Rodriguez v. Superintendent, Bay State Correctional Center, 97-8068

• Decision Date: 03 February 1998
• Docket Number: No. 97-8068,97-8068
• Citation: 139 F.3d 270
• Parties: Hector Santiago RODRIGUEZ, Putative Petitioner, v. SUPERINTENDENT, BAY STATE CORRECTIONAL CENTER, Putative Respondent. Misc. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 270

139 F.3d 270

Hector Santiago RODRIGUEZ, Putative Petitioner, v. SUPERINTENDENT, BAY STATE CORRECTIONAL CENTER, Putative Respondent.

Misc. No. 97-8068.

United States Court of Appeals First Circuit.

Heard Feb. 3, 1998.

Decided March 23, 1998.

James F. McNiff, II, York, ME, for putative petitioner.

Gregory I. Massing, Assistant Attorney General, with whom Scott Harshbarger, Attorney General, Boston, MA, was on brief, for putative respondent.

Before TORRUELLA, Chief Judge, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This proceeding involves questions of novel impression. It finds its genesis in an application by Hector Santiago Rodriguez for permission to file a third habeas corpus petition seeking relief from his conviction, nearly three decades ago, for first-degree murder. Because the putative petitioner (who, for simplicity's sake, we shall refer to as "petitioner," without any qualifying adjective) fails to satisfy the statutory prerequisites for filing a successive petition, we deny his application.

I. BACKGROUND

On November 30, 1971, a Massachusetts jury convicted Rodriguez ¹ of the first-degree murder of William Alonzo Johnson. The trial judge sentenced him to life imprisonment and the Massachusetts Supreme Judicial Court (SJC) affirmed his conviction. See Commonwealth v. Rodriquez, 364 Mass. 87, 300 N.E.2d 192 (1973).

In addition to filing various post-conviction motions in the state courts, Rodriguez also filed two unsuccessful habeas petitions in the federal courts. The first, circa 1977, challenged the constitutionality of the trial judge's comments to the jury during deliberations. The second, filed in 1984, asserted that the trial judge's end-of-case jury instructions unconstitutionally relieved the prosecution of its burden to prove beyond a reasonable doubt that Rodriguez had not acted in self-defense.

In 1995, Rodriguez filed another motion for new trial in the Massachusetts courts. This motion took renewed aim at the constitutionality of the jury instructions, this time targeting the trial judge's use of "moral certainty" language in his reasonable doubt instructions. Relying on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), Rodriguez argued that the targeted language abridged his right to due process by permitting the jury to convict him even if the prosecution had not proved its case beyond a reasonable doubt. The state superior court denied Rodriguez's motion and, on November 18, 1996, the SJC refused further appellate review.

During the pendency of these state court proceedings, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). While AEDPA preserves a state prisoner's right to seek federal habeas review of an unconstitutionally obtained conviction, it prohibits a district court from entertaining second or successive habeas petitions without pre-clearance by the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3) (Supp.1996). Thus, on October 3, 1997, Rodriguez approached this court and requested authorization to pursue a third habeas petition in the federal district court. The featured claim echoes that pressed before the Massachusetts courts: Rodriguez contends that Cage's condemnation of some moral certainty instructions as violative of due process, 498 U.S. at 41, 111 S.Ct. at 329-30, is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). Realizing that resolution of Rodriguez's application requires this court to interpret certain of AEDPA's provisions for the first time, we requested additional briefing and entertained oral argument.

II. ANALYSIS

Because Rodriguez filed his application for leave to prosecute a third habeas petition long after AEDPA's effective date, AEDPA governs here. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). The statute contains a gatekeeping mechanism that screens second or successive habeas petitions before they reach the district court. See Felker v. Turpin, 518 U.S. 651, ----, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996). This mechanism closes the doors of the district court to a prisoner who wishes to file a second or successive petition unless and until he obtains advance clearance from the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3). AEDPA instructs that a potential repeat petitioner must make a "prima facie showing," 28 U.S.C. § 2244(b)(3)(C), to this court either that his "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," id. § 2244(b)(2)(A), or that his claim rests on material, newly discovered facts, see id. § 2244(b)(2)(B). Absent such a showing, Rodriguez cannot prosecute his third habeas petition.

A. The 30-Day Limit.

Before turning to the merits, we iron out a wrinkle created by the AEDPA amendments to habeas corpus procedure. In pertinent part, those amendments direct that the "court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion." 28 U.S.C. § 2244(b)(3)(D). Rodriguez filed his application on October 3, 1997, and thus section 2244(b)(3)(D) directs us to rule no later than November 2, 1997. Because we obviously have missed that deadline, we must evaluate the effect, if any, of this failure on Rodriguez's aspirations.

The Sixth Circuit recently pondered this issue and held that section 2244(b)(3)(D) "is hortatory or advisory rather than mandatory." In re Siggers, 132 F.3d 333, 336 (6th Cir.1997). We agree. Before operating as a mandate, a statutory time limitation addressed to a public official generally must contain both an express command that the official act within a given temporal period and a consequence attached to noncompliance. See id.; see also St. Regis Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir.1985); Usery v. Whitin Mach. Works, Inc., 554 F.2d 498, 501 (1st Cir.1977). Although section 2244(b)(3)(D) invokes the vocabulary of obligation--it states that a court of appeals "shall" grant or deny a request to file a second or successive petition within 30 days--it specifies no consequence for the court's failure to honor this obligation. Moreover, there is nothing in the nature of the power to which the temporal limitation appertains, or in the manner of its conferment, that would justify an inference that Congress intended the specified period of time to operate as a limitation on judicial authority. Hence, we construe the statute as precatory, not mandatory. While section 2244(b)(3)(D) directs the courts of appeals to work within a specified time frame--a charge consonant with AEDPA's broader attempts to streamline the habeas process--it operates as a guideline, not as an imperative.

Let us be perfectly clear. When presented with an application for leave to file a second or successive petition, we will, of course, make a diligent, good-faith effort to comply with the 30-day time limit. We anticipate little difficulty doing so in the ordinary mine-run of cases. Yet, certain applications will present issues that are sufficiently complex or novel to demand more time. In some instances, additional documents must be gathered; in others, supplemental briefing and/or oral argument will be desirable. If circumstances counsel against issuing a ruling within 30 days, we must retain the flexibility to bring the appropriate quantum of attention to bear. See In re Siggers, 132 F.3d at 336 (noting that interpreting section 2244(b)(3)(D) as advisory alleviates separation of powers and due process concerns); see also Galtieri v. United States, 128 F.3d 33, 36-37 (2d Cir.1997).

This is an exceptional case. AEDPA's successive petition provisions are relatively new and Rodriguez's application raises important questions about them. It was thus impracticable to comply with AEDPA's 30-day time limit. Notwithstanding this necessary delay, we retain jurisdiction to rule on Rodriguez's application.

B. The Merits.

AEDPA does not amplify the standard by which a court of appeals is to gauge the "prima facie showing," 28 U.S.C. § 2244(b)(3)(C), that a prospective repeat petitioner must make. The Seventh Circuit recently articulated its understanding of this requirement:

By "prima facie showing" we understand [it to be] simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.... If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition, we shall grant the application.

Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.1997); see also Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997). We adopt this interpretation, but emphasize that despite its superficially lenient language, the standard erects a high hurdle. This is as it should be: in formulating the AEDPA amendments, Congress intended "to curb the abuse of the statutory writ of habeas corpus," H.R. Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 944, and, accordingly, heightened the already formidable barriers to second or successive habeas petitions.

We next size the petitioner's case against this template. In the post-AEDPA era, a state prisoner who seeks pre-clearance for filing a second or successive petition has two avenues open to him. Because Rodriguez does not press any fact-based claim, we focus on section 2244(b)(2)(A) to the exclusion of section 2244(b)(2)(B).

At Rodriguez's trial in 1971, the jury instructions on reasonable doubt included several statements that likened proof beyond a reasonable doubt to proof to a moral certainty. In Cage, the Supreme Court...