Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion — in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 motion before his first 2255 petition has become “final” (i.e., before the time for seeking cert. on the first petition has run), the defendant need not satisfy 2244(b)(3)(A)’s rigorous requirements for “second or successive petitions” (including the requirement of prior approval from the Circuit before filing) . While the traditional “abuse of the writ” doctrine would still apply to such petitions, a petitioner need not satisfy 2244’s gatekeeping requirements in such a situation.
The essential facts are as follows. After the Circuit affirmed his conviction on direct appeal, Whab filed his first 2255 petition in April 2004. The district court dismissed the petition, and denied as well as a COA. Whab then sought a COA from the Circuit.
While that request was pending, Whab filed a new application in the Circuit in March 2005, seeking permission under 2244 to file a second 2255 petition. While this new application was pending, the Circuit denied the COA request on the first petition, in April 2005.
This opinion deals with Whab’s application to file a second 2255 petition. The Circuit ruled that Whab did not need to satisfy 2244’s gatekeeping provision because that provision is triggered only when the subsequent petition is filed after the first petition has become final. And because Whab’s first 2255 petition was still pending in the Circuit (in the form of the request for a COA) when he filed his second 2255 petition (in the form of the application for permission to file a second petition he filed in the Circuit), 2244’s gatekeeping provision does not come into play. As the Court summarized, “so long as appellate proceedings following the district court’s dismissal of the initial petition remain pending when a subsequent petition is filed, the subsequent petition does not come within AEDPA’s gatekeeping provisions for ‘second or successive’ petitions.” Op. at 4. The Court thus transferred Whab’s second 2255 petition to the district court, and instructed the district court to consider the petition without subjecting it to 2244’s rigorous standard. Op. at 6.
Finally, the Court explained in a lengthy footnote that its opinion should “not be misconstrued as providing a free pass to prisoners to file numerous petitions before an initially filed petition is finally adjudicated on the merits.” Op. 6 n.2. This is so because even though 2244’s gatekeeping requirements do not apply in such cases, the traditional “abuse of writ” doctrine does. Id. (citing McClesky v. Zant, 499 U.S. 467 (1991)).
This is true enough — but only to a point. Section 2244’s requirements are far more difficult to satisfy than the court-created abuse of writ standards. Thus, it may well behoove a defendant in such a situation to file a second 2255 before his first has become final.