[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
May 26, 2004
No. 01-11314 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 99-00083-CV-3-LAC
JAMES DWIGHT THOMAS,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary
for the Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 26, 2004)
Before TJOFLAT and BLACK, Circuit Judges, and NANGLE*, District Judge.
BLACK, Circuit Judge:
*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
Appellant James Dwight Thomas, a state prisoner, appeals the district
court’s denial of his petition for a writ of habeas corpus. We affirm.
I. BACKGROUND
In 1973, Appellant pled nolo contendere in Florida state court to
second-degree murder and was sentenced to 85 years’ imprisonment. He
subsequently escaped from a Florida prison and fled to New York, where he
remained a fugitive for close to 17 years. In 1993, Appellant was extradited to
Florida to serve the remainder of his original sentence.
The Florida Parole Commission (FPC) considered Appellant's case in 1994
and 1997, and ultimately set a presumptive parole release date of October 20,
2017. Appellant challenged the proceedings before the FPC. Of particular
relevance to this case, Appellant sought a writ of mandamus in Leon County
Circuit Court and then a writ of habeas corpus in Calhoun County Circuit Court.
The Leon County Circuit Court denied Appellant’s petition for a writ of
mandamus. Appellant did not appeal that decision. The Calhoun County Circuit
Court denied Appellant’s petition for a writ of habeas corpus, concluding
Appellant was procedurally barred from relitigating issues that had already been
raised in his mandamus petition and denying Appellant’s remaining claims on the
merits. Appellant unsuccessfully appealed that decision.
2
In February 1999, Appellant sought post-conviction relief in federal court
by filing pro se a document captioned “FORM TO BE USED BY FEDERAL
PRISONERS FILING A PETITION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241.” The district court referred the petition to a
magistrate judge, who noted that “[a]lthough petitioner styled his case as under
28 U.S.C. § 2241, since he alleges he is in custody pursuant to a state judgment in
violation of his constitutional rights, his appropriate avenue for relief is under
28 U.S.C. § 2254.”
The magistrate judge recommended that two of Appellant’s four claims be
denied under exhaustion and procedural bar principles and that Appellant’s
remaining two claims be denied on the merits. The district court adopted the
magistrate judge’s report and recommendation and denied Appellant’s petition for
habeas relief.
On July 5, 2001, we issued a certificate of appealability under 28 U.S.C.
§ 2253 on the following issue:
Whether the district court erred in finding that appellant’s first
two claims that he was denied due process and equal protection under
the law by the Florida Parole Commission in the setting of his
presumptive parole release date and in refusing to set an effective
parole release date were procedurally barred in light of O’Sullivan v.
Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
3
After this issue was briefed, however, we sua sponte vacated the July 5 certificate
of appealability and issued a new one on the following issue only:
Whether the district court erred in converting petitioner’s
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
into an application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in that petitioner’s application did not collaterally attack a
state court conviction. Instead, the application attacked a decision of
the Florida Parole Commission concerning petitioner’s parole
eligibility.
We now hold Appellant’s petition for a writ of habeas corpus is governed
by both 28 U.S.C. § 2241 and 28 U.S.C. § 2254.
II. DISCUSSION
Before addressing the merits of the issue set out in the second COA, we
briefly address the State’s contention that the issue is not properly before the Court
because Appellant never raised it.
Notably, there is no question we have jurisdiction in this case. “A COA is
usually a jurisdictional prerequisite to an appeal in a post-conviction relief
proceeding following a state or federal court conviction.” Pagan v. United States,
353 F.3d 1343, 1344–45 (11th Cir. 2003); see also 28 U.S.C. § 2253(c)(1)
(“Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals . . . .”). In this case, the first COA gave us
jurisdiction over the appeal. It is of no consequence that we subsequently asked
4
the parties to proceed on a different issue. Even assuming we did err by sua
sponte issuing the second COA, any such error was not jurisdictional. See Young
v. United States, 124 F.3d 794, 799 (7th Cir. 1997) (refusing to treat an
erroneously issued COA the same as the lack of a COA).
Moreover, we will not now consider nonjurisdictional challenges to the
propriety of our issuance of the second COA. The entire point of § 2253’s COA
requirement is to eliminate those appeals that have little or no merit, thereby
preserving judicial resources. See Miller-El v. Cockrell, 537 U.S. 322, 337, 123
S. Ct. 1029, 1040 (2003) (“By enacting [the AEDPA COA
requirement] . . . Congress confirmed the necessity and the requirement of
differential treatment for those appeals deserving of attention from those that
plainly do not.”). Once the parties have briefed and argued the issue set out in a
COA and we have reached the point of considering an appeal on the merits, the
time for scrutinizing the COA has long since passed. Were we to entertain belated
challenges to COAs, we effectively would add another layer of complexity to the
already complicated regime for post-conviction relief. See Young, 124 F.3d at 799
(“An obligation to determine whether a certificate should have been issued, even if
the parties do not present this issue for decision . . . would increase the complexity
5
of appeals in collateral attacks and the judicial effort required to resolve them, the
opposite of the legislative plan.”). This we will not do.
The State’s primary complaint regarding the second COA is that Appellant
did not raise the issue set out therein and therefore has waived it. As we rule in
the State’s favor on the merits based on prior Circuit precedent, we need not
resolve the waiver issue.
The issue set out in the second COA—whether the district court erred by
treating the petition filed by Appellant, a state prisoner in custody pursuant to the
judgment of a state court, as one under 28 U.S.C. § 2254 rather than one under 28
U.S.C. § 2241—has been resolved by our intervening decision in Medberry v.
Crosby, 351 F.3d 1049 (11th Cir. 2003), cert. denied, ___ U.S. ___, ___ S. Ct.
___, 2004 WL 406388 (May 3, 2004) (No. 03-9165).
In Medberry, we held that a habeas petition filed by a state prisoner in
custody pursuant to the judgment of a state court is subject both to § 2241 and to
§ 2254, with its attendant restrictions.1 In deciding Medberry, we conducted a
searching review of habeas and post-conviction relief law. Although there is no
1
The state prisoner in Medberry challenged prison disciplinary actions against him. Id. at
1052.
6
need to repeat here all that we said in Medberry, we will for the sake of
completeness repeat some of the more significant points from that decision.
“[T]here are two distinct means of securing post-conviction relief in the
federal courts: an application for a writ of habeas corpus (governed by, inter alia,
§§ 2241 and 2254) and a motion to vacate a sentence (governed by § 2255).”
Medberry, 351 F.3d at 1058. With respect to the writ of habeas corpus proper, we
stated in Medberry:
[T]he writ of habeas corpus is a single post-conviction remedy principally
governed by two different statutes. . . .
The difference between the statutes lies in the breadth of the
situations to which they apply. Section 2241 provides that a writ of habeas
corpus may issue to a prisoner in the following five situations:
(1) He is in custody under or by color of the authority of the
United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in
pursuance of an Act of Congress, or an order, process,
judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or
laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled
therein is in custody for an act done or omitted under any
alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, order or sanction of
any foreign state, or under color thereof, the validity and effect
of which depend upon the law of nations; or
7
(5) It is necessary to bring him into court to testify or for
trial.
28 U.S.C. § 2241(c). Section 2254, on the other hand, applies to a subset of
those to whom § 2241(c)(3) applies—it applies to “a person in custody
pursuant to the judgment of a State court” who is “in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a) (emphasis added).
Id. at 1059. Accordingly, we concluded in Medberry that where a prisoner is in
custody pursuant to the judgment of a state court, his petition is subject to both
§ 2241 and § 2254. Id. at 1064.
In so ruling, we pointed out that our conclusion was supported by the canon
of statutory construction that the more specific statute takes precedence over the
more general statute. Id. at 1060. “‘[B]oth Sections 2241 and 2254 authorize
[petitioner’s] challenge to the legality of his continued state custody,’
but . . . allowing him to file his ‘petition in federal court pursuant to Section 2241
without reliance on Section 2254 would . . . thwart Congressional intent.’” Id.
(quoting Coady v. Vaughn, 251 F.3d 480, 484–85 (3d Cir. 2001)). We next
pointed out that our conclusion was further supported by the canon of statutory
construction against reading any provision (even any word) of a statute so as to
make it superfluous. Id. We stated:
Our reading of §§ 2241 and 2254 as governing a single
post-conviction remedy, with the § 2254 requirements applying to petitions
8
brought by a state prisoner in custody pursuant to the judgment of a State
court, gives meaning to § 2254 without rendering § 2241(c)(3) superfluous.
Under our reading, there remain some state prisoners to whom § 2254 does
not apply. Section 2254 is limited to state prisoners “in custody pursuant to
the judgment of a State court.” 28 U.S.C. § 2254(a). State pre-trial
detention, for example, might violate the Constitution or the laws or treaties
of the United States. Yet a person held in such pre-trial detention would not
be “in custody pursuant to the judgment of a State court.” Such a prisoner
would file an application for a writ of habeas corpus governed by § 2241
only. To read §§ 2241 and 2254 other than as we do would effectively
render § 2254 meaningless because state prisoners could bypass its
requirements by proceeding under § 2241.
If § 2254 were not a restriction on § 2241’s authority to grant the writ
of habeas corpus, and were instead a freestanding, alternative
post-conviction remedy, then § 2254 would serve no function at all. It
would be a complete dead letter, because no state prisoner would choose to
run the gauntlet of § 2254 restrictions when he could avoid those limitations
simply by writing “§ 2241” on his petition for federal post-conviction relief.
All of Congress’s time and effort in enacting § 2254, amending it in 1966,
and further amending it in 1996 with AEDPA would have been a complete
waste. Section 2254 would never be used or applied, and all of the
thousands of decisions over the past half-century from the Supreme Court
and other federal courts interpreting and applying the provisions of § 2254
would have been pointless. Section 2254 would be a great irrelevancy
because a state prisoner could simply opt out of its operation by choosing a
different label for his petition.
Id. at 1060–61.
Our conclusion in Medberry was also supported by our extensive review of
the history of the post-conviction relief statutes:
Neither does the history of § 2254 suggest that the section is anything more
than a limitation on the preexisting authority under § 2241(c)(3) to grant the
writ of habeas corpus to state prisoners. The 1948 codification which
9
created § 2254 merely codified judge-made restrictions on issuing the writ
of habeas corpus as authorized under § 2241. . . . Because it was merely
declarative of judicial limitations imposed on habeas relief under § 2241,
§ 2254 could not possibly have created a new post-conviction remedy.
Section 2254(a) merely specifies the class of state prisoners to which the
additional restrictions of § 2254 apply.
Id. at 1060.
We summarized:
[A] state prisoner seeking post-conviction relief from a federal court
has but one remedy: an application for a writ of habeas corpus. All
applications for writs of habeas corpus are governed by § 2241,
which generally authorizes federal courts to grant the writ—to both
federal and state prisoners. Most state prisoners’ applications for
writs of habeas corpus are subject also to the additional restrictions of
§ 2254. That is, if a state prisoner is “in custody pursuant to the
judgment of a State court,” his petition is subject to § 2254. If,
however, a prisoner is in prison pursuant to something other than a
judgment of a state court, e.g., a pre-trial bond order, then his petition
is not subject to § 2254.
Id. at 1062. Insofar as we held a state prisoner in custody pursuant to the
judgment of a state court is subject to § 2254 and its various restrictions, we were
in agreement with the Second, Third, Seventh, and Eighth Circuits. Id. (citing
Cook v. New York State Div. of Parole, 321 F.3d 274, 278–79 (2d Cir. 2003);
Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001); Coady, 251 F.3d 480,
484–85; Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000)).
10
There is no merit to Appellant’s argument that § 2254 does not apply where
a state prisoner challenges parole decisions rather than court rulings. Section 2254
is triggered where a prisoner is "in custody pursuant to the judgment of a State
court." 28 U.S.C. § 2254(a). Appellant is in custody pursuant to the judgment of
the Florida court. Therefore § 2254 applies to Appellant’s petition.
A state prisoner cannot evade the procedural requirements of § 2254 by
filing something purporting to be a § 2241 petition. If the terms of § 2254 apply
to a state habeas petitioner—i.e., if he is “in custody pursuant to the judgment of a
State court”—then we must apply its requirements to him. Appellant’s case is
hardly unusual. His petition for a writ of habeas corpus is governed by both
§ 2241 and § 2254. The district court did not err in applying § 2254 to
Appellant’s petition.
III. CONCLUSION
Appellant’s use of the § 2241 form for federal prisoners raised an issue of
whether he could somehow proceed under § 2241 separate and apart from § 2254.
We apply our decision in Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003),
and hold that Appellant’s petition is subject to both § 2241 and § 2254. The
district court therefore did not err in applying § 2254 to Appellant’s petition.
AFFIRMED.
11
TJOFLAT, Circuit Judge, specially concurring:
This case presents the important question of whether state prisoners may
bring habeas corpus petitions under 28 U.S.C. § 2241 in order to avoid the
restrictions of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), that unquestionably apply
to petitions brought under 28 U.S.C. § 2254. The majority gives this issue
extremely short shrift. Instead of addressing the question on its merits—and
responding to the substantive critiques I have outlined in this special
concurrence—the majority rests its conclusion entirely on one case, Medberry v.
Crosby, 351 F.3d 1049 (11th Cir. 2003). This appeal also raises significant
questions about the power of circuit courts to consider matters sua sponte, both in
general and in the specific context of habeas proceedings.
I.
Because I do not believe the majority has set forth the facts of this case in
sufficient detail to consider this appeal adequately, I will begin in Section A by
offering an independent statement of facts that traces Thomas’s journey through
the Florida and New York State criminal justice systems. Section B turns to the
procedural history of this case, explaining the gravamen of his federal habeas
12
corpus petition, which the district court denied, and discussing our sua sponte
grant of a revised certificate of appealability (“COA”).
A.
The facts of this case are, for the most part, uncontested. On May 11, 1973,
petitioner James Thomas pled nolo contendre to second-degree murder before the
Broward County, Florida, Circuit Court and was sentenced to eighty-five years in
state prison. A few years later, in 1976, Thomas escaped from prison and fled to
New York, where he hid for close to seventeen years. During this time, he was
convicted in a New York state court of grand larceny, attempted unauthorized use
of a motor vehicle, and resisting arrest while on escape status.1 In late 1993,
Thomas was again arrested in New York and extradited to Florida to serve out his
original second-degree murder sentence.2
On May 11, 1994, at Thomas’s first parole hearing, the Florida Parole
Commission (“FPC”) set Thomas’s presumptive parole release date (“PPRD”) as
October 20, 2019.3 The FPC reached this result by initially setting Thomas’s
1
The record is silent as to whether Thomas was incarcerated for these offenses and why
he was not extradited to Florida.
2
After Thomas broke out of prison in 1976, the State charged him with the offense of
escape. Following his extradition from New York in 1993, Florida dropped the charge.
3
Under Florida law, a prisoner’s “presumptive parole release date” is his “tentative
parole release date as determined by objective parole guidelines.” Fla. Stat. Ann. § 947.005(4)
13
PPRD 120 months away from his effective incarceration date,4 as required by
Florida’s standard parole determination matrix, then moving that date back an
additional 240 months due to the “aggravat[ing]” factor of Thomas’s New York
convictions.5 On December 19, 1994, Thomas petitioned the FPC to review its
PPRD determination, but the FPC rejected his application as untimely.6
In 1996, still dissatisfied with his PPRD, Thomas petitioned the Leon
County Circuit Court for a writ of mandamus directed to the FPC. First, he
contended that the FPC should have set an “effective parole release date”
(“EPRD”) for him, rather than merely a PPRD.7 Second, he claimed that the FPC
(West 2001).
4
The FPC calculated an effective incarceration date for Thomas, rather than using his
actual incarceration date, to give him credit for the time he served prior to his escape without
crediting him for the time he spent free in New York.
5
The official record of the FPC’s May 11, 1994, PPRD determination lists as the sole
aggravating factor, “Convicted 11-5-86 in King’s County New York of Grand Larceny,
Attempted Unauthorized Use of a Motor Vehicular [sic] and Resisting Arrest while on escape
status . . . + 240 Mos.”
6
Thomas’s administrative appeal was untimely because he had filed it more than 60 days
after the FPC’s calculation of his PPRD. See Fla. Admin. Code Ann. r. 23-21.012(1) (1998)
(“An inmate can request one review of each initial presumptive parole release date established
[by the FPC] if the inmate shows cause in writing, with individual particularities, within sixty
(60) days after the date the inmate is notified of the decision . . . .”).
7
An “effective parole release date” is “the actual parole release date as determined by the
presumptive parole release date, satisfactory institutional conduct, and an acceptable parole
plan.” Fla. Stat. Ann. § 947.005(5) (West 2001).
14
erred in pushing back his PPRD 240 months based on his New York convictions.8
He based these claims on Florida law and did not expressly allege any federal
constitutional violations.
At Thomas’s second parole hearing, on March 5, 1997, while his mandamus
petition was pending, the FPC again considered his PPRD and decided to move it
up two years to October 20, 2017. A few weeks later, the circuit court denied
Thomas’s petition, summarily concluding without explanation that “[Thomas’s]
PPRD was properly calculated” and that the FPC “properly assessed a 240 month
aggravation . . . based on [his] New York convictions.” Thomas v. Fla. Parole
Comm’n, No. 96-02827, at *1 (Fla. Leon County Cir. Ct. May 6, 1997). The court
further held that Thomas “failed to demonstrate any error or abuse of discretion on
behalf of the [FPC].” Id. Thomas did not appeal this ruling.
On October 1, 1997, the FPC held a third parole hearing for Thomas at
which a representative of the Broward County State Attorney’s Office testified
against further reductions in Thomas’s parole. Following this hearing, the FPC
declined to accelerate Thomas’s PPRD. Citing a statute that had been enacted
8
Thomas also asked the court to direct the FPC to update its records to reflect the fact
that the escape charge lodged against him in 1976 had been dropped.
15
after Thomas’s initial conviction, the FPC also decided that his next parole
interview should not be held for five years.
A month later, Thomas petitioned the Leon County Circuit Court for a writ
of habeas corpus. Citing the Fourteenth Amendment’s Due Process Clause, he
recast in federal constitutional terms the allegations raised in his mandamus
petition concerning the calculation of his PPRD at his first parole hearing.
Specifically, he argued that Florida law required the FPC to establish an EPRD
instead of merely a PPRD. Moreover, he maintained that Florida law expressly
prevented the FPC from considering his New York convictions, since none of
them resulted in his incarceration for more than 60 days,9 and, in the alternative,
because he had lived in New York for a period of ten years without any
convictions.10 Thomas claimed that by ignoring the clear mandates of its own
regulations, the FPC denied him due process of law and treated him in an arbitrary
and capricious manner.
The habeas petition also raised several new constitutional claims concerning
Thomas’s third parole hearing. He argued that the FPC violated the Ex Post Facto
9
Thomas cited rule 23-21.008 of the Florida Administrative Code Annotated for this
argument.
10
Thomas cited rule 23-21.007(1)(h) of the Florida Administrative Code Annotated for
this argument.
16
Clause in scheduling his next interview for 2002 under the new parole statute,
instead of in 1999, as it would have been under the statute as it existed at the time
of his conviction. Moreover, he claimed that the FPC denied him “full and fair
consideration” by permitting the representative from the State Attorney’s Office to
testify.
Because Thomas was incarcerated in Calhoun County, the Leon County
Circuit Court transferred his habeas petition to the Calhoun County Circuit Court,
which rejected the petition. Thomas v. Fla. Parole Comm’n, No. 97-0385 (Fla.
Calhoun County Cir. Ct. Jan. 27, 1998). The court found that Thomas was
procedurally barred from relitigating the issues that had originally been raised in
his mandamus petition concerning the FPC’s calculation of his PPRD at his first
parole hearing. Id. at *2. It essentially ignored his Ex Post Facto argument arising
from his third parole hearing, stating only that the FPC is “authorize[d] . . . to use
its discretion in determining how subsequent interviews will be scheduled.” Id.
The court concluded by briefly noting that it was “proper” for the representative
from the State Attorney’s Office to testify at his third parole hearing. Id.
Thomas thereafter petitioned the Florida District Court of Appeal for a writ
of certiorari, challenging the circuit court’s conclusion that his claims regarding
the FPC’s calculation of his PPRD at his first parole hearing were procedurally
17
barred. On October 28, 1998, the district court of appeal denied the writ per
curiam, without opinion. Thomas filed a petition for review to the Florida
Supreme Court, which was likewise rejected.
B.
On February 23, 1999, Thomas filed the complaint now before us, a petition
for a writ of habeas corpus under 28 U.S.C. § 2241. The petition asserted four
claims. First, the FPC denied Thomas due process and equal protection of the
laws under the Fourteenth Amendment’s Due Process Clause through the manner
in which it calculated his PPRD at his first parole hearing. Second, the FPC
violated these same constitutional provisions in failing to establish an EPRD for
him at that hearing. Third, the FPC violated the Ex Post Facto Clause at his third
parole hearing by scheduling his next hearing for 2002, rather than 1999. Finally,
the FPC violated the Fourteenth Amendment in using false information in
establishing his PPRD and permitting the representative from the State Attorney’s
Office to testify at his third hearing.
The district court referred Thomas’s petition to a magistrate judge, who sua
sponte considered the petition as seeking a writ of habeas under 28 U.S.C. § 2254,
applied § 2254’s standards, and rejected Thomas’s claims. Thomas’s arguments
about his PPRD, as well as his claim about the FPC’s alleged use of false
18
information about him, were held to be procedurally barred under 28 U.S.C.
§ 2254(b)(1)(A) because the Leon County Circuit Court had rejected them in
denying his 1996 petition for a writ of mandamus, and he had failed to appeal its
adverse ruling. The state court’s rulings concerning the Ex Post Facto Clause and
the testimony of the State Attorney’s representative at his third hearing were
upheld because they did not involve “unreasonable application[s] of clearly
established federal law.” The district court adopted the magistrate judge’s
recommendations and rejected Thomas’s claims.
On July 5, 2001, this court issued a COA under 28 U.S.C. § 2253 on the
following issues:
Whether the district court erred in finding that appellant’s first two
claims that he was denied due process and equal protection of the law
by the Florida Parole Commission in the setting of his presumptive
parole release date and in refusing to set an effective parole release
date were procedurally barred in light of O’Sullivan v. Boerckel, 526
U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).
After this issue was briefed, this court sua sponte vacated this COA and
issued a new one on the issue of
[w]hether the district court erred in converting petitioner’s application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 into an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
in that petitioner’s application did not collaterally attack a state court
conviction. Instead, the application attacked a decision of the Florida
Parole Commission concerning petitioner’s parole eligibility.
19
Part II of this opinion addresses the FPC’s contention that we acted
improperly in sua sponte issuing a COA on this issue, in light of the fact that
neither side raised the issue either before the district court or on appeal. Part III
turns to the substance of the §§ 2241/2254 issue, explaining the relationship
between §§ 2241 and 2254 and concluding that Thomas had the right to have his
petition assessed under the former rather than the latter statute. Part IV concludes
that while the standards for habeas petitions under §§ 2241 and 2254 differ in
many respects, the exhaustion requirement crafted through the common law for
§ 2241 is similar to § 2254’s statutorily created exhaustion requirement (28 U.S.C.
§ 2254(b)(1)(A)), and so Thomas’s claim was properly dismissed as procedurally
barred.
II.
As stated earlier, the COA we originally granted Thomas was replaced by a
COA presenting the issue of
[w]hether the district court erred in converting petitioner’s application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 into an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
in that petitioner’s application did not collaterally attack a state court
conviction. Instead, the application attacked a decision of the Florida
Parole Commission concerning petitioner’s parole eligibility.
20
This issue was thereafter briefed by both sides and heard in oral argument.
In its brief, however, FPC challenges this new COA on two grounds. First, FPC
points out that “[a]ppellant [Thomas] never raised th[is] issue . . . in his initial
round of briefs in this case . . . and although the issue may be one of interest to
bench and bar, as a matter of law the issue is not properly before this Court. . . .
[C]laims not presented to the Court of Appeals are considered waived.”
Appellee’s Supplemental Answer Br. at 28-29. I address this point in Subpart A.
In Subpart B, I respond to FPC’s contention that we lacked the power to
consider the §§ 2241/2254 issue because Thomas failed to raise it in the district
court. Having established in these first two Subparts our power to grant a COA
sua sponte in a habeas case on issues a petitioner failed to raise either in the
district court or in his request for a COA, Subpart C explains why it was
appropriate for us to exercise that power in this case. Subpart D briefly concludes.
Before delving into this discussion, however, it is worth noting that many
circuits would not even entertain FPC’s attack on the second COA. As Judge
Easterbrook writes, for example, “[O]nce the briefs have been written and the case
heard, there is little point in scrutinizing the certificate of appealability. An
obligation to determine whether a certificate should have been issued . . . would
increase the complexity of appeals in collateral attacks and the judicial effort
21
required to resolve them . . . .” Young v. United States, 124 F.3d 794, 799 (7th
Cir. 1997); see also Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997)
(“[W]e are fully informed about the merits, and it would make no sense to go
through the unnecessary step of remanding to the District Court with the request
that an issue or issues be specified [in a COA], when we already know, having
fully considered the case, what we think the result ought to be.”).
Even if this court had erred in issuing the second COA, it is not clear that
we should consequently ignore the substantive legal issue it raises. The consensus
among the circuits seems to be that “an erroneously issued COA . . . in a federal
habeas proceeding is different from the absence of one and thus does not disable
the court of appeals from proceeding to the merits once the briefs have been
written.” Gatlin v. Madding, 189 F.3d 882, 886 (9th Cir. 1999); see also United
States v. Talk, 158 F.3d 1064, 1068 (10th Cir. 1998) (“[A]n erroneously-issued
certificate does not deprive us of jurisdiction to hear a certified appeal.”). I am
reluctant to follow this approach because COAs are jurisdictional, and I do not
think an error in granting a COA can allow us to expand the scope of our
jurisdiction. On the other hand, I do not wish to authorize meta-litigation in
habeas cases over whether a COA was properly issued, particularly because the
question in reviewing a grant of a COA—whether there has been a substantial
22
showing that a prisoner has been denied a constitutional right—is so similar to the
substantive question in the underlying habeas appeal—whether a prisoner has
been denied a constitutional right. In this particular case, I will demonstrate why
we acted properly in sua sponte issuing the second COA in an effort to guide
future judges in handling habeas cases, before turning to the substance of
Thomas’s claims.
A.
The FPC’s first major claim is that we lack the power to grant sua sponte a
COA in a habeas case concerning an issue for which the petitioner did not request
one. Put another way, the FPC argues that, in the habeas context, a petitioner’s
failure to raise an issue on appeal precludes us from considering it. I discuss in
Section 1 the general inherent power of federal circuit courts of appeals to
consider matters sua sponte whether or not presented to them by the parties. In
Section 2, I explain how this power is not curtailed by any of AEDPA’s limitations
on appeals in habeas cases. Section 3 shows that district courts have widely been
acknowledged to have the power to grant COAs sua sponte, and demonstrates that
there is no reason to deny circuit courts a similar power. Section 4 discusses how
my conclusion is consistent with that of the majority of circuits to have considered
this issue.
23
1.
FPC argues, essentially, that we should not consider the §§ 2241/2254 issue
because Thomas waived it by not raising it on appeal. Waiver, however, applies to
the right of a litigant to have his claim heard. As the cases cited by the FPC
demonstrate, a litigant in a habeas case can waive his right to have a matter
considered by this court by failing to raise it before us. See, e.g., Johnson Enters.
of Jacksonville v. FPL Group, Inc., 162 F.3d 1290, 1308 n.43 (11th Cir. 1998)
(“[Petitioner] challenged other rulings of the district court in its notice of appeal;
however, it briefed only those issues listed above. Claims not presented to the
court of appeals are considered waived.”). While such cases address the general
inability of an appellant to ask a court of appeals to consider issues that were not
raised in a notice of appeal or brief, they do not address the power of appellate
courts to raise important issues sua sponte, as happened here.
The scope of a petitioner’s rights has no bearing on this court’s power. It is
beyond dispute that, in general, we have the power to consider issues that a party
fails to raise on appeal, even though the petitioner does not have the right to
demand such consideration. See United States v. Boyd, 208 F.3d 638, 652 (7th
Cir. 2000) (“As we did [in previous cases], and as the Ninth Circuit did in [a
previous case], so too have other circuits acknowledged that they may, when
24
justice requires it, raise critical issues of law sua sponte.”). While this power is
most frequently exercised in the plain error context, see, e.g., United States v.
Ardley, 273 F.3d 991, 1003-04 (2001) (en banc) (Tjoflat, J., dissenting), it extends
beyond such situations. Satterfield v. Sigmon, No. 95-2411, 1996 U.S. App.
LEXIS 16419, at *7 (4th Cir. Mar. 7 1996) (“Generally, federal appellate courts do
not consider issues that the parties have not raised either below or on appeal. Yet
in ‘exceptional circumstances,’ to prevent injustice, we may raise issues sua
sponte.”). Thus, this case ultimately involves a question of our power, not of
Thomas’s rights or whether he waived them.
The conditions under which a court may consider a nonjurisdictional matter
sua sponte have never adequately been considered and have caused a great deal of
confusion among jurists. For example, Justice Scalia once pointed out that “the
refusal to consider arguments not raised is a sound prudential practice, rather than
a statutory or constitutional mandate, and there are times when prudence dictates
the contrary.” Davis v. United States, 512 U.S. 452, 464, 114 S. Ct. 2350, 2358,
129 L. Ed. 2d 362 (1994) (Scalia, J., concurring). Barely two years earlier,
however, Justice Scalia had emphasized, “The rule that points not argued will not
be considered is more than just a prudential rule of convenience; its observance, at
least in the vast majority of cases, distinguishes our adversary system of justice
25
from the inquisitorial one.” United States v. Burke, 504 U.S. 229, 246, 112 S. Ct.
1867, 1877, 119 L. Ed. 2d 34 (1992) (Scalia, J., concurring). In Trest v. Cain, 522
U.S. 87, 89-90, 118 S. Ct. 478, 480, 139 L. Ed. 2d 444 (1997), one of the only
Supreme Court cases to address this issue directly, the Court declined to decide
whether a court of appeals in a habeas case may sua sponte consider the issue of a
defendant’s procedural default in state court, and instead held only that circuit
courts are not required to do so.
The Supreme Court’s clearest statement on this matter came in Singleton v.
Wulff, where it held, “The matter of what questions may be taken up and resolved
for the first time on appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.” 428 U.S. 106, 121, 96 S.
Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976); see also Cruz v. Melecio, 204 F.3d 14,
22 n.7 (1st Cir. 2000) (“Notwithstanding that the parties did not raise the issues
that impel us to this course either to the district court or on this appeal, we have
the power to do so sua sponte.”); United States v. Heater, 63 F.3d 311, 332 (4th
Cir. 1995) (“Although [petitioner] did not raise the Ex Post Facto argument
himself, we find it within our discretion to consider this constitutional concern sua
sponte.”).
26
Consequently, the fact that Thomas did not mention the §§ 2241/2254 issue
in his COA petition does not bar us from exercising our discretion to rule sua
sponte on this critical threshold issue.
2.
Having established the general power of federal circuit courts of appeal to
consider matters sua sponte, it is now necessary to determine whether there is
something peculiar about the specific context of habeas corpus that prevents us
from exercising that power in such appeals. Neither AEDPA nor the Federal
Rules of Appellate Procedure can responsibly be read as stripping us of this
discretion. Subsection (a) offers a plain-meaning interpretation of the pertinent
statutes and rules. Subsection (b) comes to the same conclusion based on
substantive canons of statutory construction. Subsection (c) discusses how this
conclusion is entirely consistent with both the precedents and practices of this
circuit.
a.
28 U.S.C. § 2253(c)(1) states that a circuit court may not hear an appeal in a
habeas case from a state prisoner “[u]nless a circuit justice or judge issues a
certificate of appealability.” The law goes on to explain that a COA may be
granted “only if the applicant has made a substantial showing of the denial of a
27
constitutional right.” Id. § 2253(c)(2). This statute concludes by stating that the
COA must specify the issues that meet this standard. Id. § 2253(c)(3).
One can argue that because Thomas failed to raise the §§ 2241/2254 issue
for which the second COA was issued, he never made a “substantial showing of
the denial of a constitutional right” as required by § 2253(c)(2). I decline to read
the statute so narrowly. The main focus of § 2253, in my opinion, is to deter
prisoners from bringing numerous frivolous claims and to limit appeals to cases
involving possible constitutional violations. See Joint Explanatory Statement of
the Comm. of Conference, H. Rep. No. 104-518, at 111 (1996), reprinted in 1996
U.S.C.C.A.N. 944, 944 (“This title incorporates reforms to curb the abuse of the
statutory writ of habeas corpus . . . .”). Nothing in the text or legislative history of
the statute suggests that Congress was concerned with whether it was the
petitioner or the court who detected a potential constitutional error. Consequently,
I do not read § 2253(c)(2) as prohibiting the court of appeals from issuing COAs
based on potential constitutional problems it notices on its own. In the rare case
like this one, where an appellate court sua sponte questions the district court’s
resolution of an issue that touches, even indirectly, upon constitutional rights,
§ 2253(c)(2)’s requirement that a “substantial showing of the denial of a
constitutional right” be made before a COA may issue is met.
28
The Federal Rules of Appellate Procedure are more problematic. Rule 22(b)
states, “If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability or state why a certificate
should not issue. . . . If the district judge has denied the certificate, the applicant
may request a circuit judge to issue the certificate.” Fed. R. App. P. 22(b)(1). The
logical import of this provision seems to be that a circuit judge may not issue a
COA unless and until a district judge has denied it. See United States v. Mitchell,
216 F.3d 1126, 1130 (D.C. Cir. 2000) (“Rule 22(b) requires initial application in
the district court for a COA before the court of appeals acts on a COA request.”).
In Hunter v. United States, we unanimously interpreted this Rule as follows:
Only if the district judge who rendered the judgment has declined to
issue the certificate does a circuit judge come into the picture. Under
the plain language of the rule, an applicant for the writ gets two bites
at the appeal certificate apple: one before the district judge, and if that
one is unsuccessful, he gets a second one before a circuit judge.
101 F.3d 1565, 1575 (11th Cir. 1996) (en banc).
Of course, we may suspend the rules of appellate procedure for “good
cause.” Fed. R. App. P. 2. Nevertheless, it is unnecessary to resort to such an
extreme measure. I read Rule 22 as requiring a court of appeals to reject a
petitioner’s application for a COA concerning issues that were not presented in the
petitioner’s application to the district court. I do not, however, view this rule as
29
restricting the discretion of the court of appeals to grant a certificate based on
issues it identifies on its own.
b.
Even moving beyond a plain-text meaning of § 2253(c) to apply substantive
canons of statutory interpretation, we arrive at the same conclusion—AEDPA does
not reduce the otherwise broad power of a circuit court to entertain matters sua
sponte that a petitioner failed to raise on appeal. In interpreting a statute, we may
not presume that Congress implicitly intends to strip a coordinate branch of
Government of one of its longstanding inherent powers. Chambers v. NASCO,
Inc., 501 U.S. 32, 47, 111 S. Ct. 2123, 2134, 115 L. Ed. 2d 27 (1991) (“‘[W]e do
not lightly assume that Congress has intended to depart from established
principles’ such as the scope of a court’s inherent power.” (quoting Weinberger v.
Romero-Barcelo, 465 U.S. 305, 313, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91
(1982))).
Section 2253(c)(2) states, “A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a constitutional
right.” As discussed above, federal courts have the inherent discretionary power
to raise issues sua sponte that the parties neglected to raise on appeal. See supra
Section I.A.1. Section 2253(c)’s language is insufficiently clear or explicit to
30
divest the courts of appeals of this traditional power. Indeed, if Congress had
intended to divest us of this power, it did so surprisingly indirectly. Cf. Williams
v. United States, 458 U.S. 279, 287, 102 S. Ct. 3088, 3093, 73 L. Ed. 2d 767, 774
(1982) (“Yet, if Congress really set out to enact a national bad check law in §
1014, it did so with a peculiar choice of language and in an unusually backhanded
manner.”). In the absence of a clear statement (or even any real indication at all)
that Congress intended to curtail our ability to consider issues on appeal sua
sponte, the canons of statutory construction counsel against construing § 2253(c)
as absolutely restricting appellate courts to issues mentioned by a prisoner in his
COA petition.
c.
Even putting aside the above analysis, our cases establish the power of our
court to add issues to a COA sua sponte. At the time Congress amended § 2253 to
require appellants in habeas cases to obtain COAs instead of “certificates of
probable cause” (“CPCs”), as the statute previously required, we were faced with
several pending appeals that were based on CPCs. These CPCs did not meet the
new requirements of the amended § 2253(c)(3) because they did not list the
specific constitutional violations for which the prisoners were seeking review.
31
We recognized in Peoples v. Haley that an appellate panel, faced with a
CPC, had the authority to specify the issues on which appeal may be taken,
thereby transforming the deficient CPC into a COA that met the requirements of
§ 2253(c)(3). 227 F.3d 1342, 1346 (11th Cir. 2000) (“[I]t is within the discretion
of the court of appeals whether to apply the COA standards itself, or remand to the
district court.”); see also Putnam v. Head, 268 F.3d 1223, 1228 (11th Cir. 2001)
(“[I]n exercising our discretion, we may either remand to the district court with
instructions to enumerate the issues, or we may rule which issues raised by the
petitioner warrant a COA.”).
Exercising this discretion, we have most frequently chosen simply to amend
a CPC so that it conforms to § 2253’s new requirements, rather than dismissing the
appeal or remanding the CPC to the district court. See, e.g., Eagle v. Linahan, 279
F.3d 926, 936 (11th Cir. 2001) (“In so ‘fixing’ Eagle’s CPC, we necessarily limit
the claims properly before us to those that we deem satisfy the AEDPA standards
for appeal . . .”); Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000)
(“By applying AEDPA’s standards to this appeal and issuing a proper COA (if
warranted), this panel may ‘fix’ the inadequacies of the present CPC.”); Putnam,
268 F.3d at 1228 (“In this case, we choose to decide ourselves which issues, if
32
any, are worthy of a COA.”).11 Thus, although a court of appeals is necessarily
“limited to the issues specified” in the COA, Murray v. United States, 145 F.3d
1249, 1250 (11th Cir. 1998), there is no reason why we may not amend the
certificate to add issues sua sponte.
Moving beyond the specific issue of sua sponte amending COAs, this
circuit has also shown a tremendous willingness to consider sua sponte arguments
favorable to the Government in habeas appeals that were not raised in the
Government’s briefs. In Horsley v. Alabama, 45 F.3d 1486, 1492 n.10 (11th Cir.
1995), we stated, “[E]ven if the State has abandoned this argument we have the
discretion to overlook a failure to argue harmlessness and to undertake sua sponte
the task of considering harmlessness.” Similarly, in Housel v. Head, 238 F.3d
1289, 1297 (11th Cir. 2001) (internal citations omitted), we held, “This
nonretroactivity rule, born in Teague v. Lane, is a threshold issue, and one that we
have discretion to raise sua sponte.” See also Ochran v. United States, 117 F.3d
495, 503 (11th Cir. 1997) (recognizing the power of appellate panels to consider
sua sponte whether a prisoner has waived certain claims, despite the fact that the
11
Of course, there are many cases in which we took the alternate route and remanded to
the district court to amend the certificate. See, e.g., Haley, 227 F.3d at 1347 (“[R]emanding the
matter to the district court is the proper course of action.”); Hunter, 101 F.3d at 1584 (“[W]e
remand the case to the district court for compliance with the requirement of 28 U.S.C.
§ 2253(c)(3) that the certificate of appealability indicate which specific issue or issues satisfies
the § 2253(c)(2) standard.”).
33
State did not advance an argument based on waiver); Acosta v. Artuz, 221 F.3d
117, 121 (2d Cir. 2000) (recognizing “the authority of courts to raise sua sponte
affirmative defenses where the defense implicates values beyond the interests of
the parties”). Since we consider sua sponte nonjurisdictional arguments favorable
to the State, it would seem grossly unfair to deny prisoners similar consideration.
3.
Another reason to believe that appellate courts may sua sponte amend COAs
is that district courts are widely recognized to have this power. See, e.g., United
States v. Brown, 305 F.3d 304, 305-06 (5th Cir. 2002) (“The district court
nevertheless determined that if Apprendi was held applicable on collateral review,
Brown’s maximum sentence would be capped at five years . . . and it therefore sua
sponte granted Brown a certificate of appealability (COA) on the issue [of]
whether Teague barred consideration of Apprendi claims in an initial § 2255
motion.”); Clay v. United States, 30 Fed. Appx. 607, 608 (7th Cir. 2001) (“The
district court sua sponte issued a certificate of appealability as to whether [the
defendant] was denied his Sixth Amendment right to the effective assistance of
counsel.”), rev’d on other grounds 537 U.S. 522, 123 S. Ct. 1072, 155 L. Ed. 2d 88
(2003); Dunn v. Colleran, 247 F.3d 450, 456 (3d Cir. 2001) (“Finding, however,
that [its] conclusion was ‘by no means free of doubt,’ the District Court sua sponte
34
granted a certificate of appealability.”); DeLeon v. Stack, 234 F.3d 84, 87 (2d Cir.
2000) (upholding district court’s decision to issue a COA sua sponte).
A district court’s power to grant a COA sua sponte seems to be implied by
its power to sua sponte deny one. See, e.g., Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to deny COA
[sic] sua sponte.”). It would seem grossly unfair to conclude that a district court
may preemptively reject a COA petition of its own volition, but may never grant
one on its own. Such a conclusion would tilt the scales of justice too far in favor
of the state and disrupt the delicate equipoise in which parties stand before the bar
of justice.
Admittedly, there are important differences between district and circuit
courts. See id. at 898 (“Arguably, the district court . . . is in the best position to
determine whether the petitioner has made a substantial showing of a denial of a
constitutional right on the issues before that court. Further briefing and argument
on the very issues the court has just ruled on would be repetitious.”). A district
court may sua sponte grant or deny a COA at the same time it rules on the merits
of a habeas petition or rejects it on procedural grounds. This is arguably the best
time for a district judge to decide this matter because the issues are still fresh in
his mind.
35
Nevertheless, the same federal statute authorizes both district and circuit
courts to issue COAs. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from—the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court . . . .”). It
would be odd to interpret the statute as implicitly allowing one set of courts
authorized to issue COAs to do so sua sponte, but prohibiting the other set of
courts from doing so.
The only case I have been able to find that questions the power of a district
court to grant sua sponte a COA, Berthoff v. United States, 308 F.3d 124 (1st Cir.
2002), is procedurally bizarre. Berthoff was tried and convicted of a drug
conspiracy and several other related charges. The district court sentenced him to
twenty-one years in prison. One of Berthoff’s co-conspirators, who the district
court described as “the individual next to Berthoff most culpable in this
conspiracy,” pled guilty, cooperated with the government, and received a sentence
of only three years. Berthoff, 308 F.3d at 126.
Berthoff sought a writ of habeas corpus claiming ineffective assistance of
counsel because his attorney never informed him of the plea “overtures” made by
the Government. The district court denied the petition, but then sua sponte
36
granted Berthoff a COA concerning the disparity in sentencing between him and
the defendants who pled guilty. Apparently, however, the parties nevertheless
briefed the ineffective assistance of counsel claim for the court of appeals. The
First Circuit vacated the COA and remanded the case to the district court with
instructions to “clarify the issue warranting a COA.” Id. at 126.
While on remand, Berthoff sought to amend his habeas petition to add an
Apprendi claim. The district court declined to issue a COA on either the
ineffective assistance of counsel issue or the Apprendi issue. It did, however,
issue another COA on the sentencing disparity issue, allowing Berthoff to argue
that the 700% differential between his sentence and that of the defendants who
pled guilty unconstitutionally burdened the free exercise of his right to a jury trial.
Strangely enough, when it granted this COA, the district court declared:
[I]n an appropriate case, where the government has engaged in illegal
fact bargaining with one defendant, I would not hesitate to hold that a
defendant similarly situated in all material respects could take
advantage of the fact bargain in order freely to exercise the right to
trial by jury guaranteed by the Sixth Amendment. This is not such a
case.
Id. at 128 (emphasis added). Thus, the district court sua sponte granted a COA on
an issue that neither party had raised and that the court itself declared was
irrelevant to the facts of the underlying case. As the First Circuit emphasized,
37
“[T]his case simply is an inappropriate vehicle for the district court’s concerns. . . .
Accordingly, we do not reach the merits of the constitutional issue at this time.”
Id. at 129.
Thus, Berthoff does not undermine the power of district courts to issue
COAs sua sponte on questions a petitioners fails to raise; it instead prevents
district courts from issuing COAs on issues that are simply not present in a
particular case. Having established the generally recognized authority of district
courts to issue COAs sua sponte, we would be hard pressed to decline to recognize
the power of circuit courts of appeals to do so as well.
4.
The majority of circuit courts to have addressed this issue agree with my
conclusion that circuit courts may grant COAs sua sponte. In Mack v. Holt, the
Sixth Circuit noted, for example, that it had
granted [the petitioner’s] motion for a certificate of appealability as to
whether the trial court properly determined that the waiver of his right
to counsel was knowing and intelligent. This court also sua sponte
granted a certificate of appealability as to whether [the
petitioner’s] § 2254 petition to the district court was timely filed.
62 Fed. Appx. 577, 578 (6th Cir. 2003). The Eighth Circuit, in United States v.
Morgan, 244 F.3d 674, 675 (8th Cir. 2001), went even further, holding that its
precedents “should not be read as foreclosing the right of an Eighth Circuit
38
hearing panel to exercise its discretion to consider sua sponte issues beyond those
specified in a certificate of appealability, whether the certificate was issued by a
district court or by an administrative panel of this court.” Judge Bye’s separate
opinion in that case fully endorses this sentiment, stating, “Today’s order explains
that [prior Eighth Circuit cases] do not prevent a hearing panel from exercising its
discretion to consider uncertified issues sua sponte. I fully agree with this
approach . . . .” Id. (Bye, J., concurring in part and dissenting in part).
Both Morgan and the result I advocate in the instant case achieve the same
substantive result: review by a court of appeals of an issue in a habeas case that
had not been raised by the prisoner in his application for a COA. Nevertheless, I
believe my approach is preferable because it respects § 2253(c)’s requirement that
issues be contained in a COA before being considered on appeal. Under my
approach, an appellate panel goes through the formalism of amending the COA
before considering the merits of an issue the prisoner failed to raise. Nevertheless,
the Eighth Circuit’s holding lends support to the conclusion that a circuit panel
may raise issues sua sponte in habeas appeals.
The Third Circuit appears to be the only other appellate court to have
addressed this issue. That court, in dicta, offered an interpretation of § 2253(c)
39
that, at first, appears to contradict my conclusion. In Hubley v. Superintendent,
the court stated,
A “certificate of appealability in a case brought under § 2253(c)(2)
may issue, in the literal language of the statute, only if the applicant
has made a substantial showing of the denial of a constitutional
right.”. . . Where an applicant fails to make such a showing, “we do
not have jurisdiction to review the merits of Appellant’s case.”
57 Fed. Appx. 927, 929 (3d Cir. 2003) (quoting United States v. Cepero, 224 F.2d
256, 267, 268 (3d Cir. 2000); other internal citations omitted).
The Hubley court did not base its ruling on this observation. Moreover, the
case from which it quoted this proposition, Cepero, put no special emphasis
whatsoever on the fact that it was specifically the prisoner, rather than the court,
who raised the issue of the possible constitutional violation. Thus, not only is this
isolated fragment from Hubley dicta, it is built around a quoted passage that has
been taken entirely out of context. Moreover, the Hubley dicta is arguably
inconsistent with the Third Circuit’s previous recognition of the power of district
courts to grant COAs sua sponte. See, e.g., Robinson v. Johnson, 313 F.3d 128,
133 n.2 (3d Cir. 2002) (“Although Robinson moved in the Court of Appeals for a
certificate of appealability, it was the District Court which granted the request.
This is not a problem since the District Court may grant sua sponte a certificate of
appealability.”).
40
Finally, Hubley is easily distinguishable from the instant case. In Hubley,
the prisoner received a COA on certain issues, yet briefed additional issues, asking
the Third Circuit to grant a COA concerning those additional issues and rule on
their merits. The Hubley court properly rejected this invitation, stating,
Having complied with the Rules of this Court, [the State] would
therefore be prejudiced by not having briefed the merits of this new
issue. An eleventh hour certificate of appealability is therefore not
appropriate. Contrary to petitioner’s argument, it is not the stated
‘practice’ of this Court to grant, sua sponte, certificates of
appealability whenever a habeas petitioner wishes to raise a new
argument on appeal.
57 Fed. Appx. at 931. The Hubley court came to the correct conclusion. To allow
prisoners to decide for themselves to include arguments in their briefs other than
those specified in their COAs would eviscerate § 2253(c). A clear ban on this
practice prevents the State from needlessly having to brief responses to issues not
included in the COA.
The above holding declares only that the Third Circuit will not amend a
COA “whenever a habeas petitioner wishes to raise a new argument on appeal.”
Id. (emphasis added). This declaration does not address the issue of whether the
panel has the power to amend a COA sua sponte prior to the parties’ briefing of
the appeal because the panel felt a particular issue should be addressed. A sua
sponte amendment to a COA by the court of appeals, particularly when the parties
41
are given the opportunity to brief the new issue, would not result in the unfairness
that troubled the Hubley court. Thus, persuasive precedent from other circuits
indicates that we have the power to amend a COA sua sponte to consider issues
that the prisoner did not raise in his COA petition.
In light of these persuasive and wide-ranging arguments, I conclude that this
court has the power, even in habeas cases, to issue or amend a COA sua sponte to
address constitutional issues that a petitioner fails to present in his petition for a
COA.
B.
FPC’s second waiver-related argument is that we should not have sua
sponte issued a COA on the §§ 2241/2254 issue because Thomas failed to present
it to the district court. As with issues a petitioner fails to raise on appeal, all this
means is that Thomas waived his right to have us consider it; his failure does not
affect the discretionary power of this court to choose to do so.
This point is best made in First Ala. Bank of Montgomery, N.A. v. First
State Insurance Co., 899 F.2d 1045, 1060 n.8 (11th Cir. 1990), which states that
the “[appellant’s] failure to press the argument before the district court foreclosed
its right to present it on appeal.” However, in the same footnote, we immediately
added, “[O]ur rule foreclosing review of issues not presented below is not a
42
jurisdictional limitation but is instead a rule which may be abrogated in our sound
discretion. . . . The case law in this area indicates that we hear issues otherwise
waived only in instances where strict application of the rule would result in
patently unjust results.” Id. (citations omitted). Similarly, while Noritake Co. v.
M/V Hellenic Champion states that “[a]s a general principle of appellate review,
this court will not consider a legal issue or theory that was not presented to the
trial court,” it immediately goes on to stress that this rule does not apply if a
“miscarriage of justice” will occur. 627 F.2d 724, 732 (5th Cir. 1980)12; see also
United States v. Godoy, 821 F.2d 1498, 1504 (11th Cir. 1987) (“This rule,
however, is not jurisdictional and may be waived by this court in certain
exceptional circumstances. . . . Our decision to consider an argument for the first
time [on appeal] is left to our discretion, based on the facts of each case.”).
As before, none of the relevant habeas statutes suggests that Congress has
eliminated our traditional authority to address waived issues. Consequently, the
FPC’s second argument fails.
C.
12
This court has adopted “the decisions of the United States Court of Appeals for the
Fifth Circuit, . . . as that court existed on September 30, 1981” as binding precedent within the
Eleventh Circuit. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
43
Having demonstrated that a circuit court of appeals has the power—even in
the habeas corpus context—to consider sua sponte issues that a petitioner fails to
preserve either in the district court or on appeal, we are still left with the issue of
whether it was appropriate for this court to have exercised its discretionary
authority in this particular case. We are clearly obligated to raise questions
concerning our subject-matter jurisdiction sua sponte in all cases. See, e.g., Arthur
v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir. 2001) (“While neither party has
raised the issue of whether we have subject matter jurisdiction over this case, we
are obliged to address the issue sua sponte.”). We may raise nonjurisdictional
issues sua sponte in habeas proceedings only if they implicate “important federal
interest[s].” Esslinger, 44 F.3d at 1524; see, e.g., Moon v. Head, 285 F.3d 1301,
1315 n.17 (11th Cir. 2002), cert. denied, 537 U.S. 1124, 123 S. Ct. 863, 154 L. Ed.
2d 807 (2003) (“We cannot discern—nor did the district court find—any important
federal interest in this case to justify raising the [procedural] bar [issue] sua
sponte. We therefore consider the merits.”). For this reason, we will generally not
consider exhaustion issues sua sponte because this doctrine is only “intended to
give the state the initial opportunity to decide alleged violations of federal
constitutional rights.” Hopkins v. Jarvis, 648 F.2d 981, 984 n.2 (5th Cir. Unit B
June 1981). Determining whether § 2241 or § 2254 was the proper federal statute
44
under which a state prisoner may challenge the calculation of his parole date is a
sufficiently important federal issue to consider sua sponte.
A court of appeals may also consider an issue sua sponte when it can fairly
be characterized as a “threshold” matter to another question properly before it. In
Jorss v. Gomez, the Ninth Circuit stated, “The district court granted a Certificate
of Appealability (“COA”) as to ‘whether equitable tolling applied’ to Jorss’s
petition. Because we find that a determination of timeliness under the statute is a
necessary predicate to the question of whether equitable tolling should be applied,
we hold . . . that Jorss’s petition was timely filed.” 311 F.3d 1189, 1191 (9th Cir.
2002) (emphasis added). The court went on to explain, “[A] court must first
determine whether a petition was untimely under the statute itself before it
considers whether equitable tolling should be applied. As a matter of logic, where
a petition is timely filed within the one-year statute of limitations imposed by
AEDPA, then equitable tolling need not be applied.” Id. at 1192 (internal citation
omitted); see also United States Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 447, 113 S. Ct. 2173, 2178, 124 L. Ed. 2d 402 (1993) (“[A] court may
consider an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute
before it, even an issue the parties fail to identify and brief.” (quoting Arcadia v.
Ohio Power Co., 498 U.S. 73, 77, 111 S. Ct. 415, 112 L. Ed. 2d 374 (1990))).
45
Here, the original COA concerned whether the district court correctly
applied the procedural bar provisions of 28 U.S.C. § 2254. Given our doubts as to
whether Thomas’s petition (which had been filed under 28 U.S.C. § 2241) should
have been considered under § 2254 at all, it would have been absurd to interpret
this statute without first ascertaining whether it was the applicable law. Due to the
possibility that § 2254 did not govern Thomas’s habeas petition, an opinion
reviewing the district court’s application of § 2254 without resolving the threshold
issue of the statute’s applicability would have run the risk of being a
constitutionally prohibited advisory opinion of an inapplicable statute. See NLRB
v. Gen. Cinema Corp., 526 F.2d 427, 429 (5th Cir. 1976) (“Article III of the
Constitution prohibits the rendition of advisory opinions.”).
Where a circuit panel decides to raise an issue sua sponte, the preferred
method of doing so is by requesting supplemental briefing from the parties and
permitting oral argument, as was done here. See Adam A. Milani & Michael R.
Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate
Courts, 69 Tenn. L. Rev. 245, 252-53 (2002) (“[W]hen appellate courts identify an
issue not raised by the litigants, they should order supplemental briefing as a
matter of course, so that the parties have an opportunity to be heard on the
issue.”); Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive
46
Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1310 (2002)
(“Notice and an opportunity to be heard before deciding a case sua sponte . . .
makes the unequal application of waiver more fair to the litigants (and increases
the accuracy of the decisionmaking process in some cases).”).
D.
There is no statutory or doctrinal prohibition against an appellate court
issuing a COA sua sponte on issues not specified by a habeas petitioner. This is a
well-established practice in the majority of both district and circuit courts to have
addressed the issue, including this circuit. Because of the importance of the
§§ 2241/2254 issue, and because it would be somewhat silly to debate how § 2254
applies to Thomas without first satisfying ourselves that it is, in fact, the
governing statute, we are correct in exercising our discretion to consider this
question sua sponte.
III.
This brings us to the actual issue embraced by the second COA—whether
the district court erred in assuming that Thomas’s petition should be examined
under § 2254 rather than § 2241. There is very little precedent other than
Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003), directly on point; even the
47
Supreme Court has cited the statutes together without distinguishing between
them. See, e.g., Francis v. Henderson, 425 U.S. 536, 538, 96 S. Ct. 1708, 1710, 48
L. Ed. 2d 149 (1976) (“There can be no question of a federal district court’s power
to entertain an application for a writ of habeas corpus in a case such as this. 28
U.S.C. §§ 2241, 2254.”). Prior to the enactment of AEDPA, several of our own
rulings also conflated these provisions, allowing a single habeas petition to be
filed under the authority of both. See, e.g. Grace v. Hopper, 566 F.2d 507, 508
(5th Cir. 1978) (“This is a habeas corpus case brought pursuant to 28 U.S.C. §§
2241, 2254 . . . .”); Glass v. Heyd, 457 F.2d 562, 563 (5th Cir. 1972) (per curiam)
(“In this habeas corpus proceeding filed under 28 U.S.C. §§ 2241, 2242 and 2254
petitioner . . . challenges two convictions for criminal contempt . . . .”).
I begin, as usual, with a plain-meaning analysis of the statutory text of
§§ 2241 and 2254 in Subpart A, demonstrating that each section creates a separate
route through which a petitioner may seek federal habeas corpus relief. Subpart B
discusses how the Supreme Court’s ruling in Ex Parte Yerger, 75 U.S. (8 Wall.)
85, 19 L. Ed. 332 (1868), requires that we treat these sections as creating
independent vehicles for relief. Subpart C offers a structural analysis of federal
habeas corpus law, demonstrating that when the various sections are read together,
they strongly suggest that relief under § 2241 is distinguishable from relief under §
48
2254. Subpart D demonstrates how the canon of statutory construction concerning
implied repeals leads to the same result. Subpart E contrasts my interpretation of
§§ 2241 and 2254 with that of other circuits, showing the flaws in their reasoning.
Finally, Subpart F briefly concludes.
A.
To determine the proper statute under which Thomas’s claims should have
been considered, we begin with the statutory text. 28 U.S.C. §§ 2241(a), (b)(3)
states, in relevant part, “Writs of habeas corpus may be granted by . . . the district
courts . . . within their respective jurisdictions. . . . The writ of habeas corpus shall
not extend to a prisoner unless . . . [h]e is in custody in violation of the
Constitution or laws or treaties of the United States.” The language of this section
appears to make the writ available to any federal and state prisoners who have
federal constitutional claims, whether or not they have been convicted. See Stacey
v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 n.1 (11th Cir. 1988)
(“[Section] 2241 . . . applies to persons in custody regardless of whether final
judgment has been rendered.”).
Section 2254, in contrast, applies only to convicted state prisoners. It
provides,
49
[A] district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added). This language is essentially identical to
that employed in § 2241, except that it is limited to state prisoners. Where the
statutory text of two separate sections of the United States Code authorize a
convicted state prisoner to bring exactly the same type of claim—that “he is in
custody in violation of the Constitution or laws or treaties of the United
States”—we are forced to give these sections their plain and natural meaning and
conclude that the claim may be filed under either. See Sorenson v. Sec’y of the
Treasury, 475 U.S. 851, 860, 106 S. Ct. 1600, 1606, 89 L. Ed. 2d 855 (1986)
(“[I]dentical words used in different parts of the same act are intended to have the
same meaning.”) (internal marks and citations omitted). Thus, while “[p]re-trial
habeas petitions . . . are properly brought under 28 U.S.C. § 2241,” Stacey, 854
F.2d at 403 n.1, it seems that a convicted state prisoner like Thomas may challenge
any aspect of his conviction or sentencing, or the execution of his sentence
(including determinations concerning parole) under either § 2241 or § 2254.
B.
50
Shortly after the Civil War, there was a statutory habeas scheme much like
the one that exists today, where there were two statutes through which a federal
prisoner could seek relief. The Supreme Court interpreted them as providing
separate routes for relief, however, and held that changes to one did not affect the
other. Based on this precedent, I believe we are bound to treat §§ 2241 and 2254
as independent as well.
Our nation’s first federal habeas statute was enacted in the Judiciary Act of
1789:
[A]ll the before-mentioned courts of the United States, shall have
power to issue writs of . . . habeas corpus . . . . And . . . either of the
justices of the supreme court, as well as judges of the district courts,
shall have power to grant writs of habeas corpus for the purpose of an
inquiry into the cause of commitment.—Provided, That writs of
habeas corpus shall in no case extend to prisoners in gaol, unless
where they are in custody, under or by colour of the authority of the
United States . . . .
Judiciary Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82. The
Supreme Court interpreted this Act as granting federal district and circuit
courts original jurisdiction, and the Supreme Court appellate jurisdiction,
over the habeas petitions of federal prisoners. See Ex parte Yerger, 75 U.S.
at 101, 19 L. Ed. at 337 (“The jurisdiction [in habeas matters] thus given in
law [the Act of 1789] to the Circuit and District Courts is original; that
51
given by the Constitution and the law [the Act of 1789] to this court is
appellate.”).
In 1867, Congress enacted another statute, under which the writ of
habeas corpus was made available to both federal and state prisoners. The
law stated,
[T]he several courts of the United States, and the several justices and
judges of such courts, within their respective jurisdictions, in addition
to the authority already conferred by law, shall have power to grant
writs of habeas corpus in all cases where any person may be
restrained of his or her liberty in violation of the constitution, or of
any treaty or law of the United States . . . . From the final decision [of
any circuit court in a habeas case,] an appeal may be taken . . . to the
Supreme Court of the United States . . . .
Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385, 385. After the enactment of this
statute, there were two different laws with language allowing a federal prisoner to
seek a writ of habeas corpus or appeal a lower court’s denial of a habeas writ to
the Supreme Court—the Act of 1789 and the Act of 1867. As we shall see below,
the Supreme Court interpreted these statutes as being two separate and
independent vehicles for seeking habeas relief, rather than holding that one
narrowed or eliminated the other.
52
In 1868, Congress repealed part of the Act of 1867.13 See Act of Mar. 27,
1868, ch. 34, § 2, 15 Stat. 44, 44 (“And be it further enacted, [t]hat so much of the
act approved February five, eighteen hundred and sixty-seven . . . as authorizes an
appeal from the judgment of the circuit court to the Supreme Court of the United
States . . . is[] hereby repealed.”). If the Act of 1867 had limited or eliminated the
Act of 1789 as a means through which federal prisoners could appeal to the
Supreme Court a circuit court’s refusal to issue the writ, then the repeal of the Act
of 1867 would have left federal prisoners without a way of obtaining Supreme
Court review of adverse federal habeas rulings.14
13
Congress partially repealed the Act of 1867 because it was displeased with the Supreme
Court’s ruling in Ex parte McCardle (McCardle I), 73 U.S. (6 Wall.) 318, 18 L. Ed. 816 (1868).
In McCardle I, the Court had held that it had jurisdiction to entertain an appeal from a federal
circuit court’s denial of a habeas corpus petition for a civilian Southerner being held in military
custody pursuant to the Military Reconstruction Act for disturbing the peace and libel.
[I]t was clear that having assumed jurisdiction in McCardle I, the Supreme Court
would be considering the substantive claims . . . that the whole Military
Reconstruction Act was unconstitutional in that it imposed martial law [in the
South] long after the [Civil] War had ended and at a time when civil law courts
were already functioning. Faced with the prospect of its entire reconstruction plan
being declared unconstitutional, the Radical Republicans controlling Congress
acted quickly to remove [this] threat [by repealing the Act of 1867].
Ira Mickenberg, Abusing the Exceptions and Regulations Clause: Legislative Attempts to Divest
the Supreme Court of Appellate Jurisdiction, 32 Am. U. L. Rev. 497, 526 (1983).
14
As a result of the Act of 1868, state prisoners could continue to seek habeas relief in
federal court, but could no longer appeal a denial of relief to the Supreme Court. See Ex parte
McCardle (McCardle II), 74 U.S. (7 Wall.) 506, 515, 19 L. Ed. 2d 264 (1868) (“The act of 1868
does not except from [the Supreme Court’s] jurisdiction any cases but appeals from Circuit
Courts under the act of 1867.”).
53
In Yerger, the Supreme Court concluded that the Acts of 1789 and 1867
were entirely separate and independent from each other, and that federal prisoners
could seek federal habeas relief or appeal adverse rulings under either. The main
issue in Yerger arose because of Congress’s 1868 repeal of the 1867 Act. The
Court had to determine whether this repeal eliminated all of its appellate
jurisdiction over federal habeas cases or whether the appellate jurisdiction
conferred by the Act of 1789 remained. See Ex parte Yerger, 75 U.S. at 103
(addressing “whether the 2d section of the act of March 27th, 1868, takes away or
affects the appellate jurisdiction of this court under the Constitution and the acts of
Congress prior to 1867.”). The Supreme Court held that the 1868 repeal
“affect[ed] only appeals and appellate jurisdiction authorized by that [1867] act.
They do not purport to touch the appellate jurisdiction conferred by the
Constitution, or to except from it any cases not excepted by the act of 1789. They
reach no act except the act of 1867.” Id. at 105. The Supreme Court further
stressed, “It is true that the exercise of appellate jurisdiction, under the act of 1789,
was less convenient than under the act of 1867, but the provision of a new and
more convenient mode of its exercise does not necessarily take away the old.” Id.
Consequently, the Act of 1867 did not prevent federal prisoners from seeking a
writ of habeas corpus or appealing a denial of habeas corpus to the Supreme Court
54
under the Act of 1789; the Act of 1867 merely provided a separate, alternate route
through which they could seek relief. See id. at 105 (denying that “the act of
1789, so far as it provided for the issuing of writs of habeas corpus by this court,
was already repealed by the act of 1867”). Neither the enactment nor repeal of the
1867 statute affected interpretation of the Act of 1789, or the rights it gave federal
prisoners.
Thus, the Yerger opinion is crucial to this case in two respects. First, when
two habeas statutes each extended the writ of habeas corpus to federal prisoners,
the Supreme Court treated each as an independent vehicle through which relief
could be sought. The Act of 1789 made the writ of habeas corpus available to
federal prisoners. The Act of 1867 made the writ of habeas corpus available to
both federal and state prisoners. Confronted with these two Acts, the Supreme
Court declared,
The appeal given by the act of 1867 extended, indeed, to cases, within
the [Act of 1789]; . . . . But this effect does not take from the act [of
1867] its character of an additional grant of jurisdiction, and make it
operate as a repeal of jurisdiction theretofore allowed [under the Act
of 1789].
Id. at 106 (emphasis added). Applying Yerger to the instant case (in which two
separate statutes address federal habeas relief for state prisoners), we should treat
55
§§ 2241 and 2254 as separate and independent vehicles for obtaining the writ, and
not interpret § 2241 so as to “make it operate as a repeal of jurisdiction theretofore
allowed [under § 2254].” Id.
Second, Yerger shows us that Congress has previously enacted redundant
habeas statutes for certain classes of prisoners. It is indubitable that, between the
enactment of the Act of 1867 and its 1868 repeal, a federal prisoner could appeal a
denial of habeas relief to the Supreme Court under either the Act of 1789 or the
Act of 1867. Thus, we should not be overly concerned about concluding that a
state prisoner may seek relief under either §§ 2241 or 2254; this would not be the
first time Congress made habeas relief available to people under two separate
statutes.
C.
In Section A, I considered the text of §§ 2241 and 2254 as discrete sections.
Even if we adopt a structuralist view, however, and consider them in the context of
the entire statutory habeas scheme, it becomes clear that each is actually a
substantive, independent route through which a state prisoner may seek habeas
relief. Subsection 1 arrives at this result by contrasting these sections with the
language of § 2255, which establishes the “motion to vacate”—the equivalent to
56
habeas corpus relief for federal prisoners. Subsection 2 looks to variations in the
language of § 2244, which establishes conditions on the availability of habeas
relief, noting that while some of them apply to habeas petitions under either
§§ 2241 or 2254, others are tailored exclusively to § 2254, thereby suggesting that
petitions under §§ 2241 and 2254 are not interchangeble or equivalent.
1.
28 U.S.C. § 2255 allows a convicted federal prisoner to move the district
court to vacate his sentence. This statute states, “An application for a writ of
habeas corpus [under §§ 2241] in behalf of a prisoner who is authorized to apply
for relief pursuant to this section [§ 2255] shall not be entertained if it appears that
the applicant has failed to apply for relief, by motion [under § 2255].” I shall refer
to this passage as § 2255's “exclusivity provision.” Due to this exclusivity
provision, a § 2255 motion to vacate is an alternative to § 2241 habeas corpus
relief.
The existence of § 2255’s exclusivity provision demonstrates that Congress
did not believe that the mere creation of a motion to vacate for convicted federal
prisoners would intrinsically preclude such prisoners from seeking habeas relief
under § 2241. Congress felt the need to enact the above-quoted language to
57
preclude federal prisoners from filing habeas petitions under §2241. Since § 2255
needs an exclusivity provision to prevent convicted federal prisoners from seeking
relief under § 2241, it stands to reason that § 2254 would need an exclusivity
provision to prevent convicted state prisoners from seeking relief under § 2241.
“Where Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” United States
v. Granderson, 511 U.S. 39, 63, 114 S. Ct. 1259, 1272, 127 L. Ed. 2d 611 (1994)
(Kennedy, J., concurring) (quoting Gozlon-Peretz v. United States, 498 U.S. 395,
404, 111 S. Ct. 840, 846-47, 112 L. Ed. 2d 919 (1991)); see also Chan v. Korean
Air Lines, Ltd., 490 U.S. 122, 132-33, 109 S. Ct. 1676, 1683, 104 L. Ed. 2d 113
(1989) (“[G]iven the parallel structures of these provisions [of the Warsaw
Convention] it would be a flouting of the text to imply in [one provision] a
sanction not only withheld there but explicitly granted elsewhere.”).
Consequently, the absence of such an exclusivity provision in § 2254 indicates
that § 2241 relief is available to prisoners who also qualify for § 2254 relief.
Indeed, were we to interpret the mere enactment of § 2254 as precluding
state prisoners from seeking § 2241 relief, this same interpretation would
necessarily apply to § 2255, thereby rendering § 2255’s exclusivity provision
58
superfluous and meaningless. However, “[a]n interpretation of statutory language
that causes other language within the statute to be meaningless contravenes the
‘elementary canon of [statutory] construction that a statute should be interpreted
so as not to render one part inoperative.’” In re City of Mobile, 75 F.3d 605, 611
(11th Cir. 1996).
Section 2254 was enacted at the same time and in the same law as § 2255.
It authorizes habeas relief for all state prisoners. Nevertheless, unlike its sister
provision, § 2254 does not contain an express provision preventing state prisoners
from seeking relief under § 2241. We must assume that this variation in language
was deliberate and purposeful. See Johnson v. United States, 225 U.S. 405, 415,
32 S. Ct. 748, 751, 56 L. Ed. 1142 (1912) (“A change of [statutory] language is
some evidence of a change of purpose . . . .”). Congress knew how to restrict
access to § 2241 when it wanted to, and it chose not to do so for state prisoners.
We must respect this choice.
2.
Section 2255 is not the only extrinsic provision in federal habeas corpus law
that suggests that §§ 2241 and 2254 are independent. Section 2244 contains
59
various restrictions on the availability of federal habeas corpus relief. Some of
these provisions are made applicable to “habeas corpus application[s] under
section 2254.” See, e.g., 28 U.S.C. § 2244(b)(1) (setting forth a general rule to
govern “second and successive” habeas petitions under § 2254); id.
§ 2244(b)(2)(B) (addressing the proper way to deal with claims based on newly
discovered evidence of innocence). Other provisions within this section, however,
use broader language; they are applicable in any “habeas corpus proceeding
brought in behalf of a person in custody pursuant to the judgment of a State
court.” See, e.g., id. § 2244(c) (setting forth a “law of the case” doctrine for
habeas cases involving state prisoners); id. § 2244(d) (establishing a one-year
statute of limitations for federal habeas claims by state prisoners).
Section 2254 makes habeas relief available to any “person in custody
pursuant to the judgment of a State court.” Id. § 2254(a). If the majority is
correct, then all convicted state prisoners must bring habeas petitions under
§ 2254. Consequently, there would have been no reason for Congress to use
different language in different provisions of § 2244. That is, there would be no
way to explain why some provisions within § 2244 refer to “habeas corpus
application[s] under section 2254” and others refer to “habeas corpus
60
proceeding[s] brought in behalf of a person in custody pursuant to the judgment of
a State court.”
My theory, however, explains why Congress varied this language. Some of
the restrictions within § 2244 were intended to apply to all habeas petitions
brought by state prisoners, regardless of the statutory provision (§ 2241 or § 2254)
under which they were brought. Other restrictions, however, were expressly
intended to apply only to petitions brought under § 2254. The majority’s
interpretation would nullify this deliberate and purposeful variation in language.
As discussed above, we are bound to give effect to this variation, and assume that
the two phrases—“habeas applications brought under § 2254” and “habeas
proceedings brought by state prisoners”—are not interchangeable. See Smith v.
United States, 508 U.S. 223, 235, 113 S. Ct. 2050, 2057, 124 L. Ed. 2d 138 (1993)
(holding that related statutory provisions should be given different meanings
where Congress “carefully varied the statutory language” used in each);
American Nat’l Red Cross v. S.G., 505 U.S. 247, 263, 112 S. Ct. 2465, 2475, 120
L. Ed. 2d 201 (1992) (applying “the canon of statutory construction requiring a
change in language to be read, if possible, to have some effect”). Put another way,
this variation in terminology strongly suggests that it is possible for a state
61
prisoner to bring a habeas petition under a statute other than § 2254; it suggests
state prisoners may seek relief under § 2241, as well.
D.
Although both plain text and structural analyses of §§ 2241 and 2254
demonstrates that each section establishes a separate route through which
convicted state prisoners may seek federal habeas relief, we can reach this same
conclusion by applying the canons of statutory construction. According to the
doctrine against implied repeals, when interpreting two statutes, we must endeavor
to apply both fully and prevent one from limiting the legal effect of the other. See
Rodriguez v. United States, 480 U.S. 522, 524, 107 S. Ct. 1391, 1392, 94 L. Ed.
2d 533 (1987) (“It is well settled, however, that repeals by implication are not
favored, and will not be found unless an intent to repeal is clear and manifest.”
(internal marks and citations omitted)); Knight v. Georgia, 992 F.2d 1541, 1546
(11th Cir. 1993) (“The canon of statutory construction strongly disfavors findings
of implied repeal, and we decline to draw such an inference in this case.” (internal
citations omitted)).
The language of both §§ 2241 and 2254 is broad enough to allow state
prisoners to seek writs of habeas corpus. Section 2254, however, does not
62
explicitly purport to amend, repeal, limit, or revise § 2241. Consequently, we
should not interpret the elaborate restrictions Congress established for §
2254—particularly those set forth in the 1996 AEDPA amendments—as curtailing
or eliminating a convicted state prisoner’s right to seek relief under § 2241. If
Congress wishes to change the broad language of § 2241, it is free to do so, but
neither the original enactment of, nor subsequent amendments to, § 2254 is
enough to accomplish that task.
E.
Having discussed my own approach to the §§ 2241/2254 issue, I believe it
would be helpful to contrast it with interpretations offered by other circuits.
Section 1 discusses the circuits that, like the majority, conclude that convicted
state prisoners may never bring habeas petitions under § 2241. Section 2
discusses the Tenth Circuit’s ruling that state prisoners may bring certain kinds of
challenges under § 2241, and must bring other challenges under § 2254.
1.
Many circuits have held that convicted state prisoners must bring all habeas
claims under § 2254. For example, the Seventh Circuit ruled that, with regard to
convicted state prisoners, § 2254 “in effect implements the general grant of habeas
63
corpus authority found in § 2241.” Walker v. O’Brien, 216 F.3d 626, 633 (7th
Cir. 2000). It went on to declare without explanation that “[e]ven though § 2254
does not contain exclusivity language . . . as a practical matter the requirements of
§ 2254 must be met by all state prisoners filing petitions for writs of habeas corpus
after conviction.” Id. Consequently, “§ 2254 [is] the exclusive vehicle for
prisoners in custody pursuant to a state court judgment who wish to challenge
anything affecting that custody . . . .” Id. The Seventh Circuit “permits resort to
Section 2241 only when Section 2254 is not available.” McLean v. Smith, 193 F.
Supp. 2d 867, 871 (M.D. N.C. 2002).
As discussed earlier, see supra Section III.C.1, I believe the presence of
exclusivity language in § 2255, but not § 2254, is significant, and disagree with
the Seventh Circuit’s decision to overlook this crucial difference. Moreover, the
Seventh Circuit’s opinion begins by assuming that § 2254 simply “implements” §
2241; this essentially begs the question of whether they exist independently of
each other. Indeed, this assumption is undermined by Congress’s decision to
make certain restrictions applicable to all habeas petitions filed by convicted state
prisoners and others applicable only to habeas petitions brought under § 2254.
See supra Section III.C.2.
64
Other circuits, turning the Seventh Circuit’s reasoning on its head, have
nevertheless reached the same conclusion. In James v. Walsh, the Second Circuit
held that § 2241 was unavailable to convicted state prisoners because
[s]ection 2254(b)(1) requires state prisoners to exhaust all available
state court remedies before filing a Section 2254 petition, whereas
Section 2241 contains no such exhaustion requirement. Had
Congress intended to make Section 2241 available to state prisoners,
it would likely have required, in the interests of comity, that state
prisoners challenging the execution of their state-imposed sentences
first exhaust their remedies in the state courts.
308 F.3d 162, 167 (2d Cir. 2002). The Third Circuit echoed the Second Circuit’s
view, holding:
Allowing [a state prisoner] to file the instant petition in federal court
pursuant to Section 2241 without reliance on Section 2254 would
circumvent [§ 2254’s] restriction[s] . . . and would thereby thwart
Congressional intent. Thus, applying the ‘specific governs the
general’ canon of statutory construction to this action, we hold that
[state prisoners] must rely on Section 2254 in challenging the
execution of [their] sentence[s].
Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001). Like the Second Circuit,
the Third Circuit construes Congress’s erection of additional hurdles for habeas
writs under § 2254 as an implicit bar to applications under § 2241.
These courts point to the differences between § 2241 and § 2254 to
conclude that Congress could not possibly have intended to allow convicted state
65
prisoners to take advantage of § 2241. I believe the fact that different restrictions
apply to each statute suggests that the statutes create different routes through
which habeas relief may be obtained. This is hardly unusual; there are many
occasions in federal law where Congress provides multiple ways of doing the
same thing with differing levels of procedural or substantive difficulty. I am
simply unwilling to make the tremendous leap these courts made. Had Congress
intended § 2254’s restrictions to apply to all habeas applications by convicted state
prisoners, it would not have limited the scope of those restrictions to only
applications filed under § 2254.
The Eighth Circuit also believes that convicted state prisoners are limited to
filing petitions under § 2254. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th
Cir. 2003) (en banc) (“§ 2254 is the only means by which ‘a person in custody
pursuant to the judgment of a State court’ may raise challenges to the validity of
his conviction or sentence or to the execution of his sentence.”), cert. denied, 124
S. Ct. 74, 157 L. Ed. 2d 59 (2003); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir.
2001) (“Not only is § 2254 an appropriate vehicle for Crouch’s proposed claims, it
is, as a practical matter, the only vehicle.”). To support its conclusion, the Eighth
Circuit simply cited the Supreme Court’s ruling in Felker v. Turpin that
“[a]uthority to grant habeas relief to state prisoners is limited by § 2254, which
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specifies the conditions under which such relief may be granted to ‘a person in
custody pursuant to the judgment of a State court.’” Crouch, 251 F.3d at 723,
quoting 518 U.S. 651, 662, 116 S. Ct. 2333, 2339, 135 L. Ed. 2d 827 (1996).
The Eighth Circuit took this quote out of context. Felker involved a habeas
petition to the Supreme Court under § 2254; the Court was not speaking to
whether habeas relief was available through other avenues such as § 2241.
Instead, it was merely pointing out the indisputable fact that § 2254 has many
restrictions by which courts considering § 2254 habeas petitions must abide.
2.
Unlike the courts discussed above, the Tenth Circuit has permitted
convicted state prisoners to bring at least some types of collateral attacks under
§ 2241 rather than § 2254. The Tenth Circuit has held, “Petitions under § 2241
are used to attack the execution of a sentence, in contrast to § 2254 habeas and §
2255 proceedings, which are used to collaterally attack the validity of a conviction
and sentence.” McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811
(10th Cir. 1997) (internal citations omitted). Under this approach, claims that a
court acted unconstitutionally during a prisoner’s trial or sentencing hearing must
be brought under § 2254, while most other claims (including claims concerning
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parole board actions) must be brought under § 2241. A district court within our
jurisdiction, without explanation, came to the same conclusion. See Vargas v.
Sikes, No. 1:98-CV-0651-TWT, 1998 U.S. Dist. LEXIS 22232, at *9 (N.D. Ga.
Feb. 9, 1998) (“Ostensibly an action under 28 U.S.C. § 2254, [petitioner’s habeas
suit] was an action under 28 U.S.C. § 2241 because it challenged the execution of
the petitioner’s sentence and not the conviction or the imposition of the
sentence.”).
The Rules Governing Section 2254 Cases in the United States District
Courts lend support to the Tenth Circuit’s view that § 2254 is limited to attacks on
the judgments or sentences of courts. For instance, Rule 2(d) states, “A petition
shall be limited to the assertion of a claim for relief against the judgment or
judgments of a single state court (sitting in a county or other appropriate political
subdivision).” This provision does not seem to contemplate challenges to adverse
parole determinations. Rule 5 provides that the state’s answer in a § 2254
proceeding “shall indicate what transcripts(of pretrial, trial, sentencing, and post-
conviction proceedings) are available . . . .” While the term “post-conviction
proceedings” is arguably broad enough to embrace parole hearings, when read in
context this provision appears to suggest that the “main thrust” of § 2254 is to
review what happened in court.
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The Form included in the Rules’ appendix also clearly contemplates
challenges to trials or sentences, and not to administrative proceedings such as
parole hearings. For example, the Form asks whether the petitioner has appealed
his conviction, and not whether he has appealed any adverse administrative
actions. The Form specifies the ten “most frequently raised grounds for relief in
habeas corpus proceedings”—all concerning trial-related rights. Moreover, other
than “[d]enial of effective assistance of counsel” and “[d]enial of right of appeal,”
all the grounds specified in the Form expressly attack the underlying conviction
(e.g., “Conviction obtained by use of coerced confession.”).
While intriguing, these facts are less than compelling. Moreover, the
structure of § 2255 strongly suggests that neither § 2241 nor § 2254 are limited in
the types of constitutional claims that may be brought under either. Section 2255
authorizes a federal prisoner to file a motion to vacate his sentence (the equivalent
of a § 2254 habeas petition) only if “the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack . . . .” (emphasis
added). If § 2241 were limited to attacks on the execution of a sentence, or § 2254
were limited to attacks on a trial or sentencing proceeding, we would have
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expected those sections to contain similar limiting language. “Where Congress
includes particular language in one section of a statute but omits it in another . . . it
is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Keene Corp. v. United States, 508 U.S. 200,
208, 113 S. Ct. 2035, 2040, 124 L. Ed. 2d 118 (1993). The Tenth Circuit’s
conclusion also seems inconsistent with Supreme Court cases in which the Court
entertained habeas petitions under § 2254 that involved constitutional challenges
to adverse parole decisions, an area that falls outside the Tenth Circuit’s
conception of the scope of this statute. See, e.g, Spencer v. McKenna, 523 U.S. 1,
118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (rejecting on mootness grounds prisoner’s
challenge to the revocation of his parole, brought under § 2254); Cal. Dep’t of
Corr. v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1600-01, 131 L. Ed. 2d 588
(1995) (rejecting, on the merits, a petition for a writ of habeas corpus under § 2254
alleging that a change in state parole laws violated the Ex Post Facto Clause).
Finally, I am unwilling to pile inference on top of inference and hold that,
because Congress must have intended to limit § 2254 to certain types of habeas
petitions, § 2241 is necessarily limited to petitions falling outside of those
categories. Courts undoubtedly have an obligation to harmonize the various
provisions within a statutory scheme. See United Sav. Ass’n v. Timbers of
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Inwood Forest Assoc., Ltd., 484 U.S. 365, 371, 108 S. Ct. 626, 630, 98 L. Ed. 2d
740 (1988) (“Statutory construction, however, is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme . . . .”); Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana,
472 U.S. 237, 252, 105 S. Ct. 2587, 2596, 86 L. Ed. 2d 168 (1985) (adopting the
“reading of the statute that better harmonizes the two clauses [at issue] with the
structure of the entire Act [at issue]”). Nevertheless, the leaps and bounds
required to arrive at the Tenth Circuit’s admittedly elegant and tempting
conclusion are simply too great.
F.
Thus, in light of the expansive language of § 2241, I reject the proposition
that § 2254 is the exclusive route through which convicted state prisoners may
seek federal habeas relief. My conclusion is not entirely without precedential
support. While this circuit has never directly addressed the issue before Medberry,
we have previously ruled on the merits of at least one challenge to FPC rulings
brought under § 2241, without suggesting that it should have been brought under
§ 2254. See Van Zant v. Fla. Parole Comm’n, 104 F.3d 325 (11th Cir. 1997) (per
curiam).
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Needless to say, this interpretation is not without serious problems. Most
notably, it forces us to reject the otherwise sensible suggestion that there is only
one habeas statute under which a prisoner may bring a particular claim. Moreover,
it allows state prisoners to evade at least some of the statutory requirements for
obtaining habeas petitions under § 2254 by simply filing under § 2241. The
Medberry panel correctly noted,
If § 2254 were not a restriction on § 2241’s authority to grant the writ
of habeas corpus, and were instead a freestanding, alternative
post-conviction remedy, then . . . . Section 2254 would be a great
irrelevancy because a state prisoner could simply opt out of its
operation by choosing a different label for his petition.
351 F.3d at 1060-61.
This necessarily happens, however, whenever Congress creates two routes
to achieving the same goal and one is easier or otherwise more attractive than the
other. While this conclusion may seem undesirable, the fault lies with Congress,
who decided to enact two virtually identical statutory provisions (at least with
regard to convicted state prisoners), yet made certain requirements applicable only
to one of them. It is not up to this court to rewrite federal habeas statutes.
Moreover, as discussed in the next Part, many of the statutory restrictions that
apply to § 2254 are based on common law constraints on habeas corpus that apply
to petitions under § 2241.
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IV.
Section 2254 contains a wide range of requirements and restrictions that do
not directly apply to petitions brought under § 2241. See, e.g., 28 U.S.C. §§
2254(b)(1) (requiring exhaustion of state remedies); 2254(d)(1) (limiting reversals
to cases involving “unreasonable application[s] of, clearly established Federal
law”); 2254(e)(1) (establishing presumption of correctness for factual
determinations by state courts); 2254(e)(2) (establishing stringent requirements for
evidentiary hearings); 2254(i) (barring claims for ineffective assistance of counsel
the petitioner received in state or federal post-conviction proceedings). Section
2241 proceedings, in contrast, are governed by the common law requirements for
habeas petitions. Some of § 2254’s restrictions on habeas relief, however, are
simply codified versions of these common law principles. See Williams v. Taylor,
529 U.S. 362, 380 n.11, 120 S. Ct. 1495, 1506, 146 L. Ed. 2d 389 (2000) (“It is
not unusual for Congress to codify earlier precedent in the habeas context.”).
Among the most fundamental common law requirements of § 2241 is that
petitioners must first exhaust their state court remedies. “The exhaustion doctrine
is a judicially crafted instrument which reflects a careful balance between
important interests of federalism and the need to preserve the writ of habeas
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corpus as a swift and imperative remedy in all cases of illegal restraint or
confinement.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S. Ct.
1123, 1127, 35 L. Ed. 2d 443 (1973) (internal marks and citation omitted). The
Third Circuit, interpreting Braden, held, “[A]n exhaustion requirement has
developed through decisional law, applying principles of federalism. . . .
[A]lthough there is a distinction in the statutory language of §§ 2254 and 2241,
there is no distinction insofar as the exhaustion requirement is concerned.” Moore
v. DeYoung, 515 F.2d 437, 442 (3d Cir. 1975); see also Schandelmeier v.
Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) (“The state court exhaustion
requirement is mandated by statute under 28 U.S.C. § 2254(b) and has developed
through decisional law in applying principles of comity and federalism as to
claims brought under 28 U.S.C. § 2241.”).
I agree with the Third Circuit. In Ex parte Hawk, the Supreme Court held,
Ordinarily an application for habeas corpus by one detained under a
state court judgment of conviction for crime will be entertained by a
federal court only after all state remedies available, including all
appellate remedies in the state courts and in this Court by appeal or
writ of certiorari, have been exhausted.
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321 U.S. 114, 116-17, 64 S. Ct. 448, 450, 88 L. Ed. 572 (1944).15 The Court later
explained that “[t]his exhaustion requirement is also grounded in principles of
comity; in a federal system, the States should have the first opportunity to address
and correct alleged violations of state prisoner’s federal rights.” Coleman v.
Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991).
Thus, convicted state prisoners bringing suit under § 2241 must exhaust their state
court remedies not because of § 2254(b)(1)(A),16 but because this has been long
recognized as an integral part of § 2241 proceedings. See Haig v. Weber County,
468 F. Supp. 887, 889 (D. Ut. 1978) (“When Congress revised the habeas statute
in 1948, its intent was to embody in the statute the judicially developed principle
of exhaustion as expressed in Hawk.”).
The four issues Thomas raised in his federal habeas petition had been
previously raised in both his state mandamus and state habeas petitions. Because
15
The requirement that a state prisoner seek certiorari from the United States Supreme
Court has since been rejected. Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 847, 9 L. Ed. 2d
837 (1963) (“[W]hat we hold today necessarily overrules Darr v. Burford to the extent it may be
thought to have barred a state prisoner from federal habeas relief if he had failed timely to seek
certiorari in this Court from an adverse state decision.”), overruled in part on other grounds by
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2507, 53 L. Ed. 2d 594 (1977) (rejecting
Fay’s conclusion that “federal habeas review [is] generally available to state convicts absent a
knowing and deliberate waiver of the federal constitutional contention [in state court]”).
16
28 U.S.C. § 2254(b)(1)(A) provides, “An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless
it appears that the applicant has exhausted the remedies available in the courts of the State . . . .”
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Thomas failed to appeal the denial of his state mandamus petition, the state habeas
court held that Thomas had not exhausted his state level remedies, and so was
procedurally barred from reasserting many of his claims. Hawk emphasizes that a
prisoner must pursue all “available” state level remedies, which include appellate
review. Of course, Thomas is, by now, undoubtedly time-barred under Florida law
from seeking appellate review of the mandamus ruling, and has already been
procedurally barred from pursuing habeas relief in state court, so in one sense he
has exhausted all of his “available” state remedies.
The Hawk rule, however, cannot be satisfied through such technicalities; the
common law exhaustion requirement clearly contemplates active pursuit of
constitutional claims on the state level before resort to federal habeas proceedings.
While a prisoner is not obligated to seek every conceivable extraordinary writ
available in state court, he must at the very least afford the state “a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts . . . [by] invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845,
119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999). Consequently, Thomas is
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procedurally barred under § 2241's common law exhaustion requirement from
bringing his federal habeas petition.17
It should be noted that Boerckel and Coleman are not directly controlling on
these issues because they interpret the statutory exhaustion requirement for habeas
petitions under § 2254, which do not apply to § 2241 petitions. Nevertheless, their
reasoning and conclusions regarding exhaustion are so persuasive and consistent
with the contours of the common law’s exhaustion requirement that I would
incorporate their doctrines into the evolving common law governing § 2241
habeas petitions.
Thus, while Thomas had the right to have his petition considered under the
standards of § 2241 rather than § 2254, the district court still acted properly in
rejecting it.
17
Under § 2254, a petitioner may overcome a procedural bar by demonstrating “cause
and prejudice” for his failure to exhaust state remedies.
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. Although I believe this doctrine is part of the
common law’s exhaustion requirement, the court below found that Thomas falls outside of this
exception. Thomas, supra at *6 (“No showing of cause or prejudice has been made to excuse
[Thomas’s] default.”).
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