We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
2254/2255 AMENDMENT IS TOO LITTLE, TOO LATE
Danny Rivers was convicted in Texas state court of continuous sexual abuse of a child. After unsuccessfully seeking direct appeal and state habeas relief, Danny filed his first federal habeas corpus petition under 28 USC § 2254 (which permits the filing of a post-conviction habeas corpus motion in federal court by state prisoners who contend their convictions or sentences are unconstitutional).
The § 2254 petition is essentially a 28 USC § 2255 petition for state prisoners, but the rules governing it are close to the same for § 2255 petitions. Hence our interest…
The District Court denied Danny’s § 2254 petition in September 2018, sending him to the 5th Circuit. There, Dan got a certificate of appealability authorizing him to pursue his claim that his trial lawyer had been constitutionally ineffective in representing him.
While his appeal was pending, Danny obtained his trial counsel’s client file, which contained an exculpatory state investigator’s report he had never seen. After the 5th Circuit denied his request to add the report to the appeal record, Dan filed a second § 2254 petition in the District Court based on newly discovered evidence.
Ever since Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, a prisoner’s right to file a second § 2254 or § 2255 has been severle limited. A so-called second-or-successive petition is permitted by 28 USC § 2244 only where there has been a change in constitutional law announced by the Supreme Court or new evidence that the prisoner could not have discovered before, and either event necessarily meant that no jury would have convicted the defendant because of the change in the law or exculpatory facts.
The District Court classified Dan’s second § 2254 motion as a second-or-successive habeas application under 28 USC § 2244(b) and transferred it to the 5th Circuit for authorization to file. Dan appealed, but the 5th held that the fact that his first petition was still on appeal did not permit him to end-run § 2244’s limitations on the filing of second-or-successive petitions.
Time was that we all thought you could amend a pending § 2254 or § 2255 petition even while the appeal was pending. No more, SCOTUS said last Thursday.
Writing for a unanimous court, Justice Ketanji Brown Jackson said, “Incarcerated individuals who seek to challenge their imprisonment through a federal habeas petition are generally afforded one opportunity to do so… Before a federal court can address a petitioner’s second or successive federal habeas filing on the merits, the incarcerated filer must clear strict procedural hurdles that the Antiterrorism and Effective Death Penalty Act of 1996 erects… We hold that, in general, once the district court has entered its judgment with respect to the first habeas petition, a second-in-time application qualifies as “second or successive”… triggering the requirements of 2244(b), when an earlier filed petition has been decided on the merits and a judgment exists.”
Rivers v. Guerrero, Case No. 23-1345, 2025 U.S. LEXIS 2276, 2025 LX 193063 (June 12, 2025)
– Thomas L. Root