Wednesday, September 21st, 2022

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the ground that the state court erroneously declined to suppress evidence obtained in an unlawful search if he had a full and fair opportunity to litigate the claim in state court.” Op. 3. Yes, a “district court has the power to dismiss [a] petition on the merits without prior notice ‘[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.’” Op. 14 (quoting Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts). But “such dismissals . . . are appropriate only in those cases where the pleadings indicate that petitioner can prove no set of facts to support a claim entitling him to relief.” Id.

Notice-free, sua sponte dismissals are therefore “generally” inappropriate when a court denies a petition on procedural grounds, such as untimeliness or abuse of the writ. “[S]uch dismissals require prior notice and an opportunity to be heard because they are adjudicated based on factors that are usually outside of the record and will not come to light unless properly asserted by the petitioner.” Op. 15.

The procedural bar invoked here – the rule of Stone – is a perfect example. Stone “imposes a prudential limitation on a petitioner’s ability to obtain habeas relief on the ground that the state court declined to suppress evidence obtained in an unlawful search.” Op. 18. But it is not absolute: “[A] petitioner may obtain habeas relief if he shows that the state denied him an opportunity for full and fair litigation of his Fourth Amendment claim.” Op. 19. And a petitioner can make such a showing either by demonstrating that “the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violation,” or by proving that he “was precluded from using [that] mechanism because of an unconscionable breakdown in the underlying process.” Id.

The latter exception, in particular, “may depend on facts that are not apparent from the record.” Op. 20. For instance, “the critical facts regarding” an “unconscionable breakdown . . . may be based on . . . a conversation between the petitioner and the defense attorney about filing the motion, or even perhaps a state court’s failure to properly docket a suppression motion that was submitted by a defendant.” Op. 25.

Thus, “Stone’s application may depend on the existence of circumstances that may be outside the record and not pled in the petition.” Op. 25. Therefore, “it is essential to afford a petitioner notice and opportunity to be heard before any such dismissal under Stone.” Op. 25-26.

Finally, the Court rejected the states’s argument that Ethridge in fact had a sufficient “opportunity to be heard” because he moved for reconsideration and objected to the sua sponte dismissal based on Stone in that motion — which the district court then denied, Op. 27-28. A motion for reconsideration is insufficient, the Court explained, because “[w]here notice and an opportunity to be heard are required in connection with the sua sponte dismissal of an action, they must be provided before the dismissal.” Op. 28 (emphasis in original). Moreover, a motion for reconsideration “may be granted only in limited circumstances when the petitioner identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Op. 29. Because this vehicle “provides a narrow basis for relief and precludes the petitioner from re-litigating issues already decided or raising arguments that could have been made prior to the entry of judgment,” the Court ruled, “it is not an adequate opportunity for the petitioner to be heard on the Stone issue.” Op. 30.

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