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A Second Habeas Petition Prohibition, Exceptions
Generally speaking, a person may not bring a second, or successive, federal petition for a writ of habeas corpus. Any claim that has been previously raised and denied on the merits in a federal habeas petition will be dismissed. 28 U.S.C. § 2244(b)(1); Moormann v. Schriro (9th Cir. 2012) 672 F. 3d 644, 647; Allen v. Ornoski (9th Cir. 2006) 435 F. 3d 946, 955 (successive petition barred). Any claim that has previously been dismissed due to procedural default also will be dismissed. Henderson v. Lampert (9th Cir. 2004) 396 F. 3d 1049, 1053.
A person who wants to bring a second habeas petition in federal court must apply for permission to do so from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3); Felker v. Turpin (1996) 518 U.S. 651, 662, 116 S. Ct. 2333; 135 L. Ed. 2d 827.
If the Ninth Circuit denies the motion, the petitioner cannot ask for rehearing or request review in the U.S. Supreme Court. 28 U.S.C. § 2244(b)(4).
Indeed, a person should attempt to bring all the federal habeas claims for a case in one petition. However, a second or successive federal petition for a writ of habeas corpus may be filed if:
- the claim relies on a new retroactive rule of constitutional law (28 U.S.C. § 2244(b)(2); Tyler v. Cain (2001) 533 U.S. 656, 662, 121 S. Ct. 2478; 150 L. Ed.2d 632] (new case that did not apply retroactively could not be basis for successive petition); United States v. Geozos (9th Cir. 2017) 870 F. 3d 890 (although petitioner had previously petitioned to vacate sentence, new habeas petition challenging conviction was permitted because it relied on new constitutional rule interpreting the statute under which he was convicted)); or
- the claim relies on new facts that could not previously have been discovered through reasonable efforts, and the new facts show by clear and convincing evidence that no reasonable fact-finder would have found the person guilty if those facts had been presented at trial (28 U.S.C. § 2244(b)(2); Pizzuto v. Blades (9th Cir. 2012) 673 F. 3d 1003, 1009; Bible v. Schriro (9th Cir. 2011) 651 F. 3d 1060, 1063; Cooper v. Calderon (9th Cir. 2002) 308 F. 3d 1020, 1024 (when petitioner was aware at the time of trial of the confession of another person, that confession is not new evidence and successive petition will not be heard). Successive petitions are not subject to the actual innocence (“Schlup”) exception to procedural defaults. Gage v. Chappell (9th Cir. 2015) 793 F. 3d 1159, 1168-1169.
In addition, if new claims arise or become exhausted after a petition has been filed, but while it is still pending, the federal court may allow the petitioner to amend the petition to add the new claims. See, e.g., Willis v. Collins (5th Cir. 1993) 989 F. 2d 187, 188; Diaz v. United States (11th Cir. 1991) 930 F. 2d 832, 835.
There are a few situations in which a person can file multiple federal petitions without the extra petitions being considered to be “successive” petitions. For example, a new petition can be filed following an amended judgment or a resentencing. Magwood v. Patterson (2010) 561 U.S. 320, 332-333, 130 S. Ct. 2788; 177 L. Ed. 2d 592; Wentzell v. Neven (9th Cir. 2012) 674 F. 3d 1124, 1126; Smith v. Williams (9th Cir. 2017) 871 F. 3d 684, 687-688. A new petition may also be filed after a state court’s recalculation of time-served credits. Gonzalez v. Sherman (9th Cir. 2017) 873 F. 3d 763, 769-770.
It should be noted that a petition challenging prison officials’ calculation of a release date is not considered a successive petition, even if the person has previously filed a petition challenging the underlying conviction and sentence. Hill v. Alaska (9th Cir. 2002) 297 F. 3d 895, 899. Similarly, a petition challenging a state court’s denial of a resentencing petition is not regarded as a successive petition challenging the original conviction. Clayton v. Biter (9th Cir. 2017) 838 F. 3d 840, 844-845 (habeas petition challenging an order or judgment resentencing petitioner under California’s three-strikes reform law is not successive).
When a person proceeding pro se files a second petition before a prior petition has been decided, the new petition should be deemed to be a motion to amend the original petition rather than as a successive petition. Woods v. Carey (9th Cir. 2008) 525 F. 3d 886, 889; Goodrum v. Busby (9th Cir 2016) 824 F. 3d 1188.
Lastly, the reader should understand that even if successive petitions are allowed, the petitioner must still meet the time limits for filing. Time when a federal habeas petition is pending does not toll the timeline for filing a successive petition. Duncan v. Walker (2001) 533 U.S. 167, 172, 121 S. Ct. 2120; 150 L. Ed. 2d 251.
While this article appears on our website, it would be somewhat misleading to attribute it entirely to Greg Hill & Associates. Instead, credit for this article is owed to the Prison Law Office, from which a great deal of the information in this article is drawn, particularly from their treatise, California Prison and Parole Law Handbook.
