The court was hearing Rivers v. Guerrero, a case filed by Danny Richard Rivers, a convicted child sexual abuser from Texas who filed a habeas petition in 2017 and then sought to add new evidence to it while it was still pending years later. The justices seemed unconvinced that he could get a second shot at the federal habeas process.
Remarkably, some of the most pointed skepticism came not from conservative justices with narrower views of habeas power, but from liberal justices Ketanji Brown Jackson and Sonia Sotomayor, who are typically more sympathetic to claims involving prisoners.
"Why wouldn't you be circumventing the statute here by just, you know, interpreting anything that comes in during an appeal as not being second or successive?" Justice Jackson asked Peter A. Bruland of Sidley Austin LLP, who argued on behalf of Rivers. "We have a statute in which Congress was very clear about limiting the number of filings or at least applying pretty restrictive rules to the ability to file another application."
The Supreme Court already clarified in its 2020 ruling in Banister v. Davis
that the Antiterrorism and Effective Death Penalty Act of 1996 allows prisoners only one chance to challenge their convictions through federal habeas. And under the 2012 ruling in Gonzalez v. Thaler , if a district court denies relief, a prisoner may request a "certificate of appealability" initially from that same court, and then from the court of appeals.The high court has been increasingly restricting the availability of federal habeas. The conservative majority, in particular, has been skeptical of the depth of habeas review, which they say is intruding into states court matters and undermining the finality of their judgments. In recent years, the court has issued rulings that limit habeas availability, including in cases where prisoners find new, potentially exculpatory evidence.
Arguing for Rivers, who was convicted of sexually abusing his daughters and possessing child pornography and is serving a 38-year sentence, Bruland said his client's latest habeas filing was not "second or successive" because it occurred while his original habeas petition was still on appeal.
Justice Sotomayor drilled into whether Rivers followed the proper path for requesting an amendment.
"You admitted that the district court does not have the power to adjudicate the motion to amend," she said.
A jury in Wichita Falls, Texas, convicted Rivers in February 2012 after his daughter and stepdaughter accused him of over 200 instances of sexual abuse and investigators found two videos that prosecutors described at trial as child porn. Rivers first tried unsuccessfully to challenge his conviction in state post-conviction proceedings while behind bars.
Then in 2017, without assistance from an attorney, Rivers filed a federal habeas petition saying his trial and appeal lawyers were ineffective, the former for failing to call additional witnesses to the stand, the latter for not bringing up the issue. He also alleged prosecutorial misconduct and pointed out that his daughters' soccer coach was allowed to serve on his jury after the coach didn't disclose that fact during voir dire.
A cautionary pre-added notice in the petition warned that "if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date," a reference to AEDPA's stringent requirement.
A district court in Wichita Falls denied Rivers' pro se petition in September 2018, deferring to a state court judgment finding his habeas challenges unconvincing.
While the petition was still pending on appeal before the Fifth Circuit, Rivers uncovered what could have been exculpatory evidence in his case file, including a state investigator's report labeling the two videos at the center of his criminal case "NOT CHILD PORN."
In February 2021, nearly three years after his first habeas petition was denied, Rivers filed an additional petition seeking to bring the new evidence to the district court's attention, but the court declined to look at it citing the AEDPA rule.
He later urged the Fifth Circuit to construe the second habeas filing as an amendment to his initial petition, instead of a second or successive petition. But that court ruled Rivers' latest filing counted as a successive petition "no matter how titled."
In his high court petition, Rivers said the circuit courts were "intractably split" over whether a crucial provision in federal habeas law forbidding successive habeas petitions, Section 2244(b)(2), applies to a habeas filing made after the district court has denied an initial petition but before an appellate court has weighed in.
In the Second Circuit, the petition argued, the provision is not triggered until the petitioner exhausts appellate review of his first habeas petition. The Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh circuits, meanwhile, consider a district court's final judgment denying habeas relief as the moment when the door to the habeas process is shut.
Rivers argued in his petition that the Tenth Circuit applies the AEDPA restriction even earlier, and that in the Third Circuit, the provision "toggles on and off" depending on whether the petitioner wins or loses on appeal.
On Monday, however, Justice Sotomayor challenged Bruland's characterization of the circuit split, and in particular the current law in the Second Circuit, on which she used to sit.
"I, like you, had my law clerk look at what the Second Circuit was doing, and I got a bunch of cases where the district court didn't wait for the Court of Appeals to rule, but instead said ... the motion to amend was an abuse of the writ," Justice Sotomayor said. "I'm not sure the rule is as absolute as you say."
Justice Samuel Alito also questioned whether there was a significant conflict amid circuit courts.
Aaron Lloyd Nielson of the Office of the Texas Attorney General appeared to seize on that during his allotted time, saying "there is no split, Justice Alito."
Nielson challenged Bruland's interpretation of the historical context preceding AEDPA, which Bruland said favored Rivers' position. He also told the justices that the Supreme Court didn't have jurisdiction to review the prisoner's habeas claims.
"The court has jurisdiction to address the split that it thought it was hearing," Nielson said. "What the court doesn't have jurisdiction to do is to open a case that is not in front of it. That case was closed."
Arguing on behalf of the U.S. government, which supports Texas' position, Matthew Guarnieri told the justices the view embraced by the majority of the sister courts was the correct one.
"It is the entry of judgment that marks the terminal point in the proceedings after which the gatekeeping procedures in AEDPA apply," he said. "If you agree with us on that, then it doesn't really matter whether the petitioner comes into court and characterizes the relief that he is requesting as a form of post-judgment amendment."
At some point during the hearing, Justice Alito questioned whether Rivers changed his legal theory since petitioning the Supreme Court, saying the justices have lately experienced a "mini-epidemic" of legal arguments that appeared shifting from the original ones they were "sold" at the petition stage.
"Is this another outbreak of the same disease?" he asked.
Bruland replied that wasn't the case, saying even the U.S. government did not detect a shift in position.
"I don't hear my friends from the United States to be making that argument," Bruland said.
Rivers is represented by Peter Andrew Bruland of Sidley Austin LLP.
Texas is represented by Aaron Lloyd Nielson of the Office of the Texas Attorney General.
The federal government is represented by Matthew Guarnieri of the U.S. Office of the Solicitor General.
The case is Rivers v. Guerrero, case number 23-1345, in the Supreme Court of the United States.
--Editing by Brian Baresch.
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