Boy, did I miss something big last week.
On Thursday, the Second Circuit granted a request to file a second or successive petition in a published opinion.* The case is called Quezada v. Smith and it is available here. The opinion was written by Newman and joined by Hall and Restani, CIT.
*I missed it because it had a docket number that ended in "op." Habeas appeals always end in "pr." I am not quite sure why this one ends with different letters, but now I know to check these opinions as well. [Update: From the comments, "op" stands for "original proceeding" and obviously would apply to a request for authorization to file a second or successive petition. I feel bad that I didn't know that]
It's an important decision. The attorneys for petitioner are quoted in the New York Law Journal article as saying that this could be the first published opinion from the Second Circuit that discusses the court's gatekeeping function under section 2244(b). I believe that is the case. Notably, the court didn't cite to any other Second Circuit cases discussing the gatekeeping provision.
The court does a lot of stuff in Quezada. First, the court tackles on its own the question of whether or not this was even a second or successive petition. Quezada's first petition was dismissed as untimely. There is no doubt that that counts as a decision on the merits.
But the court asks whether it is required to revisit a dismissal of a first petition as untimely when an application for a second or successive petition is filed. More specifically, does the court need to ask whether "the initial dismissal now appears to be erroneous because the law on which that dismissal was predicated is unarguably no longer good law."
The court says, no. It only needs to revisit the issue "upon allegations of unusual procedural errors" that prevented the petitioner from having a court address the merits of the claims.
That did not happen in Quezada's case, but it's a good thing for habeas petitioners overall that the Second Circuit is willing to consider this question at all.
Turning to the gatekeeping function, it is a very favorable ruling for habeas petitioners. Quezada was convicted of murder based on a single witness, who later recanted. In addition, another person had come forward and stated that Quezada had not been the one who pulled the trigger. One of the constitutional claims was based on a due process claim that petitioner had been convicted on the basis of perjured testimony. This claim, at least as far as the application was concerned, was based on a Second Circuit decision. In response, the State argued that the application should be denied because it did not meet the standard of 2254(d).
The Second Circuit rejected the argument. It said that, as a gatekeeper, it was only required to see whether petitioner's claims would meet the standard of 2254(b) 2244(b) [a commenter picked up this typo] not whether the claim would ultimately have a chance of prevailing in the district court. The gatekeeping provision does not incorporate 2254(d), so it did not need to consider that question in determining whether authorization should be granted. That's a good ruling.
The State then argued that the underlying factual claim was unreliable, so authorization should be denied. The Second Circuit rejected that argument as well. It looked to the statute and concluded that petitioner only needed to make a "prima facie" showing that he had met the requirements of the statute. The ultimate determination of whether the recantation should be credited was for the district court. Once again, that's a good ruling.
The court concluded that authorization should be granted on the false evidence claim as well as a Brady violation.
Nice win for Quezada and a good decision for habeas petitioners.