SLACK v. MCDANIEL

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Argument of Michael Pescetta

Chief Justice Rehnquist: We'll hear argument next in Antonio Slack v. Eldon McDaniel.

Mr. Pescetta.

Mr. Pescetta: Mr. Chief Justice, and may it please the Court:

Although this case also arises in the thicket of habeas proceedings, I think the question that this Court posed on certiorari can be answered by answering two common-sense questions.

One is, can we have a dismissal without prejudice, that is, a dismissal with some prejudice?

Two, can we apply a res judicata rule when there has been no previous adjudication in the matter?

Can we have res judicata without judicata?

I submit that the common-sense answers to both of those questions are no, we can't, and that those answers control the disposition of this case.

Unknown Speaker: If you're right, Mr. Pescetta, would it be possible for a habeas corpus applicant to have his first petition dismissed because it contained unexhausted claims and then come back the second time and have a bunch of new claims, as I think your client did here, and simply have them considered, or perhaps be dismissed as unexhausted, and keep going that way?

Mr. Pescetta: In theory, yes, Your Honor, but as we pointed out in our briefing, there are other ways to control that problem if it becomes a problem in the case.

The conditional--

Unknown Speaker: What are they?

Mr. Pescetta: --The conditional dismissal order or practice that can be used under Rule 41 of the Federal Rules of Civil Procedure can control that if a petitioner... if a Federal district judge believes that there is a problem with what the State refers to in this case as the ping-pong effect of going back and forth from State to Federal court by filing repeated unexhausted petitions.

That can be controlled by a district court saying, this is your last chance.

We're going to issue an order that dismisses you without prejudice but, as a condition of that order, when you come back we will entertain only your exhausted claims.

That is a technique that has been used successfully in capital cases in the District of Nevada--

Unknown Speaker: Well, that's not what this judge did.

Just... this judge just dismissed in compliance with Rose for exhaustion.

Mr. Pescetta: --Yes, Your Honor.

Unknown Speaker: And didn't go on to speculate that the prisoner might come back with new unexhausted claims, right?

Mr. Pescetta: That's true, Your Honor, and that may not occur.

Unknown Speaker: So what does the judge do when the judge hasn't speculated in advance about this possibility?

Mr. Pescetta: I--

Unknown Speaker: So back the prisoner comes with, yes, some that are exhausted now, but adding on some new, unexhausted claims.

Mr. Pescetta: --But I think, Your Honor, that's a decision that the judge can make in the district judge's discretion when the district judge perceives that that is a problem.

Unknown Speaker: Well, in light of Rose v. Lundy, what does the judge do, faced with the situation that happened here--

Mr. Pescetta: I think--

Unknown Speaker: --with the unexhausted claims?

Mr. Pescetta: --I think the district judge in this case had followed what we believe to be the law, that is that the prior dismissal without prejudice does not make this petition a second or successive petition.

Unknown Speaker: As to the exhausted claims.

Mr. Pescetta: As to any claims, Your Honor, because our position is--

Unknown Speaker: Well, what does the judge do, then, faced with this mixed petition with exhausted and unexhausted claims--

Mr. Pescetta: --The judge--

Unknown Speaker: --when it comes back?

Mr. Pescetta: --Excuse me, Your Honor.

The judge can issue an order dismissing the case without prejudice, but directing that this is the petitioner's last opportunity to exhaust, and that when he returns to Federal court, the Federal court will only address unexhausted claims, and that order could be enforced under Rule 41(b).

Unknown Speaker: Well, what is the authority to issue that order?

Mr. Pescetta: Rule 41(a).

A conditional dismissal without prejudice is clearly allowed by the Federal rules, and in fact--

Unknown Speaker: Well, it's allowed by the rules, but the problem I have with the argument is that it seems to me that the strongest point in your favor is that we have never... I think we have never used the term second or successive as a term to refer to a case which is brought when the preceding history includes nothing but a dismissal without prejudice, so that as a matter of law... your strongest argument is, as a matter of law, assuming that Congress uses the terms the way this Court had been using these terms of art, the statute cannot possibly mean that this would be a second or successive petition.

If that is the case, it seems to me that your argument here is a weak one, because if ultimately what the court does on the first round is dismiss without prejudice, it can put all the caveats in that it wants to, you know, do it all this time, only one bite of the apple and so on.

When they get back in front of the court again, it would still not be a second or successive petition.

Mr. Pescetta: --That's correct, Your Honor, but then it would be subject to a dismissal with prejudice under Rule 41(b) by the court enforcing its previous order in that case--

Unknown Speaker: But you--

Mr. Pescetta: --and that's the distinction... excuse me, Your Honor.

Unknown Speaker: --It seems to me you haven't given us a reason, or a source of authority for the district court to make a conditional dismissal like that.

I mean, Rule 41 certainly doesn't give the district court authority to enter any sort of an order conditioning dismissal that he pleases, does it?

Mr. Pescetta: Certainly it's... the power is not unlimited, but a reasonable condition on an order of dismissal is always upheld.

Now, the concern that we are faced here is that there are two parallel tracks of jurisprudence.

One is Rule 9(b), the second 2244(b), which enact what this Court has consistently and uniformly referred to as a res judicata rule.

This was clearly stated in the congressional materials and reports in the enactment in 1966 of section 2244.

It was emphasized--

Unknown Speaker: Mr. Pescetta, I follow that with respect to the first clause of 9(b), where there was a prior determination on the merits, but the second clause says, if new and different grounds, that is, unadjudicated grounds, are alleged, the judge finds that the failure to assert those grounds in a prior petition constituted an abuse.

That seems to me clearly to contemplate grounds that were not adjudicated, new and different grounds, and then says, judge, you look at the particular case, and if you find that the failure to bring those up earlier constituted an abuse, then you toss it out.

Mr. Pescetta: --Yes, Your Honor.

That's part of the res judicata component of the rule.

Our position is that a second or a successive petition in the first sentence of Rule 9(b) means what this Court has always taken it to mean.

That is, a petition that's filed after a previous petition has been adjudicated on the merits in some form.

The remainder of that rule referred to different kinds of situations that can arise in a second or a successive petition, and if you look at the parallel provisions in section 2244(b) and former section 2244(b), it doesn't use the term, second or successive petition.

It says, when after an evidentiary hearing on the merits... and this is in page 2 of our brief, of the appendix to our brief.

When, after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody is... pursuant to a judgment of a State court has been denied by a court of the United States.

That is boiled down, I submit, in Rule 9(b) into a second or a successive petition.

The rest of 2244(b) tracks closely the rest of Rule 9(b), so I think those rules have to be harmonized.

Now, I think we also--

Unknown Speaker: But would you agree with me that if you just read, if new and different grounds are alleged, the judge finds that the failure to assert those earlier constituted an abuse of... abuse of the writ.

That sounds like new, unadjudicated grounds.

The judge finds in a particular case that it's an abuse of the writ.

Now, I thought that your argument was, or could have been, that here the judge shouldn't make such a finding because all of the new grounds were asserted the very first time that this petitioner was represented by counsel.

Isn't it true that those new grounds were asserted by counsel in Federal court the second time?

Mr. Pescetta: --The majority of them, yes, but our position is that that second clause that Your Honor just read is limited by the beginning of the rule which narrows its application to a second or successive petition, so that you don't have any application of Rule 9(b) unless--

Unknown Speaker: So if I read it the way I... it seems is the literal meaning of new and different grounds, then you lose?

You were saying that this is a res judicata rule.

If something wasn't adjudicated--

Mr. Pescetta: --It's a res judicata rule which covers both adjudicated and unadjudicated claims as long as there is a previous petition that was decided on the merits.

That's what res judicata is, of course, all about.

Unknown Speaker: --Well, I don't understand why we have to go that far.

I mean, I would think your position could be narrower, which is just that a dismissal without prejudice to permit exhaustion doesn't count as a first petition.

I mean, that's all you need to say for your purposes.

I don't know why you have to go on with this, has to be adjudicated on the merits argument.

Mr. Pescetta: You've said it better than I, Your Honor, and I can only agree with you.

The problem is--

Unknown Speaker: Well, let me ask you this.

Why doesn't 2253 of AEDPA apply, that there has to be a certificate of appealability for you to get here at all, and there never was in this case.

Is that jurisdictional?

Mr. Pescetta: --I submit, Your Honor, the AEDPA does not apply.

Unknown Speaker: Why?

Mr. Pescetta: Because under Lindh v. Murphy, this Court held that the Chapter 153 amendments that were enacted by AEDPA do not apply retroactively.

Those provisions of section 2253, and of Federal Rule of Appellate Procedure 22, are part of the Chapter 153 amendments to... that were enacted by AEDPA.

Therefore, if this Court adheres to Lindh, in which it said the provisions of that chapter do not apply retroactively, there's no question that Mr. Slack's petition was filed before AEDPA was enacted--

Unknown Speaker: Was that a holding or a dictum?

Mr. Pescetta: --and therefore it doesn't apply.

Unknown Speaker: Was that a holding or a dictum as to all the provisions of 153?

Mr. Pescetta: I believe that the... I believe that it would be dictum outside the particular facts of that case.

Nonetheless, I think the same policies that apply, that were applied in Lindh by this Court, apply here.

When the Congress wanted to eliminate a certain kind of review, it did so.

It said so explicitly.

There is nothing in AEDPA that remotely suggests the kind of radical change that the amici suggest was worked by section 2253.

Unknown Speaker: Well, you have... you had here neither a CPC nor a COA, which is what the prior law would require, right?

Mr. Pescetta: Yes.

We applied for a certificate of probable cause.

It was denied by the trial court, it was denied by the Ninth Circuit, and we are here under Hohn v. United States.

Unknown Speaker: But under the--

--Well--

--Under the prior law before section 153, wouldn't you have had to obtain a certificate of appealability?

Mr. Pescetta: No, Your Honor.

That... the prior law, pre-AEDPA, called it a certificate of probable cause for appeal.

Unknown Speaker: I'm sorry, I got the two reversed.

And you were denied that.

Mr. Pescetta: And we were denied that, and we were denied that sua sponte by the court of appeals.

Unknown Speaker: So whether you rely on pre-AEDPA or post-AEDPA, it seems to me you don't have what's necessary to get here.

Mr. Pescetta: On the contrary, Your Honor, we are here under Hohn v. United States.

Unknown Speaker: Well, you're saying we can review the denial of a certificate of probable cause.

Isn't that what you're saying?

Mr. Pescetta: That's what I understand Hohn to mean.

Unknown Speaker: Whereas presumably we cannot review post-AEDPA denial of a COA.

Mr. Pescetta: I don't think--

Unknown Speaker: You don't have to take a position on that.

All you have to take a position on is that in the pre-AEDPA law we could decide ourselves whether there should have been a certificate of probable cause granted and go ahead and review it.

Mr. Pescetta: --Yes.

Unknown Speaker: That's your position.

Mr. Pescetta: Yes.

Unknown Speaker: But--

--Well, but that has some shortcoming, it seems to me.

At least one court of appeals has held that AEDPA's COA requirements apply where the petition was filed pre-AEDPA but dismissed post-AEDPA.

Mr. Pescetta: Well, the difficulty there, Your Honor, is it doesn't take Hohn into consideration, I don't think, because it is part of the section 153 amendments, and that's what gets us here.

Unknown Speaker: Well--

--But Hohn described what a case was, and I think that does not help you.

Mr. Pescetta: I disagree, Your Honor.

An application for a certificate of appealability to the court of appeals is for these purposes, I believe, no different from an application for a certificate or probable cause.

In detail it may be different.

Unknown Speaker: Well, I thought Hohn said that a habeas petitioner's application for a certificate of appealability is a separate case in and of itself, and here that would make you post-AEDPA, so I don't see why that isn't a jurisdictional barrier in this case.

Mr. Pescetta: I think, Your Honor, having applied, properly applied, we believe, for a certificate of probable cause in the district court, and having been denied it, the same application for a certificate of probable cause, whether it is an application for a certificate of probable cause or an application for a certificate of appealability, and the Seventh Circuit has held that the fact that you call it the wrong thing doesn't affect the court's jurisdiction, that invests the court of appeals with jurisdiction in the same way under AEDPA that it did under pre-AEDPA law.

Unknown Speaker: If AEDPA applies and even if there's jurisdiction, you have difficulty on the merits, don't you, since you never alleged a constitutional violation.

Mr. Pescetta: Well, the underlying constitutional violations are the claims of the petition that are the denials of the constitutional right.

There is no case that has ever suggested in any way, shape, or form that a procedural issue that covers an underlying substantive claim can't be addressed under a certificate of appealability or a certificate of probable cause.

That language, denial of a Federal right, or, under AEDPA, denial of a constitutional right, clearly refer to the underlying claim.

I mean, in Barefoot v. Estelle, where some of this language came from originally, the question at issue there was a stay, and the standard for a stay was the substantiality of the underlying claim that entitles you to the stay.

Unknown Speaker: But AEDPA has modified what you can raise.

You know, it says denial by constitutional rights, whereas pre-AEDPA law was a Federal right, which could be statutory.

Mr. Pescetta: But I submit, Your Honor, that that still refers to the underlying claim.

Congress could have narrowed the class of claims to constitutional claims that it would allow to be reviewed on the merits, but that doesn't mean that the procedural questions that are involved in determination of those issues could never be reached by any appellate court.

What that would mean is that the Federal courts of appeals would be utterly powerless to police the activities of the district courts in habeas cases on procedural issues, and the only case that has addressed an argument like that that was cited by amici is Trevino v. Johnson out of the Fifth Circuit, and that court said no, that's not right, it refers to the underlying quality of the claim.

Unknown Speaker: Well, they are utterly disabled from reviewing them so long as the underlying claim is not a constitutional one.

Mr. Pescetta: But that's a--

Unknown Speaker: I mean, it is thinkable that they would be disabled from review.

Mr. Pescetta: --I don't think that would have happened in this way, Your Honor.

If you look at the mechanism for reviewing a second or successive petition under the AEDPA, Congress was very clear that no court could review the decision of a panel of the court of appeals on a hearing on certiorari when that court has made a decision whether or not to allow the filing of a second or a successive petition.

When that issue was... when Congress decided not to allow that issue to be addressed, it said so.

Allowing just an inference to arise from the change from a Federal right to a constitutional right in language that has always been viewed as applicable to the underlying claim, not to the character of the procedural issues that may cover that underlying claim, then I think, contrary to Jones v. United States, this Court would be assuming that Congress intended to make a very radical change in habeas jurisprudence without giving any indication that that was what it meant.

Also, if you look at section... former section 2244(c), the same language--

Unknown Speaker: Where is that?

Mr. Pescetta: --It's at appendix 2, page 2 of our opening brief, in about the middle of the paragraph, it... that section refers to denial of a Federal right, which constitutes grounds for discharge.

The term, I submit, denial of a Federal right, or denial of a constitutional right, refers to the underlying claim in the petition, and I think we would also have to consider the possibility that there would be a constitutional problem if that reading were adopted.

Unknown Speaker: Why?

Mr. Pescetta: Because what that would allow would be entirely one-sided review of procedural issues in habeas cases.

Now, again, when Congress legislated that no court could review a decision of a panel of a court of appeals deciding whether or not to allow the filing of a second or successive petition, it said so explicitly, and it applied equally to both parties, whether it was granted or denied.

To infer, simply from the change of the word Federal to constitutional, that Congress intended to erect a system in which the Federal appellate courts could never address anything but an error that favored the petitioner but could never address an error that favored the State would, I believe, present serious equal protection--

Unknown Speaker: I don't see why you read it the way you do.

I mean, if you can have any Federal constitutional claim reviewed, certainly the petitioner can have it reviewed if it's decided adversely to him, can he not?

Mr. Pescetta: --Well, that question depends on whether, under the amici's reading of the jurisdictional statute, whether that is covered by a procedural issue, which on their reasoning you could never get past.

So the State could come into the court of appeals and say, yes, we agree, the petitioner has an absolutely meritorious constitutional claim that entitles him to relief, and the district court erred in concluding that the petitioner was 1 day late under the statute of limitations under AEDPA, when, in fact, it was 1 day early, but the court of appeals could never address that claim, because no matter how compelling the underlying claim is, no procedural issue could ever be reviewed by any Federal appellate court, and I submit that that's simply an irrational inference to make about what Congress intended by this language.

Unknown Speaker: But I... it may be a very restrictive view, but I don't think it's necessarily one-sided, because supposing the district court had come out just the opposite way and said that the petition was timely when in fact it was a day late, could the State get that reviewed?

Mr. Pescetta: Yes, Your Honor, because they don't need a certificate of appealability, so what you would have is a system of review in which, if the district court errs one way and says incorrectly it's a day early, so that the petitioner really shouldn't be there, the State can appeal that, and that can be corrected.

If the district court, concededly erroneously, says the petition is a day late, it doesn't matter how compelling the underlying claims are, no Federal appellate court could ever reach that, and that would be the consequence of adopting amici's view of what that language means.

Unknown Speaker: But again, you acknowledge that this situation exists so long as the... whenever the underlying claim is not a constitutional claim.

Let's assume that the basis for the habeas request is that evidence was wrongfully admitted in that shouldn't have been admitted in, but without violating the Constitution.

You acknowledge that in that situation exactly what you say is unthinkable would occur, that because there is a later procedural obstacle, you cannot get the matter before the habeas court.

Mr. Pescetta: I'm not sure I understand your question, Your Honor, but my understanding of the context of these habeas proceedings is, Congress does get to limit what kind of claims ultimately can be adjudicated, constitutional claims rather than Federal claims.

This Court has done it... this Court has done it itself in the Interstate Agreement on Detainers case, where it said that's not really an error that rises to the dignity of allowing habeas corpus relief.

It's very different when you say that only one side can get review of procedural errors which bar you or purportedly bar you from considering the underlying claims, whatever those claims are, and that's our problem with this one-sided system that the reading that amici give the statute would erect.

It would say the State can always get procedural, review of procedural errors committed by the district courts and the petitioner never can--

Unknown Speaker: Other than the--

Mr. Pescetta: --and that's very different from saying that the quality of the underlying claim can be decided... can be decided by Congress as having to have sufficient substantiality to warrant relief.

Unknown Speaker: --Other than the Interstate Agreement on Detainers statute, are there any... in habeas, do they ever raise any Federal claims except constitutional claims?

Mr. Pescetta: Occasionally treaty claims, of course.

Unknown Speaker: Oh, I see.

Mr. Pescetta: And Breard... this Court, for instance, addressed the Breard case, in a case where under the reading that amici submit is the jurisdictional reading of section 2253 this Court couldn't have addressed that case, because there could not have been a... it could not have addressed the procedural default issue in that case, because that was a procedural issue and not a constitutional issue.

I would just like to go back to where we started on this.

There are two parallel tracks, exhaustion, which is not a doctrine of preclusion.

Exhaustion is a doctrine of deferral.

Exhaustion says, go and do what you need to do in the State court, and our doors will be open when you return.

Abuse is a res judicata doctrine of preclusion.

That doctrine says to the petitioner, if you have had what McCleskey described as a full round of habeas review, don't come back.

The problem with the rule in this case is, it has crossed those and made a... basically a monstrosity of combining those two concepts improperly.

Unknown Speaker: Certainly our opinions do not refer to the abuse of the writ cases as purely cases of res judicata.

They seem to indicate that it includes something beyond raising a claim that was raised before.

Mr. Pescetta: I disagree, Your Honor.

Every statement of this Court in Kuhlmann v. Wilson, in McCleskey, in which the majority opinion written by Justice Kennedy went into an extraordinarily long analysis in demonstrating this is a qualified res judicata doctrine, and that can't be applied when that previous petition, as Justice O'Connor pointed out, was dismissed without prejudice.

Unknown Speaker: Well, that's certainly not what we said in McCleskey, when we say a petitioner may abuse the writ by failing to raise a claim through inexcusable neglect.

Mr. Pescetta: After--

Unknown Speaker: Our recent decisions confirm that petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it stems from a deliberate choice.

Mr. Pescetta: --After the litigation of that first round of habeas, not as in Lonchar, from the first petition.

If I may, could I save a couple of minutes for rebuttal?

Unknown Speaker: Very well, Mr. Pescetta.

Mr. Sarnowski, we'll hear from you.

Argument of David F. Sarnowski

Mr. Sarnowski: Mr. Chief Justice, and may it please the Court:

This case at its essence is about whether State prisoners may file serial mixed petitions in the Federal courts and repeatedly hail the State into Federal court without a consequence, as long as they assert the lack of a prior merits decision by a Federal court.

Unknown Speaker: Mr. Sarnowski, did the State raise the 2253(c) problem, the applicability of AEDPA and the timeliness, the failure to file, get a certificate of appealability?

Mr. Sarnowski: The State did not, Justice O'Connor.

In fact--

Unknown Speaker: And it was not dealt with by the lower courts?

Mr. Sarnowski: --It was not.

The circuit court motions panel of two judges denied it.

Unknown Speaker: Is it jurisdictional, do you think, here as well as in the court of appeals?

Mr. Sarnowski: Having--

Unknown Speaker: If there is some violation, or failure to obtain it under AEDPA, if AEDPA applies, is that then jurisdictional here?

Mr. Sarnowski: --We believe it is, having reviewed the... what amici has had to say about the issue.

We approached this case by opposing in the district court the application for a certificate of appealability, which was sought after the effective date of AEDPA, in fact, 2 years, almost 2 years.

The district judge having earlier disposed of an argument that AEDPA did apply when counsel for Mr. Slack asserted that it did, also indicated that he was going to apply the old probable cause rule and declined it accordingly.

We did oppose that.

Our motion papers are contained in the appendix.

Thus, the question then became the one that Mr. Slack initially posed to the court, and the one upon which this Court granted certiorari, rather than the jurisdictional question that the amici have briefed at some length.

The problem with Mr. Slack's suggestion that a rule of civil procedure, and specifically Rule 41, could apply to allow the district court some control over the litigation, is twofold.

Number 1, that suggestion was never asserted by Mr. Slack at any point in time in the prior proceedings, and it has been heard for the first time in this Court.

More importantly, it would then leave individual application of individual rules to apply perhaps in individual districts, such as Nevada, which does not have multiple Federal districts, although we have six judges, whereas the rule that we made our motion under and the court applied to this case is a system-wide rule, Rule 9(b).

Unknown Speaker: Wouldn't it have been rather difficult for Mr. Pescetta to make that point to the Ninth Circuit, which had established a rule that this second petition under the Ninth Circuit rule was successive?

Mr. Sarnowski: We suggest that it would not have been difficult for counsel for Mr. Slack to have informed the district court, Judge Hagan, before the case ever proceeded to the circuit court, that there was an alternative way and a suggestion that Mr. Slack had to try to dispose of the case, such that he wasn't found to have abused the writ.

And we need to recall that Judge Hagan just didn't file an outright dismissal order based on our moving papers.

He ordered Mr. Slack to explain why, after we had properly pled abuse of the writ, why he hadn't abused it.

Rather than doing so, Mr. Slack merely reargued his point that he argues now, is that Rule 9(b) doesn't apply, that as long as he brings in mixed petitions serially, there is no control and there's nothing that the court could have done to make him.

Unknown Speaker: You're talking now about the arguments on the second petition.

Mr. Sarnowski: Yes.

Unknown Speaker: Before Judge Hagan.

Mr. Sarnowski: Yes.

The first petition was dealt with by the judge, and he allowed Mr. Slack to return to the State courts.

This case is not about whether he'll ever get a review, in our view, on those claims that he initially identified.

It was only what Judge Hagan, the district judge, felt to have been the belatedly included and unexhausted issues that counsel amended into the second petition.

Unknown Speaker: Mr. Sarnowski, suppose that the defendant, when he went to the State court to exhaust, had indeed exhausted everything, not only the claims that he put in the Federal habeas petition, but new and different ones that weren't in the first Federal petition, so he's exhausted everything.

He comes back to the Federal court.

Is your argument that that would be okay, or do I understand correctly you to say he can't put in additional claims in the Federal petition?

Mr. Sarnowski: Our position is that he... under the rule, he is not allowed to include additional claims beyond those that he had already identified.

Of course--

Unknown Speaker: Even though he's exhausted them now.

Mr. Sarnowski: --That's correct.

Of course, it would thus then be up to the State to assert any affirmative defense that may be available to it.

In a pre-AEDPA situation, rule 9(b)--

Unknown Speaker: Well, I don't know why we get to affirmative defenses if those additional claims are simply out, even though they've been exhausted, under your view.

Mr. Sarnowski: --For purposes of this case... I don't think that's the question presented... it is a more difficult question as we look at the abuse rule applied to those facts.

Unknown Speaker: But I thought your position was a categorical rule.

If you haven't got it in the first petition, you can't have it in the second.

Mr. Sarnowski: That is our position, but it's always up to the State to assert the affirmative defense, and if it does so, it's then--

Unknown Speaker: A State can waive it, of course, but would you explain to me how your categorical rule is compatible with the 9(b) language that says, if new and different grounds are alleged, the judge finds.

Finds sounds like a case-specific assessment and not a categorical rule.

Mr. Sarnowski: --If the judge were to find that those additional new and different grounds that you say in your hypothetical were not included in the first petition, if he finds that they are new and different, then under the rule, assuming we asserted the affirmative defense--

Unknown Speaker: But it doesn't say, if he finds they're new and different.

He says, they are new and different, and the judge finds that the failure to assert them earlier.

Mr. Sarnowski: --Correct.

Those are the two predicates that the Ninth Circuit decision in Farmer requires, that they be new and different grounds alleged, and that the failure to assert those grounds in a prior petition constituted an abuse of the writ.

Unknown Speaker: But I thought that the Ninth Circuit rule was they automatically do.

If you haven't got them in the first petition, then there isn't a case-by-case examination.

Mr. Sarnowski: We don't read the Ninth Circuit's opinion in Farmer to go nearly that far, because... and we have never argued otherwise, that Rule 9(b) allows discretion.

We think it allows much more discretion than the AEDPA statutory version alluded to.

Unknown Speaker: Well, are you saying that there is a general rule that anything new is categorically subject to dismissal, but that that is subject to an exception under the clause of 9(b) that Justice Ginsburg was referring to?

In other words, the petitioner could say, let me argue this particular issue, because it was not abusive of me to leave it out.

Is that what you're saying?

Mr. Sarnowski: Correct, and at that point, that's where we found ourselves in this case when Judge Hagan told Mr. Slack to, under these facts to explain why he was raising new issues.

Unknown Speaker: Well, the--

Mr. Sarnowski: You can extend the same logic--

Unknown Speaker: --Yes, but the odd thing with your argument is that abuse is normally a defense to a claim raised, and you're in effect arguing that what the rule means is that abuse in effect is an affirmative basis for a petitioner to allege as a basis for getting around the categorical rule, and that is... at least starts with very odd procedural language usage.

For that reason, I'm not sure that I think it's plausible.

Mr. Sarnowski: --Our reading of the rule requires us, as we did in this case, to affirmatively plead with specificity what the abuse of the writ consists--

Unknown Speaker: Why?

Mr. Sarnowski: --the procedural--

Unknown Speaker: Why don't you merely on your rule, or the Ninth Circuit rule, have to plead the fact that wasn't included in the first petition, and you only get into abuse, on your view, as I understand it, if the petitioner says, but it's not abusive for me to raise it.

Then you get into abuse, and that is anomalous procedurally.

Mr. Sarnowski: --Well, relying on the former opinion, we rely on it in its entirety, and the circuit court instructed us through that opinion that the requirement is to plead the affirmative defense.

It's not up to the petitioner to come in and say, and I'm not abusing the writ, first.

Unknown Speaker: But there are some new grounds that would not be an abuse of the writ, such as a new ground that arose after the last one was decided, a claim of incompetency to be executed, for example.

Mr. Sarnowski: We agree with that statement, Justice Scalia.

Unknown Speaker: So that there is a need to put in that language the judge finds that the failure to assert those grounds in a prior petition constituted an abuse of the writ.

Mr. Sarnowski: And that is by an individual case determination that the judge makes.

Here, the judge had no explanation whatsoever for Mr. Slack.

Rather, he merely had Mr. Slack's continuing argument that the rule doesn't apply because there wasn't a merits determination.

Unknown Speaker: I thought one explanation was that counsel finally got to shape these pleadings, and so these claims appear as they do in the first petition that was filed by counsel.

Mr. Sarnowski: There was an argument, I believe, to that effect after the court's dismissal, when Mr. Slack sought a certificate of probable cause.

I frankly do not recall that argument having been made prior to the judge's first decision.

Unknown Speaker: But is it the case that this is the first petition in which the petitioner was represented by counsel?

Mr. Sarnowski: In the Federal court, that is correct.

He, of course, had counsel at trial and on direct appeal in the State court.

Unknown Speaker: Yes.

I mean on collateral review.

Mr. Sarnowski: That's correct.

Unknown Speaker: Why can't you say, to pick up what Justice Ginsburg, I think, was saying, the case is first petition, ground one and ground two, one is not exhausted, two is.

It goes to the State court, comes back, we add ground three.

Could a judge say, in this circumstance there is no abuse of the writ the first time for the reason that, a) the petitioner had no lawyer the first time, and most of them are pretty mixed up, and b), since I dismissed it immediately because it wasn't mixed, no harm to the court was done.

Mr. Sarnowski: To answer the first prong, while a judge may look at that in the exercise of his discretion, we don't understand this Court's jurisprudence, and particularly now, if we are informed by AEDPA, the section of AEDPA that says whatever counsel that they had did or didn't do doesn't matter, I know of no case that says that if a Federal habeas petitioner didn't have a lawyer at all, that that is excuse enough.

Unknown Speaker: I didn't say that.

What I said was, because it was immediately sent out of the Federal court back to the State no harm to the court was done.

No time was wasted.

It was dismissed, because it was a mixed petition, and that's why there was no abuse of the writ the first time.

Mr. Sarnowski: I would suggest that while there may not have been harm in the literal sense, the court was not the only party to be considered.

Our position is that the serial... the filing of serial mixed petitions also impacts very deleteriously on the resources of the State.

In this particular instance, we did, in fact, appear in the second case, not the first case as your example is given to us, and under Mr. Slack's theory, he's going to get to go back to State court, and we're going to have to be hailed back into Federal court again and do all the things that we do to respond.

Unknown Speaker: Mr. Sarnowski, look at the appendix for a moment, if you will, the joint appendix, page 197, and it's before a two-judge motions panel of the Ninth Circuit, and it simply says the request for a certificate of probable cause is denied.

Is that the only opinion we have from the Ninth Circuit in this case?

Mr. Sarnowski: It is, Chief Justice.

Unknown Speaker: So we don't know the reason for the Ninth Circuit's denial of a certificate of probable cause, do we?

Mr. Sarnowski: No, we don't.

Unknown Speaker: May I ask a question that focuses on the language of the statute for a minute?

We are talking, are we not, about 2244(b)(1) and (b)(2), and (b)(1) says, a claim presented in a second or successive habeas corpus application under 2254 that was presented in a prior application shall be dismissed, and I have two questions.

The first question is, if the first petition was not exhausted, presented three claims, 1, 2, and 3, and then it was exhausted, and it came back and presented just those three claims, would that be a second or successive petition within the meaning of (b)(1) in your view?

Mr. Sarnowski: No.

Unknown Speaker: It would not.

Now, (b)(2) has similar language, and then talks about the addition of new claims, and it says, it shall be dismissed, a second... a claim presented in a second or successive habeas petition that was not presented in a prior application shall be dismissed unless.

Now, is that also not a second or successive if there were three claims in the first that were not exhausted, then three new claims were added when it comes back.

Is that second or successive, or is it just like the first, it was not second or successive because the first one was dismissed for failure to exhaust?

Mr. Sarnowski: I would state that then the rule... and I believe you're referring to the new statute.

Unknown Speaker: I'm referring to 2244, whether the claim... my question really is whether the word second or successive habeas application have the same meaning in (b)(1) as in (b)(2).

Mr. Sarnowski: Now I understand the question you asked me.

I... they have the same meaning in both instances.

Unknown Speaker: Then if it's not a second or successive under (b)(1) in my first example, it's also not a second or successive in the second.

Mr. Sarnowski: And I'm... I would agree.

I misstated the answer based on what I understood your question to be, and I apologize.

You can't have two different meanings--

Unknown Speaker: So if it's not a second or successive in this case it should not be dismissed under (b)(2).

Mr. Sarnowski: --If that statute even applies, which we have contended it does not.

We have never contended the AEDPA abuse of the writ statute, if you will, applies, but rather, Rule 9, which was in effect at the time of filing and has never been rescinded even after enactment of AEDPA.

Unknown Speaker: This is Rule 9 of what?

Where--

Mr. Sarnowski: Rule 9 of the rules governing section 2254 cases in the United States Supreme Court.

Unknown Speaker: --Adopted by?

Mr. Sarnowski: This Court through the Congress in 1976, and I think that's a point worth noting, that the Rule 9(b) was enacted some 13 years after the Sanders case on which we rely, and approximately 10 years after the statute on which Mr. Slack relies to say that they must be read consistently with one another.

We suggest that the later enactment, which is applicable, that is, Rule 9(b), does, in fact, take precedence and does apply.

In--

Unknown Speaker: Finish it.

Mr. Sarnowski: --I was finished, Your Honor.

Unknown Speaker: I would like to get away from the language of the rule for a minute.

I'll make the assumption that in fact we could go either way on this case.

That may or may not be true, but assume it for the sake of argument.

What kind of a real world problem is this?

Are, in fact, petitions coming back repeatedly in significant numbers following dismissals without prejudice for exhaustion, with a new parcel of still unexhausted, of new unexhausted claims, or is this case more or less a sport?

Mr. Sarnowski: This case is I would say representative, and the only--

Unknown Speaker: Are there any... has anybody does a study of this, or are there any figures to indicate that this is a serious problem?

Mr. Sarnowski: --We have not done any study.

I'm not aware of any.

I think the Farmer case, the history of the Farmer case upon which the district court relied, the Ninth Circuit opinion, shows you just what a problem it is.

Unknown Speaker: If it's such a problem, why doesn't the State just have this rule against successive petitions?

Mr. Sarnowski: We do, and in fact, in Mr. Farmer's--

Unknown Speaker: Why doesn't that solve it?

Mr. Sarnowski: --In Mr. Farmer's case he pinged-pong... to use the words of the concurrence in Harris v. Reid, three times.

The second--

Unknown Speaker: No, but why doesn't... Justice Kennedy has asked you, why doesn't the State rule act as a bar to be applied in the Federal claim?

Mr. Sarnowski: --It may, if we can ever get the district court to hold the Farmer hearing in that case, and hold what is now being called the Farmer hearing in the other cases on... in which this has occurred.

Farmer was decided--

Unknown Speaker: Did you raise it as a bar in this case?

Mr. Sarnowski: --Yes, we did.

Unknown Speaker: Okay.

Mr. Sarnowski: Farmer was a capital case, and I understand that on the surface of it, it may be seen that capital petitioners have more of a reason to do this very thing, and in fact that was our theory in Farmer.

He came back and forth between the Federal court three times, the Federal and State courts three times, over our objection the second and third time, and after the dismissal the third time, where the judge allowed him to go back yet again, we in essence said, enough is enough, we are appealing the judge's abuse of discretion for not at least considering our abuse of the writ defense, and the Ninth Circuit panel agreed that in fact the court should hold a hearing about that.

It didn't necessarily say it should find abuse on those facts.

Here we have a noncapital petitioner, but the expenditure of the State's resources to ping-pong and to respond to--

Unknown Speaker: What is the incentive?

You said this is a recurrent problem.

I can see in a death case spinning out the date of execution, but in a nondeath case, you can never get the attention of the Federal court.

You cannot engage the Federal court until you've exhausted.

Lundy makes that absolutely clear.

So what incentive would a defendant have for this kind of, what you call ping-pong?

Mr. Sarnowski: --Theoretically, the defendant may well know facts about the case that the State does not know even well after the case, such as certain witnesses have died, certain witnesses have disappeared, evidence has been lost or destroyed, that if the State were required to refile the case and try it anew, that he would then have a benefit that he didn't have at the first trial.

Unknown Speaker: Well, but that's--

--What about the statute of limitations under AEDPA?

There's a rather short statute of limitations.

Wouldn't that be of some assistance?

Mr. Sarnowski: We would... in an appropriate case we would assert that.

I suppose its total applicability to the serial petition coming back to Federal court would depend on what the court, how the court construes the provisions of the AEDPA, which speak to what a properly filed petition is.

The Ninth Circuit, as an example, has just ruled that if a State court rules that for some procedural default reason a petition is belated in the State courts, it will not be considered a properly filed one, and thus it will not have tolled the time to file a Federal petition under the AEDPA statute that we now--

Unknown Speaker: Mr. Sarnowski--

Mr. Sarnowski: --existing.

Unknown Speaker: --may I go back to my question for a minute.

As I understand it, you're relying primarily on Rule 9(b), but the question that the Court posed in the order granting certiorari related only to section 2254.

You're aware of that.

Page 198 of the transcript.

Am I correct in understanding that you would agree that if we confined our attention to the question raised in that... in our order, the 2254, this is not a second or successive within the meaning of 2254, so you would agree with your opponent's answer to the question presented by the Court.

Mr. Sarnowski: No, we would not agree, Justice Stevens.

We don't believe that the rule has a different meaning than the statute as to what a second or successive petition is, and--

Unknown Speaker: But in answer to my questions earlier, you said that the hypothetical I gave you was not a second or successive within the meaning of (b)(1) or (b)(2), and you said no, that's true, but that's why they relied on AEDPA and you didn't, and you're relying on 9(b).

Mr. Sarnowski: --Second or successive, the meaning thereof does not change.

What may change is how the petition is handled, depending on what its prior history is.

Unknown Speaker: Well, but do you agree that this is not a second or successive petition within the meaning of 2244(b)(2)?

Mr. Sarnowski: No, we do not.

We... although we relied exclusively on the affirmative defense provided to us by the rule.

Unknown Speaker: Well then, can I go back to my example under (b)(1).

If it were just the same claims as in the State petition, which was unexhausted and refiled, I thought you agreed with me it would not be second or successive within the meaning of (b)(1).

Am I wrong on that?

Mr. Sarnowski: It would be within the meaning of that if it was presented in the application.

Unknown Speaker: Here's my hypothetical.

Let's be perfectly clear about it.

You have... the petitioner has one claim.

He files in Federal court, and the district court says, you haven't exhausted, I'll dismiss without prejudice.

He goes back and exhausts.

Now he comes back.

Is that a second or successive petition within the meaning of (b)(1)?

Mr. Sarnowski: No, and--

Unknown Speaker: All right.

Now he is... now this... I change my example.

He takes the first petition with one claim, goes back and exhausts that, adds a second claim and comes back.

Is that a second or successive within the meaning of (b)(2)?

Mr. Sarnowski: --Yes, because... I assume your question posits that the second claim was not identified in the first petition, thus it would be new.

Unknown Speaker: It would be new.

Mr. Sarnowski: It was one not presented.

Unknown Speaker: That would be a new claim presented in a second or successive, but you would give a different meaning to the words second or successive in (b)(1) than (b)(2).

Mr. Sarnowski: Based on the wording of the statute, not to the words second or successive, but on how the petition is handled, because he's not coming in with an... in your example, as I understand it, the issue he had previously identified is the one he was coming back with to apply (b)(1), whereas he came back with different issues in (b)(2).

Unknown Speaker: Yes, but it's... the (b)(2) as I read it, it says a claim presented in a second or successive that was not presented in a prior application.

That deals with it.

But you're saying that one is second or success... my second example is second or successive, but the first one is not.

Mr. Sarnowski: In any instance, and I think to try to best answer your question, in any instance where something wasn't identified in that first petition and the petitioner comes back with it, it is new, or in the words of the new statute, or AEDPA, not presented, and thus then we look to the mechanism as to what the court is to do with--

Unknown Speaker: But isn't it... isn't the reason that it's not second or successive under one because there was no prior adjudication of anything on the merits under the original petition?

Mr. Sarnowski: --Some of--

Unknown Speaker: Isn't that the reason that you had, that you gave Justice Stevens the answer you did on (1)?

Mr. Sarnowski: --Some of this Court's case law, and much of the case law that the circuit courts have issued, says that.

Unknown Speaker: All right.

Then why don't you have to give him the same answer under (2)?

Nothing... on his second hypothetical under (2), nothing has been adjudicated on the merits.

Mr. Sarnowski: Perhaps because I didn't... because the question posits that there are additional claims.

Unknown Speaker: Yes, there are additional claims, but if second and successive refers to the fact or not of an adjudication on the merits of a prior petition, then I don't see why you don't have to give him the same answer under (2) that you did under (1).

Mr. Sarnowski: The essence of the difference is that they take the position, and Mr. Slack does, that it requires a prior merits adjudication, we take the position that it doesn't.

If I mistakenly or confusedly answered Justice Stevens' questions, I certainly didn't mean to.

The crux of the dispute is, we say it doesn't require a prior merits decision, be it under the Rule 9, or under the--

Unknown Speaker: Then why doesn't it under (b)(1)?

Mr. Sarnowski: --statute that applied, or the new one.

Unknown Speaker: Why doesn't it under (b)(1)?

Mr. Sarnowski: Because it doesn't... the statute doesn't speak to, as I understand it, whether or not there was a prior adjudication.

It merely says, presented in a prior application.

Unknown Speaker: What is the corresponding language of AEDPA, supposing that we decide that AEDPA does apply to this case?

Mr. Sarnowski: That's the statute--

Unknown Speaker: Is that the AEDPA language?

Mr. Sarnowski: --Yes.

It appears in the brief for the petitioner in appendix 3.

Unknown Speaker: Mr. Sarnowski, I take it it's your position that the words second or successive application is not a phrase newly coined in AEDPA, but rather refers to a body of case law concerning what is second or successive.

Mr. Sarnowski: It does.

However, none of the cases--

Unknown Speaker: And had re... are there any cases that dismissed the return of a petitioner from exhausting his claims, and after having been told to do that, are there any cases that have dismissed such a reapplication as a second or successive habeas?

Mr. Sarnowski: --There are no cases from this Court of which I am aware.

Of course, Farmer.

Unknown Speaker: Of any court.

Mr. Sarnowski: The Farmer case, which we cite.

Unknown Speaker: I mean, the only way you are going to be able to answer Justice Stevens' question is by saying that second or successive habeas corpus application is a term of art, and that it may... and that it does not include coming back a second time after you've been dismissed the first time and told to go back to State court and exhaust and then come back.

It's the only way you're going to be able to do it, so does the case law support you on that?

Mr. Sarnowski: The case law, I have found no case that ever says what second or successive means.

This Court, even as recently as Martinez-Villareal, its opinion of two terms ago--

Unknown Speaker: Going the other way, have you found any case... I refer specifically to Justice Kennedy's opinion, McCleskey and all the cases he cites, in which the abuse of the writ doctrine has been applied when there has not been a prior dismissal on the merits?

Mr. Sarnowski: --The Sanders case upon which the rule was fashioned, the 1963 decision in a 2255 case, in which this Court said, Mr. Sanders' first petition was dismissed for procedural reasons.

That is, it was inadequately pled, and while it reversed the finding of abuse, it did allow the Government, as the case was remanded back, to assert abuse, and we have cited that particular scenario in our brief to this Court, and the Ninth Circuit relied on it.

Unknown Speaker: What about the Farmer case from the Ninth Circuit?

That tends to support your--

Mr. Sarnowski: Certainly.

It's the first case, and I would readily admit there is no other case there, and like so many issues that get to this Court, this is a particular case on particular facts, and apparently we were the first ones who had had enough of serial mixed petitions warranting the affirmative defense which we proffered successfully not only in Farmer, but in this case.

We would ask the Court to affirm the denial of the certificate.

Thank you.

Unknown Speaker: --Thank you, Mr. Sarnowski.

Mr. Pescetta, you have 2 minutes remaining.

Rebuttal of Michael Pescetta

Mr. Pescetta: Let me just cite the Court the language of this Court's decision in Stewart v. Martinez-Villareal at page 1622 of 118 Supreme Court Reports.

The Chief Justice's opinion in that case said, we believe that respondent's fourth claim here, previously dismissed as premature, should be treated in the same manner as the claim of a petitioner who returns to a Federal habeas court after exhausting his State remedies.

Later on, in both situations, the habeas petitioner did not receive an adjudication of his claim.

To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining Federal habeas review.

Unknown Speaker: That would support you if there were no other claims tacked on here to the exhausted claim.

Mr. Pescetta: Respectfully, Your Honor, I disagree.

Either we have a second or a successive petition, or we do not.

If we have a second or a successive petition, then the res judicata body of law applies.

If a dismissal without prejudice, as this Court allowed in Rose v. Lundy, counts as toward counting a second or a successive petition, it's my understanding of Martinez-Villareal that that's the petition this Court rejected.

A dismissal without prejudice is a dismissal without prejudice.

It has no--

Unknown Speaker: Unless second or successive is a term of art which does not include bringing back a petition previously dismissed without prejudice with the instruction to exhaust the State remedies.

Mr. Pescetta: --The distinction there, Your Honor, is it has always been understood as a res judicata doctrine, not as a pleading limitation doctrine.

Unknown Speaker: No, the real distinction is, the question of what do you identify as the first?

There can't be a second unless there's a first, and if you dismiss it for not... exhaustion, and you don't add any new claims, it wasn't a first.

Mr. Pescetta: It can't--

Unknown Speaker: If you add a new claim, it suddenly became a first.

Mr. Pescetta: --It... and that's our point, is, that is a res... abuse is a res judicata doctrine.

We can't mix that with a dismissal without prejudice before exhaustion.

Unknown Speaker: Is there any reason to think that AEDPA froze the concept of a second or a successive petition, so that if something came to our attention that we regarded as in the same ball park, we could not decide that it was?

Mr. Pescetta: I think the problem there, Your Honor, there's no evidence of it.

The courts of appeals are absolutely unanimous that under AEDPA a petition filed after a previous dismissal of that prejudice for exhaustion is not second or successive.

Chief Justice Rehnquist: Thank you, Mr. Pescetta.

The case is submitted.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

ANTONIO TONTON SLACK, Petitioner v. E. K. McDANIEL, WARDEN, ET AL.

No. 98-6322

March 29, 2000

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:05 a.m.

APPEARANCES:

MICHAEL PESCETTA, ESQ., Las Vegas, Nevada; on behalf of the Petitioner.

MATTHEW D. ROBERTS, ESQ., Assistant to the Solicitor General, Department of Justice, on behalf of the United States.

DAVID F. SARNOWSKI, ESQ., Carson City, Nevada, on behalf of the Respondents.

PROCEDINGS

(11:05 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 98-6322, Antonio Slack v. E. K. McDaniels.

Mr. Pescetta.

ORAL ARGUMENT OF MICHAEL PESCETTA ON BEHALF OF THE PETITIONER

MR. PESCETTA: Thank you, Your Honor.

QUESTION: Spectators are admonished, do not talk until you get out of the courtroom. The Court remains in session. Please proceed, Mr. Pescetta.

MR. PESCETTA: Thank you, Your Honor.

Mr. Chief Justice, may it please the Court:

In the first argument in this case last fall, I asked the Court to apply a common-sense rule to the questions on which it granted certiorari, and to hold that previous dismissals of the petition for exhaustion do not render a subsequent petition second or successive within the meaning of habeas Rule 9(b) because that's the only position --

QUESTION: Well, Mr. Pescetta, I do have a problem right off the bat with the fact that in a case here called Hohn, H-o-h-n, we said that a request for a certificate of appealability is a case itself and, if that's correct, it looks to me like your client's case, insofar as we treat it as a certificate of appealability, anyway, was filed after what we call AEDPA's effective date, and is governed by section 2253(c).

MR. PESCETTA: Respectfully, Your Honor, I don't agree that that's exactly what Hohn said. I think what Hohn said was that the case enters the court of appeals on the application for the certificate of appealability.

QUESTION: Well, I certainly thought that's what it said, I have to tell you, so if I think that, then what do we do?

MR. PESCETTA: Well, I would refer Your Honor to the authorities that we've cited, in fact, an old one decided by Justice Oliver Wendell Holmes, that a case proceeds, that the appeal is a stayed in the case that's begun in the district court, and the respondents, and the amici on behalf of respondents, have not offered an alternative definition of the case. Mr. Slack's case was indisputably --

QUESTION: So if I'm correct about what I think Hohn stood for, you'd say it was wrong and we should get rid of it?

MR. PESCETTA: I don't think I would put it quite that way, Your Honor. I would say that the motion for a certificate of appealability addressed to the court of appeals in Hohn, and in this case, elevates the case that is in the district court into the court of appeals. That is a case that is at that point ending in the court of appeals, but it's not a case that's different or separate from the case that's in the district court. It's not --

QUESTION: But it's a totally -- you know, if you simply don't file a notice of appeal from the judgment of the district court, the case is over. If you file a notice of appeal, a brand new case starts in the court of appeals.

MR. PESCETTA: I disagree with that, Your Honor. It's the case that's in the district court that is going into a different phase. That's my understanding of McKenzie v. Engelhardt, is that the case --

QUESTION: Well, but Hohn came considerably after that.

MR. PESCETTA: Yes.

QUESTION: And certainly I think -- I agree with Justice O'Connor. A fair reading of Hohn is that this is a new case.

MR. PESCETTA: I don't think that that was this Court's intent and, of course, this Court will tell me if I'm wrong, but my understanding was that the point in Hohn was that the filing of the motion for a certificate of appealability gets the case from the district court in some fashion to the court of appeals, in the same way that in a case where you don't need a certificate of appealability at all, simply the notice of appeal gets the case into the court of appeals, but --

QUESTION: It held that it was a case. It didn't hold that it was a new case.

MR. PESCETTA: Yes, Your Honor.

QUESTION: And in order to make your opponent's point here, it would have to be a new case.

MR. PESCETTA: Exactly, Your Honor. Mr. Slack's case was pending in the district court at the time the AEDPA was enacted. That case didn't go away. It didn't transmute in some way. It's the same case that went to the court of appeals on our motion for a certificate of probable cause because, of course, since this was a pre-AEDPA case, we asked under the old law for a certificate of probable cause, and not a certificate of appealability, and we entered the court of appeals with that case in the same way that if we had prevailed in the court below and the State had appealed to the court of appeals, the notice of appeal would have vested jurisdiction in the court of appeals over this case. The case hasn't changed.

Now, the point I think that was being focused on in Hohn was whether there was anything pending in the court of appeals on the motion for a certificate of appealability in that case, and this Court said yes, that's correct, and it's our position that our case, the case that was pending at the time the AEDPA was enacted, did vest jurisdiction in the court of appeals to decide whether to bring that case up by granting a certificate of appealability, and it's the same case that's before this Court on the propriety of the court of appeals' denial of that certificate of appealability -- certificate of probable cause.

QUESTION: What was filed here was a certificate of probable cause, I guess, not a certificate of appealability.

MR. PESCETTA: Yes, Your Honor, because at no point in the prior proceedings in the district court or in the court of appeals, or in this Court until the argument in the fall, did the respondent State ever say that any portion of the AEDPA applied to this case.

QUESTION: Well, haven't a number of courts of appeal treated those two things just interchangeably? They've treated certificates of probable cause as certificates of appealability.

MR. PESCETTA: Only because the courts of appeals have uniformly -- have not uniformly, but in the main treated the -- or, the substantive requirements for certificate of appealability as the same as those for a certificate of probable cause and if, as we argue in the second part of our argument, that all the certificate of appealability was intended by Congress to do, which was the only position asserted by the proponents of the legislation, was to adopt the Barefoot standard, then it's purely a question of terminology, terminology and, of course, the specification of issues provision.

But I would submit that the State can't rely on any defect either in the specification of issues provision, or in whether we call this a certificate of appealability or a certificate of probable cause, because we asked the district court for a certificate of probable cause. Issue was joined under pre-AEDPA law. The court of appeals denied the certificate of probable cause under pre-AEDPA law, and this Court granted certiorari on our petition under pre-AEDPA law, and the question of whether any portion of the AEDPA would apply to this case was injected into this case by the State Attorney General amici, who claimed that there was a jurisdictional problem under section 2253.

But our position is simply that Lindh controls this case. Our case was pending at the time the AEDPA was enacted. There's no dispute about that.

QUESTION: Well, what Lindh held was essentially that there is no retroactivity provision in section 153, and therefore the normal rules of nonretroactivity apply, and the normal rules of nonretroactivity for a statute that sets forth the substantive requirements for habeas would not apply that statute to any cases that were filed already when the statute was enacted.

But the normal rules of retroactivity do not apply uniformly to every matter governed by a statute. I mean, you might have in the same statute the alteration of the substantive requirements for a crime, okay, the alterations of the requirements for filing a lawsuit, and the alteration of evidentiary requirements in the course of a trial. Now, what would constitute a retroactive application of each one of those three is quite different.

MR. PESCETTA: I agree that they might be different, Your Honor.

QUESTION: That's right, and what Lindh involved was the substantive requirements for habeas, and it said this would be retroactive if you applied the new substantive requirements to a case already filed.

But it's an entirely different question as to whether requirements concerning the requirements for appeal are being applied retroactively so long as you apply them to cases that are not yet on appeal, and I think that's what's going on here, and it seems to me not at all contrary to Lindh to say that the requirements for appealing are governed by the new law.

MR. PESCETTA: Your Honor, my understanding of Justice Souter's opinion for the Court in Lindh was that we have these two chapters, 154 and 153. By clearly mandating that the chapter 154, the opt-in provisions, apply to cases pending at the time of the act, the negative, the strong negative inference arose that the chapter 153 provisions and the amendments to section 2253 and the Federal Rules of Appellate Procedure are in chapter 153, don't.

QUESTION: They say generally. Would you say generally do not apply?

MR. PESCETTA: Yes, Your Honor.

QUESTION: And I think the reason it said generally was because some of those provisions do not deal with the initial substantive requirements for getting relief, but deal to such matters as what are the conditions for appeal. That's why it said generally.

MR. PESCETTA: Respectfully, Your Honor, I think that there is a different explanation. The opt-in provisions are not stand-alone. They do not have the, for instance, the review provisions of section 2254(d), which were in the chapter 153 amendments. They don't have the separate appeal section.

And it's our view of what Lindh intended to hold by that use of the word, generally, was that anything that falls within the opt-in provisions that are covered by chapter 154, take along with them the general provisions that were enacted by the AEDPA as to those cases which qualify for the opt-in treatment.

I'd emphasize Mr. Slack's case is not only a nonopt-in case, it's not a capital case, and so under those circumstances, if you are in the opt-in world, all of the amendments to both chapter 153 and 154 would apply.

But if you're not under chapter 154 there, I think, is no basis for saying that the chapter 153 amendments which apply to everybody else apply to a case pending, which Mr. Slack's case clearly was at the time the AEDPA was enacted.

QUESTION: They certainly don't apply retroactively, but what constitutes a retroactive application of them is another question, and I don't consider it a retroactive application of them to say that they apply to all cases that seek an appeal after the enactment insofar as their provisions governing appeals are concerned.

MR. PESCETTA: I submit that the inference that this Court drew in Lindh with respect to the difference between the opt-in and the nonopt-in chapters, is exactly the same in both situations, especially since we have the additional problem that applying different parts of AEDPA to different parts of the case and different cases, depending on whether they're on appeal or not, would raise the same kind of -- I think Justice Breyer referred to it as a mare's nest of problems.

QUESTION: But I thought, Mr. Pescetta, that you said in the second part of your argument, this is a nice, academic discussion. It really doesn't matter, because for the issue that's before this Court, whether it's a COA or whether it's a CPC, that what you have to satisfy is the same.

That is, since you're not relying -- you're not saying the State court misapplied any Federal statute. You're claiming a constitutional right, as is usual in habeas cases, so I thought you were saying in the second part of your argument that it doesn't make any difference.

MR. PESCETTA: I will turn to that now. I think the fact that it shouldn't make any difference reduces somewhat the force of the negative inference to be drawn, as in Lindh, from the focus on pending cases in chapter 154. I think the more -- the greater the impact that the state argues for of the appeal provisions, the stronger that negative inference is that they shouldn't be applied.

But to turn to Your Honor's question, and to the question that I think Justice O'Connor raised about jurisdictions in the last argument, the current certificate of appealability standard is that you have to show -- make a substantial showing of a denial of a constitutional right.

And, in using that terminology, I submit that there is no evidence of any sort suggesting that Congress had any intent in using that phrase, other than to use it as a shorthand for the phrase, violation of the constitutional laws or treaties of the United States that appears in section 2254 and in 2241, and that's consistent both with this Court's practice, with this Court's use of the terminology, and with the use of the indiscriminate use of the term, Federal right, constitutional right, throughout the AEDPA. I would just like --

QUESTION: You're saying, then, that when the AEDPA says constitutional right it really means any sort of a right claimed under a Federal statute?

MR. PESCETTA: I think, Your Honor, it means constitutional laws or treaties of the United States as a shorthand.

QUESTION: That's a strange way of expressing it.

MR. PESCETTA: I don't think so, Your Honor. If you look at McCleskey v. Zant, for instance, where this Court is discussing the history of the great writ, at pages 478 to 479 of 499 U.S., this Court's majority opinion, authored by Justice Kennedy, refers to and quotes Wainwright v. Sykes as saying, quote, review is available for claims of, quote, disregard of the constitutional rights of the accused and later on, quote, the writ today appears to extend to all dispositive constitutional claims presented in a proper procedural manner.

So my position is, if that kind of shorthand -- because I don't think that there was any intent in McCleskey or in Wainwright v. Sykes --

QUESTION: What was being discussed in McCleskey was a constitutional right, so it makes perfectly good sense there to talk about -- that language wasn't intended to cover the whole scope of habeas.

MR. PESCETTA: Well, Your Honor, that's exactly, I think, my point, is that this Court uses shorthand the same way that Congress does. When you say habeas is there to redress constitutional rights, you don't say -- in every opinion you don't repeat the phrase from section 2254 --

QUESTION: Well, but in an opinion where the habeas claim is based on a constitutional right, it makes perfectly good sense to say, here we have a constitutional claim made under the habeas statute, but when Congress says it's not talking about any particular claim that's being raised in a case, such as we do, when it says the denial of a constitutional right, I think it's certainly a very plausible inference it means that and nothing more.

MR. PESCETTA: The difficulty with that, Your Honor, is, it doesn't look at the whole statute which, of course, is one of the standards of statutory construct --

QUESTION: But this is the provision that is dealing with what can be raised.

MR. PESCETTA: Yes, Your Honor, but if you look, as we have argued in our briefing, at the use of the term, constitutional right and Federal right, throughout the AEDPA, particularly -- and I would cite as kind of exhibit A, you know, under section 2254(d), a grant of habeas relief is allowed if the State court's disposition violates clearly established Federal law.

QUESTION: Isn't your underlying claim here one of constitutional right?

MR. PESCETTA: Well, yes.

QUESTION: And don't you think there is a substantial claim?

MR. PESCETTA: Yes, Your Honor, and that has not been argued --

QUESTION: So wouldn't you fall within it?

MR. PESCETTA: -- and the State hasn't argued to the contrary.

QUESTION: In fact, do you have even any right -- as far as I can see, what he's complaining about in the State criminal process is a deprivation of constitutional rights. He's not raising any Federal statute. He's not raising any treaty.

MR. PESCETTA: Yes, Your Honor, and that's the second part of our argument, is that whatever this provision means, it can mean only the review of the substantive underlying claim. There is no decision by any court that says a denial of a -- a substantial showing of a denial of a constitutional right cannot be made on the basis of showing, as in this case, that the district court erroneously refused to address a substantive constitutional claim at all because of a procedural error.

QUESTION: That's interesting, and you would apply that consistently? You would always look at the underlying claim, so that even if the underlying claim -- if the underlying claim was statutory, or based upon a treaty, and then in the disposition of that claim the procedural right that was denied was so fundamental that it was a violation of the Constitution to deny that procedural right, and then the violation of that procedural right is sought to be appealed on habeas, you would dismiss it because the underlying claim, after all, is not a constitutional claim. That's what you said.

MR. PESCETTA: Your Honor --

QUESTION: I'm not sure you'd do that.

MR. PESCETTA: -- we don't have to reach that point, because our underlying claims are constitutional. Our --

QUESTION: I understand that, but I'd like to know what your theory is.

MR. PESCETTA: Our --

QUESTION: Whether your theory is that you always look to the underlying claim, or the defeat of the underlying claim, or the procedural claim is a -- arises to the level of a constitutional claim.

MR. PESCETTA: Our position in this case, Your Honor, is that to decide this case the Court does not have to reach whether the underlying claim is constitutional or a violation of the constitutional laws or treaties of the United States. This Court can --

QUESTION: I thought your -- the point you were making is, you look to see what you are complaining about in the State criminal process, not when you get to the district court complaining on habeas.

MR. PESCETTA: It's --

QUESTION: So if you're in the State, and whether you say it was a procedural violation or a substantive violation, I -- as long as the focus of 2253(c) is on the State criminal process, what went wrong there, then all you have is constitutional objectives.

MR. PESCETTA: I've expressed myself badly, Your Honor. What we are saying is, you have a substantive underlying constitutional claim which attacks something, whether substantive or procedural, that happened in the State proceedings. That's the basis for relief.

The State, and amici's position, is that if review of that underlying claim that you've raised in your Federal petition is barred by a procedural error that the district court commits, such as in this case by holding that a petition is second or successive when it's not, it's their position that this amendment to 2253 prevents us from ever getting any appellate review of that question, either as to the underlying substantive question or as to the validity of the procedural ruling.

And our position is, this is utterly inconsistent with this Court's practice, it is contradicted by the use of the -- by AEDPA's explicit limits on this Court's jurisdiction such as in 224 -- such as in 22 -- section 2244(c), or rather 2244(b)(3)(E), where in AEDPA the Congress said, you cannot review on certiorari or a rehearing decision by the court of appeals whether or not to allow the filing of a second or a successive petition.

It's our position that this was not in Congress' mind, that the only thing before Congress at the time that this provision was enacted that Mr. Lundgren, who was then the Attorney General of California and one of the major proponents of this legislation said, was, we want to codify Barefoot. It's our position that that is all that happened in --

QUESTION: Codify what?

MR. PESCETTA: Barefoot v. Estelle.

QUESTION: Barefoot.

MR. PESCETTA: If I could reserve the remainder of my time, Your Honor.

QUESTION: Very well, Mr. Pescetta.

Mr. Roberts, we'll hear from you.

ORAL ARGUMENT OF MATTHEW D. ROBERTS ON BEHALF OF THE UNITED STATES

MR. ROBERTS: Mr. Chief Justice, and may it please the Court:

The certificate of appealability provisions applied to petitioner because he filed his notice of appeal after AEDPA was enacted. Petitioner may obtain --

QUESTION: Is that -- on what theory? On the theory that it's a new case, or on the theory that Lindh doesn't cover that?

MR. ROBERTS: We accept the -- a reading of Lindh that the question of whether the provisions apply turns on whether the case that they governed was pending when AEDPA was enacted and, because those provisions govern only the discrete proceeding in which the habeas petitioner seeks authorization to appeal, we think that's the relevant case for determining their applicability.

QUESTION: But why? Why? That is -- I mean, I read your brief. It's very logical. It's very good. The question in my mind is, why make this so complicated?

I mean, if you're right, there are very few lawyers in the country who will understand it, let alone the judges and all the courts of appeals, and who knows what they've decided, and the certificate isn't the most -- the name on the certificate, whether it's CPC or some other name, isn't so important, and all of a sudden appeals are generated, and the law's about the same anyway, and so why isn't the simplest thing just to say, this is part of the case? It means new cases, and that's it.

MR. ROBERTS: It's --

QUESTION: What harm would be done?

MR. ROBERTS: Our position isn't any more -- isn't materially more complex, Justice Breyer. It's just that the -- whether the provision at issue is applicable turns on whether the case that it governs is pending, and for all the provisions of AEDPA except for the certificate requirements, that will mean that it's triggered by the filing of the petition in the district court, because all of those provisions --

QUESTION: And so what we've done is introduced a little curlicue and told all the lawyers, by the way, it's when you file the petition in the district court, but for the CPC, and eventually I guess that word would get out. But why?

MR. ROBERTS: That makes --

QUESTION: I mean, after all, case can mean different things in a different context.

MR. ROBERTS: Yes, case can mean different things in a different context, and that's why we think that it's justifiable to do it here, because it makes sense, because appellate --

QUESTION: Well, all we're talking about here is a transitional rule anyway.

MR. ROBERTS: Yes.

QUESTION: It's perfectly clear that eventually AEDPA will apply to all appeals.

MR. ROBERTS: That's right. It is just a transitional rule, and there are probably very few cases that are still pending that it applies to, and it makes sense, because traditionally and logically appeal procedures like the certificate requirement have applied to appellate proceedings that commence after the procedures are enacted, and --

QUESTION: Yes, but didn't we -- no, please.

Didn't we put it -- I just took a quick look at Hohn, the principal opinion in Hohn, and didn't we speak of case there in more or less the following terms: we said that the denial of this threshold condition does not prevent a case from being in the court of appeals.

We in effect -- we did not say in Hohn that the COA request was itself a separate case, as -- and Justice Scalia suggested a moment ago, we didn't say it was something new, and in fact elsewhere we spoke of the, in essence the indivisibility of the merits of the case from the COA, so if we read Hohn not as indicating that a COA is a new and separate proceeding, why do we have to be as complicated as you would have us be?

MR. ROBERTS: Well, first, I don't think that you can read Hohn that way, Your Honor, because -- because under Hohn the case couldn't have been in the court of appeals, the underlying case couldn't be in the court of appeals because a certificate hadn't issued, so Hohn had to hold that it was a separate case to achieve the result of making the case in the court of appeals.

But in any case, as I was trying to explain to Justice Breyer, it doesn't make it materially more complicated. It means that for this purpose, for the purpose of the certificate provisions only, they apply if the notice of appeal was filed after AEDPA was enacted, and that makes sense because they govern only appeal procedures, and it makes sense to apply a provision that governs only appeal procedures to appellate proceedings that begin after they're enacted.

QUESTION: Why don't you just do that directly, without -- I frankly find it very strange to regard this as a separate case. I think that's just contrary to normal usage.

Why don't you simply say that all that Lindh held was that the substantive requirements are governed by a nonretroactive principle, and what nonretroactivity means for the substantive requirements is that you apply them to all cases. You do not apply the new requirements to all cases that were already filed.

But what nonretroactivity means for new appellate procedures is that you do not apply them to any cases that have not -- that have already been appealed.

MR. ROBERTS: I agree with you, Justice Scalia --

QUESTION: And that gets -- it gets you to the same point without having to use the -- it seems to me a strange use of what's a case.

MR. ROBERTS: I agree with you, Justice Scalia, that that gets to the same point, and that it's not retroactive to apply it here. That's part of the reason that it makes sense.

QUESTION: You probably ought to say something about the merits --

MR. ROBERTS: Yes, okay.

QUESTION: -- before you have to sit down.

MR. ROBERTS: We believe that petitioner is entitled to a certificate only if he makes a substantial showing of the denial of a constitutional right and when, as in this case, the district court has denied relief on procedural grounds.

That showing has two parts, first, that there's a substantial argument that he can overcome the procedural bar and, second, that there's a substantial argument that his habeas petition raises a meritorious claim. He can appeal if there's a clear procedural bar to relief, because permitting appeals based on the abstract merit of the underlying claim when relief on that claim is unavailable would thwart the purpose of a certificate requirement to prevent frivolous or unnecessary appeals.

And he also can't appeal if his underlying constitutional claim clearly lacks merit, even if the district court may have erred in denying relief on procedural grounds, and that limitation is imposed by the term, constitutional, in the certificate standard, and it accords with the purpose of the certificate requirement, because there's no need to correct a district court's procedural error if that error prevents consideration of only meritless claims.

We don't think that appeal is foreclosed just because the district court denies relief on procedural grounds. Precluding appeals from procedural orders in all cases would not further the purpose of the certificate requirement, because it would bar appeals of meritorious habeas petitions that raise constitutional claims, and it wouldn't be consistent with the text of the certificate standard either, because a prisoner makes a substantial showing of a denial of a constitutional right if he makes a substantial showing that his conviction was imposed in violation of the Constitution and the habeas court erred in refusing him relief.

QUESTION: What do you think we should do with this case?

MR. ROBERTS: Well, we think that you should hold that the certificate of appealability provisions apply, and that the standard in this circumstance has the two parts that we said, and then either, depending on what the Court wanted to do, there would be two options in that circumstance.

One, the Court could address the question that it initially granted certiorari on in the course of answering the first part of that standard, and then remand to the court of appeals --

QUESTION: You're telling me what we could do. I'm just wondering what you think we should do.

MR. ROBERTS: Well, if the Court -- I think that if the Court thinks that the first -- that the question that it initially granted certiorari on is a question of continuing importance that it still wants to resolve, that would be an acceptable way to do it. Otherwise, the court should remand the case to the court of appeals for application of the standard.

If there are no further questions, thank you.

QUESTION: Thank you, Mr. Roberts.

Mr. Sarnowski.

ORAL ARGUMENT OF DAVID F. SARNOWSKI ON BEHALF OF THE RESPONDENTS

MR. SARNOWSKI: Mr. Chief Justice, and may it please the Court:

It is indeed Nevada's position, consistent with the Eighth Circuit ruling upon which we rely and cite in our brief, Teeterman v. Benson, that the changes to section 2253 regarding certificates of appealability apply to the appeal in this case, which was initiated after the effective date, April 24, 1996. In fact, the claims at issue which were the subject of the district court's dismissal and the circuit court's review, were filed after the effective date of the case.

In Teeterman, the Eighth Circuit, speaking to a question that Justice Scalia just asked, noted that while in Lindh this Court held that the changes generally didn't apply to the substantive issues. It indicated that the Court could think of no reason why a new provision exclusively directed toward appeal procedures would depend for its effective date on the filing of a case in a trial court instead of on the filing of a notice of appeal or similar document and, thus, it held in the 1997 ruling that AEDPA does apply and that the COA provisions apply.

Subsequent, the Hohn case also came to this Court out of the Eighth Circuit. That was a 2255 case in which initially the petitioner challenged the way the Federal statute had been applied to him. At some point in time in the litigation, after he appealed, the Government conceded that it was not merely a constitutional or, excuse me, a statutory issue, but, rather, a issue of constitutional dimension and ultimately, as this Court knows, the Hohn case ended up here for its determination on the limited issue regarding whether it could review the denial of the COA.

QUESTION: Mr. Sarnowski, assuming AEDPA applies, are you going to talk about whether you agree or disagree with the standard that the Solicitor General would ask us to apply here?

MR. SARNOWSKI: Yes, I am. I would assert that the change in language was not, as Mr. Slack would assert, was nothing more than a mistake, or meant nothing. Congress changed the term, Federal, to the term, constitutional in the statute, keeping in mind that the COA provision has application to both State prisoners who bring their cases to the district courts and to Federal prisoners as well.

It frankly does what we see Congress having intended to do, which is to put limitations on the types of issues that the courts would have to adjudicate. In this case, the Congress used the word constitutional, and this Court has indicated --

QUESTION: Well, but if that's the underlying claim, and if the problem is where the petitioner makes a substantial showing that the district court erred on the preliminary question of whether it's second or successive, you would say that the court of appeals could never address that problem --

MR. SARNOWSKI: Our position --

QUESTION: -- and that the law then would evolve in district court, without any appellate review on legal questions such as exhaustion or procedural default and so on.

MR. SARNOWSKI: Our position, consistent with that brief by the several States in this matter, is just that. We would see the evolution of the law --

QUESTION: Well, I think that's unfortunate and troublesome, I have to tell you, and I wonder if the Solicitor General's position wouldn't be the better view here.

MR. SARNOWSKI: It is what I would call a middle ground view. However, sometimes better doesn't necessarily mean that is one consistent with what Congress has mandated. We do see that there would be an availability of remedy by way of an extraordinary writ proceeding if a ruling by a Federal district court, or even a circuit court for that matter, on a procedural issue such as exhaustion or procedural bar were such that this Court may not be able to entertain it, or could entertain it.

QUESTION: What sort of an extraordinary writ would you envision, Mr. Sarnowski?

MR. SARNOWSKI: I would say an extraordinary writ would include an original filing in this Court to seek mandamus or other appropriate extraordinary remedies.

QUESTION: Well, quite apart from the proper construction of the statute, one would hope it's not likely that Congress intended to transfer from what would otherwise be review in the court of appeals to direct review in this Court.

MR. SARNOWSKI: I don't think that was Congress' intent to transfer all those -- many cases here, and my response was what sort of remedy could occur if, in fact, a holding on a procedural matter was so egregious in the district court, and we assert that the holding in this case is a run-of-the-mil type of holding and not egregious in any way.

QUESTION: But my experience -- if I understand you correctly, it would be relevant -- it seems to me the vast percentage, maybe the overwhelming percentage of cases on appeal in habeas proceedings do have to do with procedural issues, whether there was an adequate State ground, whether there's a basis for new evidence and therefore you're excused from not raising the claim before, things like that, and your position is that all those, you can't get a COA at all.

MR. SARNOWSKI: There are a large number of procedural issues, that is correct, and --

QUESTION: And I'm right in thinking that's your position?

MR. SARNOWSKI: That is our position.

QUESTION: Wouldn't this have been the most controversial provision in the whole reform package, if that were so?

MR. SARNOWSKI: It certainly would be controversial if this Court were to say that that is what the statute means.

QUESTION: I'm not thinking of controversy by this -- I'm saying I couldn't find anything in the history that suggested that this was the major change in the law, but the way you're reading it, it sounds as if it would be an enormous change. Am I right about that?

MR. SARNOWSKI: I agree that there is nothing directly in the history. I believe Mr. Pescetta referred to statements by then-Attorney General Lundgren, who, as he accurately described, was a proponent, although not a sponsor, obviously.

While he asserted that the Court should codify, or the Congress should codify what this Court said in Barefoot and limit review to substantial Federal rights, what, in fact, happened is the sponsors, the Congressmen and Senators who ended up agreeing on the legislation, used a different word, so I think in order to give import to that word you have to look at what it is that can be gleaned from the use of that word, and it is not procedure, and that is all of what Mr. Slack had to argue about, because the district court's rulings were wholly procedural.

QUESTION: Well, the statute doesn't say that you can only appeal a constitutional right. What it says is, you cannot issue a COA. You can issue a COA only if there is a substantial claim. Now, that's perfectly consistent with their being there in the case that you're trying to appeal a substantial claim. It doesn't say that has to exhaust the grounds on which you are appealing.

MR. SARNOWSKI: If you read the section, that being -- or Rule 2(c)(1), subsection (B)(ii) to mean that, while it says you have to make a substantial showing of the denial of a constitutional right, but that doesn't limit what you can litigate, then I would agree with your question. Our position simply is, I don't think you can read where one provision is included and then say, but it could include other provisions as well, just by practice.

In this instance, a case cited by the petitioner in this case, the Nichols case, Nichols v. Bowersox, a First Circuit case, it assumed Congress had the power to do this, and we would assert it certainly did.

We -- everyone who litigates these cases on a daily basis may think that was a really bad choice if it indeed exercised its power to do so, but where Congress has spoken, as we believe they have in the COA provision, then it has spoken, and we assert that in this instance, where Mr. Slack's petition, the five claims that were really at issue, all of which he brought in well after AEDPA became effective, all of which we believed and the district judge believed accordingly that were unexhausted and four of the five were abusive, abuse and unexhaustion, simply don't have anything to do with having a meritorious claim.

QUESTION: But the claims that he brought were constitutional claims, so one could surely read this subsection (c) of section 2253 to mean that even if you could surmount the procedural hurdle of adequate, independent State grounds, still you don't get a certificate of appealability unless you show that you had made a claim about what went on in the State criminal proceedings of the denial of a constitutional right.

So that seems to me the most logical reading of this provision, that it's talking about what is your basic habeas claim. Why am I being detained unlawfully? Because there was a constitutional flaw in the proceedings in the State court.

MR. SARNOWSKI: Mr. Slack couched his claims in terms of Federal constitutional violations, certainly, as many prisoners do. However, many prisoners also couch their claims in terms of violations merely of State law, for instance, evidentiary rulings that this Court had occasion to visit.

QUESTION: But that you didn't need -- you didn't need any new legislation to toss that out. Habeas, you can't complain about a violation of purely State law.

MR. SARNOWSKI: You are not supposed --

QUESTION: Federal habeas.

MR. SARNOWSKI: You're not supposed to be able to, but it happens with great regularity in State -- or Federal habeas proceedings involving State prisoners, and they raise other issues as well.

QUESTION: Would such cases merit a CPC?

MR. SARNOWSKI: We would argue a COA or a CPC, Your Honor.

QUESTION: I didn't think that those cases were problematic for the Federal courts before or now.

MR. SARNOWSKI: Well, the Fourth Circuit recently in Gray v. Netherland indicated, for example, when a prisoner there asserted the violation of a treaty right, that that didn't raise a constitutional right, so --

QUESTION: Yes, so I don't know why that differs from what I was saying, that if this -- except that under the old law you could raise something under a treaty or a Federal statute, and you brought up a rare case, where the underlying claim would be a treaty or a statute, but mostly these are complaints about something that violated your constitutional right, and it's usually some procedural right.

MR. SARNOWSKI: That is the great majority of the type of claims that are filed, I would grant you that, and I would also indicate that, while it would forge or require a significant change to disallow rulings by the Federal circuit courts on those issues, it is not one that is outside the boundaries of Congress' power to make, unless you just buy the argument, if you will, that petitioner has asserted here that Congress didn't mean anything, and they didn't change anything at all, and some courts have.

QUESTION: Well, that's not the Solicitor General's argument. Why isn't that a sensible reading of 2255?

MR. SARNOWSKI: I don't necessarily understand --

QUESTION: 53.

MR. SARNOWSKI: -- the Solicitor's argument to mean it didn't change anything.

QUESTION: No, I don't -- but you seem to be distancing yourself from the Solicitor General's argument, and I want to know first, are you, or do you agree with the Solicitor General?

MR. SARNOWSKI: We don't agree wholly on that provision. We believe it disallows review of procedural rulings such as the ones that Mr. Slack sought review on in the Ninth Circuit, and was denied review on.

QUESTION: Well, when they say constitutional right, certainly I take it it would no longer be available to raise a claim under the Interstate Agreement on Detainers Act, that the State court had violated that.

MR. SARNOWSKI: That would be our position.

QUESTION: And that could have been raised before.

MR. SARNOWSKI: Correct.

QUESTION: And -- so that there is some change in that sense.

MR. SARNOWSKI: There is, but the very small number of cases that arise under the IADA or Federal treaties is so small, frankly, as to be of little import in the universe of State habeas cases that Federal or State prisoners bring to the Federal courthouses.

I would say that we recognize that even some of the courts in this country, the Tenth Circuit, for example, have indicated that it was a -- that the wording change was a distinction without a difference. The Lennox case, which is cited by the petitioner, the court literally said that.

However it -- in the same breadth it indicated that -- it characterized changes to AEDPA section 2253 as significant, but yet it says it replicated the standard for a certificate. I don't see how the change can be significant if it didn't change anything, and that is our position in the matter.

While certainly the historical record and the development of a statute which occurred over a long period of time --

QUESTION: Well, the Solicitor General's argument, I think, recognizes a change, that in order to get a certificate of whatever it is now, COA, you would not be able to get it simply by showing that there was a substantial showing of a denial of a procedural right under the habeas statute. It was -- something was called second and successive, and it wasn't.

You would also have to show that your underlying claim was substantial, and I don't think you had to do that before.

MR. SARNOWSKI: I understand that to be their argument, and I think it's a good one. However, it does not necessarily seem to go as far as what the word constitutional means under the statute, and that is, of course, the question that the Court has asked us to try to speak to and, unfortunately, there aren't -- there isn't a lot of case law, and the case law that is out there has been cited by both sides, the Teeterman case being the one on which we primarily rely from the Eighth Circuit.

In briefly addressing the other question that this Court had asked the parties to look at, and that is the change to the actual statute itself, that is, the abuse-of-the-writ statute, we have submitted our assertion that the abuse-of-the-writ statute in this case, the application of the new statute frankly would make no major difference in the outcome compared to the old statute.

And particularly the application of Rule 9(b) you asked the question, Justice Stevens, what should happen, and the Solicitor General answered that this Court could revert to the first question that was posed and decide whether it was of continuing import. We suggest that it is of continuing import, certainly in our jurisdiction.

There was an assertion that there were very few cases, or will be very few cases. I can tell you there are many in our jurisdiction, and particularly from the State of California. You may recall the assertion in the brief that the Ninth Circuit has adopted what we colloquially call the parking lot procedure, whereby they treat pre-AEDPA filings dating back to the early 1990's as actual filings, merely where prisoners sought the appointment of counsel.

Those -- many cases are still pending, and frankly may not even get back into the Federal district courts where they have been, quote-unquote, parked, and it is in that context that I say the first question that you all -- that we argued in the fall is of continuing importance.

QUESTION: Mr. Sarnowski, can I ask you about your interpretation of 2253? Like Justice O'Connor, I'm inclined to think that the underlying -- if the underlying claim is a denial of a constitutional right, it may suffice.

It seems to me the strongest argument against that, and I haven't heard you assert it -- maybe I should have asked this question of the Solicitor General, but it seems to me the strongest argument against it is, if you do look to the underlying claim and say, has there been a substantial showing in the underlying claim that a constitutional right was denied, it seems to me then, even if the procedural ground from which appeal is immediately sought is entirely clear, even though there's not much of a doubt about the correctness of the procedural ruling, you would have to -- you would have to allow appeal.

I don't see -- in other words, I don't see how the Solicitor General gets the second half of his interpretation of 2253(c)(2). The first half he says is that you look to see whether the underlying claim is a substantial showing of a denial of a constitutional right, but, he says, if the procedural ruling was, you know, rolling off a log, there's no doubt about its correctness, you don't get a certificate of appealability. I don't see how we can impose that latter condition.

MR. SARNOWSKI: Well, in that regard, and the State's last brief, the amicus brief authored by California, I believe speaks to it, in that if you note the language of 2253 subsection (c)(1)(A) it requires, or it allows an appeal to be taken to the court of appeals only upon the final order in a habeas case, and the question then becomes, what is the court reviewing, or the higher court, if you will, what is it going to review?

In this instance, there was a written ruling which is contained in the joint appendix in this case, which basically outlines what the petitioner said his claims were at various times, and the court's conclusion that they were either unexhausted or abusive. The lower court ruling, the order itself, the final order is totally devoid of any discussion of the merits.

So then you would have the higher, intermediate appellate court reaching down to try to figure out what was in terms of the merits of the underlying claims, what they were. In many instances, you don't have that.

QUESTION: Well, I guess -- could you argue that just the introductory phrase of (c)(1), unless a circuit justice or judge issued a certificate of appealability an appeal may not be taken, and maybe implicit in that is that they wouldn't issue a certificate of appealability unless they thought that the ruling was -- you know, was close? Could you say it's implicit in that language?

MR. SARNOWSKI: I think it's the practice. I don't know if the language makes it implicit. Perhaps the practice over time has made it so. I'm just not able to answer that.

QUESTION: Is that the answer?

QUESTION: Oh, yes. Your answer is right the second time, wrong the first time.

(Laughter.)

MR. SARNOWSKI: Unless the Court has any further questions, I would submit it on behalf of the State. Thank you.

QUESTION: Very well, Mr. Sarnowski. Mr. Pescetta, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL PESCETTA ON BEHALF OF THE PETITIONER

MR. PESCETTA: Thank you, Your Honor.

There's a thread in this Court's statutory interpretations cases that's expressed in Justice Kennedy's opinion for the Court in Hohn, Justice Souter's opinion for the Court in Jones v. United States, that's expressed in many other cases, that we do not -- it is not reasonable to assume that Congress intended a major change in practice without making that intent clear.

What the State's position on the scope of the certificate of appealability is that without any indication, any discussion, Congress intended by enacting section 2253 to erect an entirely one-sided system of review of procedural errors in habeas cases in the Federal court, and the idea that Congress would have done that, would have imposed on this Court and on the courts of appeals the burden of regulating district court procedural rulings in habeas cases by extraordinary writ, simply is not reasonable.

The substantiality question that's been raised by the argument of the Solicitor General as to the substantiality of the underlying claim, we have to remember, Mr. Slack has never gotten a hearing, has never had any proceedings on the substantiality of his underlying claim. All we have is a procedural ruling covering allegations which for the purpose of a motion to dismiss have to be taken as true.

It's our position that if the procedural ruling covers allegations of a substantial constitutional claim, then the procedural ruling has to be reviewable, otherwise we have a monstrosity of a statute which is replicated in no other area of the law, where one side has the right to have procedural errors reviewed and the other doesn't.

Third --

QUESTION: You agree that if the procedural ruling itself is clearly correct, you don't get a COA?

MR. PESCETTA: I don't necessarily -- well, I think the problem with the historical practice -- the short answer is yes, I would agree with that.

The problem is, because of the predominance of procedural issues in habeas practice, the practice has developed that we focus on the procedural issue as the grounds for denying the COA -- rather, the CPC, and the underlying merits of the constitutional claims are assumed because, for the purpose of a motion to dismiss, they have to be taken as true.

Third, there is no change, as it has been expressed, from Federal to constitutional in the statute. The law before the adoption of the AEDPA was Barefoot, which used substantial showing of a denial of a Federal right, but which also used terms like, questions of some substance, issues debatable among jurists of reason. It's our position that Congress, in a number of bills which indiscriminately used the term Federal right or constitutional right, was trying to do one thing. It was simply trying to adopt the Barefoot standard.

It was not 100 percent clear, as many things in the AEDPA are not 100 percent clear, but there is not a shred of evidence in the record before this Court, or in all of the proceedings before Congress, that the congressional intent was anything else.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Pescetta. The case is submitted.

(Whereupon, at 12:00 noon the case in the above-entitled matter was submitted.)