In the name of finality, federal courts are reluctant to undo criminal judgments of state courts, especially repeated attempts by prisoners under habeas corpus. When the Antiterrorism and Effective Death Penalty Act (AEDPA) came along in 1996, Congress slammed the door shut for more than one shot at habeas relief in the federal courts. Let`s go over what it takes to get “another bite at the apple” in federal court.

What is a Second or Successive Habeas Petition?

Not every habeas petition by a state prisoner under 28 U.S.C. sec 2254 after a first petition is denied will be a SOS petition. In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court held that a habeas petition which attacks a new judgment is not a SOS petition. This means that if you had a successful habeas petition earlier, a petition attacking the new criminal judgment would not be a SOS petition.

However, the courts are split over whether a petition attacking a new judgment can also raise issues that had existed at the time of the first petition. Some courts allow an attack on not only the new judgment, including any errors that existed at the time of the old judgment. Some don`t. See Insignares v. Sec`y Dept. of Corr., 755 F.3d 1253 (11th Cir. 2014).

If the court dismissed your first petition without prejudice, then another petition raising the same claims would not be a SOS petition. The term “without prejudice” simply means there`s nothing against you filing another petition. And certain claims might not have been “ripe” at the time when the first habeas petition was filed, and may be raised in another petition once ripe. An example of this would be a claim where a state prisoner serving a death sentence raises a claim that his mental condition has deteriorated over the years and he`s now unable to be executed.

The term “second or successive” may seem redundant but it`s actually two legal terms with different meanings in federal habeas corpus. The term “second” is another term for “abuse of the writ,” which happens when a petitioner should have raised the claim earlier but did not. This “sandbagging” was a tactic used by prisoners, prior to the AEDPA, to keep an option open for a later challenge if the first petition failed. The term “successive” refers to a petition that has the same claims as an earlier petition that was denied. Before the AEDPA, this was a common way of “appealing” denied habeas petitions. See Kulhman v. Wilson, 477 U.S. 436 (1986) (explaining these terms).

Authorization to File a SOS Habeas Petition is Jurisdictional

The AEDPA added a provision to the federal habeas statutes that any SOS petition must be authorized by the court of appeals before it`s filed in the district court:

Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate courts of appeals for an order authorizing the district court to consider the application.

28 U.S.C. sec 2244(b)(3)(A)

This provision is a jurisdictional bar preventing the district court from even hearing the petition. Pratt v. United States, 129 F.3d 54 (1st Cir. 1997) (“a district court, faced with an unapproved second or successive habeas petition, must either dismiss it or transfer it to the appropriate court of appeals”).

Use the Form Provided and Attach Your Petition

Every court of appeals uses a form for requesting permission to file a SOS habeas petition, and it`s provided by the clerk at no cost. This form is actually the “motion” that is filed to invoke the provisions under sec 2244. It`s purpose is for the clerk to screen your request, without having to dig through a long motion drafted from scratch. Some courts have local rules that require the form, and some say it`s fine to forgo the form if you follow the same format with your own motion.

Even if it`s not required, it`s a good idea to attach your proposed SOS petition for the district court to your form filed in the court of appeals. Anything you file with your application may be considered in support of authorizing another petition.

When is a SOS Habeas Petition Considered “Filed?”

Most courts consider your SOS petition “filed” when you file your motion (the application) in the court of appeals for authorization. In Gilmore v. Berghuis, 2015 U.S. App. LEXIS 4501 (6th Cir. Jan. 30, 2015), the court provided some valid reasons why attaching your proposed SOS petition to the form is a good idea. The government had argued that the application wasn`t the actual petition and so it wasn`t “filed” until the approved petition was filed in the district court. But the court disagreed, pointing to 28 U.S.C. sec 2242, saying a habeas petition is “filed” when it is addressed to a judge on the court of appeals with an explanation of why it could not have been filed in the district court. The form provided that explanation, the court said, and the attached petition was filed when the form was filed.

But in Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002), the court held that “a motion for authorization to file a successive petition is not itself an application for a writ of habeas corpus. As a consequence, the filing of such a motion does not satisfy the one-year statute of limitations under the AEDPA” until the petition is filed in the district court. The court further noted that it`s the rule in the Fifth Circuit that the proposed SOS petition is attached to the form filed in the court of appeals. In re Epps, 127 F.3d 364 (5th Cir. 1997).

There`s a Time Limit to File a SOS Habeas Petition

Under the AEDPA, there`s a one-year time limit for any habeas petition filed by a state prisoners. sec 2244(d). This includes any SOS petition authorized by the court of appeals. But unless the petition, if authorized, would “clearly” be out of time, most courts say it`s best left up to the district court to determine the timeliness of a SOS petition. See In re McDonald, 514 F.3d 539 (6th Cir. 2008).

A SOS Habeas Petition is Screened by Both Courts

Your request to file a SOS petition in the district court gets screened by both the court of appeals and then the district court, to see if it meets the strict criteria to file such a petition. First, the court of appeals is required to dismiss any claims that were “presented in a prior application.” sec 2244(b)(1). Next, the court determines whether the motion makes a prima facie showing that it meets the SOS criteria under sec 2244(b)(2) (see below). Finally, this determination is made by a panel of three judges and “not later than 30 days.” sec 2244(b)(3)(C)-(E). However, the 30-day limit is not a hard rule and courts have almost always gone beyond that deadline. Ezell v. United States, 778 F.3d 762 (9th Cir. 2015).

Criteria for Filing a SOS Habeas Petition

There are two narrow circumstances that allow a SOS petition in the district court:

Sec 2244(b)(2)(A): This provision allows a claim that “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

There are two parts to this criterion. First, it has to be a new constitutional decision by the Supreme Court that is substantive. A ruling that declares part of a criminal law unconstitutional and would now prohibit certain people from being punished by that law is one example of a substantive and retroactive Supreme Court ruling. See Johnson v. United States, 576 U.S. 591 (2015), for an example of such a case.

Second, the Supreme Court itself must make its decision retroactive on collateral review. While the Court hardly ever says whether its decision is retroactive, if the Court applies the decision to a collateral review case it`s considered retroactive. See Tyler v. Cain, 593 U.S. 656 (2001).

Sec 2244(b)(2)(B): This provision allows a claim where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and the facts under 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.”

In other words, you have to provide new evidence, that you could not have found earlier through reasonable efforts, which would convince the court by more than a 50/50 chance that you`re not guilty of the offense. A case where the prosecutor withheld crucial evidence that would have undermined the jury`s finding of guilt would be a successful claim under this provision. See In re Jackson, 12 F.4th 604 (6th Cir. 2021).

Challenging the Erroneous Transfer of a Non-SOS Habeas Petition

If you filed a habeas petition in the district court and the court transfers it to the court of appeals as am unauthorized SOS petition, you don`t appeal the district court`s transfer order. Instead, you must file in the court of appeals where the petition was transferred to a “motion to remand,” asking the court to send your petition back to the district court because it`s not a SOS petition.

Appealing the Denial of a SOS Habeas Petition

If your application to file a SOS petition was denied by the court of appeals, you may not appeal that decision nor can you file a motion for a rehearing. sec 2244(b)(3)(E). However, you can “suggest” that the court rehear its denial, since the court has the power to do this on its own. In re Johnson, 814 F.3d 1259 (11th Cir. 2016). But if the district court denies your approved SOS petition, it`s a normal appeal as in any other habeas case.

IN CONCLUSION, filing a second or successive habeas petition in federal court is not an easy task. There`s lots of steps to take and one wrong step can prevent the chance for any relief, no matter how strong your claims may be. Take time to understand these steps before filing in the courts.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.