In re Rosado
| Decision Date | 02 August 2021 |
| Docket Number | No. 18-3747,18-3747 |
| Citation | 7 F.4th 152 |
| Parties | IN RE: Felix ROSADO, Petitioner |
| Court | U.S. Court of Appeals — Third Circuit |
Bret Grote [ARGUED], Abolitionist Law Center, P.O. Box 8654, Pittsburgh, PA 15221, Carole L. McHugh, 410 Old York Road, Jenkintown, PA 19046, Counsel for Petitioner
Kenneth W. Kelecic [ARGUED], Matthew A. Thren, Berks County District Attorney's Office, 633 Court Street, 5th Floor Services Center, Reading, PA 19601, Counsel for Respondent
Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges
Congress made second or successive habeas petitions hard to maintain. To keep district courts from being flooded with them, AEDPA sets up a gate. And it makes courts of appeals the gatekeepers.
Felix Rosado asks us to lift the gate for him. In 1996, he was sentenced to mandatory life without parole for murder. He now argues his sentence is barred by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). But he waited more than six years after Miller to bring his challenge, well past AEDPA's one-year deadline for asserting newly recognized rights. Plus, Miller is limited to prisoners who were under eighteen when they committed their crime, yet Rosado was almost eighteen and a half. So his claim does not rely on Miller ’s new rule. We may deny leave based on the first flaw and we must deny it based on the second. Thus, we will not grant Rosado leave to file a second habeas petition.
In 1995, Rosado shot and killed Hiep Nguyen. Rosado was almost eighteen and a half. Seven months later, he pleaded guilty in Pennsylvania state court to first-degree murder and was sentenced to mandatory life without parole. Over the next two decades, he collaterally attacked his conviction in state and federal court, claiming ineffective assistance of counsel. But those attacks failed.
After Rosado filed his first round of habeas petitions, the Supreme Court decided Miller . It held that the Eighth Amendment bars mandatory life-without-parole sentences for criminals who were under eighteen when they committed their crimes. 567 U.S. at 465, 132 S.Ct. 2455. Four years later, the Court held that Miller ’s rule applies retroactively, enabling those already sentenced as juveniles to challenge their convictions. Montgomery v. Louisiana , 577 U.S. 190, 206, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).
Two months after Montgomery , Rosado brought another state habeas (technically, PCRA) petition. In it, he argued that Miller ’s rule applies to his case. The state courts dismissed his petition as time-barred and then affirmed that dismissal.
So Rosado now returns to federal court. In 2018, he asked for permission to file a second federal habeas petition under 28 U.S.C. § 2254. Though AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996) normally bars second or successive petitions, there are two narrow exceptions. Rosado claims that he falls within one of them because, he says, he relies on Miller ’s new, retroactive rule. § 2244(b)(2)(A).
Before letting a prisoner file a second or successive habeas petition in district court, the court of appeals must verify that the petition falls within one of those exceptions to AEDPA's bar. § 2244(b)(3)(C). And in the years after Miller , many prisoners who had committed crimes as young adults and are serving mandatory life sentences have sought our leave to file new habeas petitions based on Miller . Before we allow that, we must decide whether these claims do indeed rely on Miller . Plus, many of these inmates brought their requests long after Miller . If we let them go forward, district courts will likely dismiss many of them as untimely. But we have never decided whether we may consider timeliness as part of our gatekeeping review. Both issues are litigated often and likely to recur, so we now give guidance on both.
Rosado faces at least two hurdles. To get leave to file, he must make a prima facie showing that he relies on Miller . But if he gets to the District Court, he will also face a time bar. Applicants like Rosado who rely on new constitutional rules have one year to file after the Supreme Court's decision. § 2244(d)(1)(C). The state says that we can deny leave to file on this basis; Rosado disagrees.
The state is right. The statute gives us power to deny leave on any basis, including untimeliness. But our holding is narrow: We should deny leave based on timeliness only if the untimeliness is clear. The parties must be on notice and have a chance to respond. And there must be no unresolved factual issue or potential dispute over tolling. Rarely will all those conditions hold.
This is that rare case. If we gave Rosado leave to file, his application would be years late and ineligible for tolling. We may deny leave on that ground.
1. Our gatekeeping role . AEDPA curtails a prisoner's ability to file a second or successive habeas petition. Before he can even file in district court, he must get the court of appeals’ permission. § 2244(b)(3)(A). We are AEDPA's gatekeepers. And before we open the gate, we must check that the prisoner has prima facie shown two things under § 2244(b). First, the claims must differ from any he brought before. § 2244(b)(1), (3)(C). And second, the claims must either rest on newly discovered facts or "rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." § 2244(b)(2)(A).
After we make this prima facie finding, the District Court must check that each claim meets all the requirements of § 2244. § 2244(b)(4). So it must verify that each satisfies § 2244(b). It must also apply § 2244(d) ’s one-year time bar. Only then may it reach the merits.
Our sister circuits are split on the scope of our gatekeeping review. Three circuits limit that review to the § 2244(b) requirements. In re McDonald , 514 F.3d 539, 543–44 (6th Cir. 2008) ; Henry v. Spearman , 899 F.3d 703, 710 (9th Cir. 2018) (); Ochoa v. Sirmons , 485 F.3d 538, 542–44 (10th Cir. 2007). Five others sometimes consider § 2244(d) ’s timeliness requirement. In re Vassell , 751 F.3d 267, 271 (4th Cir. 2014) ; In re Campbell , 750 F.3d 523, 533–34 (5th Cir. 2014) ; Johnson v. Robert , 431 F.3d 992, 992–93 (7th Cir. 2005) (per curiam); In re Hill , 437 F.3d 1080, 1083 (11th Cir. 2006) (per curiam); In re Williams , 759 F.3d 66, 68–69 (D.C. Cir. 2014).
2. The statutory text gives us discretion. The latter approach squares with AEDPA's wording. We "may authorize the filing of a second or successive application," but "only if " the petitioner shows prima facie that § 2244(b) is "satisfie[d]." § 2244(b)(3)(C) (emphases added). Thus, meeting the requirements of § 2244(b) is "necessary" but not "sufficient." Vassell , 751 F.3d at 271 (emphases omitted). "May" leaves us discretion to deny leave for other reasons, like timeliness. If an application is obviously late, we need not ignore this glaring flaw.
To be sure, the statute tells district courts to apply the requirements of "this section," § 2244, including the time bar, while it tells courts of appeals to apply "this subsection," § 2244(b). Compare § 2244(b)(4), with § 2244(b)(3)(C). Rosado stresses the distinction between these phrases. Yet AEDPA contains no language barring our review either. So all that means is that we do not have to consider timeliness. We need not, but we can. The statute itself does not limit our discretion to deny leave.
3. We will consider timeliness only rarely. Though we can consider timeliness, often we should not. Because we should decide whether to grant leave to file within thirty days, we do not have time to resolve complex timing questions. § 2244(b)(3)(D) ; cf.
In re Hoffner , 870 F.3d 301, 307 n.11 (3d Cir. 2017) ().
We look by analogy to the rules governing first habeas petitions. Both district and appellate courts may, but need not, consider timeliness sua sponte. Day v. McDonough , 547 U.S. 198, 209, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ; Wood v. Milyard , 566 U.S. 463, 473, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012). But before doing so, the parties must have "fair notice and an opportunity to present their positions." Day , 547 U.S. at 210, 126 S.Ct. 1675. And usually, appellate courts should not consider issues that were not developed below. Only in "exceptional cases" should they raise timeliness themselves. Wood , 566 U.S. at 473, 132 S.Ct. 1826.
So too here. The parties must have notice and an opportunity to respond. See Vassell , 751 F.3d at 271. Plus, statutory or equitable tolling may save a petition. Tolling decisions are often hard and fact bound, best left to district courts in the first instance. See Campbell , 750 F.3d at 533–34 ; In re Jackson , 826 F.3d 1343, 1348–49 (11th Cir. 2016). We should not deny leave on timeliness unless there is no basis for further factual development and there is no potential basis for tolling.
These conditions will be satisfied only rarely. Jackson , 826 F.3d at 1350. Typically, we decide based only on the prisoner's initial filing. Often, the state does not respond. And usually, we lack the state-court record, which we need to gauge tolling. See id. at 1349 (citing Jordan v. Sec'y, Dep't of Corr. , 485 F.3d 1351, 1357–58 (11th Cir. 2007) ).
But sometimes, the state responds and raises the defense. The prisoner then asserts his position. Sometimes, the facts are clear, uncontested, and offer no grounds for tolling. The decision might be as simple as comparing the date of the motion and the date when the Supreme Court announced the new rule it seeks to apply. Moore v. United States , 871 F.3d 72, 84 (1st Cir. 2017). If so, there is no reason to let a doomed petition proceed. That is the case here.
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