The Great Writ

In the flurry of habeas corpus cases involving student protestors filed and argued during the spring and summer, I neglected to comment on a U.S. Supreme Court decision from last June – Rivers v. Guerrero. Rivers is a technical habeas corpus case involving sequential filings made while other filings were still pending. Following a conviction in Texas state court, and after unsuccessful appeals and post-conviction pleadings in Texas, Rivers filed his first federal habeas corpus petition. The Federal District Court for the Northern District of Texas denied Rivers’ petition and also denied his request for a Certificate of Appealability (COA). Rivers then sought and obtained a COA from the Fifth Circuit Court of Appeals and filed his appeal with that court. While the appeal was pending, Rivers obtained his client file, which had been in the possession of his trial attorney. In it, he found state investigative reports that he considered exculpatory.

Rivers immediately asked the Fifth Circuit to supplement the record to include this information. The Fifth Circuit declined. He then asked the Fifth Circuit to stay or remand his case to allow him to introduce the new evidence in the District Court. The Fifth Circuit denied this request as well. While the appeal for his first petition was still pending, Rivers filed another §2254 petition in the Northern District of Texas. A magistrate judge recommended that this petition be classified as a “second or successive” petition. Such petitions are generally prohibited unless they (1) assert new claims not previously raised in prior petitions and (2) are based either on a new rule of constitutional law retroactively applicable to the petitioner, or on the discovery of new facts that could not have been reasonably discovered earlier (28 U.S.C. §2244). If a district court classifies a petition as second or successive, it is referred to the court of appeals to determine whether the petition falls within one of these categories.

Rivers objected, arguing that the second filing was not a second or successive petition but rather an amendment to his original filing, which should have been permissible because the judgment in the first petition was still on appeal. The Supreme Court considered a narrow issue: whether it is permissible to amend a petition that is on appeal, or whether such an amendment is impermissible because there had already been a final judgment in the first case, thus compelling the petition to be considered a second or successive petition. In a unanimous opinion, Justice Jackson explained: “whether a filing qualifies as a second or successive application generally turns on the existence of a final judgment with respect to the first petition, not the status of an appeal.” While the opinion includes some discussion of caselaw supporting this conclusion, the proposition is straightforward: it is not permissible to amend a petition after final judgment, and any attempt to do so will likely be subject to the “second or successive” petition limitations.

It is useful to consider what Rivers could have done, and the problems that his fact pattern illustrates. Because Rivers acknowledged that the second filing contained new claims, he could have proceeded down the §2244 path, arguing that his second or successive petition was permissible because the newly discovered evidence supported these new claims. Whether this approach would have achieved what Rivers sought is hard to know. The more interesting question arises if Rivers’ second petition had raised issues already argued, but supplemented with newly discovered evidence. Suppose further that this evidence could not have been discovered with due diligence before its actual discovery. Under federal habeas corpus law, such a second petition would still be dismissed – no matter how compelling the evidence. As the Eleventh Circuit noted in In re Dailey, “new evidence does not a new claim make.” In other words, newly discovered evidence cannot be used to support a prior claim in any second or successive petition – period. Could there be state court options for petitioners in this situation? Maybe, maybe not. If the new evidence and claim involve a substantive aspect of the case, a new trial is unlikely due to the lapse of time; most states strictly limit the time frame for filing a motion for a new trial. What about state post-conviction relief? Again, the answer varies. Some states (such as Florida) categorically forbid a second post-conviction relief motion asserting the same claim raised earlier. Others allow new evidence to support a previously argued claim, but only if it raises a probability of innocence – something evidence about ineffective assistance of counsel generally cannot do.

The picture is clear: subsequently discovered evidence cannot provide the basis for a new filing in federal court if the argument has already been made and rejected. Advocates of finality may find this result appropriate. But if the purpose of federal habeas corpus law is to ensure that serious constitutional errors are not overlooked, then newly discovered evidence of such errors should have a pathway for judicial consideration – even when a prior allegation of the error was brought and rejected without the benefit of that evidence. At present, however, that pathway does not appear to exist.