Supreme Court Creates New Exception to Habeas Limitations for Ford Claims:
Today's death penalty decision in Panetti v. Quarterman created a new exception to AEDPA's ban on federal court jurisdiction over "second or successive" habeas petitions. I think Justice Kennedy is exactly right that Congress should have written such an exception; as a matter of policy, I think the Court's new rule makes a lot of sense. But Congress didn't actually write such an exception, and I thinik the Court's attempt to create the new exception by judicial construction is pretty unpersuasive.

  First, a bit of background. The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane. This means that lawyers for the subject may need to bring claims about the person's sanity soon before the execution is planned; the subject may have turned insane just weeks or months before the execution, long after the subject's habeas claims have been adjudicated. This creates a bit of a puzzle. On one hand, Congress is very interested in giving inmates just one shot at federal habeas relief. On the other hand, claims of insanity can arise at any time, and state courts may be uninterested in looking closely at those claims. The seemingly obvious solution is to create an exception to the usual rule (that inmates get only one shot at federal habeas relief) just to cover these sorts of claims.

  The problem is that Congress didn't create such an exception. Here's what Congress said in 28 U.S.C. 2244 about federal court review of claims in habeas petitions brought the second time around:
(1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The only exception to the rule that claims in second or successive petitions must be dismissed is really narrow; it pretty much just covers new retroactive rules and actual innocence claims. There is no exception for insanity claims (which are known in the biz as Ford claims, after Ford v. Wainright).

  That brings us to the Panetti case handed down today. Panetti filed a claim for federal habeas relief that was litigated in the federal courts from 2001 to 2003. Although Panetti had shown mental illness throughout his case, and his competency was a major issue at trial, he did not raise a Ford claim in his first petition. In 2004, Panetti then filed a second federal habeas petition, this time raising the Ford claim. The question is, did the ban on claims in "second or successive" apply? The state thought it did: It argued that the law was actually really clear here, and that this was a second petition that didn't fall within any exception.

  The Supreme Court disagreed 5-4. Writing for the majority, Justice Kennedy recognized that the state's argument "has some force." But he concluded that it was flawed because of "[t]he results it would produce" when paired with an earlier decision, Stewart v. Martinez-Villareal. In Stewart, the Court had held that if an inmate brings a Ford claim in his first petition that is dismissed because it is not ripe, the inmate can bring the claim later when it becomes ripe; according to the Stewart case, refiling the dismissed claim is really just a continuation of the earlier claim dismissed on ripeness grounds.

  In today's decision, the Court looked at the statute and the Stewart decision and concluded it would be really weird if a petitioner could bring the claim again if he had brought it prematurely before (the holding of Stewart) but not if he hadn't brought it at all. That couldn't be right, Justice Kennedy reasoned: "This counterintuitive approach would add to the burden imposed on the courts, applicants, and the States, with no clear advantage to any."

  But how to get around the pretty clear statutory language prohibiting such petitions? The majority starts by saying that the phrase "second or successive" is "not self-defining." According to the Court, the phrase takes "full meaning" from the Court's caselaw. Among that caselaw is Martinez, which, like other habeas cases, discussed the public policy implications of its holding. Therefore the court can be influenced by the public policy implications of the rule at issue in this case. And when you look at those implications in light of the Stewart precedent, the policy arguments all go one way. When paired with Stewart, Congress's rule would require inmates to file unripe claims just to make sure they aren't stuck with the ban on second or successive petitions. There's really no good argument to be made for that rule; it would require arguments "to be raised as a mere formality, to the benefit of no party." Congress could not have intended such a result.

  Thus the Court announces a new rule: "The statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." As the court writes elsewhere, "We conclude . . . that Congress did not intend the provisions of AEDPA addressing 'second or successive' petitions to govern in the unusual posture presented here: a 2254 application raising a Ford-based incompetency claim failed as soon as that claim is ripe."

  The problem, as I see it, is that looking at the public policy implications of ambiguous statutory text is pretty different from using policy arguments to ignore text that is really quite plain. If there was a constitutional argument to be made, the Court should have made it. But Congress didn't write the exception it should have written, and absent a constitutional claim it wasn't the Court's job to write it for them.

  UPDATE: On a closer reading of Stewart, I do think the issue here is closer than I thought at first. Stewart is a very brief Rehnquist opinion that has pretty opaque reasoning, but that isn't closely focused on the text. I think that does provide some authority for taking a "common law" approach to the text here (that is, not paying much attention to it), making this decision less objectionable than I had first believed.