Wednesday, December 11, 2002


An interesting development yesterday was the Court's DIG of Abdur'Rahman v. Bell, No. 01-9094, and Justice Stevens's dissent therefrom. The case would have resolved whether a Rule 60(b) motion (to overturn a final judgment) in the context of a federal habeas proceeding must as a matter of law be treated as a "second or successive" habeas petition. The question is an interesting one, on which Justice Stevens seems correct on the merits.

The jurisdictional concerns that motivated the DIG were given short shrift by Justice Stevens and are rather convoluted. The district court treated the petitioner's Rule 60(b) motion as a second habeas petition -- this was the basis for the merits question -- and concluded that it lacked jurisdiction on the ground that the federal habeas statute, as recently amended, requires an applicant to first obtain leave from the court of appeals to file a second or successive petition. See 28 U.S.C. sec. 2244(b)(3)(A). (Query whether a habeas petitioner's failure to follow section 2244(b)(3)(A) really creates a jurisdictional defect.) The district court could have dismissed the case, but instead invoked the federal transfer statute, 28 U.S.C. sec. 1631 (allowing, in the interests of justice, for transfer to another court to cure a want of jurisdiction), and transferred the case to the Sixth Circuit.

The petitioner sought review of the district court's transfer order in court of appeals. The Sixth Circuit dismissed the appeal for want of jurisdiction on the grounds that the district court's order was not an appealable order. The Sixth Circuit also addressed the transferred motion (which it treated as a request for an application to file a second habeas petition) and denied it on the merits. From these rulings, the petitioner filed his cert. petition.

The Supreme Court's DIG followed an order of supplemental briefing on the following two questions: "Did the Sixth Circuit have jurisdiction to review the District Court's order . . . transferring petitioner's Rule 60(b) motion to the Sixth Circuit pursuant to 28 U.S.C. [sec.] 1631?" and "Does th[e Supreme] Court have jurisdiction to review the Sixth Circuit's order . . . denying leave to file a second habeas corpus petition?" Presumably the Court thought that the answer to both questions is "no" (or, at least, that the questions are difficult enough to warrant a DIG). This strikes us as correct. With respect to the former question, because transfer orders are interlocutory in nature, they generally are not appealable. And as for the latter, pursuant 28 U.S.C. sec. 2244(b)(3)(E), a circuit court's denial of an application to file a second habeas petition is not reviewable by the Supreme Court (or any other court). Unfortunately for the petitioner, these two rules, in conjunction with the district court's decision to transfer the petitioner's motion, rather than dismiss it, effectively immunized the case from review.


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