Fairness and Finality: Why Amendments to Appealed Habeas Petitions Fall Outside of AEDPA Gatekeeping

Abstract

Rooted in equitable principles, the writ of habeas corpus permits an incarcerated individual to collaterally attack their sentence or conviction. Every person who is incarcerated under a state or federal conviction is entitled to at least one "full opportunity" to obtain federal habeas review. However, amidst concerns of the abuse of the writ, Congress and federal courts have severely narrowed this avenue for relief. Among its various restrictions on federal habeas review, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a habeas petitioner from filing a "second or successive" petition unless she can meet one of the Act's two narrow exceptions. Yet neither Congress nor the Supreme Court has meaningfully defined the term "second or successive." The Court has only explained that it is a "term of art" not to be read literally, and that its content derives from pre-and post-AEDPA case law. Left with this scant guidance, lower courts have struggled to apply this statutory provision. 

This Note addresses a narrow issue left unresolved by the Court and 28 U.S.C. § 2244(b)'s vague text: Does an amendment to a habeas petition pending on appeal trigger AEDPA's second-or-successive bar? Eight circuit courts of appeals have squarely answered this question, with the Second and Third Circuits answering in the negative, and the Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits answering in the affirmative. The Fifth Circuit recently switched positions from a case-by-case approach to the majority's categorical rule, indicating that this issue is very much alive. 

This Note argues that the Second and Third Circuits have the correct approach-both doctrinally and normatively. Under their rule, Federal Rule of Civil Procedure 15 governs motions to amend, thus conforming with other areas of civil litigation, the Court's view of "finality" in related habeas contexts, and the equitable principles underlying the writ of habeas corpus. The majority rule, by contrast, precludes many meritorious claims from ever being litigated, which in turn deprives litigants a truly full and fair opportunity to collaterally attack their conviction and sentence.

Keywords: habeas corpus, AEDPA, federal courts, civil procedure, criminal justice, constitutional law, equitable remedies