Rishor v. Ferguson: the Ninth Circuit Erred in Holding That Rule 59(e) Motions Are Not Subject to the Restrictions of Aedpa When Those Motions Do Not Present Entirely New Claims for Habeas Corpus Relief

• Publication year: 2022

51 Creighton L. Rev. 641. RISHOR V. FERGUSON: THE NINTH CIRCUIT ERRED IN HOLDING THAT RULE 59(E) MOTIONS ARE NOT SUBJECT TO THE RESTRICTIONS OF AEDPA WHEN THOSE MOTIONS DO NOT PRESENT ENTIRELY NEW CLAIMS FOR HABEAS CORPUS RELIEF

RISHOR V. FERGUSON: THE NINTH CIRCUIT ERRED IN HOLDING THAT RULE 59(E) MOTIONS ARE NOT SUBJECT TO THE RESTRICTIONS OF AEDPA WHEN THOSE MOTIONS DO NOT PRESENT ENTIRELY NEW CLAIMS FOR HABEAS CORPUS RELIEF

Cory Wilson-'18

I. INTRODUCTION

Congress's passage of the Antiterrorism and Effective Death Penalty Act of 1996(fn1) ("AEDPA") severely limits the subject matter jurisdiction of federal judges in reviewing habeas corpus applications made to the federal courts by state prisoners.(fn2) Perhaps the most notable limitation placed on a federal judge's jurisdiction is the ability to review a second or successive habeas corpus petition made by a state prisoner.(fn3) In Gonzalez v. Crosby,(fn4) the United States Supreme Court held that a Federal Rule of Civil Procedure Rule 60(b) motion for relief from the judgment of a district court is to be treated as a second or successive petition when that motion asserts or reasserts an attack on the state trial court's ruling.(fn5) Since the Gonzalez decision, circuit courts of appeals faced the task of determining if the analysis used by the Court to determine if Rule 60(b) motions for relief from judgment should also apply to Rule 59(e) motions to alter or amend a judgment.(fn6)

This question has ultimately resulted in differing opinions between the circuit courts of appeals.(fn7)

In Rishor v. Ferguson,(fn8) the United States Court of Appeals for the Ninth Circuit combined the two differing lines of reasoning from other circuit courts to create a hybridized analysis for determining if or when a Rule 59(e) motion is subject to the restrictions of AEDPA.(fn9) In Rishor, convict-petitioner Kirk Rishor filed for habeas corpus relief from his state conviction, which the United States District Court for the Western District of Washington subsequently dismissed.(fn10) Rishor promptly filed a Rule 59(e) motion requesting that the court reconsider its decision.(fn11) The court granted the motion, and the State then appealed, arguing that Rishor's Rule 59(e) motion was a second or successive habeas corpus petition under AEDPA and thus statutorily barred from review by the district court.(fn12) Upon review, the Ninth Circuit held that Rishor's Rule 59(e) motion was not a second or successive petition under AEDPA and that the restrictions of AEDPA only apply to Rule 59(e) motions when those motions raise a new claim for habeas relief.(fn13)

This Note will first review the facts and holding of Rishor.(fn14) This Note will then briefly discuss the history of the writ of habeas corpus and how it has been infused into the United States Constitution and the laws of the United States.(fn15) This Note will also briefly discuss Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure.(fn16) This Note will then discuss the United States Supreme Court's decision in Gonzalez and how that decision relates to post-judgment motions made in the habeas context.(fn17) Next, this Note will discuss the approach taken by the United States Court of Appeals for the Eighth Circuit in determining when a Rule 59(e) motion is subject to the restrictions of AEDPA.(fn18) Then, this Note will discuss how the United States Court of Appeals for the Third Circuit approached the issue of whether a Rule 59(e) motion is subject to the restrictions of AEDPA.(fn19) This Note will then demonstrate why the Ninth Circuit's approach in Rishor was erroneous in light of the holding in Gonzalez and also the plain language of the AEDPA statutes.(fn20) Finally, this Note will conclude that, in Rishor, the Ninth Circuit improperly applied the analysis used by the United States Supreme Court in Gonzalez to determine when a post-judgment motion is subject to the restrictions of AEDPA.(fn21)

II. FACTS AND HOLDING

In Rishor v. Ferguson,(fn22) the United States Court of Appeal for the Ninth Circuit considered whether a Rule 59(e) motion is considered a second or successive habeas corpus petition subject to the restrictions of AEDPA.(fn23) In May 2004, the Superior Court of Whatcom County, Washington, oversaw Kirk Rishor's trial on four different criminal charges.(fn24) Those charges included one count of first-degree assault, two counts of second-degree assault, and one count of first-degree un-lawful possession of a firearm.(fn25) In a pretrial hearing, Rishor requested that the court allow him to represent himself pro se.(fn26) Rishor disregarded the warnings of the trial judge in his pretrial hearing and proceeded to represent himself.(fn27)

At the conclusion of the trial, the jury acquitted Rishor of both second-degree assault charges.(fn28) The jury impliedly acquitted Rishor of the first-degree assault charge when it found Rishor guilty instead for the lesser included offense of second-degree assault.(fn29) Further, the jury found Rishor guilty of the unlawful possession of a firearm.(fn30) Ultimately, the court sentenced Rishor to serve 115 months in prison as a result of his convictions.(fn31)

Following his sentencing, Rishor began the direct review process of appeal, where his second-degree assault conviction was reversed on account of erroneous jury instructions.(fn32) The Washington Court of Appeals ordered that Rishor's case be remanded to the trial court for a new trial on the same charge of second-degree assault.(fn33) In November 2006, Rishor appeared at the trial court for his pretrial hearing and requested that he once again proceed pro se but requested standby counsel for the purpose of filing motions.(fn34) The trial judge instructed Rishor to draft a motion appointing his standby counsel, and Rishor did so accordingly.(fn35)

On remand, the State of Washington amended the charges from second-degree assault back up to first-degree assault while armed with a deadly weapon.(fn36) On January 8, 2007, the State of Washington amended its charges against Rishor again.(fn37) The amended charges against Rishor were filed as second-degree assault, this time without a firearm.(fn38) On the same day that the amended charges were filed, Rishor pled guilty to the lesser charge of second-degree assault with-out a firearm.(fn39)

Following his guilty plea, Rishor appealed with the assistance of counsel.(fn40) The Washington Court of Appeals affirmed Rishor's judgment and sentence.(fn41) Rishor declined to seek any further review from the Washington Supreme Court, and Rishor's series of direct appeals ended.(fn42)

Following his direct appeals, Rishor began the collateral review process of habeas corpus at the state level.(fn43) Rishor pled for state habeas relief on three grounds.(fn44) First, Rishor argued that he was not formally arraigned when his case was remanded to the trial court.(fn45) Then, Rishor argued that he was coerced into pleading guilty, and the State had erred by not providing him with a pretrial hearing to make him aware of the dangers associated with pro se representation; therefore, he had not effectively waived his right to counsel prior to his second trial.(fn46) Both the Washington Court of Appeals and the Washington Supreme Court rejected Rishor's allegations, and his state habeas petitions were brought to an end.(fn47)

Following his state habeas proceedings, Rishor filed a federal habeas corpus petition in the United States District Court for the Western District of Washington.(fn48) Rishor raised four issues in his habeas corpus petition.(fn49) Rishor alleged that he had not received notice of the charges against him, he was not properly arraigned, he had not effectively waived his right to counsel for his second trial, and that the state had violated the double jeopardy rule.(fn50) The district court dismissed Rishor's habeas corpus claim with prejudice and subsequently entered a judgment against him.(fn51)

Rishor promptly filed a Rule 59(e) motion and requested that the district court reconsider his habeas application.(fn52) More specifically, Rishor requested that the district court consider, for a second time, if he was entitled to habeas relief because the State failed to hold a pre-trial hearing putting him on notice of the dangers associated with pro se representation and that he had not effectively waived his right to counsel in his second trial.(fn53) Further, Rishor's Rule 59(e) motion requested that the district court reconsider if double jeopardy principles were violated when the State recharged him with first-degree assault after he had been impliedly acquitted of that same charge in his first trial.(fn54)

In December 2014, the same district court that had previously denied Rishor's habeas corpus petition vacated its prior decision and held that Rishor was entitled to habeas relief.(fn55) The district court held that Rishor was entitled to relief based on both his double jeopardy claim and his waiver-of-counsel claim.(fn56) The State filed a timely appeal on the grounds that the district court did not have jurisdiction to review Rishor's Rule 59(e) motion due to AEDPA's restrictions against second or successive petitions.(fn57)

Upon appeal, the Ninth Circuit held that Rishor's Rule 59(e) motion was not a second or successive habeas corpus petition.(fn58) In coming to this conclusion, the Ninth Circuit first acknowledged that AEDPA...