|STEWART v. MARTINEZ-VILLAREAL (97-300)|
118 F.3d 628, affirmed.
[ Rehnquist ]
[ Scalia ]
[ Thomas ]
Thomas, J., dissenting
TERRY STEWART, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTION, et al.,
PETITIONERS v. RAMON MARTINEZ-
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AND OTHER RELIEF
[May 18, 1998]
Justice Thomas, with whom Justice Scalia joins, dissenting.
From 1986 to 1991, respondent filed three petitions for federal habeas relief; each was dismissed on the ground that respondent had not yet exhausted his state remedies. In March 1993, respondent filed his fourth federal habeas petition presenting, inter alia, his claim under Ford v. Wainwright, 477 U.S. 399 (1986), that he was not competent to be executed. Finding that some of respondents claims were procedurally defaulted, that others were without merit, and that respondents Ford claim was not ripe for decision, the Court of Appeals held that the fourth petition should be denied. In May 1997, after the Arizona state courts rejected his Ford claim, respondent returned for a fifth time to federal court, again arguing that he was incompetent to be executed. Because this filing was a second or successive habeas corpus application, respondents Ford claim should have been dismissed. I therefore respectfully dissent.
Unlike the Court, I begin with the plain language of the statute. Section 2244(b)(1) provides that a claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed. 28 U.S.C. A. §2244(b)(1) (Supp. 1998). An application is a putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something. Blacks Law Dictionary 9899 (6th ed. 1990); see also Websters Ninth New Collegiate Dictionary 97 (1991) (application is a request, petition a form used in making a request). Respondents March 1993 federal habeas petition was clearly a habeas application (the Court concedes as much), because it placed before the District Court respondents request for a writ of habeas corpus. Once this application was denied, however, none of respondents claims for reliefincluding his claim that he was incompetent to be executedremained before the Court. It was thus necessary for respondent to file a new request for habeas relief so that his Ford claim would again be pu[t] to or plac[ed] before the District Court. (The Court certainly did not raise respondents Ford claim sua sponte.) Respondents May 1997 request for relief was therefore a habeas application distinct from his earlier requests for relief, and it was thus undoubtedly second or successive.
Respondents Ford claim was also presented in both his March 1993 and his May 1997 habeas applications. To present is to bring or introduce into the presence of someone or to lay (as a charge) before a court as an object of inquiry. Websters Ninth New Collegiate Dictionary 930 (1991). Respondent clearly presented his Ford claim in both his 1993 and his 1997 habeas applications, for in each he introduced to the District Court his argument that he is not competent to be executed. Under the plain meaning of the statute, therefore, respondents Ford claim was a claim presented in a second or successive habeas corpus application that was presented in a prior application. §2244(b)(1).
The reasons offered by the Court for disregarding the plain language of the statute are unpersuasive. Conceding that [t]his may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, ante, at 5, the Court nevertheless concludes that respondent has really filed only one application for habeas relief. Ibid. (emphasis added). The District Court, however, did not hold respondents Ford claim in abeyance when it denied his March 1993 habeas petition, so that claim was no longer before the District Court in May 1997. At best, then, respondents May 1997 filing was an effort to reopen his Ford claim. But that filing (which is most definitely an application) is subject to the statutory requirements for second or successive habeas applications. As we have recently stated in a closely related context:
[A] prisoners motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of §2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, §2244(b)(1), or the bar against litigation of claims not presented in a prior application, §2244(b)(2). Calderon v. Thompson, 523 U.S. __, __ (1998) (slip op., at 14).
In just the same way, habeas petitioners cannot be permitted to evade §2244(b)s prohibitions simply by moving to reopen claims already presented in a prior habeas
The Court also reasons that respondents Ford claim herepreviously dismissed as prematureshould be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies, for in both situations, the habeas petitioner does not receive an adjudication of his claim. Ante, at 67. Implicit in the Courts reasoning is its assumption that a prisoner whose habeas petition has been dismissed for failure to exhaust state remedies, and who then exhausts those remedies and returns to federal court, has not then filed a second or successive habeas corpus application. §2244(b)(1). To be sure, none of our cases ha[s] ever suggested that a prisoner in such a situation was filing a successive petition. See ante, at 6. But that is because, before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1218, a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been presented and determined, 28 U.S.C. § 2244(a) (emphasis added), or adjudicated, §2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither determined nor adjudicated. Thus, the pre-AEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive.
Even if the Court were correct that such an application would not have been considered second or successive, such a case is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see Rose v. Lundy, 455 U.S. 509, 520522 (1982), so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an application, and any future application must be second or successive.1 Otherwise, the court would have adjudicated the merits of claims that had not been presented in an application.2
Ultimately, the Courts holding is driven by what it sees as the far-reaching and seemingly perverse implications for federal habeas practice of a literal reading of the statute. Ante, at 6. Such concerns are not, in my view, sufficient to override the statutes plain meaning. And to the extent concerns about habeas practice motivate the Courts decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See Wright v. West, 505 U.S. 277, 285286 (1992) (opinion of Thomas, J.). A Ford claim obviously does not present such a challenge.3 A statute that has the effect of precluding adjudication of a claim that for most of our Nations history would have been considered noncognizable on habeas can hardly be described as perverse.
Accordingly, whether one considers respondents March 1993 federal habeas petition to have been his first habeas applicationbecause his three previous applications had been dismissed for failure to exhaustor his fourthbecause respondent had already filed three previous habeas applications by that timehis May 1997 request for relief was undoubtedly either a second (following his first) or successive (following his fourth) habeas application. Respondents Ford claim, presented in this second or successive application, should have been dismissed as a claim presented in a prior application. §2244(b)(1).
1. If the Courts position is that respondents May 1997 filing was an application, but not a second or successive one, presumably 28 U.S.C. A. §2244(b) (Supp. 1998) would not have precluded respondent from presenting, along with his Ford claim, a claim previously adjudicated on the merits, for §2244(b) operates to bar only those claims presented in second or successive applications.
2. Even if a claim dismissed without prejudice could be treated as having never been presented, dismissal, as the Court concedes, would still be required because a claim under Ford v. Wainwright, 477 U.S. 399 (1986), does not fit within §2244(b)(2)(B)s exceptions for claims not presented in prior applications. See ante, at 4.
3. There is an additional reason why a state prisoners Ford claim may not be cognizable on federal habeas. A state prisoner may bring a federal habeas petition only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254. A Ford claim does not challenge either the prisoners underlying conviction or the legality of the sentence; it challenges when (or whether) the sentence can be carried out.