by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that district courts must provide habeas petitioners with notice and an opportunity to be heard before dismissing a habeas petition sua sponte (on its own motion) based upon the limitation of Fourth Amendment claims enunciated in Stone v. Powell, 428 U.S. 465 (1976) (habeas relief may not be obtained under the Fourth Amendment on ground that state court erroneously failed to suppress evidence resulting from an unlawful search if petitioner had full and fair opportunity to litigate claim in state court).

Jamel Ethridge was apprehended after he led officers on a high-speed chase, crashed his vehicle, and fled on foot. Ethridge gave officers permission to search the rental car he had been driving to find the rental agreement. During the search, officers inspected the vehicle’s trunk and found a gun. After Ethridge was indicted on numerous offenses, including second- and third-degree criminal possession of a weapon, he moved to suppress, inter alia, the gun. The trial court denied the motion. Ethridge pleaded guilty, reserving his right to appeal the denial of his suppression motion. The Appellate Division affirmed, ruling that because Ethridge had fled on foot, he abandoned the vehicle — foregoing any expectation of privacy in the vehicle or its contents; therefore, he lacked standing to challenge the search, according to the court. The New York Court of Appeals denied Ethridge’s application to appeal.

Ethridge subsequently challenged his conviction, raising the Fourth Amendment claims in his pro se 28 U.S.C. § 2254 petition for writ of habeas corpus in the U.S. District Court for the Eastern District of New York. Without giving Ethridge notice and an opportunity to be heard, the district court — relying on the state court record — dismissed Ethridge’s petition sua sponte, concluding that his Fourth Amendment claims could not provide a basis for habeas relief because he had had a full and fair opportunity to litigate the claim in state court as per Stone.

Ethridge filed a motion for reconsideration, arguing the district court’s sua sponte dismissal denied him notice and the ability to argue that he did not, in fact, have a full and fair opportunity to litigate his Fourth Amendment claim in state court because the state court had determined that he did not have “standing” to challenge the search, which is contrary to the U.S. Supreme Court’s decision in Byrd v. United States, 138 S. Ct. 1518 (2018) (“the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy”). The district court, without addressing the merits of Ethridge’s standing argument, denied the motion for reconsideration. Ethridge appealed.

The Court granted a certificate of appealability on the following issues: “(1) whether a court needs to provide notice and an opportunity to be heard when sua sponte applying Stone to dismiss a 28 U.S.C. § 2254 habeas petition;” and (2) if so, “whether the district court’s dismissal order and Ethridge’s reconsideration motion provided adequate notice and an opportunity to be heard in this case.”

It observed that district courts have the authority to invoke Stone sua sponte but are not required to do so. See Davis v. Blackburn, 803 F.2d 1371 (5th Cir. 1986); see also Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 1991). Although sua sponte dismissals may be appropriate in certain circumstances, the general rule is that a district court lacks authority to dismiss an action sua sponte without first providing the plaintiff with notice and an opportunity to be heard, the Court stated. Perez v. Ortiz, 849 F.2d 793 (2d Cir. 1988); see also Catzin v. Thank You & Good Luck Corp., 899 F.3d 77 (2d Cir. 2018) (collecting cases). 

The Court explained that a district court’s power to dismiss a habeas petition sua sponte without providing the petitioner prior notice and an opportunity to be heard depends on the reason for the dismissal. See Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000). In some situations, a district court may dismiss a petition “on the merits” without prior notice; however, the court is required to provide notice and an opportunity to be heard prior to dismissing a petition “on procedural grounds.” Id.

For example, where “it plainly appears from the petition … that the petitioner is not entitled to relief,” a district court may dismiss without prior notice. Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts (“Rule 4”). In contrast, notice and an opportunity to be heard must be provided before dismissing a habeas petition on the basis of procedural grounds, such as untimeliness. Id. The reason such dismissals require prior notice and an opportunity to be heard is because these claims are adjudicated on factors that are “usually outside of the record” and will not come to light unless properly asserted by the petitioner, explained the Court. Id.

The Acosta Court held that the district court erred in dismissing a habeas petition as untimely without giving the petitioner notice and an opportunity to come forth with legal justification to toll the limitations period – such as a “situation where the constitutional right was recognized and made retroactive on collateral review after the date the conviction became final” or “a situation where the factual basis for the claim first became discoverable through the exercise of due diligence after the date of conviction became final.” These circumstances are not usually reflected in the record and would not be fully addressed in a petition filed pro se by a petitioner unfamiliar with the law and unskilled in pleading who submits his petition on the standard “fill-in-the-blank” habeas forms, the Acosta Court reasoned.

Turning to the present case, the Court agreed with Ethridge’s argument that Rule 4 does not apply to dismissal under Stone because such dismissal does not adjudicate the merits of the constitutional claim and thus must be preceded by notice and an opportunity to be heard. Additionally, Acosta and its progeny support the foregoing conclusion because Stone’s restrictions on habeas review of Fourth Amendment claims permit exceptions based on the existence of circumstances outside of the record, the Court reasoned.

The Court stated that Stone’s limitation on habeas review of Fourth Amendment claims is not absolute because a petitioner may obtain habeas relief if he can show that he was denied an opportunity for full and fair litigation of his claim. See Stone; Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977). A petitioner may do so by demonstrating either that (1) “the state has provided no corrective procedures at all to address [F]ourth [A]mendment violations” or (2) “if the state has provided a corrective mechanism,” the petitioner “was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992).

While the Second Circuit has held that New York state courts provide facially adequate procedures to redress Fourth Amendment claims, Capellan, that does not mean a situation could not arise where there is an unconscionable breakdown in the underlying process in a particular case. See, e.g., Branch v. McClellan, 234 F.3d 1261 (2d Cir. 2000). And the supporting facts to prove the rare instance of an unconscionable breakdown in the underlying process generally would not be in the state court record, e.g., a conversation with a defense attorney refusing to file the motion; the clerk failing to docket the motion; etc., the Court stated. After reviewing case law on this specific issue, the Court held that “a district court must afford a petitioner notice and an opportunity to be heard before dismissing his petition sua sponte under Stone.”

The Court rejected the State’s argument that Ethridge’s motion for reconsideration, which objected to the sua sponte dismissal, constituted an adequate opportunity to be heard after receiving the notice of dismissal. Because a motion for reconsideration is not an opportunity for a petitioner to “relitigate an issue already decided” or present arguments that could have been made before the judgment was entered, Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995), the Court held that Ethridge’s motion for reconsideration was not an adequate substitute for notice and an opportunity to be heard. The Court reiterated that notice and an opportunity to be heard must be provided before the dismissal, not afterwards. Catzin; Acosta. The Court noted that its conclusion is consistent with other Courts of Appeals that have addressed this issue. Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002); Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001); Beatrice Foods Co. v. New Eng. Printing & Lithographing, Co., 899 F.2d 1171 (Fed. Cir. 1990).

Thus, because Ethridge did not receive the requisite notice and an opportunity to be heard prior to the district court’s sua sponte dismissal of his petition pursuant to Stone’s limitations, the Court held that the district court erred.

Accordingly, the Court remanded the case to allow Ethridge a full and fair opportunity to present his arguments as to why Stone does not bar his Fourth Amendment claim. See: Ethridge v. Bell, 49 F.4th 674 (2d Cir. 2022). 

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