Crouch v. Norris

• Decision Date: 13 February 2001
• Docket Number: No. 00-2415,00-2415
• Citation: 251 F.3d 720
• Parties: (8th Cir. 2001) JAY CLINT CROUCH, PETITIONER, v. LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; ARKANSAS POST PRISON TRANSFER BOARD; LEROY BROWNLEE, CHAIRMAN. RESPONDENTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 720

251 F.3d 720 (8th Cir. 2001)

JAY CLINT CROUCH, PETITIONER, v. LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; ARKANSAS POST PRISON TRANSFER BOARD; LEROY BROWNLEE, CHAIRMAN. RESPONDENTS.

No. 00-2415

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 13, 2001

Filed: May 17, 2001

On Petition for Permission to file a Successive Habeas Corpus.

Before Loken, Heaney, and Bye, Circuit Judges.

Heaney, Circuit Judge.

Arkansas prisoner Jay Clint Crouch seeks permission to file a second or successive habeas corpus petition, invoking 28 U.S.C. 2244(b)(3)(A), a gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Because we conclude that Crouch's proposed petition is not second or successive within the meaning of 2244, we dismiss Crouch's application.

I. BACKGROUND

Crouch pleaded guilty in Arkansas state court to two counts of first-degree sexual abuse and one count of engaging children in sexually explicit conduct for use in a visual or print medium. In 1998, Crouch tried unsuccessfully to challenge his convictions in a 28 U.S.C. 2254 petition, claiming he had not received effective assistance of counsel, his guilty plea had not been knowing and voluntary, and the prosecution had failed to disclose evidence favorable to him.

In June 2000, Crouch filed in this court an application seeking permission to file a second or successive federal habeas petition. He proposed to raise claims stemming from the state's refusal to grant him parole, specifically that the state had thereby violated his rights under the Fifth and Fourteenth Amendments. Prior to oral argument on this matter, the state moved to dismiss Crouch's application as moot, informing the panel that Crouch had been granted parole on October 28, 2000. Crouch responded that he nevertheless remained incarcerated by the Arkansas Department of Correction, as his post-release supervision plan had not been approved.

II. DISCUSSION

As an initial matter, we take up the state's mootness argument. We believe the state's decision to grant Crouch parole has not mooted his application to file a second or successive habeas application, as he remains incarcerated. Although the change in Crouch's nominal status as an inmate may affect the way he frames the issues he wishes to present in a habeas petition, it does not change the fact that habeas corpus is the appropriate means for him to challenge the execution of his sentence, nor does it affect our disposition of his application for permission under 2254(b)(3)(A).

The relevant portion of AEDPA provides:

(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 . . . 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.

28 U.S.C. 2244(b). As a matter of first impression in this circuit, we must determine as a threshold question whether Crouch's proposed petition is subject to 2244's restrictions on second or successive applications.

Crouch contends that his proposed petition is not subject to AEDPA's restrictions on second or successive applications because he seeks to challenge the execution of his sentence and not the underlying conviction. According to Crouch, his proposed petition is properly classified as a habeas action under 28 U.S.C. 2241, which the Act does not specifically reference. We disagree.

Even if a federal prisoner's 2241 challenge to the execution of his sentence does not constitute a "second or successive" petition under 2244(b), see Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000); Valona v. United States, 138 F.3d 693, 694-95 (7th Cir.1998), it does not necessarily follow that a similar challenge by a state prisoner like Crouch escapes the restrictions of 2244(b).

In Walker v. O'Brien, 216 F.3d 626, 632-33 (7th Cir.), cert. denied, ___U.S.___, 121 S. Ct. 606 (2000), the Seventh Circuit explained that the statutory language of 2255, which focuses on the federal prisoner's original judgment and sentence, "had led courts to find that challenges brought by federal prisoners that implicate the fact or duration of confinement but do not stem from the original conviction or sentence can be brought only under 28 U.S.C. 2241." By contrast, the language of 2254 is broader, referring to applications by "person[s] in custody pursuant to the judgment of a State court . . . 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). As the Seventh Circuit noted, "[t]he focus is on the fact of custody, not necessarily on flaws in the underlying judgment or sentence that brought the person there." Walker, 216 F.3d at 633.

Not only is 2254 an appropriate vehicle for Crouch's proposed claims, it is, as a practical matter, the only vehicle. This is because Crouch is a "person in custody pursuant to the judgment of a State court," 28 U.S.C. 2254(a), and can only obtain habeas relief through 2254, no matter how his pleadings are styled. See Felker v. Turpin, 518 U.S. 651, 662 (1996) ("[A]uthority to grant habeas relief to state prisoners is limited by 2254, which specifies the conditions under which such relief may be granted to 'a person in custody pursuant to the judgment of a State court.'"); Walker, 216 F.3d at 633 ("Felker leads to the conclusion that when a prisoner begins in the district court [as opposed to original actions begun in the Supreme Court], 2254 and all associated statutory requirements apply no matter what statutory label the prisoner has given the case.").

That Crouch's proposed petition is subject to 2244(b)'s limitations is, however, not dispositive. Although Crouch's proposed petition neither relies on a new rule of constitutional law nor identifies newly-discovered facts that establish his innocence of the underlying sex offenses, Crouch may nevertheless be free to file his proposed petition in the district court if it is not "second or successive." AEDPA fails to define what constitutes a "second or successive" application. Courts considering the construction of 2244(b) have uniformly rejected a literal reading. See United States v. Barrett, 178 F.3d 34, 43-44 (1st Cir. 1999) (collecting cases), cert. denied, 528 U.S. 1176 (2000). Instead, it is generally acknowledged that the interpretation of "second or successive" involves the application of pre-AEDPA abuse-of-the-writ principles. Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (looking to pre- AEDPA law to determine that 2244(b) did not bar petitioner's request to reopen habeas claim raised in prior petition but dismissed by district court as premature); Muniz v. United States, 236 F.3d 122, 127 (2d Cir. 2001) ("We therefore answer the question of whether a petition is 'second or successive' with reference to the equitable principles underlying the 'abuse of the writ' doctrine."); United States v. Barrett, 178 F.3d 34, 44 (1st Cir.1999) ("The core of AEDPA restrictions on second or successive 2255 petitions is related to the longstanding judicial and statutory restrictions embodied in the form of res judicata known as the 'abuse of the writ' doctrine."), cert. denied, 528 U.S. 1176 (2000); In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) ("[A] later petition is successive when it: (1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ."); Reeves v. Little, 120 F.3d 1136, 1139-40 (10th Cir. 1997) (applying pre-AEDPA abuse-of-writ standard to determine whether subsequent 28 U.S.C. 2254 petition was "second or successive" under AEDPA); Pratt v. United States, 129 F.3d 54, 59-60 (1st Cir. 1997) (habeas motion ruled "second or successive" where petitioner's claims of ineffective assistance at trial could and should have been raised in prior petition and thus constituted abuse of writ under pre-AEDPA law).

We conclude that Crouch's proposed challenge to the execution of his sentence should not be deemed "second or successive" merely because he has previously filed a 2254 challenge to the constitutionality of his convictions. This conclusion comports with pre-AEDPA abuse-of-the-writ principles, with the policies underlying AEDPA, and with the principles articulated in recent Supreme Court decisions involving AEDPA.

Crouch's proposed petition is not abusive because he could not have raised his parole-related claims in his first habeas petition. His first parole denial is dated November 23, 1998, some ten months after he filed his 2254 petition. Cf. Washington v. Delo, 51 F.3d 756, 760 (8th Cir. 1995) (new claims raised in subsequent habeas petition not abusive where factual basis of claim was reasonably unavailable to petitioner at time of first petition.)

Nor does Crouch's proposed petition offend the policy concerns that prompted the passage of the Act. The scant legislative history discussing the purpose of AEDPA's habeas restrictions indicates that Congress was concerned with delay and finality. Cain, 137 F.3d at 235 ( 2244 "was enacted primarily to preclude prisoners from repeatedly attacking the validity of their convictions and sentences"); Note, The Avoidance...