13-d-4 Successive Petitions[313]

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

13-D-4. Successive Petitions[313]

It is difficult to file more than one federal habeas corpus petition. It is important to file your habeas petition properly and completely the first time. You may not raise a habeas claim a second time after it has been adjudicated (decided by a judge) on the merits.³¹⁴ There are a few instances when you may bring new claims in a second habeas petition, but these instances are very limited. It is difficult to show the court that your claim falls into one of the exceptions where petitioners are allowed to file a second petition.

If your first petition was insufficient for one of a few reasons, the courts will allow you to file a new petition without considering the new petition successive. The following are the situations for which the courts will not consider your second petition successive:

(1) If you failed to exhaust your state remedies, and your first petition is dismissed to allow you to exhaust your state remedies, your second petition, once all the claims are exhausted, is not considered successive.³¹⁵

(2) If your first petition is rejected for failure to pay the filing fee or for mistakes in form, the second, corrected petition is not considered successive.³¹⁶

(3) If the first petition you filed was mislabeled as a Section 2255 petition, but actually was a Section 2241 petition that challenged the execution instead of the validity of the sentence, the court will not bar (dismiss) your second petition for being successive.³¹⁷

(4) If your second petition challenges parts of the judgment that came about as the result of an earlier, successful petition, the court will not bar that second petition.³¹⁸ In this case, you must obtain authorization to file a second petition.³¹⁹

In some cases, even if the court deems a second petition to be successive, it may still allow you to proceed with your submission. However, exceptions to the general prohibition on successive petitions are rare and difficult to meet. The court will only consider a successive petition in extraordinary situations where you are raising a "new" claim in a second petition for federal habeas relief. The exceptions for "new" claims are different for state and federal prisoners.

If you are a state prisoner, these are the exceptions to the general prohibition on successive petitions:

(1) Your new claim rests on a "new" and previously unavailable rule...