Camarano v. Irvin

• Citation: 98 F.3d 44
• Decision Date: 22 October 1996
• Docket Number: Docket No. 96-3502
• Parties: Robert CAMARANO, Petitioner, v. Frank IRVIN, Superintendent, Wende Correctional Facility, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 44

98 F.3d 44

Robert CAMARANO, Petitioner, v. Frank IRVIN, Superintendent, Wende Correctional Facility, Respondent.

Docket No. 96-3502.

United States Court of Appeals, Second Circuit.

Submitted Sept. 24, 1996.

Decided Oct. 22, 1996.

Robert Camarano, Beacon, NY, pro se.

Marc F. Scholl, Assistant District Attorney, New York County, New York City (Robert M. Morgenthau, District Attorney, New York County, of counsel), for Respondent.

Before: LUMBARD, FEINBERG, and WALKER, Circuit Judges.

PER CURIAM:

Petitioner pro se Robert Camarano moved for authorization from this court to file a second or successive petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2244. We address for the first time the question of whether the gatekeeping provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 106, 110 Stat. 1214, 1220-21 (1996) [hereinafter "AEDPA"], require a petitioner

to seek authorization from the court of appeals to file a petition for writ of habeas corpus after a prior petition is dismissed without prejudice for failure to exhaust state remedies. We hold that no such authorization is required.

BACKGROUND

In May 1990, Robert Camarano filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York (Robert B. Patterson, District Judge ) challenging his 1983 New York County conviction on three counts of firearm possession and three counts of attempted sale of a firearm. The petition raised several grounds, including some that had not been exhausted in state court. The district court dismissed the petition for failure to exhaust state remedies without prejudice to refiling. This court affirmed. Camarano v. Irvin, No. 95-2096 (2d Cir. Sept. 27, 1995).

On September 6, 1996, having exhausted available state remedies, Camarano filed this motion for authorization to file a second or successive habeas petition in the district court pursuant to 28 U.S.C. § 2244, as amended by the AEDPA.

DISCUSSION

The AEDPA amended § 2244 to provide, in relevant part, the following:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

In addition, the AEDPA assigns a gatekeeping function to the court of appeals. Specifically, the AEDPA amendments require a petitioner to apply in the first instance to the court of appeals for authorization to file a second or successive application in the district court. 28 U.S.C. § 2244(b)(3)(A). The AEDPA directs the court of appeals to grant this authorization only if the applicant makes a prima facie showing that the application satisfies the requirements for second or successive applications. 28 U.S.C. § 2244(b)(3)(C). The decision to grant or deny authorization is not appealable. 28 U.S.C. § 2244(b)(3)(E).

The Supreme Court, in Felker v. Turpin, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), recently upheld these new gatekeeping provisions which it believed to be within the mainstream of the evolving jurisprudence designed to curb abuse of the writ.

The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice "abuse of the writ." In McCleskey v. Zant, we said that "the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a "suspension" of the writ contrary to Article I, § 9.

Id. at ----, 116 S.Ct. at 2340 (citations omitted).

Although the AEDPA mandates these specific gatekeeping procedures for the adjudication of second or successive applications, it does not define what is meant by a "second Respondent urges us to interpret the language of the AEDPA amendments to bar a habeas petitioner from repeating any claims, even if previously unexhausted. This argument finds some support in the language of § 2244 as amended. Prior to the AEDPA amendments, § 2244 explicitly cabined a district court's power to refuse to entertain a petitioner's claim; a district court could refuse to hear a claim for relief only if it had been presented in a prior habeas petition and adjudicated "on the merits." 28 U.S.C. § 2244(b) (1996). In amending § 2244, Congress omitted this language.

or successive" application. The issue presented by this motion is whether a habeas petition qualifies as a "second or successive" application within the meaning of § 2244, where it is filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies.

Nonetheless, because application of the gatekeeping provisions to deny a resubmitted petition in cases such as this would effectively preclude any federal habeas review and thus, would conflict with the doctrine of writ abuse, as understood both before and after Felker, we reject respondent's proposed interpretation of amended § 2244 absent more direct evidence of Congress's intent. Respondent's proposed interpretation, far from falling "well within the compass" of the evolving doctrine of abuse of the writ, as stated in Felker, would unjustifiably deviate from that evolution. --- U.S. at ----, 116 S.Ct. at 2340.

Prior to the AEDPA amendments, a petition filed after a previously submitted petition was dismissed without prejudice was not considered an abuse of the writ. The abuse of the writ doctrine is rooted in the need for finality and concerns of comity, McCleskey v. Zant, 499 U.S. 467, 491-92, 111 S.Ct. 1454, 1469, 113 L.Ed.2d 517 (1991); however, neither concern is implicated when a petition is filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies. See Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (holding that the doctrine of writ abuse is not...