The Supreme Court heard oral arguments on Monday in the case Rivers V. Guerrero.
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NewsTranscript
00:00We'll hear argument next in Case 23-1345, Rivers v. Guerrero.
00:06Mr. Bruland.
00:07Mr. Chief Justice, and may it please the Court, Congress did not slam the door on exculpatory
00:11evidence that emerges while a prisoner's first habeas case is on appeal.
00:17Outside of habeas, there has always been a pathway to bring late-breaking claims to an
00:22appellate court's attention, and historically, habeas was no different.
00:27The near-uniform practice in the decades before AEDPA was to consider such claims on
00:32the merits, as part and parcel of a prisoner's first habeas case, without a word about successive
00:39litigation.
00:41Congress enacted AEDPA against that backdrop, and as Bannister tells us, it did not redefine
00:46what counts as successive.
00:49The other side's rule is unmoored from text and history, and it also comes at a cost.
00:57Viable constitutional claims that would have warranted habeas relief will fall through
01:02the cracks under their rule.
01:04That means every claim of sentencing error, every claim of structural error, and every
01:10Brady or Napu claim that doesn't show innocence by clear and convincing evidence.
01:16The reason those claims don't fly under 2244 is that Congress decided the state's interest
01:22in repose outweighs the interest in getting those claims right.
01:28But the other side has never explained why they're entitled to repose while they're still
01:32defending the conviction on appeal, and you're not going to hear an explanation this morning.
01:38The small universe of cases where our rule makes a difference is the universe of cases
01:43where both the district court and the court of appeals agree that a new claim deserves
01:49its day in court.
01:51Those cases will be rare, but when they arise, AEDPA does not strip district courts of the
01:57power to consider new evidence that would warrant habeas relief.
02:02The lower courts here made a threshold jurisdictional error and so never reached the merits or any
02:07procedural issues.
02:09This court should reverse and remand.
02:10I welcome your questions.
02:12How would you define second and successive?
02:15I would define it, Justice Thomas, based on the history, because Bannister says you look
02:20at the history.
02:21A post-AEDPA, how would you define it?
02:24Post-AEDPA, I would say that a second or successive petition is something that in 1996, when Congress
02:30used that phrase, ordinary members of the bar would have recognized as settled is second
02:35or successive.
02:36And then AEDPA says we look at the purposes behind, I'm sorry, Bannister says we look
02:40at the purposes behind the statute, judicial economy, piecemeal litigation, hastening finality,
02:46and Bannister tells us that's how you look at it.
02:48And this case, I think, is easier than Bannister or Gonzalez because the statute itself answers
02:53that.
02:54Here we have Congress specifically considering how amendments should work in habeas and Congress
02:59says amendments in habeas work just like amendments in ordinary civil litigation and Congress
03:06said that there's a small sliver of amendments that are subject to the second or successive
03:10rules and only those.
03:12Don't we in the mine run cases consider second time to be second and successive?
03:19So Justice Thomas, if I were just looking at the phrase, I would say yes, that's how
03:25I would look at second or successive, but this court has said second or successive is
03:28a term of art.
03:30And so all I'm saying today is what this court said in Bannister, which is that we look at
03:34the history and the purposes and again, I think this case is easier than Bannister because
03:39we have a statutory hook.
03:44And going to that statutory hook, 2242 gives us the general rule and then 2266b3b gives
03:52us the only exception.
03:54Congress specifically thought about which amendments should be subject to the rules
03:59governing second or successive petitions and it said in 2266b3b it's only this tiny
04:05sliver filed by prisoners on death row in opt-in states after the state files its answer.
04:12And I think it would disregard Congress's drafting choices to apply the rules governing
04:17second or successive petitions outside that tiny sliver.
04:21And I think my friend Mr. Garnieri is with me on that.
04:23On page 17 of their brief, they say 2266b3b, that's the exception and then other amendments
04:31follow the federal rules.
04:32And if there's any question about that, I would turn to history.
04:35As I said, Justice Thomas, and here you have the near uniform practice leading up to AEDPA
04:41was that mid-appeal efforts to amend were not treated as successive.
04:46And I think my favorite case on that is the Harris-Iottes case because Texas needs the
04:51court to say that the district court and the court of appeals with learned hand on
04:55the panel and all nine members of this court plus I guess the solicitor general and the
05:00line prosecutor all saw the effort to amend after the appeal was filed and didn't say
05:06a word about it.
05:07I guess forgot that it was second or successive.
05:10And this is not a case where that issue was just lurking in the record.
05:15If you look at the prisoner's blue brief, he says on page 10 to 11, I filed my notice
05:19of appeal, and then I moved to amend, and then he argues the core of the amendment
05:24issue in his merits brief.
05:26But he had a judgment.
05:28I guess what I'm trying to understand, so first of all, he's your primary argument
05:35that after judgment against him on the habeas claim that existed, he appeals it, and
05:42during the pendency of an appeal, if he seeks to amend the existing habeas claim,
05:49you say what?
05:50Because the appeal is still pending, he can do it?
05:53Not necessarily, Justice Jackson.
05:55Because the appeal is still pending, it's not second or successive.
05:58It might be a bad amendment.
06:00It might die for Rule 15 reasons.
06:02It might be a- How do you square that with Gonzales and the idea that the judgment
06:07is doing some work here?
06:09So, Justice Jackson, Gonzales did not face the question presented here because there
06:14was no pending appeal in Gonzales.
06:16Aurelio Gonzales comes in a year after abandoning his appeal when all of us up here
06:22agree that a habeas claim in that posture would be second or successive.
06:26And so, in Gonzales, anything that comes in would be second or successive, and that's
06:31why the court is saying, well, you can't come in and circumvent the statute.
06:35Why wouldn't you be circumventing the statute here by just interpreting anything
06:41that comes in during an appeal as not being second or successive?
06:45We have a statute in which Congress was very clear about limiting the number of filings,
06:52or at least applying pretty restrictive rules to the ability to file another application.
07:01And so, I guess what it boils down to, for me at least, is trying to understand the work
07:06of the judgment in providing the dividing line as to whether things filed after that,
07:15assuming the judgment remains in effect, why aren't they second or successive?
07:21And wouldn't you be undermining AEDPA to say otherwise?
07:25So, two responses, Justice Jackson.
07:27First, if you assume that what Rivers filed was second or successive and we're just
07:32trying to circumvent the statute, then I lose.
07:35That's not how Bannister looked at it.
07:37Bannister said, we have a statutory phrase, second or successive habeas corpus application.
07:42That meant something in 1996 when Congress enacted the statute.
07:46And the way we figure out what it meant is, we look at pre-AEDPA history and practice and doctrine, and AEDPA's purposes.
07:52So, going squarely to your question, my point is that leading up to AEDPA,
07:58a filing that came in during the appeal might have lost on the merits.
08:02Bannister says, well, that doesn't count for the analysis.
08:05I understand, but aren't you reading a lot into Bannister?
08:07I mean, wasn't that in a 59E scenario?
08:10It was in a 59E scenario, Justice.
08:12And didn't that have something to do with the analysis?
08:15I mean, the point there was that the judgment was suspended,
08:20such that it's a very limited amount of time, and
08:26it wasn't really the appeal or lack of an appeal or whatnot that seemed to be doing the work.
08:30It was about the nature of the judgment under a 59E scenario.
08:35So, Justice Jackson, I agree that Bannister was focused on that question.
08:40And Bannister wasn't focused on the question before you today, the question of, well, what do we do when new evidence arises on the appeal?
08:47What my point is, is that Bannister gives us the logic that we're supposed to use in analyzing,
08:52well, how do we treat a claim or a filing that's not a 59E?
08:57And what I would say is, Bannister says, look to the history, look to the purposes.
09:02And here, I think we have history in droves.
09:04We give you the Herasiety's case, the Strand case out of the Tenth Circuit,
09:08all of these other cases where prisoners leading up to AEDPA lob in motions to the court, and they-
09:14The SG says that the considered trend in the years shortly before the enactment of AEDPA in 1996 was to treat
09:22efforts to amend a habeas application mid-appeal as second or successive applications.
09:27So, they say by the time we got to 1996, what you're talking about really wasn't the case.
09:32You want to address that?
09:34Two points, Justice Kavanaugh.
09:35First, I disagree with them on the history.
09:37I don't think that was the considered trend.
09:39But just to take a step back, you could say the same thing about Bannister.
09:43If you look at Bannister, the opinion cites one case from 1965,
09:47one case from 1988 where 59E motions were not deemed successive.
09:53And then Texas comes in on the other side with a case from 1993.
09:56But that didn't turn the tide in Bannister, because for purposes of the historical analysis,
10:01I think the best place to look is page 325 of the Scalia-Garner treatise.
10:05And what they say is, when you're trying to figure out what sort of history Congress would have picked up,
10:11you look at, well, would a member of the bar view this as settled?
10:15And they say, if it's just a couple of opinions going one way or the other way,
10:19well, that's not the kind of history that Congress would have picked up.
10:22And going back to Bannister, I think the history here is even stronger, at least as strong as it was in Bannister.
10:29Petitioners there come in with cases out of five circuits where courts didn't treat 59E motions as second or successive.
10:37We give you cases out of six circuits.
10:39Then on the other side of the ledger, it's deja vu, Justice Kavanaugh.
10:43Texas Senates and Meeky come in in Bannister.
10:44They have one case out of the eighth circuit where the court says 59E, second or successive.
10:50And here, they found one case out of the eighth circuit applying the very same logic that this court wrote off as a historical outlier in Bannister.
11:00So I think the history is at least as clear here as it was in Bannister.
11:04If we're going to look at history, and habeas being civil litigation,
11:10the default rule is that when the district court releases itself of the case
11:16after 59, and it goes to the Court of Appeals,
11:21you don't just get to rule 15, file an amendment willy-nilly.
11:26The case is in the Court of Appeals.
11:28That's baseline historical practice is relevant.
11:33What about that?
11:34I mean, you're asking for us to treat habeas differently than any other form of civil litigation.
11:39So I sure hope not, Justice Gorsuch.
11:42The point that I'm trying to make is that-
11:43Explain to me why not, because I've never heard of being able to amend my complaint
11:48when I'm on appeal after a 12B6 dismissal.
11:53Boy, I would have liked to have done that a couple of times.
11:56Justice Gorsuch, I think you're absolutely right, and I want to take a step back because I think it's important to be precise about the doctrine.
12:02So I'm not saying that you get to amend your 12B6 complaint while you're up on appeal.
12:07My point is, historically, appellate courts were open to new evidence or new claims that come in.
12:13I think the best case there is the Shotwell case.
12:16That's a case where the Solicitor General comes into this court at the cert stage.
12:20They lost in the Court of Appeals.
12:21And the Solicitor General says, look, I've got two new affidavits that I think show that the respondent pulled a fast one on the lower court.
12:30So please, Supreme Court, would you kick it back down?
12:33And the court says, look, we are a court of review, not first review, so we're not going to take a crack at the merits.
12:39But they say two things.
12:40They say, first, we believe the Solicitor General, this is new.
12:43Yeah, I accept that we have that power, especially when the government is admitting an error, right, or some other important new considerations.
12:55But as a general rule, in civil practice, if I come in and say, boy, I got a great amendment.
13:03And I'm in front of a panel, they roll their eyes and they say, nice, that's a nice thing you have there.
13:09I should have done that earlier, friend.
13:11You know, go file a 60B.
13:13That's what they say.
13:15Well, Justice Gorsuch, I think you're right.
13:16If you come in to the Court of Appeals or even the District Court, you're probably going to get laughed out of court most of the time.
13:23But my point is a different one.
13:25My point is about the power that courts have.
13:27And what I would say is, for a long time, appellate courts have been open to claims and denied most of them, but been open to claims.
13:36And so I hope I'm not asking for anything in habeas that we wouldn't have in ordinary civil litigation.
13:41My point is, when you file that in habeas, it's not second or successive.
13:45It's probably dead for other reasons, but it's not second or successive.
13:48Sorry, I'm not sure I follow your argument.
13:50If it's normal civil litigation and not habeas,
13:55if you file a motion to amend between a final judgment in the District Court and an appeal,
14:03the District Court has no inherent power to open to grant that motion, correct?
14:09Correct.
14:10All it could do is a 62-1, make a suggestion to the Court of Appeals, correct?
14:15Yes.
14:16Here, you didn't ask them to make a suggestion.
14:19So, not having asked them to do it,
14:26why do you think the motion is still alive after the Court of Appeals affirmed the judgment below?
14:35Well, two responses, Justice Sotomayor.
14:37How could the District Court reopen absent 60B?
14:42That's my point.
14:43You could reopen under 60B to consider your motion, correct?
14:47Correct.
14:49But none of that happened.
14:50You didn't ask them to indicate under 62-1, and the Court of Appeals didn't vacate or
14:58remand the matter to the District Court to make the motion to amend still live, right?
15:06So, I agree with you on the second half, Justice Sotomayor.
15:09I disagree about what the record shows on the first half.
15:11If you look at Joint Appendix 107, Rivers is asking, he says, look,
15:16please, District Court, would you consider an interlocutory review?
15:20Now-
15:21You can't do a review.
15:23That's the point.
15:25It may have been a product of him being pro se.
15:28And if he had hired you then, you probably would have made a motion.
15:33So, Justice Sotomayor-
15:34The proper motion, but he didn't.
15:37Well, my point is twofold.
15:39First, I think he did ask for an interlocutory review.
15:42I will grant he-
15:43There is no interlocutory relief.
15:45Meaning, you admitted that the District Court does not have the power to adjudicate the motion to amend.
15:54The most it could do is what 621 permits, which is an indication to the Court of Appeals.
16:01Yes, and my-
16:02And that's not an interlocutory appeal.
16:06So, I take what he was asking for.
16:08The only plausible way to construe what he was asking for is as an indicative ruling.
16:13Now, the District Court took up his motion to amend, and it didn't reach the merits.
16:17It said, look, I don't have the jurisdiction to open the front cover because this is a second or third class petition.
16:23So, we're asking you to hold that that was a mistake under AEDPA, and you asked about the relief on-
16:29He presented the same thing to the Court of Appeals, basically the same motion.
16:34And the Court of Appeals did not grant a vacated remand.
16:39It wasn't convinced by whatever he presented.
16:43They may have made an error, but that wasn't appealed either.
16:46So, Justice Sotomayor, I don't think the Court of Appeals saying we're not going to enlarge the record shows us what it would do in response to an interlocutory-
16:54Or I'm sorry, indicative-
16:55It could have done what we did in the case you cite.
16:58Well, that's-
16:59If there had been a confession of error, or if it was convinced that something truly untoward had happened, it could have vacated and remanded.
17:07Well, Justice Sotomayor, I think there's a meaningful difference between a prisoner mailing in some typewritten pages and one of the Court of Appeals colleagues picking up the phone and saying, look-
17:16In civil litigation, absent a vacate and remand by the Court of Appeals, would the motion have to be considered under 60B?
17:28If there's no indicative ruling, and if there's no vacate or remand,
17:33then the only way to reopen the judgment would be 60B, unless the Court of Appeals reverses or vacates otherwise.
17:40Correct.
17:41Counsel, can I have you address the threshold arguments that are being made about standing and the relief?
17:50Yes.
17:50So, first, as to standing, this court has, or I'm sorry, as to standing,
17:57we have appellate standing, because an order from this court reversing the Fifth Circuit would lead to the potential for redress.
18:05And what we would say there is, we would go back to the district court, and
18:09we would file a 60B6 motion to bring back the order, I'm sorry,
18:14bring back the initial habeas petition, and for purposes of standing and
18:20mootness, the probability of success is not on the table, so it's just a question about the district court's power.
18:25There, the argument would be, it's an integrity-based argument under footnote four of Gonzales.
18:31We'd be saying, in this position, the Supreme Court has just decided that we were right about the EDPA question.
18:37So district court, respectfully, would you please reopen the judgment denying the initial appeal, or initial petition?
18:43Then the motion to amend would still be pending, and-
18:45You're saying we don't have to care about whether or not that is going to be successful.
18:50Yes, that's right.
18:51Just have the opportunity to do it.
18:52That's right. It's a question about the district court's power.
18:54Texas is coming in and saying, well, look, there's nothing that you could do on remand,
18:59and we've identified a procedure that would let the district court grant Rivers redress.
19:03What about the habeas jurisdiction and the fact that he's in custody on one charge versus the other?
19:10Yes, we're challenging the convictions for which he's still in custody.
19:14I don't take the other side to be arguing that the new exculpatory evidence doesn't undermine those convictions.
19:19They certainly didn't argue that in the brief in opposition or below.
19:24I take them to be challenging us on the merits, but I don't take them to be saying as a matter of habeas jurisdiction
19:30that the evidence wouldn't go as a jurisdictional matter.
19:38Now, my friends on the other side, I think, are going to stand up and say a word about the floodgates, and so I do want to address that.
19:44And the reason that our approach doesn't open the floodgates is that it comes with a structural barrier and an absolute jurisdictional backstop.
19:53That's borne out by what we've seen in the second circuit over the last two decades.
19:57So I'll start with the structural piece.
20:01For any of this to get off the ground, the habeas petitioner has to go to the district court,
20:06convince the district court to issue an indicative ruling on a habeas petition that is just denied.
20:13And then the absolute jurisdictional backstop is the court of appeals has to agree to remand the case for further proceedings.
20:21At both steps of those analysis, the prisoner has the burden of showing that amendment here would not be futile, that it's timely.
20:30That kicks out a lot of cases because it has a one year statute of limitations.
20:35The prisoner's also going to have to show that it's not going to be a dead case on the merits.
20:40Then you go up to the court of appeals, and we've cited cases, the Louisiana against Becerra case,
20:45where the western district of Louisiana sent up a flare to the fifth circuit.
20:49And the fifth circuit said, no, we don't think this amendment should go forward, it's not timely.
20:55You should have brought it earlier.
20:56So the court of appeals is doing another review.
20:59And all of this is borne out by what we've seen in the second circuit over the last 20 years, because the second circuit has read AEDPA our way.
21:06They've said 2244 doesn't kick in until the end of the appeal.
21:11And I will tell you, I've read more of these cases than I care to remember.
21:16There's about one or two per year over the last 20 years, and what you see time and
21:20time again is prisoners come in and they say, look, I just got some new evidence or something changed and I want to fight it out.
21:27And in one or two or three page opinions, a magistrate judge or
21:31the district court judge has no trouble addressing those claims.
21:35And just to take a step back, at bottom, I think this case is really a venue case,
21:40like the EPA cases you had last week, because these claims are coming in one way or the other.
21:46The question is just, who's the front line decision maker going to be?
21:49I can tell you, when a prisoner gets new evidence or thinks the prisoner has a new claim while the appeal is pending,
21:55he's going to send something in to some court, and then some decision maker is going to have to decide, well, what do I do with it?
22:02And what-
22:02Mr. Brulin, is the argument that you're making today and the primary argument that you make in your brief the same argument that you made in your petition?
22:10Mrs. Alito, it's the same claim.
22:11We say at the-
22:12Is it the same argument?
22:14The 2242 argument is new at the merit stage, yes.
22:17And this court has been very clear that I can come in and make arguments at the merit stage in support of the same claim raised in the petition.
22:23I don't take my-
22:24Is there a conflict in the circuits on this new argument that you're making today?
22:28Well, there's a conflict in the circuits because a bunch of circuits reject the idea that an amendment is not a second or successive petition.
22:36That's what the Fifth Circuit said below.
22:38Rivers said all along, I've filed an amendment, that means it's okay under Rule 15, and therefore, it's not second or successive.
22:45The Fifth Circuit said, not so fast.
22:47We think 2244 applies right after final judgment, they didn't cite Bannister.
22:53And so that is the same argument that Rivers has been making.
22:56And the Fifth Circuit rejected the argument that it's an amendment, therefore, it should be okay.
23:01Now, I do want to go to the point that-
23:03We've had a mini epidemic of cert petitions that have convinced us to take a case because there's supposedly a conflict on a certain issue.
23:13And then once cert is granted, the argument that is advanced by the petitioners,
23:19quite a bit different from what we were sold at the petition stage.
23:25Is this another outbreak of the same disease?
23:28I don't think so, Justice Alito, and I think the best evidence there is the United States is never shy about pointing out when a petitioner strays from the QP or the petition.
23:37I don't hear my friends from the United States to be making that argument.
23:41But even if you're worried about the amendment theory, I would say the timing argument,
23:45even Texas agrees that that is squarely within the question presented.
23:50And that is an issue over which the lower courts have certainly disagreed.
23:55So what I would say there on the timing question, we also have context and history on our side there.
24:00And again, to go back to your question, Justice Gorsuch, this is not a case where I'm coming in and asking for special favors for habeas petitions.
24:07All I'm saying is, it might be a bad amendment.
24:10The lower courts might take five minutes, look at it, and say, this is going nowhere.
24:15All I'm asking you to say is, whatever it is, it's not second or successive.
24:18And one reason to think that it's not second or successive is, as your opinion, your separate opinion, and Edwards against Van Noy pointed out,
24:25we have this longstanding principle in habeas that finality means this court says,
24:32go away, or affirms on the merits, or the opportunity to seek cert runs out.
24:37So again, I'm not saying let's create a special loophole or porthole or anything for habeas prisoners to come in.
24:44All I'm saying is, whatever the words second or successive habeas application meant in 1996,
24:50they don't refer to this sort of filing because historically, those kinds of filings were not deemed abuses of the writ.
24:56And so, if you agree with us on the other question, I will grant.
25:00Texas will have a lot of civil procedure arguments below.
25:03I'm sure they'll have a lot of merits arguments below.
25:06All we're asking you to decide is this narrow question, may I finish, Mr. Chair?
25:10All I'm asking you to decide is this narrow question of what counted as second or successive habeas corpus application in 1996, and it wasn't this.
25:18Thank you, Counsel.
25:19Justice Thomas, Justice Alito, Justice Sotomayor.
25:25You did point out to us in your petition a circuit split.
25:31I'm not sure the Third Circuit rule is consistent with what you claim it is.
25:35It's more consistent with what we were speaking about earlier.
25:41The Third Circuit rule says when a district court gets a motion to amend,
25:45it should exercise its discretion to hold the appeal pending the court of appeals decision.
25:53And it can only consider it or grant it if the court of appeal vacates and remand.
26:00So that's always the case, correct?
26:02That's right, Justice Sotomayor.
26:02So the Third Circuit, I don't think, is inconsistent with anything.
26:07The Second Circuit does have some very charitably loose language,
26:12that a motion to amend is never second or successive.
26:20But I, like you, had my law clerk look at what the Second Circuit was doing.
26:25And I got a bunch of cases where the district court didn't wait for
26:29the court of appeals to rule, but instead said it was an abuse of,
26:35the motion to amend was an abuse of the writ.
26:39So I don't know, and they dismissed, and the circuit didn't do anything.
26:44So I'm not sure the rule is as absolute as you say.
26:47They're basically following and saying, hold it until the circuit acts,
26:53and if we vacate and remand, then you can consider it.
26:57I think that's right, Justice Sotomayor.
26:59Here's how I understand it under Federal Rules Civil Procedure 62.1.
27:03It says, the district court can always consider something that comes in, and the district court has three options.
27:08It can deny it outright.
27:10I think that's most of the cases that you and I were discussing.
27:12It can also defer ruling.
27:14I think that's one of the things that the Third Circuit was focused on.
27:17I think your opinion in the Ching case has the footnote that says the same thing.
27:21Or, and this is the other alternative we were talking about.
27:24It can send up a flare to the Court of Appeals and say, this raises a substantial issue.
27:30So what I'm suggesting here is the second-
27:33So you're suggesting sort of a, what should I call it, procedural thing.
27:39Don't call it second or successive and refer it to the Court of Appeals, but instead deny it now.
27:47Justice Sotomayor, I want to be very clear about the doctrine, because there are two separate questions.
27:51There is the question of, is it second or successive, as Congress used that phrase in 1996?
27:56And then there is an analytically distinct question of, what should you do with it procedurally?
28:02The only question I'm asking you to answer is, what is the meaning of second or successive habeas corpus application in 1996?
28:09And then we've also tried to give you some comfort about the procedural pathway.
28:12And so yes, that is one of the things that a district court can do.
28:16And in fact, that's what most of the courts in the Second Circuit that we've seen have done, is just take one look, deny them outright.
28:22And the last thing I would add is, the other side comes in and says, well, how is that square with your efficiency argument,
28:28if the prisoner can just file something in the middle of the appeal and then file a second or successive petition?
28:34I didn't find a single case in the Second Circuit where that happened.
28:37Prisoners are taking no for an answer, and if they didn't, boy, if I were a Court of Appeals judge,
28:41I would be glad to have a short opinion explaining why this amendment goes nowhere.
28:47Justice King?
28:49Justice Gorsuch?
28:50Mr. Cavanaugh?
28:52Justice Jackson?
28:54Thank you, counsel.
29:02Mr. Nielsen?
29:03Mr. Chief Justice, and may it please the court.
29:07River's new petition, filed years after an appealed final judgment, is second or successive under AEDPA for multiple reasons.
29:16I want to start with precedent.
29:17Under Gonzales and Bannister, Rule 59e motions aren't successive,
29:21while Rule 69e motions generally are, because, quoting from Bannister,
29:26a Rule 59e motion is a one-time effort to bring alleged errors
29:32in a just-issued decision to a habeas court's attention before taking a single appeal.
29:37River's theory, however, would allow him to repeatedly allege new claims
29:42having nothing to do with the final judgment issued years ago after he appealed.
29:48I think Bannister's logic is all but dispositive here.
29:51I'd also like to respond to some of the things I heard from my friend during his argument.
29:56He says that in the time before AEDPA in 1996, there were six circuits on his side.
30:02I don't agree with that at all.
30:04I urge the court to look at the brief from Arkansas.
30:07Arkansas goes through the cases right before AEDPA's enactment.
30:11I would also urge the court to look at page 16 and 17 of the reply brief.
30:15I think that's where he's getting that.
30:17You will notice he cites cases on his side, 4th, 5th, and 8th, and then he says, 4th, 5th, and 8th agree with us.
30:24The cases that agree with us were later in time.
30:27They were closer to 1996.
30:30He also says, we talked about this is a pro se, which I understand and I'm sympathetic to.
30:36But Sidley was brought in not just for the search stage.
30:41They filed the motion to stay the 5th Circuit's judgment pending certiorari.
30:48None of their new argument is in that either.
30:50This isn't an example of a pro se person not knowing what to do.
30:54This was Sidley Austin not raising the argument.
30:57As to standing, the court has jurisdiction to address the split that it thought it was hearing.
31:04That is a question about res judicata from the first judgment.
31:07Does it bar the second case?
31:09What the court doesn't have jurisdiction to do is to open a case that is not in front of it.
31:14That case was closed.
31:15The first petition was dismissed in a final judgment in 2018.
31:19The 5th Circuit affirmed in 2022.
31:21This court denied cert in 2023.
31:23That case is done.
31:24I don't know how the court could reopen that case.
31:27As to habeas jurisdiction, again, he's not in custody for what he's talking about.
31:33I don't know how this court could have habeas jurisdiction there.
31:37As to the 2nd Circuit rule, look, you definitely have the opportunity to have multiple appeals
31:43under that rule because you could have the first one and then you amend, you get another
31:47final judgment, you have a second one.
31:48This court said in Bannister you can't do that.
31:51And as to the new argument, there is no split, Justice Alito.
31:55In fact, on our side, United States v. Arrington, 2014 from the D.C. Circuit, Judge Siravasan,
32:01joined by Judges Garland and Millett, said you can't use 2106 to get around AEDPA in
32:06that way.
32:07I welcome the court's questions.
32:10How would you define second or successive?
32:13I think some think that the appeal has to be final, and I think most would just simply
32:22say the judgment of district court.
32:24What's your view?
32:25I think the court answered it in Bannister.
32:27I think if you have the first application and then you have another application after
32:33the final judgment, sometimes that's suspended by Rule 59E, if you're doing it again the
32:38second time, that is second and successive.
32:40I think that's how we take the court's decision in Bannister.
32:42I think that answers the question, respectfully, Your Honor.
32:46What if the judgment is vacated?
32:47I'm trying to understand the scenario, even if we agree with you that the judgment is
32:53the line and the person appeals, goes up to the Fifth Circuit or whatever circuit, and
33:01they agree and vacate the judgment and send it back.
33:05Any filings that had been submitted by the prisoner in that interim, could they be considered
33:11by the district court on remand?
33:13No, we don't think so, Your Honor, but I want to make sure that we understand, if that is
33:18this court's rule, Texas still prevails because there wasn't a remand after the Fifth Circuit.
33:23No, I understand.
33:24That's not this case.
33:25But I guess I'm a little worried about a world in which, if we are pegging this to the judgment,
33:33the judgment is subsequently vacated, and there's new evidence now in the record, and
33:38the district court is being called upon by the vacater and the remand to review it.
33:42I don't understand why.
33:44Totally not this case, but I don't understand why, at that point now, the new evidence doesn't
33:51get considered as an amendment of the initial habeas filing.
33:57So the way this works in ordinary civil litigation, and then I'll do it and add the gloss on it,
34:03in ordinary litigation, if there is a remand from the court of appeals
34:08Accompanying a vacater of the judgment.
34:10With a vacater of the judgment, you still are going to be limited by the scope of the
34:13remand.
34:14It's not like if there's a remand, now everything is up for grabs.
34:18It's still, you're limited, and again, if the court needs to look at cases on this,
34:22Wright and Miller, Section 1488, I think it's footnote 11, is the one that discusses
34:26this line of cases, the scope of the mandate rule.
34:31So for instance, you have a case about a contract claim.
34:34So could the court of appeals indicate, having been alerted to the fact that there's
34:39this new evidence out there?
34:40I mean, I guess I don't understand a world in which new evidence surfaces that everyone
34:47agrees could not have been found before, and here it is, and it's relevant to the issue
34:53of habeas.
34:54I appreciate your argument that after we have a judgment, you know, as long as the judgment
34:59stands, consideration of that would be a second or successive kind of scenario
35:05under AEDPA.
35:07But if there is no judgment because it goes up to the court of appeals and the judgment
35:12is vacated, it's unclear to me why the new evidence that is relevant to the initial
35:20habeas petition couldn't be looked at by a district court reviewing that habeas petition.
35:26If the court of appeals says you can, then you can?
35:29Again, it would be as long as it's within the scope of the mandate.
35:32Of the mandate.
35:33Which it often would be.
35:35Again, it would depend on the facts of the case.
35:37But the AEDPA gloss on all of this is under AEDPA, you have the COA requirement.
35:44Yes.
35:45So the scope of the appeals are inherently going to be limited.
35:47So the scope of the mandate is going to be narrower than an ordinary case.
35:51So imagine you have a case where somebody says I have a Brady claim and a Strickland
35:56claim and the district court says you lose on both, the court of appeals grants a COA
36:04as to the Brady issue and then reverses.
36:07Back in front of the district court, you can't say, well, I'm going to bring a different
36:10Strickland claim and an APU claim because that's not within the scope of.
36:14On the second circuit experience, I think your initial response is precedent and text,
36:20but take it on its own.
36:22It's workability.
36:23Do you have a concern about how workable it's been in the second circuit?
36:27It seems like it's worked fine.
36:30We don't think it's worked fine.
36:32The case that we cite was the Anderson case out of Connecticut where it seemed like a
36:37pretty straightforward issue.
36:39The poor judge has to go through three separate lines of analysis to try to figure out what
36:42to do with this thing.
36:43And that's, I think, a pretty straightforward case.
36:46But I also recognize that by definition, you're going to have multiple appeals possible
36:53out of a single case.
36:55So you have the very first one that is up on appeal.
36:58While that's happening, all the way up to this court, up in certiorari petition, they
37:02file a second one.
37:04They can keep litigating that.
37:05Well, that means you're going to get two appeals out of a single, what they claim is a single
37:10application.
37:11That doesn't make any sense.
37:12And I think it's important to recognize that 2244B doesn't mean you lose.
37:172244B means you have to go to the court of appeals.
37:21And we're talking about mid-appeal cases.
37:25So that means, you know, unless it's like day 29, so not just past rule 59E, 59B, 59E
37:32rather, we're talking about a case where you already have a court of appeals panel who's
37:37already looking at this thing.
37:38It seems to me a lot more efficient for that panel to be able to opportunity to look at
37:42the new material rather than sending it back to a district court or magistrate judge three
37:46years ago, you know, 1,500 cases later, they're not going to possibly remember what that case
37:50was about.
37:51Whereas you have a panel looking at it right now.
37:53If we conclude the pre-'96 case law is just a mixed bag, it doesn't cut either way.
38:00Well, I mean, I would urge, I think the court already answered the history in both Gonzales
38:04and Bannister.
38:05On this issue.
38:06Sure.
38:07Again, I think the court has already answered the history in Gonzales and Bannister because
38:12in every circuit court, if you file a motion to amend a case that has been closed for years,
38:18it's either one of two things.
38:20It's either a nullity, it does not exist, or it will be construed as a Rule 60B motion.
38:26That is the rule in Morris federal practice.
38:29We cite other cases who have a whole string cite of these cases.
38:31Well, we know from Gonzales and Bannister that if it's a Rule 60B, well, then it's already
38:36second and successive.
38:38So I don't think the history works for them.
38:40They do have a couple of cases where they say, well, that looks like amendment, but
38:45they didn't grant relief in any of those cases.
38:49We're reading a lot into silence, especially because we have cases like Judge Arnold's
38:53decision from the Eighth Circuit.
38:55He knows a little bit about civil procedure, and he says, no, you can't do this.
38:59I think that would be the relevant history.
39:01So you have all the cases that say 60B, mid-appeal, that counts as second or successive.
39:06And you have someone tries to get around that with Rule 15, and they say, well, that's second and successive, too.
39:11That's the history leading up right to 1996.
39:16If there are no further questions.
39:18Just one on habeas jurisdiction, why don't we have it?
39:23I understand he may have completed one sentence, but he's serving concurrent sentences for other things.
39:28He claims his amendment will help him with those.
39:30A couple of answers.
39:33One-
39:34What one will do?
39:34Okay, well, the easier answer is-
39:37The better answer, hopefully.
39:39All right, I'm going to give you the easier answer to write an opinion is that was the subject of the first habeas proceeding.
39:51The state post-conviction court said, there's three lawyers that said you did this.
39:55You didn't say that, they did.
39:58That's a finding of fact.
39:59And he goes to the federal post-conviction court about that, and that's about the sexual abuse charges.
40:05And he has to show that that is wrong, and he has no evidence.
40:09And the district court says, no habeas, the Fifth Circuit affirms, and this court denies tertiary.
40:13That issue is closed.
40:17Anything further?
40:20Thank you, counsel.
40:29Mr. Garnieri?
40:43Mr. Chief Justice, and may it please the court.
40:45Petitioner litigated his first section 2254 application to a final judgment and was granted a certificate of appealability.
40:53Two and a half years later, while his appeal was still pending,
40:57he went back to the district court and filed what he came to characterize as a motion to amend his first application.
41:04Neither the rules of civil procedure nor the statutes applicable to habeas proceedings
41:09permit granting such a post-judgment request to amend.
41:14As a matter of black letter civil procedure law, a party may not amend its pleadings
41:19after the entry of judgment without first obtaining relief from the judgment.
41:24And in habeas proceedings, when a prisoner requests relief from the judgment mid-appeal to add new claims or
41:32to replete old claims on the basis of allegedly new evidence, section 2244B applies.
41:40Petitioner's request to inject new claims or new evidence into these proceedings cannot go forward
41:47unless he can satisfy AEDPA's stringent gatekeeping requirements.
41:51I welcome the court's questions.
41:55Is there any way in which your argument for the United States differs from that of a respondent?
42:00I don't think so, Mr. Chief Justice.
42:02Texas has taken a position on a number of subsidiary issues with respect to the operation of federal rule of civil procedure 62.1.
42:11The United States has not taken a position on those issues.
42:15But with respect to the main points at issue in this case, I think the United States and Texas are fully aligned.
42:21And I-
42:22I was just going to say, Petitioner points out that the government doesn't complain about the new argument injected in the brief.
42:29And you didn't say anything in your brief.
42:31Do you want to say anything now?
42:34I could share the court's frustration.
42:36I don't want to presuppose how the court has reacted to the merits arguments in this case.
42:39But if there is a sense of frustration that Petitioner's arguments have evolved substantially from the certiorari stage to the merits stage.
42:47I could entirely understand that frustration.
42:50We have not urged the court to dispose of the case on those grounds,
42:54principally because the United States does not have any particular federal interest in whether Petitioner preserved specific arguments in this case.
43:01We are participating here so that the court, because we think it's important to get the underlying legal rules correct.
43:07And on those points, again, I think we are in a lockstep agreement with Texas on all the points that matter.
43:12Well, speaking of those rules, do you want to articulate exactly what rule statements you would be looking for and how you think it might affect 2255?
43:20Sure, I think the key, and this comes directly from the opinion of the Fifth Circuit in this case.
43:26The key point is that the limitations in section 2244B on the filing of second or
43:32successive applications come into play when a district court has entered a judgment on a first application on the merits.
43:39It is the entry of judgment that marks the terminal point in the proceedings after which the gatekeeping procedures in AEDPA apply.
43:47And it doesn't, I think, if you agree with us on that, then it doesn't really matter whether the petitioner comes into court and
43:53characterizes the relief that he is requesting as a form of post-judgment amendment, or
43:58as a motion for relief from the judgment under 60B, or perhaps as a request to the Court of Appeals itself to vacate and
44:06amend under 28 U.S.C. 2106 for the purpose of granting an amendment.
44:11All of those things, those are just the procedural vehicles for requesting relief from the judgment in order to add new claims or to replete old claims with new evidence.
44:20Those are two of the things that this court identified in Gonzales as the kinds of arguments made after judgment
44:26that are properly treated as second or successive applications under section 2244B.
44:33So, you're not disagreeing with your colleague that, or are you?
44:39That if the Court of Appeals vacates and remand and vacates the judgment, is it then second and successive?
44:47No, I think the point that my colleague was making was that the constraint there is going to be the scope of the remand from the Court of Appeals.
44:55But if you set that constraint aside, if the Court of Appeals has vacated the judgment on a first application for
45:02some reason other than just clearing the way for amendment and the case goes back to the district court,
45:06then we do think that in that case the state prisoner is in the same posture as pre-judgment before the case went up on appeal.
45:13And they can seek to amend as permitted under Rule 15.
45:17Now, that's not this case.
45:19The First Circuit properly affirmed in the petitioner's initial appeal.
45:23And in the second appeal, I think the Fifth Circuit correctly recognized that section 2244B
45:29requires treating the filing that petitioner made in this case as an application to file a second or
45:34successive application and was properly transferred to the Fifth Circuit for advocate keeping.
45:40Given that this is not this case, do you think we need to ask or
45:43answer Justice Sotomayor's question in the opinion about the vacate and remand scenario?
45:48No, there's no occasion to do that here, but I do think that that is how in general
45:53the situation would properly be governed on a remand.
45:58Now again, I want to emphasize that it presupposes that the Court of Appeals is remanding for
46:04some reason other than just to clear the way for amendment.
46:07I mean, that is the kind of vacateur that my friend is requesting here.
46:10On his view of how this works, if you claim to discover some new evidence in the course of your appeal from a final judgment on your first application,
46:19the state prisoner could go to the Court of Appeals and request a vacateur and
46:24remand for no purpose other than avoiding the limitations that would otherwise apply to a Rule 60B motion filed in the district court itself,
46:32which again, under Gonzales, would have to be treated as a second or successive application.
46:36We don't think that kind of remand is permissible as a matter both under
46:41the authority vested in the Courts of Appeals under Section 2106 and just under advocate keeping.
46:46But if you're in a situation in which the Court of Appeals vacates and remand for some other reason,
46:51and the district court made a mistake in its entry of the first judgment, and the case goes back down,
46:55then yes, I do think there could be an opportunity for amendment in those circumstances.
46:59No further, no?
47:04Thank you, Counsel.
47:05Thank you, Mr. Chief Justice.
47:06Mr. Burrell in rebuttal.
47:15Justice Sotomayor, Justice Barrett, I want to resist the idea that that's not this case.
47:20Your whole point, the only question we're asking you to decide is,
47:24did the district court make a threshold jurisdictional error about the meaning of AEDPA?
47:29I think it did for the textual reasons, the historical reasons, the purpose of reasons.
47:34And if that's right, then I think the correct remedy would be to reverse and to send it back down.
47:39And what we would say then is, we could have the debate about, well, maybe they would say harmless error because they don't like the procedures or they have merits arguments.
47:48We would be asking you to correct the threshold jurisdictional error that they made about the meaning of 2244B.
47:55That was what cut everything off.
47:57Now, I don't think there's any daylight between what I'm asking you to do and what the Third Circuit and the Second Circuit have said.
48:04It all goes to what Mr. Guarnieri just said about, well, for some other reason.
48:08And I don't understand where that's coming from, because 2106 doesn't say for some other reason.
48:13And I don't see there being any sort of penumbral emanations from Rule 60B that curtail the appellate court's power to vacate.
48:21So then the question becomes, well, where are we getting this?
48:24You can't ask the district court to send up a flare so that the court of appeals can vacate just because you want to amend.
48:31It seems like what they're asking you to do is put an atextual gloss on 2106 such
48:37that if you're asking for a certain form of relief, then that doesn't fly.
48:41I'm not sure where that comes from, but it certainly doesn't come from AEDPA.
48:45And this court could reverse just saying the meaning of 2244B is not what the lower court said.
48:52And you could save all of this stuff about the procedures and 2106 for another day.
48:56We're just asking you to reverse on the threshold AEDPA ground, which is analytically distinct from the procedural pathway.
49:03Justice Alito, I want to take just one more crack at addressing your concerns about the QP.
49:08What I would say is, the amendment argument is a narrower ground that answers directly the QP.
49:14We famed it broadly.
49:15We said, does 2244 apply to all, some, or no mid-appeal habeas filings?
49:20The amendment argument says, well, it sure doesn't apply to all, because textually, historically, and
49:26looking at AEDPA's purposes, an amendment is not a second or successive petition.
49:30I could understand the other side's argument if I were coming up here asking you to accept something broader.
49:34But usually, as an advocate, it's a good thing to be standing up here offering a narrow ground for relief with a statutory hook.
49:41Justice Kavanaugh, I want to say a few words to you about workability, because I think that is the key or a key point in this case.
49:48It really does come down to what is the proper venue, because a prisoner who gets new evidence is going to race to court,
49:55no matter what decision this court reaches today, and then some district court or
49:59some court of appeals is going to have to decide what to do.
50:03Please, don't take my word for it.
50:05Don't take General Nielsen's word for it.
50:06I urge you to look at the judge's amicus brief, because you have 17 of your former Article III colleagues with nearly 300 years of experience,
50:14collectively, as appellate judges, and district court judges, and magistrate judges.
50:19And what they're in here telling you is, the other side's rule is burdensome for the judicial system as a whole.
50:24That's because the court of appeals is going to have to open a brand new original proceeding every time one of these claims comes to the door.
50:31And remember, these claims are coming, whatever this court says.
50:35So I think it's a whole lot more efficient looking at EDPA's purposes to channel these things through the district court.
50:40The single decision maker most familiar with the case, which as Bannister said and
50:45Magwood said, the district court can take a five minute glance at this and say no, it loses on the merits.
50:50So no need to bother the court of appeals.
50:53These claims are coming, and the most workable solution is to say they get channeled through the district court while the appeal is pending.
51:00They'll be the first to grant.
51:02Congress inverted the normal presumption that appellate courts are courts of review, not first view, once the first case is over.
51:09But while the first case is still pending, 2244 does not apply, and it does not flip that presumption.
51:15And I think the judges well explain why there's no evidence that's what Congress intended.
51:19Again, the last thing I'll say, and then I'll sit down early.
51:21We are just asking you to reverse the lower court's threshold error about the meaning of 2244.
51:28And then we can fight out whether Danny Rivers has merits issues or procedural issues.
51:33Bottom line, Danny Rivers might have 99 problems, it's just 2244 isn't one of them.
51:39We would ask you to reverse.
51:41Thank you, counsel.
51:42The case is submitted.
51:45The honorable court is now adjourned until tomorrow at 10 o'clock.