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SCOTUS PUNTS ON SUCCESSIVE 2255 MOTION CASE

The Supreme Court last week refused to hear a challenge to 28 USC § 2244, the statute governing when prisoners should be permitted to file a second or successive habeas corpus motion under 28 USC § 2254 (for state prisoners) or 28 USC § 2255 (for federal prisoners). The denial is noteworthy for Justice Brett Kavanaugh’s published statement that the high court should settle a circuit split on the issue the next time a similar case comes before it.

Section 2244 states that a second or successive habeas corpus application filed under § 2254 must be dismissed unless it meets one of two very narrow exceptions, being based on a new Supreme Court retroactive constitutional ruling or on newly-discovered facts that just about guarantee the petitioner would have been acquitted by a jury. Like the Biblical eye-of-the-needle, it’s a pretty tight standard to squeeze through.

Although § 2244 by its express terms applies to § 2254 motions, federal appellate courts have traditionally interpreted the provision to apply to § 2255 motions as well.

Ed Avery filed a successive § 2255 motion, but the district court dismissed it based on his failure to get appellate court permission to file under 28 USC § 2244. He appealed to the 6th Circuit, which upheld the dismissal in an unpublished opinion. Six federal courts have ruled that the § 2244 dismissal statute applies to § 2255 motions. But last fall, the 6th Circuit flipped on the issue, holding in a published opinion that § 2244 clearly did not apply to a § 2255 motion.

In the appellate court world, a published opinion becomes precedent that binds all courts, even three-judge panels on the Court of Appeals. An unpublished opinion, along with about $5.00, will get you a venti latte at Starbucks. Ed, no latte drinker, wanted the published opinion to apply to his case, too. Having no other avenue, he went to the Supreme Court.

An influential Washington, D.C., law firm took up the battle for Ed, arguing in a petition for writ of cert that the 6th Circuit’s published contrary ruling created a circuit split that called for resolution. He faced no pushback: the government had already filed a brief in the 6th Circuit saying it agreed that 28 USC § 2244 does not apply to § 2255 motions.

Predicting what cases the Supreme Court will decide to hear is more of an art than a science. The issue can be one the Court would like to decide, but it may still decline to review a case if the justices don’t think the facts of the case are quite right. It’s kind of like thumping melons in the produce section to decide which one is ready to eat. As you get better at it, you can find a good one more often. But in the end, it’s still how you hear the “thump” on any given day.

The Supremes decided for whatever reason that Ed’s case was not the right one to review in order to resolve the circuit split. Nevertheless, Justice Kavanaugh noted in a separate statement (which in itself is unusual on a denial of certiorari) that “[i]mportantly, the United States now agrees with the Sixth Circuit that ‘Section 2244(b)(1) does not apply to Section 2255 motions’ and that the contrary view is ‘inconsistent with the text of Section 2244.’ In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor. In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.”

Avery v. United States, 2020 U.S. LEXIS 1651 (certiorari denied March 23, 2020)

– Thomas L. Root