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SCOTUS to address second or successive habeas petition issue

Banister v. Davis, USSC No. 18-6943, certiorari granted 6/24/19

Question presented:

Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).

Decision below: Banister v. Davis, unpublished order dismissing appeal (5th Cir. May 8, 2018)

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Banister, who is serving 30 years in a Texas prison for aggravated assault, sought federal habeas relief after exhausting his state court appeals. After the district court issued an order denying his habeas petition, he filed a timely motion “to alter or amend the judgment” under Federal Rule of Civil Procedure 59(e). A Rule 59(e) motion is designed to give a judge the opportunity to correct its own mistakes immediately after judgment is entered, as it permits “reconsideration of matters properly encompassed in a decision on the merits.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). Filing such a motion tolls the time for filing a notice of appeal. But following its precedent, the Fifth Circuit held that Banister’s motion was essentially an attack on the merits of the district court’s denial and, therefore, functioned as an unauthorized second or successive habeas petition, not as a Rule 59(e) motion; thus, the time to file a notice of appeal wasn’t tolled, and Banister’s notice of appeal was untimely.

The Fifth Circuit’s precedent is grounded on Gonzalez, which held that a Rule 60(b) motion for relief from judgment (which in that case was filed more than a year after denial of the habeas petition) may be denied as an unauthorized second or successive petition if it merely attacks the merits of the judgment denying habeas relief or adds new claims for relief. At least four other circuits take the same approach, but there are three (the Third, Sixth, and Seventh, in Curry v. United States, 307 F.3d 664, 665 (7th Cir. 2002)) that exclude Rule 59(e) motions from the successive petition analysis and perhaps two more (the Second and Ninth) that adopt an approach under which Banister’s motion wouldn’t have been treated as a second or subsequent petition. The Court’s decision in this case will resolve this split

The split on the scope of Gonzalez arises because that case concerned Rule 60 motions, which typically involve relief from judgment on new substantive grounds, and thus are unlike Rule 59(e) motions, which relate to errors in the court’s legal or factual analysis. The approach taken by the Fifth Circuit essentially reads AEDPA as having repealed Rule 59(e) in habeas cases, though there’s no textual support for believing that was Congress’s intent. It also raises a fundamental fairness problem. As Banister’s case illustrates, characterizing a Rule 59(e) motion as a second or successive petition will, as a practical matter, regularly strip habeas petitioners of appellate rights as to their first habeas petitions unless they forego a reconsideration motion that, for all other parties, is part and parcel of their opportunity to litigate their case. We’ll see next Term where the Court comes down on the reach of Gonzalez.

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