ANOTHER BITE AT THE APPLE OR THE SAME BITE? CHARACTERIZING HABEAS PETITIONS ON APPEAL AS PENDING INSTEAD OF FULLY ADJUDICATED.

• Author: Winder, Gregory

TABLE OF CONTENTS INTRODUCTION 558 1. Habeas Corpus and the AEDPA 559 A. Origins of Habeas Corpus and Its Development in the United States 560 B. Post-World War II Habeas Corpus Developments 561 C. Adoption of the AEDPA 564 II. THE AEDPA, THE SUPREME COURT, AND RULE 59(E) AND 60(B) MOTIONS 566 A. Gonzalez v. Crosby and Rule 60(b) Motions 567 B. Banister v. Davis and Rule 59(e) Motions 568 III. CIRCUIT COURT APPROACHES TO COLLATERAL REVIEW FILINGS OF HABEAS PETITIONS 570 A. Second and Third Circuit Approach 570 B. Ninth Circuit Approach 573 IV. ENSURING FULL ADJUDICATION: THE NEED FOR BROAD INTERPRETATION 575 A. Arguments for Allowing Motions to Amend Habeas Petitions While Cases Are on Appeal 576 1. Protecting Litigants from Unfair Outcomes 576 2. Compliance with Gonzalez v. Crosby 578 3. Consistency with the Federal Rules of Civil Procedure 578 4. The Importance of "Full" and "Final" Adjudication 579 5. Quelling Fears as to Judicial Efficiency 580 B. Resolving the Circuit Split: The Test That Should Be Applied by the Supreme Court 581 CONCLUSION 582 INTRODUCTION

Habeas corpus, (1) the "Great Writ of Liberty," (2) has undergone considerable change over the course of history. From its initial introduction in English common law, (3) to its inclusion in the American Constitution, (4) to its fluctuating interpretation throughout the nineteenth and twentieth centuries, (0) habeas corpus has remained a fundamental part of the American legal system. With its passage in 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) became the primary federal statutory authority for the writ, and much case law has emerged at the district court, circuit court, and even Supreme Court levels interpreting the various changes the Act brought about. (6) One of the Act's most significant aspects is its restriction on the filing of successive habeas corpus petitions.' Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success. (8)

This Note examines the circuit split that has emerged for one of those procedural attempts--motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. (9) This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus in the United States and allowable under even the restrictive approach of the AEDPA. Finally, this Note advocates for Supreme Court intervention on this issue despite the Court's reluctance up to this point.

Part I of this Note provides a background on the right of habeas corpus in American history and discusses the changes and developments accompanying the AEDPA since its passage in 1996. Part II discusses the Supreme Court's rulings in Gonzalez v. Crosby and Banister v. Davis, with particular focus placed on the Court's analysis of Rule 60(b) and 59(e) motions. Part III uses cases in the Second, Third, and Ninth Circuit Courts to illustrate federal courts' various approaches to appeals after trial courts have adjudicated the merits of initial habeas petitions. Part IV puts forth various arguments as to why these motions should be allowed and why the Supreme Court should intervene on this issue. It also proposes a test that the Supreme Court should utilize when coming to a decision, which utilizes the approaches currently used by the circuit courts as well as related approaches to other procedural obstacles of the AEDPA.

1. HABEAS CORPUS AND THE AEDPA

   This Part briefly traces the development of the writ of habeas corpus in the American legal system. Section A explains the writ's origins in common law and its evolution through early American history. Section B covers the development and expansion of habeas corpus in the United States following World War II, as well as its contraction in the latter half of the twentieth century. Finally, Section C explores the AEDPA and the significant changes brought about by its passing, focusing on several of the key changes it codified in federal law.

   1. Origins of Habeas Corpus and Its Development in the United States

      Habeas corpus, Latin for "that you have the body," (10) emerged around the thirteenth century in England but was not officially codified as a writ until the Habeas Corpus Act of 1679. (11) The writ of habeas corpus in English common law took two forms: habeas corpus ad subjiciendum and habeas corpus ad prosequendum. (12) Habeas corpus ad subjiciendum, known as the "Great Writ," required that custodians of prisoners produce those prisoners in front of the court and establish a lawful basis for their continued imprisonment. (13) The other writ, habeas corpus ad prosequendum, could compel someone to appear in court to serve as a witness or for other procedural purposes. (14)

      William Blackstone described the writ of habeas corpus ad subjiciendum as "the most celebrated writ in the English law." (10) Both Blackstone's Commentaries and Edward Coke's Institutes had profound influences on the thinking and practices of the American colonists, (16) and the Great Writ was enshrined to various degrees in the statutes and rules of the American colonies. (17) After gaining independence, the United States solidified habeas corpus in what came to be called the Suspension Clause of the Constitution. (18) Habeas relief was soon after extended to federal prisoners under the First Judiciary Act of 1789. (19) The next major expansion of the writ of habeas corpus occurred following the Civil War, when Congress passed the Habeas Corpus Act of 1867. (20) This act granted federal courts the power to issue writs of habeas corpus "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or any treaty or law of the United States." (21) This language was understood to extend the benefits of the writ of habeas corpus to prisoners in state custody. (22) Despite this statutory extension, the Supreme Court typically rejected fundamental constitutional challenges through habeas, choosing to focus on only the most outrageous violations of due process over the course of the eighty years following the Act's passage. (23) The governing statutory language, as well as the Court's actions, remained relatively consistent until the period immediately following World War II. (24)

   2. Post-World War II Habeas Corpus Developments

      In 1948, Congress added major habeas corpus revisions to federal law, which notably included the splitting of habeas petition processes for state and federal prisoners. (25) 28 U.S.C. [section] 2255 allowed federal prisoners to seek habeas relief and provided a more streamlined process for review. (26) 28 U.S.C. [section] 2254 focused on rules pertaining to prisoners in state custody, (27) updating the provision of review set forth in the Habeas Corpus Act of 1867. (28) Even though state and federal prisoners' procedures for habeas corpus were separated as a result of the provisions, the Supreme Court has typically applied similar rulings to both sections. (29) Section 2241, an additional update of the Act, served mainly as a general codification of American judge-made law up to that point and provided access to habeas for anyone not challenging a criminal judgment. (30)

      Following these codifications, the Supreme Court expanded the writ of habeas corpus through a series of cases in the mid- to late-twentieth century. (31) In Brown v. Allen, the Supreme Court held that for federal habeas petitions filed by state prisoners, the federal court should treat a state court's decision on the merits as persuasive--but not binding--authority. (32) The case also served to solidify federal courts' authority over habeas petitions filed by state prisoners that alleged federal constitutional violations. (33)

      Five years later, the Court further expanded the writ of habeas corpus in the "1963 trilogy" of cases. (34) This trilogy consisted of Townsend v. Sain, (35) Sanders v. United States, (36) and Fay v. Noia. (37) In Townsend, the Court articulated the instances in which a federal habeas court must grant a hearing:

      If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. (38) In Sanders v. United States, the Supreme Court asserted that there was no limit to the number of successive federal habeas petitions that could be made by a prisoner, provided that a different ground was provided in each subsequent petition.' (59) Fay v. Noia, seen as the most important of the "trilogy," (40) turned on the issue of state procedural defaults in the context of habeas petitions, as the petitioner had allowed the time for appeal to elapse in state court but sought federal review of his conviction. (41) The Court held that federal court jurisdiction would not be overridden by a state court's refusal to review a federal claim due to a state procedural deficiency on the part of the defendant. (42) Townsend, Sanders, and Noia resulted in a push for states to reform their own judicial processes and for state court judges to enforce the expanded habeas rights articulated by the Court. (43)

      Following these momentous changes and reforms, subsequent decisions by the Supreme Court restricted inmates' ability to bring habeas petitions to the federal courts. (44) In 1976, the Court in Stone v. Powell held that a state prisoner is unable to obtain relief for a federal habeas claim alleging an unconstitutional search or seizure under the...