by Dale Chappell

While the U.S. Supreme Court refused to hear a case to settle a deep and widening split among the federal courts, the Court’s newest justice filed a statement on March 23, 2020, saying that he would grant certiorari in the “right case” to resolve a problem that even the government admits needs fixing.

In his statement, Justice Kavanaugh seemed to suggest that the U.S. Court of Appeals for the Sixth Circuit was wrong in the way it denied habeas relief to Edwin Avery, who filed a motion to vacate his federal prison sentence under 28 U.S.C. § 2255 based on a retroactive change in federal law by the Supreme Court. The problem was that Avery was denied relief by the district court, and instead of appealing, he filed an application in the Sixth Circuit for authorization to file another § 2255 motion raising the same claim.

The Sixth Circuit granted him permission to file another motion in the district court, but the district court dismissed his motion, saying he was barred from filing the same claim he had filed in his earlier motion. When he appealed that denial, the Sixth Circuit agreed and instructed that Avery’s motion be dismissed for lack of jurisdiction.

The controversial rule that the Sixth Circuit applied is 28 U.S.C. § 2244(b)(1), which says that “a claim presented in a second or successive habeas corpus application under section2254 that was presented in a prior application shall be dismissed.” This provision was added to § 2244 by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and deals with second or successive (“SOS”) applications filed by state prisoners.

AEDPA also added § 2255(h) for federal prisoners, limiting SOS § 2255 applications to two narrow instances, but it said nothing about barring applications raising the same claims as an earlier motion or application. Nevertheless, several federal courts adopted the § 2244(b)(1) rule for federal prisoners, even though the language of that statute clearly says it applies only to state prisoners. The Sixth Circuit was one of those circuits but has since done an about-face on the issue.

The problem for Avery was that his SOS § 2255 application was filed and denied before the Sixth Circuit changed its position in Williams v. United States, 927 F.3d 427 (6th Cir. 2019). In that case, the court analyzed § 2244(b)(1) and concluded that it indeed only applies to state prisoners. The plain language of the statute, the court said, is clear on that point. “There is, accordingly, no reason to doubt that in including the restrictive clause referring exclusively to state prisoners in § 2244(b)(1), Congress said what it meant and meant what it said,” the court reasoned in holding that § 2244(b)(1)’s limit on repeat claims does not apply to federal prisoners.

The Williams Court criticized the Eleventh Circuit’s decision in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016), which held that § 2244(b)(1) also applies to federal prisoners. “Although § 2244(b)(1) explicitly applies to petitions filed under § 2254, which applies to state prisoners, it would be odd indeed if Congress had intended to allow federal prisoners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners,” a panel of the Court wrote.

Justice Kavanaugh identified in his statement the six circuits that have agreed with Baptiste. He also pointed out the Sixth Circuit’s opposite stance, which is the newest and arguably most thorough opinion on the matter. But he stopped short of saying that Avery’s petition should have been granted. Instead, Kavanaugh said that “in a future case, I would grant certiorari to resolve the circuit split on this question of federal law.”

Though the government opposed Avery’s petition, it also argued that the Sixth Circuit was right — § 2244(b)(1) doesn’t apply to federal prisoners. Kavanaugh acknowledged as much. But Avery’s case may have had reasons to make the Supreme Court pause. The district court had ruled that his plea agreement waiver barring a collateral attack was valid and that he still had enough qualifying prior convictions for the Armed Career Criminal Act enhancement. While the district court’s decision on these points was rendered invalid by the sixth Circuit’s finding that the district court lacked jurisdiction to even reach those issues, they may still have been a factor in the Supreme Court’s decision to deny certiorari.

The problem now is that it could be a while before a “future case” ever reaches the Supreme Court, while federal prisoners continue to be denied relief by a law that “clearly” doesn’t apply to them. When a federal court of appeals denies a federal prisoner’s SOS § 2255 application, he cannot appeal it. “The grant or denial of authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or writ of certiorari.” § 2244(b)(3)(E).

So, how would a future case get before the Supreme Court? The same way Avery’s did: the court of appeals originally granted his SOS application and then the district court denied his motion, which allows him to take an appeal from the denial of the motion (not the application). However, more often than not, the application gets denied by the court of appeals, not the district court, under § 2244(b)(1). Avery’s case was in an odd procedural posture before the Supreme Court.

Justice Kavanaugh’s “future case” may be more fantasy than reality. But the reality for now is that federal prisoners will continue to be barred from filing another § 2255 motion if the court of appeals got it all wrong the first time, in most circuits, while those lucky enough to be in circuits like the Sixth Circuit can get relief. See: Avery v. United States, 140 S. Ct. 1080 (2020) (Kavanaugh, J., concurring).

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