Guenther v. Holt , 173 F.3d 1328 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________
FILED
No. 98-6296 U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
04/27/99
D.C. Docket No. CV-97-A-1407-N THOMAS K. KAHN
CLERK
CARL FRANCIS GUENTHER,
Petitioner-Appellant,
versus
ARNOLD HOLT, Warden, et al.,
Respondents-Appellees.
_____________________________
No. 98-6297
_____________________________
D.C. Docket No. Cv-98-A-47-N
SAMUEL JACKSON,
Petitioner-Appellant,
versus
BILLY MITCHEM, Warden, et al.,
Respondents-Appellees.
____________________________
Appeals from the United States District Court
for the Middle District of Alabama
____________________________
(April 27, 1999)
Before ANDERSON and HULL, Circuit Judges, and HANCOCK*, Senior District Judge.
ANDERSON, Circuit Judge:
In the two cases consolidated for this appeal, the district court dismissed the petitioners’
applications for a writ of habeas corpus as second or successive and refused to transfer the
applications to this court pursuant to 28 U.S.C. § 1631. Because such a transfer could not have
helped one of the petitioners, and was unnecessary with respect to the other, we decline to decide
the issue of whether a § 1631 transfer was potentially available and, if so, whether it should have
been made.
Between 1990 and 1994, Guenther filed two applications1 and Jackson filed one
application for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254,
each challenging his respective conviction in the Circuit Court of Montgomery County,
Alabama. The applications were denied and dismissed with prejudice. Therefore, the presence
of these prior applications made any subsequent petitions “second or successive.” Without
receiving prior authorization from this court, Guenther filed on September 22, 1997 and Jackson
filed on January 20, 1998 another § 2254 application pro se in the district court. The magistrate
judge recommended that these latest applications be dismissed because Guenther and Jackson
had not been authorized by this court pursuant to 28 U.S.C. § 2244(b)(3)(A) to file the second or
successive applications. Both petitioners filed objections, arguing that the applications should be
transferred to this court as motions for authorization to proceed with the successive applications.
*
Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
1
Guenther also filed a third application for a writ of habeas corpus in April of 1997
which was dismissed without prejudice for failure to exhaust state remedies.
2
The district court adopted the recommendations of the magistrate judge, refused to transfer the
applications to this court, and dismissed the applications for failure to obtain authorization from
this court as required by § 2244(b)(3)(A).2 Those rulings are the subject of this appeal.
28 U.S.C. §2244(b)(3)(A) provides that “[b]efore a second or successive application [for
a writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” Guenther
and Jackson do not dispute that their §2254 applications for a writ of habeas corpus are “second
or successive” applications. Rather, they contend that the district court should have construed
their applications as motions for §2244(b)(3)(A) authorization and transferred them to this court
pursuant to 28 U.S.C. §1631.32
In a vacuum, such dismissal would not be problematic because the petitioner could
simply refile, properly seeking §2244(b)(3)(A) authorization from the court of appeals before
doing so. However, a quandary may emerge when such dismissal is combined with the one-year
statute of limitations made applicable to habeas corpus claims by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. See 28 U.S.C.
§2244(d)(1). If the limitations period runs during the course of the erroneously filed, dismissal-
prone district court proceeding, the petitioner may run out of time to refile in the correct manner.
This is the problem that has motivated some courts of appeals to hold that district courts should
transfer the first, erroneously filed case to the court of appeals pursuant to 28 U.S.C. §1631. See
Coleman v. United States, 106 F.3d 339, 341 (“[I]f the district court merely strikes or dismisses
the successive petition rather than transferring the matter, compliance with the one-year
limitations periods set forth in §§2244 and 2255 would become more difficult.”). Of course, the
reasoning of these cases that §1631 can be used to mitigate the statute of limitations problem is
predicated on the notion that once authorization is belatedly granted, the date of filing for
limitations purposes relates back to the date of the initial, albeit improper, filing in the district
court. We need not decide today whether such a transfer is appropriate or whether the date of
filing relates back in this manner, because as discussed below the record in each case is clear that
a transfer would have been either futile or unnecessary.
3
28 U.S.C. §1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or
an appeal, including a petition for review of administrative action, is noticed for
3
The Second, Sixth, and Tenth Circuits have held that §1631 permits such transfers. See
In re Sims, 111 F.3d 45 (6th Cir. 1997); Coleman v. United States, 106 F.3d 339 (10th Cir.
1997); Liriano v. United States, 95 F.3d 119 (2d Cir. 1996); see also Pratt v. United States, 129
F.3d 54, 57 (1st Cir. 1997) (acknowledging, in dicta, that a district court could transfer a second
or successive application to the court of appeals under §1631), cert. denied, 118 S. Ct. 1807(1998); Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996) (same). These cases assume
that once the court of appeals grants the authorization to file a second or successive application,
the date of filing for limitations purposes would relate back to the initial, albeit improper, filing
in the district court. Alternatively, it has been suggested that staying the action for a limited
period and directing the petitioner to seek authorization to file a second or successive petition in
the court of appeals would be a workable solution. On the other hand, significant issues arise as
to whether the language of 28 U.S.C. §2244(b)(3)(A) (requiring an applicant to move in the
court of appeals “[b]efore a second or successive application [for a writ of habeas corpus] is filed
in the district court”) is a jurisdictional bar mandating dismissal, or only a condition precedent.
We need not decide whether such a stay or a § 1631 transfer would be viable as an
abstract matter, nor need we decide the relation back issue. 4 If applicable, §1631 authorizes a
or filed with such a court and that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have been brought at the
time it was filed or noticed, and the action or appeal shall proceed as if it had been
filed in or noticed for the court to which it is transferred on the date upon which it
was actually filed in or noticed for the court from which it is transferred.
4
We note that the cases from the Second, Sixth and Tenth Circuits cited in
the preceding paragraphs did not analyze §1631 or explain why it was appropriate
authority for the transfer. Significant arguments can be made on either side as to the
viability of §1631, and a different result may occur depending upon whether the matter to
4
transfer that “is in the interest of justice.” Neither petitioner in this case presents circumstances
that would entitle him in the interest of justice to a transfer or stay. With respect to petitioner
Jackson, he filed his §2254 application on January 20, 1998. For prisoners whose convictions
became final prior to the effective date of the AEDPA, the one-year statute of limitations
instituted by the AEDPA began to run on its effective date, i.e., April 24, 1996. Wilcox v.
Florida Dep’t of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998); Goodman v. United States,
151 F.3d 1335, 1337 (11th Cir. 1998). Jackson’s conviction became final in 1991 prior to the
effective date of the AEDPA, so his limitations period commenced on April 24, 1996 and
expired on April 23, 1997, nearly nine months before he filed his §2254 application. If
applicable, a transfer under §1631 would not benefit Jackson because his application, in addition
to being second or successive, was indisputably time-barred.
Petitioner Guenther, who is attacking a 1967 conviction, filed his §2254 application on
September 22, 1997. Although this was more than one year after the effective date of the
AEDPA, Guenther is able to take advantage of a tolling provision built into §2244(d). “The time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation in [subsection (d)].” 28 U.S.C. §2244(d)(2). Guenther had filed a petition for post-
conviction relief under Ala. R. Crim P. 32 in Alabama circuit court on July 14, 1995. That
be transferred is viewed as a §2254 application or as a motion under § 2244(b)(3)(A) or
as a motion to treat the §2254 application as a motion under §2244(b)(3)(A). Also, we
note that there are concerns relating to the application of the plain language in 28 U.S.C.
§2244(b)(3)(A) requiring an applicant to move in the court of appeals “[b]efore a second
or successive application [for a writ of habeas corpus] is filed in the district court.”
(Emphasis supplied).
5
action was still pending in the Alabama court system when the AEDPA took effect on April 24,
1996. See generally Guenther v. State, 702 So. 2d 484, 486 (Ala. Crim. App. 1996) (tracing
through the chronology of Guenther’s state post-conviction case). The Alabama Court of
Criminal Appeals ruled adversely to Guenther on January 17, 1997 and the Alabama Supreme
Court denied certiorari on July 18, 1997. See id. Thus, his post-conviction action in the
Alabama courts was pending until July 18, 1997, and the limitations period was tolled under
§2244(d) until that date, and began to run on that date. The one-year limitations period did not
expire until July 18, 1998. 28 U.S.C. §2244(d)(2). When Guenther filed his application on
September 22, 1997, about ten months remained on the one year period of limitations, and when
the district court dismissed his application on April 6, 1998, over three months remained.
Moreover, the magistrate judge’s report and recommendation of February 13, 1998 put Guenther
on notice of the necessity of moving in the court of appeals for an order authorizing the district
court to consider a second or successive application. See Magistrate Judge’s Report &
Recommendation at 2. Guenther’s action was dismissed without prejudice. Guenther had ample
time to seek from this court the §2244(b)(3) authorization and refile his §2254 application, prior
to the July 18, 1998 expiration of the limitations period, had he chosen to do so.5 In the
circumstances of these two cases, the interest of justice indicates neither a transfer under §1631
nor a stay.
Thus, neither petitioner would be entitled to relief regardless of the applicability of
§1631: Jackson, because the limitations period had already expired before he filed; and
5
We note in this regard that this court is required to “grant or deny the authorization to
file a second or successive application not later than 30 days after the filing of the motion.” 28
U.S.C. §2244(b)(3)(D).
6
Guenther, because the limitations period had ample time left when the action was dismissed.
Accordingly, we decline to decide whether a §1631 transfer might be a viable option in some
other case, and we decline to decide whether a stay, instead of a dismissal without prejudice,
should be ordered in some other case, and we decline to decide the relation back issue.
However, we do suggest that the problems inherent in cases like these could be greatly curtailed
if the district courts revised the forms that are provided to pro se §2254 petitioners so that they
reflect the changes made to habeas corpus law by the AEDPA. For example, the forms could
convey the necessity of obtaining authorization in the court of appeals before filing a second or
successive application, see 28 U.S.C. §2244(b)(3)(A), advise petitioners of the restrictive
circumstances that can justify a second or successive application under the AEDPA,6 see id.§2244(b)(2), and make petitioners aware of the new one-year statute of limitations, see id.
6
28 U.S.C. §2244(b)(1) provides that “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application shall be
dismissed.” 28 U.S.C. §2244(b)(2) provides that a claim not presented in a prior application
shall be dismissed unless
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying 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.
7
§2244(d).7 Such instructions would better ensure that the proper procedures are followed, both
facilitating the access to the courts which the current statute permits, and reducing erroneously
filed applications in district courts which consume scarce district court resources, and possibly
also deterring the filing of frivolous second or successive habeas applications (e.g., those clearly
barred by the statute of limitations or clearly insufficient to meet the restrictive standards for
second or successive applications), which, of course, would conserve scarce judicial resources at
both the district and appellate levels.8
The judgments of the district court dismissing these cases are
AFFIRMED.
7
Although the instant cases were §2254 applications, the same concerns are generally
applicable to motions to vacate, set aside, or correct a federal sentence under 28 U.S.C. §2255and the forms provided to movants under that section.
8
We note in this regard that the form currently used by the Northern District of Georgia
contains helpful information regarding the necessity of obtaining §2244(b)(3) authorization from
the court of appeals before proceeding with a second or successive petition, and regarding the
new one-year statute of limitations. The form currently used by the Middle District of Florida
with respect to §2254 applications advises petitioners regarding the necessity of obtaining
§2244(b)(3) authorization.
8