Rivers v. Guerrero

    Issues

    May a habeas petitioner file a new petition while a current petition is pending without having first received authorization from the court of appeals?

    Oral argument:
    March 31, 2025
    Court below:
    United States Court of Appeals for the Fifth Circuit

    This case asks whether a habeas petitioner may file a new petition while a current petition is pending without having first received authorization from the court of appeals. Rivers, who was convicted of child sex crimes, filed a habeas corpus petition that was denied by the district court. While this petition was pending appellate review, Rivers filed a second habeas petition, which the district court held was successive and thus unable to be submitted without authorization from the appellate court. Rivers argues that a motion to appeal or amend a habeas petition is not successive under Section 2242. Guerrero counters that only arguments contained within the first petition can be considered without authorization from the appellate court and that Rivers’s new  arguments render the second petition successive. The outcome of this case has significant implications for the strain on the legal system and fair opportunity for review of convictions. 

    Questions as Framed for the Court by the Parties

    Whether 28 U.S.C. § 2244(b)(2) applies only to habeas filings made after a prisoner has exhausted appellate review of his first petition, to all second-in-time habeas filings after final judgment, or to some second-in-time filings — depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

    Facts

    In 2012, Petitioner Danny Richard Rivers was convicted in Texas state court for child sex crimes.  In August 2017, Rivers filed a habeas corpus petition disputing his convictions in several ways, including ineffective assistance of counsel. Rivers filed this appeal under 28 U.S.C. § 2254, which covers habeas corpus appeals in federal court stemming from state court convictions. Under this statute, the conviction appeal must pertain to the federal Constitution, federal law, or treaties.

    The United States District Court for the Northern District of Texas denied this petition for appeal and also denied Rivers a Certificate of Appealability (“COA”), which would allow him to appeal his claims to the United States Court of Appeals for the Fifth Circuit. Then, Rivers moved to receive a COA from the Fifth Circuit directly, which was granted on his ineffective assistance of counsel claim. The Fifth Circuit then granted review on Rivers's ineffective assistance of counsel claim.

    In February 2021, while his first appeal was pending before the Fifth Circuit, Rivers filed a second § 2254 habeas petition with the District Court challenging the same child sex crime convictions as the first challenge. In this challenge, however, Rivers added four new claims. Rivers argued that these new claims originated only after he obtained his trial attorney-client file after his first habeas petition. Rivers acquired this file through a grievance adjudication against his trial lawyer

    This second filing of new claims was considered successive under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), or 28 U.S.C. § 2244(b)(3)(A), which requires successive filings of this kind to have authorization from the corresponding court of appeals, which was the Fifth Circuit in this case. The District Court therefore held that it was not able to entertain these new claims without this authorization from the Fifth Circuit. Rivers did not then seek this authorization from the Fifth Circuit by filing a motion, accordingly, his second petition was denied. , Afterwords, the Fifth Circuit affirmed the District Court’s denial of Rivers’s original petition.

    Rivers appealed the District Court’s order requiring him to seek  approval from the Fifth Circuit to file his second set of claims in the District Court. Specifically, in appealing this order to the Fifth Circuit, Rivers argued that his second set of claims should not have been viewed as “successive” under AEDPA because his first set of claims was still pending on appeal to the Fifth Circuit. Thus, Rivers claimed that his second filing should have been considered a motion to amend his first set of claims. Additionally, Rivers asserted that his second set of claims should not have been considered successive because they were only possible after he obtained his client filed, which was withheld from him until after his first set of claims were filed.

    In considering Rivers’s appeal, the Fifth Circuit dismissed both of his arguments that his second filing should not have been treated as successive to his first filing and subject to the approval of the Fifth Circuit. First, the Fifth Circuit attributed no significance to the fact that the information used to make his second filing was undiscoverable at the time of the first filing, thus, he was still required to seek authorization to file such later claims. Second, the Fifth Circuit declined to consider the second filing as an amendment to the original petition because this approach would allow prisoners to file unlimited claims while an appeal is pending, which would undermine the statute's policy of restraint.

    The Supreme Court of the United States granted Rivers’s petition for certiorari on December 6, 2024 against Respondent Eric Guerrero, Director of the Texas Department of Criminal Justice.

    Analysis

    STATUTORY LANGUAGE OF SECTION 2242

    Rivers argues that a motion to amend or supplement an initial habeas petition that is pending on appeal is not a “second or successive” application because 28 U.S.C. § 2242 explicitly permits prisoners to amend or supplement their applications while an appeal is pending.More specifically, Rivers contends that Section 2242 requires courts to allow amendment and supplementation per the rules of civil procedure. Rivers emphasizes that Section 2242 simply codified existing practice by broadly instructing courts to allow amendments in accordance with rules governing civil action.

    Rivers then claims that Federal Rule of Civil Procedure 15 provides for motions to amend or supplement a pleading while an appeal is pending. Rivers notes that such motions have been allowed when justice so requires as well as after a judgment has been entered or on remand following an appeal. Rivers elaborates by describing that when a Rule 15 motion is filed while a case is on appeal, Federal Rules of Procedure 62.1(a) permits a district court to issue an indicative ruling inviting remand. Furthermore, Rivers states that after such an indicative ruling, Federal Rule of Appellate Procedure 12.1(b) and 28 U.S.C. §2106 allow the court of appeals to vacate and remand in response. Rivers adds that even if a district court lacks jurisdiction to grant a Rule 15 motion, it still can entertain the motion and either deny the motion on its merits or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand.” Finally, Rivers points out that a distinct “motion” for a “targeted ‘indicative ruling’” is unnecessary since the district court may issue an indicative ruling based solely on the underlying motion for relief.

    Furthermore, Rivers posits that the strict Section 2244(b) provisions do not override the looser Section 2242 allowance for amendment or supplementation of a habeas petition. Rivers reasons that Section 2242 identifies the conditions to amend a habeas petition, which follow the civil rules of civil procedure and do not include the stringent gatekeeping requirements for second or successive petitions in Section 2244. Rivers also contends that the Court must interpret statutes harmoniously rather than in conflict with one another. Thus, Rivers argues that construing a motion to amend as a second or successive petition would nullify Congress’s instruction that habeas petition may be amended as provided in the civil rules. Rivers asserts that Section 2266 expressly requires certain amendments satisfy the Section 2244 standards, and that it would be inappropriate for the Court to assume that Congress has failed to make this distinction elsewhere when it had done so in Section 2266.  

    Guerrero counters that only the questions set out in the first petition, or fairly included therein, should be considered by the court.Guerrero adds that petitioners should not be allowed to “smuggle” additional questions into a case. Guerrero then characterizes the theory Rivers advances that Section 2244 does not apply until appellate review of first habeas application is exhausted to be a novel theory being smuggled into the petition.

    Guerrero argues that Rivers’s new reliance on the relationship between Section 2242 and Federal Rule of Civil Procedure 15, which allows for amendment while an appeal is pending, was never mentioned in Rivers’s certiorari petition. Guerrero underscores that Rivers’s certiorari petition never cited Rule 15 and that Rule 62.1, which allows a district court to grant an indicative ruling while an appeal is pending, was just cited twice, and not in any relevant way. Guerrero points out that Rivers’s second filing was intended to be a new application and not an amendment, so Rivers’s failure to present the new theory in any lower court petition renders it unreviewable by the Court. Moreover, Guerrero states that addressing the fundamental questions of the relationship between Section 2242 and civil procedure rules, as Rivers is asking the Court to do, is neither necessary nor appropriate given that no Texas court has adopted Rivers’s views, and the Court did not grant review to consider such fundamental questions.

    Finally, Guerrero contends that although not all habeas later-in-time filings are considered second or successive under Section 2244, filings that threaten an already final judgment with successive litigation “run afoul of the second- or-successive bar.” Guerrero posits that because Rivers filed his document two years after a final judgment under a new case number while duplicating much of his first application, his second-in-time application should be characterized as second or successive under Section 2244. Guerrero points out that AEDPA’s gatekeeping mechanism as codified in Section 2244 exists to maintain our system of dual sovereignty or the federal-state comity, which discourages federal review from serving as a substitute for ordinary error correction through appeal.

    HISTORICAL PRACTICE 

    Rivers argues that historically, courts have not deemed presentation of newly discovered evidence to be an abuse-of-writ doctrine. Rivers notes that courts have cabined abuse-of-writ principle to cases where a second application is made upon the same facts presented, or which might have been presented in the first application. Rivers emphasizes that habeas courts did not historically treat mid-appeal Rule 15 motions as successive, even if they determined that the motion failed on the merits. Rivers notes that habeas courts would not have resolved Rule 15 motions on the merits had they viewed them as successive. Rivers also contends that subjecting mid-appeal Rule 15 motions to run Section 2244 standards would frustrate efficiency and finality. Rivers notes that characterizing mid-appeal Rule 15 motions as successive would unduly burden appellate courts. Finally, Rivers points out that had Congress wanted mid-appeal Rule 15 motions to count as second or successive, it easily could have written such a law, and that treating mid-appeal Rule 15 motions as second or successive would impose two vastly different standards on a petitioner depending on when they discover new information and file their motion.

    Guerrero counters that historically, habeas doctrine and practice would have treated Rivers’s purported “mid-appeal” Rule 15 motion as a Rule 60(b) motion. Guerrero claims that the Court historically treated such a Rule 60(b) motion as a successive application. Guerrero argues that litigants cannot file a Rule 15 motion until judgment has been vacated under Rule 60(b), and Guerrero further demonstrates that other historical example of Rule 60(b) motion seeking to revisit the federal court’s denial on the merits have been determined to be a successive habeas petition. Guerrero also notes that allowing filing of an amendment before a judgment has been set aside or vacated would go against the policy favoring finality and expeditious termination of litigation. Guerrero reasons that such motions would waste judicial resources, as the question of whether the prisoner may amend would ping-pong back and forth between the district court and court of appeals before the merits of a prisoner’s “amended” application is adjudicated.

    SECTION 2244(b) APPLIES ONLY AFTER THE INITIAL PETITION IS FINAL ON APPEAL

    Rivers argues that the Court has long treated the end of appellate review rather than the entry of final judgment as the inflection point in determining whether a petition is secondary and successive or not. Rivers points out that before the enactment of The Antiterrorism and Effective Death Penalty Act (AEDPA), courts consistently spoke as though the end of appellate review marked the dividing line between first and successive petitions. Moreover, Rivers contends that both the language of AEDPA and Section 2244 on the end of appellate review as the inflection point for determining whether a petition is secondary and successive and for statute of limitation and tolling purposes.

    Guerrero counters that the dividing line between an amended petition and a second or successive one is the filing of notice of appeal after entry of final judgment. Guerrero posits that Rule 62.1 was added to clarify how Rule 60 motions should be handled after the enactment of AEDPA, and that Rule 62.1 does not apply to Rule 15 because it does not seek relief as Rule 60 does. Finally, Guerrero notes that AEDPA modified historical abuse-of-writ rules to require certain standards be met for prisoners to introduce new evidence, and Guerrero cites the lack of case law supporting Rivers’s claim that pre-AEDPA courts routinely decided mid-appeal Rule 15 motions on the merits—rather than dismissing them as abusive.

    Discussion

    STRAIN ON THE LEGAL SYSTEM

    In support of Rivers, Former Federal Judges (the “Judges”) argue that applying a bar to successive claims when an original claim is still pending and, thus, channeling habeas applicants to circuit courts would unnecessarily burden  circuit court judges with frivolous habeas filings.  The Judges argue that Congress intended AEDPA to reduce burdens on circuit judges, and any uncertainty in its application should be interpreted according to this principle. The Judges cite the certificate of appealability requirement, which requires habeas appellants to obtain permission from the district court before appealing their claim to the circuit court, as an example of this principle in action, as it keeps the inquiry into whether or not to permit the second claim with the district judge. The Judges explain that if the successive bar applies, then three circuit judges will, on appeal from the bar, be required to review an entirely new fact pattern to determine whether to permit the new filing. If the bar does not apply, then the same district judge who presided over the case and is already familiar with the facts and law can make such a determination as to the merits of the new petition. Furthermore, the Judges state that district court judges are more equipped to make such a factual determination because they have greater experience in parsing facts. Lastly, the Judges emphasize that as a policy matter, pro se litigants such as Rivers, are to be afforded the benefit of the doubt in habeas proceedings.

    In support of Guerrero, Arkansas, et al. (“Arkansas”)  counter that the Fifth Circuit’s interpretation, limiting successive petitions, alternatively works to conserve valuable judicial time and resources. Specifically, Arkansas claims that when habeas petitions submit new claims while an appeal is still pending, the State then must expend further resources to adjudicate them. Thus, Arkansas argues that the Fifth Circuit’s interpretation, which limits successive petitions, would allow States redirect their effort and resources elsewhere. Arkansas further emphasizes that habeas cases consist of five to ten percent of all federal cases and that district courts are rarely reversed on habeas appeals. With these considerations in mind, Arkansas argues that AEDPA reduces the costs of frivolous petitions, but that this reduction is hampered when exceptions, such as allowing successive petitions, are permitted. Furthermore, Arkansas explains that permitting this large influx of claims harms not only lawyers involved in these cases through increased workload, but also prisoners themselves where legitimate claims can be buried in massive amounts of frivolous claims. Lastly, Arkansas finds that, without the Fifth Circuit’s restraint on successive petitions, prisoners would be incentivized to file petitions even if they lacked merit.

    FAIR OPPORTUNITY FOR REVIEW

    In support of Rivers, National Association of Federal Defenders and National Association of Criminal Defense Lawyers (“Defense”) argues that, while generally mid-appeal second habeas filings are rare, they are potentially vital in particular cases; and, the Fifth Circuit’s holding is unduly restrictive.  Defense argues that it would be unfair to habeas petitioners to disallow them from filing a successive petition in cases where new information comes to light after the initial filing that concerns a claim identified in the prior petition. While Defense acknowledges that it was Congress’ intention to limit the new claims that habeas petitions could bring through a successive claim to those that come about from new rules or information not previously available to the litigant, Defense claims that application of this limiting standard here would be unduly limiting; thus, such a rule would restrict litigants from bringing important claims like sentencing errors and bias.

    In support of Guerrero, Pennsylvania, et al. (“Pennsylvania”) pushes back, claiming that such fairness considerations do not support River’s claim.  Specifically, Pennsylvania claims that if Rivers is unable to file his successive claim because his lawyer withheld the necessary information, this is not a perverse result because Rivers’ lawyer was his agent and thus, he must live with this risk and outcome. Furthermore, Pennsylvania supports this policy judgment by stating that habeas proceedings concerning state convictions are intended to be extraordinary and thus difficult to satisfy, thus weighing against a fairness rationale for expanding the remedy to cover Rivers’ petition. Lastly, Pennsylvania further bolsters its contention that this outcome does not rob Rivers of a fair opportunity by stating that this potentially perverse outcome is outweighed by a need for litigation to eventually end.

    Conclusion


        Richard Han and Ty Lisi

          John Orona

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