Libby v. Magnusson

• Decision Date: 06 May 1999
• Docket Number: No. 98-1067,98-1067
• Citation: Libby v. Magnusson, 177 F.3d 43 (1st Cir. 1999)
• Parties: Jeffrey L. LIBBY, Petitioner, Appellant, v. Martin MAGNUSSON, Commissioner, Maine Dep't of Corrections, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 43

177 F.3d 43

Jeffrey L. LIBBY, Petitioner, Appellant, v.Martin MAGNUSSON, Commissioner, Maine Dep't of CorrectionsRespondent, Appellee.

No. 98-1067.

United States Court of Appeals First Circuit.

Heard May 6, 1999.

Decided May 24, 1999.

Schuyler G. Steele for appellant.

Charles K. Leadbetter, Assistant Attorney General, State of Maine, with whom Andrew Ketterer, Attorney General, and Nancy Torresen, Assistant Attorney General, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and POLLAK, ^*Senior District Judge.

SELYA, Circuit Judge.

Over a decade ago, a Maine jury found petitioner-appellantJeffrey L. Libby guilty of murdering his grandfather, and a state trial judge sentenced him to serve sixty years in prison.Since then, Libby has attempted on several occasions to mount collateral attacks on his conviction.The latest in this series of attempts took place against the backdrop of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,110 Stat. 1214(Apr. 24, 1996)(codified in scattered sections of 28 U.S.C.), and gave rise to the instant appeal.We retrace the pertinent portions of the case's chronology.

The petitioner filed his first federal habeas petition on December 8, 1993.See28 U.S.C. § 2254(pre-AEDPA version).The district court dismissed it, and the petitioner did not appeal.He filed another pre-AEDPAsection 2254 petition on October 11, 1995.This petition addressed only Eighth Amendment issues anent the conditions of his confinement.It, too, was dismissed.The petitioner subsequently filed the underlying habeas corpus application--his third petition under 28 U.S.C. § 2254, but only the second such petition that attacked his conviction--on October 27, 1997(some 18 months after Congress enacted the AEDPA).The district court, acting upon the recommendation of a magistrate judge, dismissed this petition on two grounds: first, that it was untimely under the AEDPA; and second, that it did not meet the requirements for consideration of a second or successive habeas petition.This appeal followed.

I

The AEDPA provides that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."28 U.S.C. § 2244(b)(3)(A).Under this paradigm, a second or successive habeas petition is not a matter of right--and the gatekeeping function belongs to the court of appeals, not to the district court.SeeFelker v. Turpin, 518 U.S. 651, 661, 116 S.Ct. 2333, 135 L.Ed.2d 827(1996);Pratt v. United States, 129 F.3d 54, 57(1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1807, 140 L.Ed.2d 945(1998).Thus, if the AEDPA applied to Libby's 1997 offering, he was required to ask this court for prior authorization to proceed in the district court.He did not do so.Instead, he took the position that the AEDPA did not apply at all, and filed his 1997 petition directly in the district court.

The district court accepted jurisdiction to review Libby's petition on this basis, but determined that the AEDPA did apply and that, under it, Libby's petition was time-barred.Technically, the district court, after determining that the AEDPA applied, might have dismissed the petition for want of an authorizing order, or, alternatively, transferred the matter to this court.When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.SeeGraham v. Johnson, 168 F.3d 762, 772(5th Cir.1999);Lopez v. Douglas, 141 F.3d 974, 975-76(10th Cir.)(per curiam), cert. denied, --- U.S. ----, 119 S.Ct. 556, 142 L.Ed.2d 462(1998);Hill v. Hopper, 112 F.3d 1088, 1089(11th Cir.)(per curiam), cert. denied, 520 U.S. 1203, 117 S.Ct. 1571, 137 L.Ed.2d 714(1997).Here, however, no useful purpose would be served by forcing the petitioner to retreat to square one and wend his way anew through the jurisdictional maze.We have the power, in the exercise of our informed discretion, to treat this appeal as if it were, in whole or in part, a motion for authority to proceed under section 2244(b)(3)(A), seeLopez, 141 F.3d at 976;Pratt, 129 F.3d at 58, and we will do so.

II

We turn now to the threshold question of whether the AEDPA applies to the underlying habeas application.To support his contention that it does not, the petitioner offers the by-now-familiar argument that the AEDPA, as a general matter, has an impermissible retroactive effect.Just eight days after the magistrate judge filed his report and recommendation in this case, we directly confronted--and squarely rebuffed--this very proposition in much the same context as here presented.SeePratt, 129 F.3d at 58(holding that the AEDPA applies to a second habeas petition filed after the new law's effective date, even though the petitioner had filed his first petition before that date).¹Other courts of appeals have joined us in so holding.SeeVancleave v. Norris, 150 F.3d 926, 927(8th Cir.1998);In re Davenport, 147 F.3d 605, 608(7th Cir.1998).Because the petitioner's arguments, for the most part, are not qualitatively different from those that we found wanting in Pratt, we reject them out of hand.We add only a decurtate comment, necessitated by the fact that here, unlike in Pratt, the petitioner musters an ex post facto challenge.

History teaches that the Ex Post Facto Clauses, U.S. Const. art. 1, § 9, cl. 3, and art. 1, § 10, cl. 1, should be construed narrowly.SeeCollins v. Youngblood, 497 U.S. 37, 41-52, 110 S.Ct. 2715, 111 L.Ed.2d 30(1990).Thus, an ex post facto law is one that punishes, as a crime, an act which was innocent when committed; or which, after a crime has been perpetrated, changes the punishment and renders it more onerous; or which strips away a defense that was available at the time when the defendant committed the crime.SeeLynce v. Mathis, 519 U.S. 433, 440-41, 117 S.Ct. 891, 137 L.Ed.2d 63(1997);California Dep't of Corrections v. Morales, 514 U.S. 499, 504-06 & n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588(1995);Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216(1925);Hamm v. Latessa, 72 F.3d 947, 956-57(1st Cir.1995).

The AEDPA's standards governing the filing of second or successive habeas petitions do not, retrospectively or otherwise, criminalize past actions that were considered innocent when performed by one in the petitioner's situation, render such an individual's punishment more oppressive, or deprive him of any previously available legal defense.To the contrary, these provisions simply limit the circumstances under which the petitioner(or one similarly situated) may collaterally attack his conviction.It is, therefore, pellucid that application of the AEDPA's requirements to the instant petition cannot work an ex post facto violation.AccordHatch v. Oklahoma, 92 F.3d 1012, 1014(10th Cir.1996)(concluding that the AEDPA's provisions addressing second or successive petitions do not infract the Ex Post Facto Clause contained in art. 1, § 9).

III

Having determined that the AEDPA controls in this case, we treat what remains of the appeal as a motion for leave to proceed with the prosecution of a second or successive habeas petition.From that coign of vantage, we consider whether Libby satisfies the strictures that the AEDPA imposes.

The respondent, Maine's Commissioner of Corrections, maintains that authorization to proceed should be refused because the proposed petition is out of time.As framed, this thesis posits that the limitation period for filing a habeas petition under the AEDPA is one year, see28 U.S.C. § 2244(d); that where, as here, this period expired prior to AEDPA's effective date, potential applicants have a one-year "grace period" within which to file; that Libby, whose conviction became final sometime in 1988, had only one year after April 24, 1996, within which to seek authorization to proceed with a neoteric habeas petition; and that, because he filed nothing until October 27, 1997, he should not be allowed to go forward.The lower court adopted this rationale and dismissed the petition.

We agree that section 2244(d) imposes a general one-year limitation period for filing habeas petitions, and--although this court has not yet spoken directly to the point--that federal courts generally have recognized a one-year grace period following the AEDPA's enactment in order to allay retroactivity concerns associated with certain habeas applications arising out of preexisting convictions.See, e.g., Nichols v. Bowersox, 172 F.3d 1068, ----(8th Cir.1999)(en banc);Wilcox v. Florida Dep't of Corrections, 158 F.3d 1209, 1211(11th Cir.1998);see alsoFlanagan v. Johnson, 154 F.3d 196, 199-200(5th Cir.1998)(collecting cases).But this limitation period works differently in respect to second or successive petitions, and the respondent's thesis mis-identifies the correct triggering date for such petitions.That bevue, in turn, defeats the respondent's contention that the instant petition was barred automatically one year after the AEDPA became law.We explain briefly.

Section 2244(d) provides four different end points for measuring the AEDPA's one-year limitation period.The first is "the date on which the judgment [in the underlying criminal case] became final by the conclusion of direct review or the expiration of the time for seeking such review."28 U.S.C. § 2244(d)(1)(A).Because strict application of this one-year rule would have extinguished the rights of many state prisoners to file even their first habeas petitions, federal courts generally have construed the statute, with respect to persons in state custody whose convictions had become final more than one year before AEDPA's date of enactment, to mean that the one-year limitation...