Rodriguez v. Correctional Center

• Court: Court of Appeals for the First Circuit
• Decided: March 23, 1998
• Docket: 97-8068
• Status: Published

Opinion

USCA1 Opinion

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT


_________________________


Misc. No. 97-8068


HECTOR SANTIAGO RODRIGUEZ,



                       Putative Petitioner,



                                v.



          SUPERINTENDENT, BAY STATE CORRECTIONAL CENTER,



                       Putative Respondent.


_________________________



                 ON APPLICATION FOR LEAVE TO FILE



              A SECOND OR SUCCESSIVE HABEAS PETITION


__________________________



                              Before



                     Torruella, Chief Judge,



                 Selya and Stahl, Circuit Judges.



                    _________________________



     James F. McNiff, II for the putative petitioner.

     Gregory I. Massing, Assistant Attorney General, with whom

Scott Harshbarger, Attorney General, was on brief, for the putative

respondent.



                    _________________________



                         March 23, 1998



                    _________________________  SELYA, Circuit Judge.  This proceeding involves questions

of novel impression.  It finds its genesis in an application by

Hector Santiago Rodriguez for permission to file a third habeas

corpus petition seeking relief from his conviction, nearly three

decades ago, for first-degree murder.  Because the putative

petitioner (who, for simplicity's sake, we shall refer to as

"petitioner," without any qualifying adjective) fails to satisfy the

statutory prerequisites for filing a successive petition, we deny

his application.

I.  BACKGROUND

  On November 30, 1971, a Massachusetts jury convicted

Rodriguez of the first-degree murder of William Alonzo Johnson. 

The trial judge sentenced him to life imprisonment and the

Massachusetts Supreme Judicial Court (SJC) affirmed his conviction. 

See Commonwealth v. Rodriguez, 300 N.E.2d 192 (Mass. 1973).

     In addition to filing various post-conviction motions in

the state courts, Rodriguez also filed two unsuccessful habeas

petitions in the federal courts.  The first, circa 1977, challenged

the constitutionality of the trial judge's comments to the jury

during deliberations.  The second, filed in 1984, asserted that the

trial judge's end-of-case jury instructions unconstitutionally

relieved the prosecution of its burden to prove beyond a reasonable

doubt that Rodriguez had not acted in self-defense.

     In 1995, Rodriguez filed another motion for new trial in

the Massachusetts courts.  This motion took renewed aim at the

constitutionality of the jury instructions, this time targeting the

trial judge's use of "moral certainty" language in his reasonable

doubt instructions.  Relying on Cage v. Louisiana, 498 U.S. 39

(1990) (per curiam), Rodriguez argued that the targeted language

abridged his right to due process by permitting the jury to convict

him even if the prosecution had not proved its case beyond a

reasonable doubt.  The state superior court denied Rodriguez's

motion and, on November 18, 1996, the SJC refused further appellate

review.

     During the pendency of these state court proceedings,

Congress enacted the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA).  While

AEDPA preserves a state prisoner's right to seek federal habeas

review of an unconstitutionally obtained conviction, it prohibits

a district court from entertaining second or successive habeas

petitions without pre-clearance by the appropriate court of

appeals.  See 28 U.S.C.  2244(b)(3) (Supp. 1996).  Thus, on

October 3, 1997, Rodriguez approached this court and requested

authorization to pursue a third habeas petition in the federal

district court.  The featured claim echoes that pressed before the

Massachusetts courts:  Rodriguez contends that Cage's condemnation

of some moral certainty instructions as violative of due process,

498 U.S. at 41, is "a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable."  28 U.S.C.  2244(b)(2)(A). 

Realizing that resolution of Rodriguez's application requires this

court to interpret certain of AEDPA's provisions for the first

time, we requested additional briefing and entertained oral

argument.

II.  ANALYSIS

     Because Rodriguez filed his application for leave to

prosecute a third habeas petition long after AEDPA's effective

date, AEDPA governs here.  See Lindh v. Murphy, 117 S. Ct. 2059,

2063 (1997).  The statute contains a gatekeeping mechanism that 

screens second or successive habeas petitions before they reach the

district court.  See Felker v. Turpin, 116 S. Ct. 2333, 2340

(1996).  This mechanism closes the doors of the district court to

a prisoner who wishes to file a second or successive petition

unless and until he obtains advance clearance from the appropriate

court of appeals.  See 28 U.S.C.  2244(b)(3).  AEDPA instructs

that a potential repeat petitioner must make a "prima facie

showing," 28 U.S.C.  2244(b)(3)(C), to this court either that his

"claim relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable," id.  2244(b)(2)(A), or that his claim

rests on material, newly discovered facts, see id.  2244(b)(2)(B). 

Absent such a showing, Rodriguez cannot prosecute his third habeas

petition.


A.  The 30-Day Limit.

     Before turning to the merits, we iron out a wrinkle

created by the AEDPA amendments to habeas corpus procedure.  In

pertinent part, those amendments direct that the "court of appeals

shall grant or deny the authorization to file a second or

successive application not later than 30 days after the filing of

the motion."  28 U.S.C.  2244(b)(3)(D).  Rodriguez filed his

application on October 3, 1997, and thus section 2244(b)(3)(D)

directs us to rule no later than November 2, 1997.  Because we

obviously have missed that deadline, we must evaluate the effect,

if any, of this failure on Rodriguez's aspirations.

     The Sixth Circuit recently pondered this issue and held

that section 2244(b)(3)(D) "is hortatory or advisory rather than

mandatory."  In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997).  We

agree.  Before operating as a mandate, a statutory time limitation

addressed to a public official generally must contain both an

express command that the official act within a given temporal

period and a consequence attached to noncompliance.  See id.; seealso St. Regis Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir.

1985); Usery v. Whitin Mach. Works, Inc., 554 F.2d 498, 501 (1st

Cir. 1977).  Although section 2244(b)(3)(D) invokes the vocabulary

of obligation   it states that a court of appeals "shall" grant or

deny a request to file a second or successive petition within 30

days   it specifies no consequence for the court's failure to honor

this obligation.  Moreover, there is nothing in the nature of the

power to which the temporal limitation appertains, or in the manner

of its conferment, that would justify an inference that Congress

intended the specified period of time to operate as a limitation on

judicial authority.  Hence, we construe the statute as precatory,

not mandatory.  While section 2244(b)(3)(D) directs the courts of

appeals to work within a specified time frame   a charge consonant

with AEDPA's broader attempts to streamline the habeas process  

it operates as a guideline, not as an imperative.

     Let us be perfectly clear.  When presented with an

application for leave to file a second or successive petition, we 

will, of course, make a diligent, good-faith effort to comply with

the 30-day time limit.  We anticipate little difficulty doing so in

the ordinary mine-run of cases.  Yet, certain applications will

present issues that are sufficiently complex or novel to demand

more time.  In some instances, additional documents must be

gathered; in others, supplemental briefing and/or oral argument

will be desirable.  If circumstances counsel against issuing a

ruling within 30 days, we must retain the flexibility to bring the

appropriate quantum of attention to bear.  See In re Siggers, 132

F.3d at 336 (noting that interpreting section 2244(b)(3)(D) as

advisory alleviates separation of powers and due process concerns);

see also Galtieri v. United States, 128 F.3d 33, 36-37 (2d Cir.

1997).

     This is an exceptional case.  AEDPA's successive petition

provisions are relatively new and Rodriguez's application raises

important questions about them.  It was thus impracticable to

comply with AEDPA's 30-day time limit.  Notwithstanding this

necessary delay, we retain jurisdiction to rule on Rodriguez's

application.

                         B.  The Merits.

     AEDPA does not amplify the standard by which a court of

appeals is to gauge the "prima facie showing," 28 U.S.C. 

2244(b)(3)(C), that a prospective repeat petitioner must make.  The

Seventh Circuit recently articulated its understanding of this

requirement:

     By "prima facie showing" we understand [it to

     be] simply a sufficient showing of possible

     merit to warrant a fuller exploration by the

     district court. . . .  If in light of the

     documents submitted with the application it

     appears reasonably likely that the application

     satisfies the stringent requirements for the

     filing of a second or successive petition, we

     shall grant the application.



Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997); seealso Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997).  We

adopt this interpretation, but emphasize that despite its

superficially lenient language, the standard erects a high hurdle. 

This is as it should be: in formulating the AEDPA amendments, 

Congress intended "to curb the abuse of the statutory writ of

habeas corpus," H.R. Conf. Rep. No. 104-518, at 111 (1996),

reprinted in 1996 U.S.C.C.A.N. 924, 944, and, accordingly,

heightened the already formidable barriers to second or successive

habeas petitions.

     We next size the petitioner's case against this template. 

In the post-AEDPA era, a state prisoner who seeks pre-clearance for

filing a second or successive petition has two avenues open to him. 

Because Rodriguez does not press any fact-based claim, we focus  on

section 2244(b)(2)(A) to the exclusion of section 2244(b)(2)(B).

     At Rodriguez's trial in 1971, the jury instructions on

reasonable doubt included several statements that likened proof

beyond a reasonable doubt to proof to a moral certainty.  In Cage,

the Supreme Court explained that some moral certainty instructions

"allow a finding of guilt based on a degree of proof below that

required by the Due Process Clause."  498 U.S. at 41; compareVictor v. Nebraska, 511 U.S. 1, 21-22 (1994) (holding that

reference to "moral certainty" in a reasonable doubt instruction

does not violate due process as long as the charge, taken as a

whole, reasonably conveys the proper "beyond a reasonable doubt"

standard).  Rodriguez asserts that Cage announced a new rule of

constitutional law, that at the time of his last habeas petition

(1984) the Cage rule was unavailable to him, and that the Supreme

Court has made the rule retroactive to cases on collateral review.

     We need not tarry on the first tine of Rodriguez's three-

pronged claim.  A string of federal appellate decisions have held 

that Cage announced a new rule of constitutional law, see, e.g.,

Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994) (Adams III);

Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994); Skelton v.

Whitley, 950 F.2d 1037, 1043-44 (5th Cir. 1992), and we see no

principled basis for sundering this unbroken strand.

     Nor do we need to linger on the "previously unavailable"

prong.  The time frame of the applicant's previous habeas petition

provides the coign of vantage from which we assess whether a rule

of constitutional law was "previously unavailable."  See In re

Medina, 109 F.3d 1556, 1566 (11th Cir. 1997).  Rodriguez filed his

last habeas petition some six years prior to the Court's opinion in

Cage.  Despite this temporal separation, the Commonwealth maintains

that a Cage claim (or its functional equivalent) was available to

Rodriguez at an earlier date because this court had addressed

constitutional challenges to moral certainty instructions prior to

1984.  See, e.g., United States v. Drake, 673 F.2d 15 (1st Cir.

1982); Bumpus v. Gunter, 635 F.2d 907 (1st Cir. 1980); United

States v. DeVincent, 632 F.2d 147 (1st Cir. 1980); United States v.

Indorato, 628 F.2d 711 (1st Cir. 1980).  This is thin gruel, served

cold; it overlooks that we uniformly rejected these challenges

prior to Cage's debut.  See Drake, 673 F.2d at 21; Bumpus, 635 F.2d

at 912; DeVincent, 632 F.2d at 153; Indorato, 628 F.2d at 720-21. 

Consequently, Rodriguez has made a prima facie showing that, in

1984, a moral certainty claim was not available to him in any

meaningful sense.  See Reed v. Ross, 468 U.S. 1, 17 (1984)

(explaining that when a Supreme Court decision marks a "clear break

from the past," the rule embodied therein "will almost certainly

have been" previously unavailable in the requisite sense).

     The remaining question is whether Cage's rule has been

"made retroactive to cases on collateral review by the Supreme

Court."  28 U.S.C.  2244(b)(2)(A).  History furnishes valuable

perspective.  In pre-AEDPA days, a petitioner could obtain relief

only if he demonstrated a violation of a rule of constitutional law

established at the time his conviction became final.  See Teague v.

Lane, 489 U.S. 288, 308-10 (1989).  The case law allowed for two

classes of exceptions to this general approach.  If a new rule

"place[d] certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe," id. at 311, or if it established a "watershed" principle

of criminal procedure that implicates the fundamental fairness and

accuracy of the criminal proceeding, id. at 311-12, then a

petitioner could obtain the rule's benefit retroactively on

collateral review.  

     Inferior federal courts played a significant, though

circumscribed, role in deciding the applicability vel non of these

isthmian exceptions.  In the absence of a direct statement by the

Supreme Court, the lower federal courts were free to determine, in

the first instance, whether a particular rule of constitutional law

merited retroactive application, and thus to determine whether (and

if so, to what extent) a habeas petitioner might take refuge in a

new rule of constitutional law.  See Caspari v. Bohlen, 510 U.S.

383, 389 (1994).  Under a conventional pre-AEDPA Teague analysis,

several federal courts of appeals found that Cage fit within

Teague's second exception and therefore applied retroactively to

cases on collateral review.  See Adams III, 41 F.3d at 178-79;

Nutter, 39 F.3d at 1157-58.  But see Humphrey v. Cain, 120 F.3d

526, 528-30 (5th Cir.) (suggesting that Cage claims fall within

Teague's second exception, but ruling that a prior panel decision

precluded retroactive application), reh'g en banc granted, 120 F.3d

534 (5th Cir. 1997).

     Rodriguez suggests that AEDPA merely memorializes

Teague's approach to retroactivity.  Were that so, opinions such as

Adams III and Nutter would possess considerable force.  But,

Rodriguez's premise is wrong:  AEDPA does not codify Teague.  To

the contrary, its plain language instructs that only new rules

rendered retroactive on collateral review "by the Supreme Court" may

inure to the benefit of habeas petitioners.

     AEDPA contains no overt limitation on the types of new

rules that the Supreme Court may declare retroactive on collateral

review, but it invests the Court with the sole authority to make

such declarations.  Insofar as second or successive petitions are

concerned, the statute's precedent-limiting provision, fairly read,

eliminates the lower federal courts' role in deeming new rules of

constitutional law a permissible basis for habeas relief.  See In

re Vial, 115 F.3d 1192, 1196-97 (4th Cir. 1997) (en banc); In re

Hill, 113 F.3d 181, 184 (11th Cir. 1997) (per curiam); cf. Bocianv. Godinez, 101 F.3d 465, 471 (7th Cir. 1996) (noting that under

the AEDPA amendments to 28 U.S.C.  2254(d)(1), "[f]ederal courts

are no longer permitted to apply their own jurisprudence, but must

look exclusively to Supreme Court case law").  Consequently, an

application to file a second or successive habeas petition must

point to a Supreme Court decision that either expressly declares

the collateral availability of the rule (such as by holding or

stating that the particular rule upon which the petitioner seeks to

rely is retroactively available on collateral review) or applies

the rule in a collateral proceeding.  See In re Vial, 115 F.3d at

1197; In re Hill, 113 F.3d at 184; see also H.R. Conf. Rep. No.

104-518, at 111.

     Rodriguez's fallback position on the question of

retroactivity hinges on his assertion that the Court's dispositions

in either of two cases   Ivan V. v. City of New York, 407 U.S. 203

(1972) (per curiam), or Adams v. Evatt, 511 U.S. 1001 (1994) (Adams

II)   meet AEDPA's requirement and confirm Cage's retrospective

availability on collateral review.  Neither case is persuasive on

this point.

     Ivan V. is a direct lineal descendant of In re Winship,

397 U.S. 358 (1970).  Winship held that the Due Process Clause

"protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime

with which he is charged."  Id. at 364.  In Ivan V., the Supreme

Court imbued this holding with "complete retroactive effect."  407

U.S. at 205.  Rodriguez reasons that a Cage error is a species of

Winship error, and that Ivan V. accordingly supplies the requisite

statement of retroactivity.  Rodriguez's argument is puzzling

since, taken at face value, it suggests that Cage did not announce

a new rule of constitutional law at all, but, rather, amounted to

no more than a specific application of Winship.  If that is so,

then Rodriguez stumbles at the starting gate, for section

2244(b)(2)(A) requires that a person who seeks leave to prosecute

a second or successive habeas petition predicate his claim on a newrule of constitutional law.

     In all events, Rodriguez's position is unavailing.  Ivan

V. is utterly silent on Cage's retroactivity   an entirely

unsurprising circumstance given that Ivan V. predates Cage by some

eighteen years   and we do not discern in the text of Ivan V. any

intention on the part of the Supreme Court to declare a blanket

rule of retroactivity for every conceivable application or

extension of Winship.

     The second authority upon which the petitioner relies  

the Supreme Court's summary reconsideration order in Adams II  

derives from the Fourth Circuit's opinion in Adams v. Aiken, 965

F.2d 1306 (4th Cir. 1992) (Adams I), in which the court of appeals

held that Cage did not apply retroactively for Teague purposes. 

Adams I presented the Justices with a matchless opportunity to

determine Cage's availability on collateral review, but they did

not reach the retroactivity issue.  Rather, the Court granted

certiorari, vacated the judgment, and remanded the matter for

reconsideration in light of Sullivan v. Louisiana, 508 U.S. 275

(1993).  See Adams II, 511 U.S. at 1001.  The Fourth Circuit then

ruled that Cage fell within one of the Teague exceptions, and

declared Cage retroactively applicable on collateral review for

Teague purposes.  See Adams III, 41 F.3d at 178-79.

     Despite the fact that the Supreme Court itself did not

make any statement about Cage's retroactivity in Adams II,

Rodriguez posits that the Court's vacation and remand were

tantamount to a reversal of the Fourth Circuit, and that Adams II thereby operates as a de facto declaration that Cage applies

retroactively.  The short, dispositive answer to this asseveration

is that a summary reconsideration order does "not amount to a final

determination on the merits."  Henry v. City of Rock Hill, 376 U.S.

776, 777 (1964).  Such an order merely directs the lower court to

reexamine the case against the backdrop of some recent, intervening

precedent; it does not compel a different result.  See id.; seealso Robert L. Stern et al., Supreme Court Practice 279-80 (6th ed.

1986).  We are unwilling to read into Adams II any more portentous

meaning.

     We recognize that the Ninth Circuit, on similar facts,

has held that Adams II is enough to support a prima facie case of

Cage retroactivity.  See Nevius v. Sumner, 105 F.3d 453, 462 (9th

Cir. 1996).  Yet the Nevius panel did not discuss the essential

nature of summary reconsideration orders, and the result reached in

Nevius appears to run at cross purposes not only with the Court's

contrary instruction, see Henry, 376 U.S. at 777, but also with

section 2244(b)(2)(A)'s clear command that those who would

prosecute second or successive habeas petitions must affirmatively

show that they seek the benefit of a rule made retroactive "by the

Supreme Court."  For these reasons, we respectfully decline to

follow Nevius.

III.  CONCLUSION

     We need go no further.  AEDPA sets tough standards that

severely restrict state prisoners' abilities to file second or

successive habeas petitions.  Although at this stage an applicant

need only make a prima facie showing that a claim comports with

section 2244(b)(2)(A), that provision's prerequisites are

nonetheless stringent.  Rodriguez adequately demonstrates that his

claim of Cage error rests on a new rule of constitutional law that

was unavailable when he last filed a habeas petition, but he is

unable to identify a Supreme Court edict that renders Cageretroactively applicable to cases on collateral review.  In the

end, that shortcoming defeats his application.



     The application for permission to file a third habeas

corpus petition is denied.