The Trest court, however, declined to resolve the inter-circuit conflict as to whether a habeas court may consider a procedural default that the state has at some point waived or failed to raise.

In Boyd v. Thompson, 147 F.3d 1124 (9th Cir. 1998), the Ninth Circuit held that a district court may raise the defense of procedural default sua sponte if to do so serves the interests of justice, comity, federalism, and judicial efficiency. More recently, in Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998), the Ninth Circuit extended Boyd and held that the court may raise the procedural default defense sua sponte in the court of appeals but must remand the case to provide the petitioner the opportunity to justify the default or demonstrate miscarriage of justice.

Trest v. Cain, 522 U.S. 87 (1997) (holding that a court of appeals is not required to raise the issue of procedural default sua sponte; instead, a state is normally obligated to raise and preserve the defense in the district court in order to thereafter prevent waiver).

Jenkins v. Anderson, 447 U.S. 231, 234 n.1 (1980) (holding that state’s failure to argue state procedural bar in lower courts results in waiver of the bar).

Vang v. Nevada, 329 F.3d 1069 (9th Cir. 2003) (holding in noncapital case, that because the state filed a length response in which it did not rely on procedural bar, the district court erred in sua sponte applying that defense as to three claims and that Nev. Rev. Stat. § 34.810, which bars claims on collateral review if they could have been brought on direct appeal, was an independent and adequate procedural bar as to two other claims).

Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) (holding that court of appeal may raise procedural default sua sponte, but state’s failure to raise procedural default as a defense to the alleged discriminatory use of peremptory challenges requires remand to allow the defendant to show resulting cause and prejudice justification for procedural default or miscarriage of justice).

Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998) (holding that a district court may raise the defense of procedural default sua sponte if to do so serves the interests of justice, comity, federalism, and judicial efficiency).

Wilmer v. Johnson, 30 F.3d 451 (9th Cir.) (holding that state waived Teague defense by failing to raise it in district court), cert. denied, 513 U.S. 970 (1994).

Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) (holding that where respondent argued that petitioner failed to exhaust rather than argue procedural default, respondent waived any procedural default).

Batchelor v. Cupp, 693 F.2d 859, 863–64 (9th Cir. 1982) (holding that if state does not raise procedural default at district court level, the appellate court will deem it waived), cert. denied, 463 U.S. 1212 (1983).

In Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990), cert. denied, 510 U.S. 1260 (1991), the Ninth Circuit held that a state’s prior argument that petitioner had not exhausted state remedies estopped the state from arguing in federal court that petitioner’s claims were procedurally defaulted on state grounds. The Russell court reasoned that the state, having persuaded the district court to deny federal review because appellant had an adequate and available state remedy, could not later oppose appellant’s petition for relief on the theory that he was actually procedurally barred in state court.

Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) (distinguishing Russell in holding that state was not estopped where state had not argued to federal court that petitioner had an adequate and available state remedy or that petitioner would receive a hearing on the merits of his state claim), cert. denied, 526 U.S. 1123 (1999).

Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) (holding that state was estopped from arguing that petitioner was procedurally defaulted on state claims where state had previously opposed petitioner’s federal habeas petition on the grounds that petitioner had failed to exhaust), cert. denied, 510 U.S. 1260 (1991).

Under Wainwright v. Sykes, 433 U.S. 72 (1977), a federal habeas court will reach the merits of a procedurally defaulted claim if the petitioner demonstrates legally sufficient “cause” for the default and actual “prejudice” from the alleged constitutional error. In Murray v. Carrier, 477 U.S. 478 (1986), the Supreme Court clarified the meaning of “cause” under Sykes noting that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the state’s procedural rule.” Thus, attorney error short of constitutionally ineffective assistance of counsel does not constitute sufficient cause under Sykes.

The Murray Court indicated, however, that adequate cause would include, among other things, “a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that some interference by officials . . . made compliance impracticable.” The Court also found that a new law where the “tools to construct the new constitutional claim” were not available at time of default and that state withholding of necessary information constitute cause. However, the Court found that futility, illiteracy of a pro se defendant, and counsel error short of ineffective assistance of counsel do not constitute cause.

In Edwards v. Carpenter, 529 U.S. 446 (2000), the Supreme Court was presented with the question “whether a federal habeas court is barred from considering an ineffective-assistance-of-counsel claim as “cause” for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted.” The Court held that a procedurally defaulted ineffective assistance of counsel claim can serve as cause to excuse the procedural default of another habeas claim (here insufficiency of the evidence) only if the petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective assistance of counsel claim itself.

Edwards v. Carpenter, 529 U.S. 446 (2000) (holding that a procedurally defaulted ineffective assistance of counsel claim can serve as cause to excuse the procedural default of another habeas claim (here insufficiency of the evidence) only if the petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective assistance of counsel claim itself).

Wainwright v. Sykes, 433 U.S. 72 (1977) (barring petitioner who failed to comply with state contemporaneous objection rule from federal relief unless he shows both cause for the default and prejudice therefrom).

Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000) (holding–in noncapital § 2254 proceeding–that petitioner may assert as cause for procedural default actions of prior counsel which, even though not constitutionally defective, were not attributable to him because they were both unauthorized and tainted by a conflict of interest; remanding for determination of cause regarding whether trial counsel’s actions prevented petitioner form learning of and vindicating his habeas corpus rights where trial counsel failed to file an appeal and told petitioner his only recourse was a motion to reconsider sentence).

Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (per curiam) (rejecting “cause” argument where petitioner argued he was prevented by state officials from filing state post conviction personal restraint petition but facts indicated petitioner had sufficient opportunity to file petition), cert denied, 529 U.S. 1009 (2000).

LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.) (holding that a petitioner may establish cause by showing that a factor external to the defense prohibited counsel from complying with state procedural rules), cert. denied, 525 U.S. 971 (1998).

Martinez-Villareal v. Lewis, 80 F.3d 1301 (9th Cir. 1996) (holding that district court erred in granting relief where petitioner shows no cause and prejudice for failing to conform to state procedure, thus excusing procedural default of ineffective assistance claims), cert. denied, 519 U.S. 1030 (1996), and stay granted, 118 F.3d 625 (9th Cir. 1997).

Magby v. Wawrzaszek, 741 F.2d 240 (9th Cir. 1984) (stating that “cause” is legitimate excuse for default, and “prejudice” is actual harm resulting from alleged constitutional violation).

Coleman v. Ignacio, 164 F.R.D. 679 (D. Nev. 1996) (holding that petitioner made sufficient cause and prejudice showing to excuse procedural default of first state habeas petition on timeliness grounds; finding that petitioner’s first and only opportunity to appeal conviction was first state habeas petition, that petitioner was literally denied counsel for state petition, and much of delay was caused by state court and former defense counsel).

Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus (Part Two), 30 U. Rich. L. Rev. 303 (1996) (examining the development of the cause and prejudice standard).

Steven J. Rurka, Comment, Habeas Corpus–The Supreme Court Defines the Wainwright v. Sykes “Cause” and “Prejudice” Standard, 19 Wake Forest L. Rev. 441 (1983) (analyzing Supreme Court’s definitions of cause and prejudice and evaluating effect of these definitions on habeas corpus relief).

Tung Yin, A Better Mouse Trap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203 (1998) (discussing the emergence and technical elements of the cause and prejudice standard).

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam) (holding that petitioner could not show cause for default of execution method claim where constitutionality of gas executions was being debated at time of petitioner’s direct appeal; holding that petitioner waived execution method claim by choosing lethal gas instead of state’s default method, lethal injection).

Breard v. Greene, 523 U.S. 371 (1998) (per curiam) (holding that alleged novelty of petitioner’s Vienna Convention claim did not excuse his procedural default).

Dugger v. Adams, 489 U.S. 401 (1989) (holding no cause for failure to object to jury instructions later held unconstitutional because state law provided basis for trial objection).

Murray v. Carrier, 477 U.S. 478 (1986) (holding that lack of legal or factual basis for objection at time of trial constitutes cause).

Reed v. Ross, 468 U.S. 1 (1984) (holding that counsel’s failure to object to trial instruction that was declared unconstitutional six years later constitutes cause under Sykes).

Engle v. Isaac, 456 U.S. 107 (1982) (holding no cause for failure to object to jury instruction later held unconstitutional because “tools for making federal constitutional claim were available” at time of default).

LaGrand (Karl) v. Stewart, 173 F.3d 1144 (9th Cir.) (holding that plain futility of Eighth Amendment claim, coupled with the subsequent development of information regarding the nature of lethal gas execution, was such that factual or legal basis for the claim was not reasonably available to petitioner at the time he pursued his direct appeal in state court and therefore is cause for not raising the claim prior to a first federal habeas petition), stay vacated, 525 U.S. 1173, and cert. dismissed, 526 U.S. 1061 (1999).

Villafuerte v. Stewart, 111 F.3d 616 (9th Cir. 1997) (holding that petitioner failed to show cause to overcome default of his claim that, after state supreme court reversed cruelty finding as part of aggravating factor of committing murder in especially cruel and depraved manner, it failed to reweigh aggravating and mitigating evidence), cert. denied, 522 U.S. 1079 (1998).

Deutscher v. Whitley, 884 F.2d 1152, 1156 (9th Cir. 1989) (holding cause exists if claim is novel and had no reasonable basis at time of default), vacated on other grounds, 500 U.S. 901 (1992).

Kent S. Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 959 n.500 (1998) (discussing Breard).

Engle v. Isaac, 456 U.S. 107 (1982) (holding that futility of presenting objection to state court is insufficient to establish cause).

LaGrand (Karl) v. Stewart, 173 F.3d 1144 (9th Cir.) (distinguishing Engle and holding that a petitioner shows cause for failing to raise a claim regarding the unconstitutionality of lethal gas as an execution method on direct appeal when state law authorizing that method had recently been upheld and no reported cases anywhere held that it was unconstitutional), stay vacated, 525 U.S. 1173, and cert. denied, 526 U.S. 1061 (1999).

Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996) (holding that petitioner did not procedurally default claim by failing to re-offer polygraph evidence at resentencing where state supreme court had explicitly held evidence inadmissible on prior direct appeal; attempt to re-offer would have been futile because trial court was bound by prior supreme court ruling), cert. denied, 519 U.S. 1142 (1997).