Siggers, In re, 96-8027

• Decision Date: 22 December 1997
• Docket Number: No. 96-8027,96-8027
• Citation: 132 F.3d 333
• Parties: In re: Darrell A. SIGGERS, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 333

132 F.3d 333

In re: Darrell A. SIGGERS, Movant.

No. 96-8027.

United States Court of Appeals Sixth Circuit.

Argued July 28, 1997.

Decided Dec. 22, 1997.

Lawrence J. Phelan (argued and briefed), Haghnel, Phelan & Liquigli, Grand Rapids, MI, for Petitioner.

Kathleen Davison Hunter, Asst. Attorney Gen. (argued and briefed), Office of the Attorney General, Habeas Division, Lansing, MI, for Respondent.

Before: MERRITT, BOGGS, and DAUGHTREY, Circuit Judges.

MERRITT, Circuit Judge.

Petitioner Darrell Siggers asks this Court under 28 U.S.C. § 2244(b), as amended by § 106(b) of the Antiterrorism and Effective Death Penalty Act of 1996, ¹ Pub.L. No. 104-132, 110 Stat. 1214, for an order authorizing the District Court to consider his second application for a writ of habeas corpus. In addition to the question of whether Siggers has satisfied the requirements for pursuing a second or successive petition, a previous panel of this Court directed the parties to brief the question of whether Congress may compel a federal court of appeals to decide if these requirements have been met "not later than 30 days after the filing of the motion," as provided in the new § 2244(b)(3)(D). Because we find that § 2244(b)(3)(D)'s thirty-day restriction is advisory or hortatory rather than mandatory, we hold that it is not invalid as an invasion of the judiciary's autonomy and that it does not violate due process. We also hold that Siggers has failed to satisfy the statutory requirements for filing a second or successive habeas petition. His motion for an order authorizing the District Court to consider his second petition for habeas relief is therefore denied.

Siggers was convicted in the Detroit Recorder's Court of first degree murder with a firearm in 1984. He was sentenced to life imprisonment for murder and received a consecutive term of two years for use of the firearm. He exhausted his state court appeals and filed his first petition for federal habeas corpus relief on April 18, 1989, arguing (1) that the prosecuting attorney knowingly used the false testimony of police officers to convict him, and (2) that his lawyer rendered ineffective assistance by failing to impeach the false testimony and by neglecting to object to the prosecutor's use of the testimony in his closing argument. District Judge Bernard A. Friedman denied the petition on the merits, and this Court affirmed. Siggers v. Withrow, 919 F.2d 141 (table), No. 90-1231 (6th Cir. Nov. 26, 1990), 1990 WL 183928. The Supreme Court denied Siggers's petition for a writ of certiorari.

Nearly six years later, in 1996, Siggers filed his second habeas petition in the District Court, raising eight grounds for relief. Warden Jimmy Stegall defended on the ground that Siggers had failed to meet the requirements of § 106(b)(1) & (2) of the Antiterrorism and Effective Death Penalty Act of 1996 and thus was not entitled to file a second habeas petition in the District Court. Thereafter, Siggers moved this Court for an order authorizing the District Court to consider the claims raised in his second petition, pursuant to § 106(b)(3)(A) of the Act.

As amended by § 106(b) of the Act, 28 U.S.C. § 2244(b) places a number of restrictions on second or successive habeas corpus petitions. It requires state prisoners who have already unsuccessfully petitioned the federal courts for habeas relief to move the appropriate court of appeals for an order authorizing the district court to consider subsequent habeas petitions. 28 U.S.C. § 2244(b)(3)(A). It allows the court of appeals to grant such an order of authority only after a three-judge panel determines that the application meets the requirements of § 2244(b)(1) & (2). Id. § 2244(b)(3)(B) & (C). The provision at issue here, § 2244(b)(3)(D), tells the court of appeals to make such determinations quickly: "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."

Siggers contends that because this thirty-day provision uses the word "shall," failure to rule on a motion for permission to pursue a second or successive petition within the specified time deprives the court of appeals of the power to do so. Quoting from Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936), he contends that the provision impermissibly interferes with the inherent power of the court of appeals "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Id. at 254, 57 S.Ct. at 166. Siggers also argues that the thirty-day limit violates due process by preventing the court of appeals from carefully considering each motion for permission to file a second or successive petition.

In response, Warden Stegall maintains that since § 2244(b)(3)(D) does not specify a consequence for noncompliance with the thirty-day requirement, this Court retains the discretion to grant or deny orders of authority after the thirty-day period expires. Relying on Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), Stegall contends that because the thirty-day provision is not jurisdictional, it does not have the "potential for disruption" and does not present a separation of powers problem. Id. at 443, 97 S.Ct. at 2790. For the same reason, he urges that § 2244(b)(3)(D) does not violate Siggers's right to due process of law.

The law is well established in this and other jurisdictions "that '[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.' " McCarthney v. Busey, 954 F.2d 1147, 1152 (6th Cir.1992) (quoting St. Regis Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir.1985)). Accord Fort Worth Nat'l Corp. v. FSLIC, 469 F.2d 47, 58 (5th Cir.1972) (collecting cases). See also 3 Norman J. Singer, Sutherland on Statutes and Statutory Construction § 57.19 & n.6 (5th ed.1992 rev. & Supp.1997) (collecting cases holding provisions that require decisions by courts, referees, and administrative agencies within specific time frames to be "directory" rather than mandatory). The Supreme Court has recognized this rule without expressly adopting it. See Brock v. Pierce County, 476 U.S. 253, 259-62, 106 S.Ct. 1834, 1838-40, 90 L.Ed.2d 248 (1986) (concluding based on related principles that the failure of the Secretary of Labor to comply with a statutory time limit on agency action did not strip the agency of the power to act); see also French v. Edwards, 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702 (1871) ("Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated.").

It is also well recognized that "Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that, though falling short of legislating its goals, serve as a nudge in the preferred directions." Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981) (quoting Rosado v. Wyman, 397 U.S. 397, 413, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970)). Congress knows the difference between encouraging and mandating specific conduct, and knows how to impose binding obligations on courts when it wishes to do so. See Cabinet for Human Resources v. Northern Kentucky Welfare Rights Ass'n, 954 F.2d 1179, 1184 (6th Cir.1992) (citing Pennhurst, 451 U.S. at 27, 101 S.Ct. at 1544-45).

In the present case, Congress has failed to specify a consequence for noncompliance with the thirty-day time limit imposed by 28 U.S.C. § 2244(b)(3)(D). Due to the press of other judicial work, it will not always be possible to rule within thirty days. Just as Congress, its committees, and its members must have sufficient time to consider legislative business, so also must the courts with respect to judicial business. In light of the absence of any enforcement provision, we hold that failure to comply with the thirty-day provision does not deprive this Court of the power to grant or deny a motion under § 2244(b)(3)(A). Because the provision is hortatory or advisory rather than mandatory, it does not present the constitutional difficulties raised by Siggers.

Siggers next argues that he is entitled to file his second habeas petition in the District Court because he has satisfied the requirements of 28 U.S.C. § 2244(b)(1) & (2), as amended by the Antiterrorism and Effective Death Penalty Act. These provisions bar a petitioner from bringing in a second or successive petition any claim that was presented in a prior application for a writ of habeas corpus, id. § 2244(b)(1), and require the dismissal of claims that were left out of a prior petition 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.

Id. § 2244(b)(2).

Siggers's motion discusses three of the claims he wishes to pursue in a second application for habeas corpus relief. First, he reiterates the argument, raised in his first petition, that his trial lawyer rendered ineffective assistance by failing to object to false testimony. Second, he contends that his lawyer rendered ineffective assistance by giving him erroneous...