When is a habeas petition “second or subsequent”?

List watch again

By John Elwood

at 5:54 p.m.

Relist Watch column examines certificate requests that the Supreme Court has “reinstated” for its upcoming conference. A short explanation of Relists can be found here.

The Supreme Court deleted last week’s two new relists with shipping. The court ruled in the Federal Bureau of Investigation v. Fazaga, 20-828, a certificate asking whether Section 1806 (f) of the Foreign Intelligence Surveillance Act of 1978 provides procedures for attempting to suppress FISA evidence against they are presented supersedes the common law state secret privilege. The court has approved relatively few cases for the next term, but two of them include this privilege, both from the U.S. 9th District Court of Appeals. The petitioners in National Coalition for Men v. Selective Service System, 20-928, who questioned the constitutionality of the male-only registry, weren’t so lucky. The court refused to review without any objection. Judge Sonia Sotomayor wrote a separate statement following the denial of certificate along with Judges Stephen Breyer and Brett Kavanaugh. Noting that “[t]he role of women in the military has changed dramatically since “the Supreme Court upheld the male-only call-up in the Rostker v Goldberg case, the consensus stated that Congress was then considering lifting restrictions, and it concluded that that “for now, at least, the Court’s longstanding deference to Congress on national defense and military affairs warns against granting a review while Congress is actively considering the issue.”

The court only re-listed one case this week: Balbuena v. Cates, 20-1207. Balbuena re-raises an issue related to the Antiterrorism and Effective Death Penalty Act of 1996, which limits the ability of federal judges to grant discharge to prisoners seeking a collateral review of their criminal convictions. As Sotomayor wrote, serving as a judge on the US District Court of Appeals, “AEDPA gives every prisoner a full opportunity to request a security clearance.” But the law places even stricter restrictions on “second or consecutive” petitions.

California State Prisoner Alexander Balbuena claims that the lower courts will be split if the first habeas process ends and subsequent filings are considered “second or subsequent” filings. Balbuena contends that courts in two counties have ruled that the first habeas process has not yet been completed, while the district court’s appeal is still pending, and therefore attempts to amend the petition do not place restrictions on “second or successive “petitions. And yes, the then judge Sotomayor wrote a statement in which he took this position. The petition alleges that five other districts treat the rejection of a habeas petition by a district court as the “end point” of the first habeas process, and thus any efforts to amend the underlying petition during the review process as a “second or subsequent “petition characterize the rejection is pending on appeal.

In Balbuena’s case, detectives interviewing Balbuena in an interrogation room advised him of his right to a lawyer “before” interrogation and was told that he was[d] the right to a lawyer. “Balbuena then admitted his role in a murder. On direct appeal and in the collateral review of his first petition, the courts rejected Balbuena’s argument that his confession was involuntary. As the appeal was against rejecting his first Habeas petition was pending in the 9th District, Balbuena obtained permission from the District Court to amend his petition and he introduced a new argument: the detectives had violated Miranda against Arizona by failing to inform him of his right to assistance during interrogation As the District Court had already ruled on Balbuena’s first petition, the 9th District ruled that his new argument in the amended file was a suspended “second or subsequent” petition, and Balbuena argues that other circles would have allowed him to make his new argument , and asks the Supreme Court to interfere.

That’s all for this week. Stay safe!

New Relist

Balbuena versus Cates, 20-1207
problem: Whether a district court filing attempting to amend a pending habeas motion on appeal constitutes a “second or subsequent” petition under the Antiterrorism and Effective Death Penalty Act 1996.

Returning relists

Chipotle Mexican Grill v. Scott, 20-257
Problem: Can a district court consider factors other than the existence of a single material legal issue or fact common to a group of workers when assessing whether workers are “on an equal footing” within the meaning of the Fair Labor Standards Act provisions on collective action? .
(resumed after the conferences on January 4th, 11th, 8th, 15th and 22nd) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Lombardo v City of St. Louis, Missouri, 20-391
problem: Whether a reasonable jury could determine that officers used excessive force in placing a handcuffed person face down on the floor and pushing them in their back until they suffocate.
(Postponed before the conferences on December 4, December 11, January 8, January 22, February 19, February 26, March 5, March 19, March 26, April 1, April 16 and April 23); resumed after the conferences of April 30, May 13, May 20 and 27)

Dunn v. Reeves, 20-1084
problem: Whether the U.S. District Court of Appeals violated 28 USC § 2254 (d) by referring to the state court in violation of Woodford v. Visciotti easily attributed a mistake.
(resumed after the May 20th and 27th conferences)

Hernandez v Peery, 20-6199
Problems: (1) Whether a Certificate of Appealability (“COA”) should be routinely issued when state courts and state judges disagree on the 5th and 7th District Constitutional Issues, multiple district courts, and three judges that court, or should courts refuse a COA despite the dispute between sensible state lawyers as determined by the 9th District and District Court below; (2) whether the petitioner set out as a threshold matter that reasonable lawyers could argue whether his petition should have been resolved otherwise if the California Supreme Court’s published opinion since Perry v. Leeke, who have ruled that a court order violating the “defendant’s right to unrestricted access to his lawyer for advice on a variety of litigation-related matters” is a structural flaw that is reversible per se; and (3) whether the 9th District has falsely looked beyond the threshold investigation to determine whether a COA is eligible, and the merits without jurisdiction contradicts that court’s decision in Buck v. Davis has ruled where various state court judges have come to conflicting conclusions regarding the petitioner’s constitutional claim and where all subordinate state and state judicial authorities disagree with the California Supreme Court’s position on this constitutional claim.
(resumed after the May 20th and 27th conferences)

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