United States Court of Appeals
For the First Circuit
No. 23-1533
BRUCE ANDERSON,
Petitioner, Appellant,
v.
MATTHEW DIVRIS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Gelpí, Kayatta, and Aframe,
Circuit Judges.
Daniel N. Marx, with whom Fick & Marx LLP was on brief, for
appellant.
Andre A. Janiszewski, Assistant Attorney General of
Massachusetts, with whom Andrea Joy Campbell, Attorney General of
Massachusetts, was on brief, for appellee.
May 28, 2025
AFRAME, Circuit Judge. The primary question presented
by this appeal is whether a federal habeas corpus petition is "a
second or successive habeas corpus application," as the term is
used in title 28, section 2244(b)(2), where the petitioner (1) was
represented by the same lawyer at trial, on direct appeal, and
during the litigation of a first federal habeas petition, and
(2) alleges in the subsequent petition that the lawyer provided
constitutionally ineffective assistance.1 We conclude that such a
subsequent petition is "second or successive." 28 U.S.C.
§ 2244(b)(2).
I.
In 1983, petitioner Bruce Anderson killed his estranged
wife after finding another man in her bedroom. A Massachusetts
jury convicted Anderson of first-degree murder in 1989, and he was
sentenced to life in prison without parole.2 After an unsuccessful
appeal to the Massachusetts Supreme Judicial Court, see
Commonwealth v. Anderson, 563 N.E.2d 1353 (Mass. 1990), Anderson
petitioned the United States District Court for the District of
Massachusetts for a writ of habeas corpus under title 28, section
1 Following Supreme Court practice, we use the terms
habeas "application" and "petition" interchangeably. Magwood v.
Patterson, 561 U.S. 320, 324 n.1 (2010).
2 This was the second time that Anderson had been convicted
of his wife's murder. We set aside the first conviction on
collateral review. See Anderson v. Butler, 858 F.2d 16, 19 (1st
Cir. 1988).
- 2 -
2254, claiming that the trial judge had improperly instructed the
jury on his provocation defense. The district court denied
Anderson's petition, Anderson v. Butler, No. 91-cv-10482, 1993 WL
350172 (D. Mass. Aug. 23, 1993); we affirmed, Anderson v. Butler,
23 F.3d 593 (1st Cir. 1994); and the United States Supreme Court
denied certiorari, Anderson v. Butler,
513 U.S. 934 (1994).
In 2019, Anderson filed a second habeas petition under
section 2254, this time claiming that Attorney Stephen Hrones, the
lawyer who represented him in all of the above-referenced
proceedings, had been ineffective (1) as trial counsel, for
failing to object to certain statements made by the prosecutor
during closing argument, and (2) as appellate counsel, for failing
to appeal the admission of certain blood evidence as irrelevant
and prejudicial. The superintendent of the facility where Anderson
is incarcerated (the "Superintendent") moved to dismiss Anderson's
petition. The district court granted the motion without prejudice
on the ground that the petition was "a second or successive habeas
corpus application" that had not been authorized for consideration
by this Court. See 28 U.S.C. § 2244(b)(2), (3)(A).
Anderson did not appeal the dismissal but instead
applied to this Court for an order authorizing the district court
to consider his petition. See 28 U.S.C. § 2244(b)(3). Because
the claims in Anderson's petition did not fall within either
exception to section 2244(b)(2)'s bar on claims asserted in "second
- 3 -
or successive habeas corpus application[s]," we declined to issue
the requested authorization. See id. § 2244(b)(2)(A)-(B), (3).
We noted, however, that there was "at least some question" on
whether Anderson's petition constituted "a second or successive
habeas corpus application" at all. Id. § 2244(b)(2). If the
petition were not "second or successive," this Court's
authorization would not be required for the district court to
consider it. See id. § 2244(b)(3).
We transferred Anderson's application to the district
court to consider in the first instance whether the petition was
"second or successive." 28 U.S.C. § 2244(b)(2). The court held
that it was, denied the petition, and issued a certificate of
appealability. See
id. § 2253; Fed. R. App. P. 22(b). Anderson
timely appealed, and we have appellate jurisdiction. See
28 U.S.C.
§§ 1291, 2253.
II.
We turn to whether Anderson's petition is "a second or
successive habeas corpus application" under title 28, section
2244(b)(2). Subsection (b)(2), as added to section 2244 by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
provides that:
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 --
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(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.
28 U.S.C. § 2244(b)(2). As just noted, when Anderson's petition
was previously before us, we held that it fell within neither of
section 2244(b)(2)'s exceptions; consequently, if the petition is
"second or successive," Anderson's habeas claims must be
dismissed.
Id.
Anderson maintains that his present petition is not "a
second or successive habeas corpus application." 28 U.S.C.
§ 2244(b)(2). He argues that he did not have a "meaningful
opportunity" to assert ineffective assistance claims regarding
Attorney Hrones's performance at trial and on direct appeal during
his first habeas proceeding because Attorney Hrones also
represented him during that proceeding and could not have been
expected to challenge his own effectiveness. Anderson contends
that, because a meaningful opportunity to challenge a criminal
judgment is the core principle of federal habeas review, his second
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petition should not be considered a "second or successive habeas
application." Id. That is so, Anderson says, because treating it
as such would prevent him from litigating his ineffective
assistance claims.
If the phrase "second or successive habeas corpus
application" "referr[ed] to all [section] 2254 applications filed
second or successively in time," Panetti v. Quarterman, 551 U.S.
930, 944 (2007), the question presented here would be simple.
Anderson filed the present habeas application long after he filed
his first application in 1991, and, as a matter of chronology,
this application is plainly second or successive.
The question, however, is not so simple because
"[c]hronology here is by no means all." Banister v. Davis, 590
U.S. 504, 512 (2020). "[S]econd or successive habeas corpus
application" is a "term of art," Slack v. McDaniel,
529 U.S. 473,
486 (2000), that does not encompass every "literally second or
successive" section 2254 petition, Sustache-Rivera v. United
States,
221 F.3d 8, 12 (1st Cir. 2000); see Panetti,
551 U.S. at
944. Thus, the fact that Anderson's present petition is not his
first in time does not necessarily mean that it is "second or
successive" for purposes of section 2244(b)(2). See Banister,
590
U.S. at 511-12 ("['Second or successive'] does not simply refer to
all habeas filings made second or successively in time, following
- 6 -
an initial application." (internal quotation marks omitted)
(quoting Magwood, 561 U.S. at 332)).
The Supreme Court has identified two situations in which
a later-filed section 2254 petition challenging the same judgment
as an earlier petition is not "a second or successive habeas corpus
application."3 28 U.S.C. § 2244(b). The first is where the earlier
petition was dismissed for non-merits reasons such as the
petitioner's "failure to exhaust state remedies." Slack,
529 U.S.
at 478. The earlier petition in that circumstance is treated "as
though it had not been filed, subject to whatever conditions the
court attache[d] to the dismissal," and the later-filed petition
is treated as the first petition for purposes of section 2244(b).
Id. at 487-88.
The second situation is where the later-filed petition
presents a newly ripened claim under Ford v. Wainwright, 477 U.S.
399 (1986), that the petitioner is not competent to be executed.
See Stewart v. Martinez-Villareal,
523 U.S. 637, 643-45 (1998);
Panetti, 551 U.S at 942-47. In Stewart, the Supreme Court
concluded that a later-filed petition asserting a Ford claim was
not "second or successive" where the petitioner had asserted a
Ford claim in his first petition, but the claim had been dismissed
3 A subsequent section 2254 petition that challenges a new
or different judgment is also not "second or successive." See
Magwood, 561 U.S. at 332-33.
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as unripe. See Stewart, 523 U.S. at 643. Subsequently, in
Panetti, the Court declined to treat a later-filed petition raising
a newly ripened Ford claim as "second or successive" even though
the petitioner had not raised a Ford claim in his first petition.
See Panetti,
551 U.S. at 942-47. To require a petitioner to raise
an unripe Ford claim in a first petition, the Court explained,
would be to insist on "[a]n empty formality."
Id. at 946. And,
the Court concluded that reading section 2244(b)(2)'s limitation
on second or successive habeas applications "in a manner that would
require unripe (and, often, factually unsupported) claims to be
raised [in a first petition] as a mere formality, to the benefit
of no party," would run contrary to the statute's purposes.
Id.
at 946-47.
Anderson's first petition was decided on the merits, and
his present petition does not assert a Ford claim. The
Superintendent contends that this means Anderson's petition is
"second or successive" and submits that we should terminate our
analysis here.4 But the Supreme Court has not suggested that
Slack, Stewart, Panetti, and Magwood represent the only
4 The Superintendent also argues that Anderson is
collaterally estopped from arguing that his petition is not "second
or successive" because the issue was previously resolved against
him and, rather than appeal, Anderson sought authorization from
this Court to file a "second or successive" petition. Given our
disposition in favor of the Superintendent for other reasons, we
do not address this argument.
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circumstances in which a later-filed section 2254 petition will be
exempted from section 2244(b)(2)'s restrictions. See Banister,
590 U.S. at 512-13. Rather, the Court has instructed that, to
determine what petitions "qualif[y] as second or successive," we
"look[] for guidance in two main places."
Id. at 512. The first
is "historical habeas doctrine and practice." Id.; see Panetti,
551 U.S. at 943-44 ("'[S]econd or successive' . . . takes its full
meaning from our case law . . . ." (quoting 28 U.S.C. § 2244(b))).
The other is the purposes of the federal habeas statutes, which
include the "conserv[ation of] judicial resources, reduc[tion of]
piecemeal litigation, and . . . finality [of] state court
judgments within a reasonable time." Banister,
590 U.S. at 512
(internal quotation marks omitted) (quoting Panetti,
551 U.S. at
945-46).
As we explain, both guideposts indicate that Anderson's
present petition should be treated as "a second or successive
habeas corpus application." 28 U.S.C. § 2244(b)(2).
A.
We start with whether "historical habeas doctrine and
practice" indicates that a petition like Anderson's would have
been treated as a second or successive petition pre-AEDPA.
Banister, 590 U.S. at 512. Before AEDPA, "the circumstances in
which federal courts decline[d] to entertain a claim presented for
the first time in a second or subsequent petition for a writ of
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habeas corpus" were defined by "[t]he doctrine of abuse of the
writ." McCleskey v. Zant, 499 U.S. 467, 470, 477-97 (1991); see
generally 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus
Practice and Procedure § 28.3[c] (7th ed. 2015) (last updated Dec.
2024). Under that doctrine,
[w]hen a prisoner file[d] a second or
subsequent application, the government b[ore]
the burden of pleading abuse of the writ. The
government satisfie[d] this burden if, with
clarity and particularity, it note[d]
petitioner's prior writ history, identifie[d]
the claims that appear[ed] for the first time,
and allege[d] that petitioner ha[d] abused the
writ . . . . To excuse [the petitioner's]
failure to raise the claim earlier, [the
petitioner was required to] show cause for
failing to raise it and prejudice therefrom
. . . . If [the] petitioner [could not] show
cause, the failure to raise the claim in an
earlier petition [could] nonetheless be
excused if he or she [could] show that a
fundamental miscarriage of justice would
result from a failure to entertain the claim.
McCleskey, 499 U.S. at 494-95 (emphasis added); see also Sanders
v. United States,
373 U.S. 1, 17-18 (1973) (screening petition
under a similar two-step framework but applying pre-McCleskey
standard for excusing failure to raise a claim in an earlier
petition).
As McCleskey's instruction makes clear, "[t]he pre-AEDPA
abuse-of-the-writ doctrine required courts to answer two distinct
questions." Goodrum v. Busby, 824 F.3d 1188, 1193 (9th Cir. 2016);
see McCleskey,
499 U.S. at 494-95. The first was whether "the
- 10 -
petition at issue [was] second or successive."5 Goodrum, 824 F.3d
at 1193. If it was, then the court would have to answer a
subsequent question: "[S]hould [the petition] be dismissed as an
abuse of the writ?" Id.; see McCleskey,
499 U.S. at 496. But if
the petition was not second or successive, the court would proceed
directly to the petition's merits, so long as the petition was not
barred for another reason. See Goodrum,
824 F.3d at 1193.
Identifying a later-filed habeas petition as second or successive
was, in other words, the threshold question for determining whether
the petition should be screened, and potentially dismissed, for
abuse of the writ.
Five years after McCleskey, Congress enacted AEDPA,
which effectively replaced the abuse-of-the-writ doctrine with the
restrictions now codified at section 2244(b)(2). See Pub. L. 104-
132, § 106(b) (1996); see also Felker v. Turpin, 518 U.S. 651, 664
5 Prior to AEDPA's enactment, section 2244 used the term
"subsequent" petitions, see 28 U.S.C. § 2244(b) (1966), amended by
28 U.S.C. § 2244(b) (1996), whereas Rule 9(b) of the Rules
Governing Section 2254 Cases, which provided guidance as to when
such "subsequent" petitions could be dismissed without merits
consideration, referred to them as "second or successive," see
Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. foll.
§ 2254 (1976), amended by Rule 9, Rules Governing Section 2254
Cases, 28 U.S.C. foll. § 2254 (2004). The Supreme Court referred
to such petitions generally as "second or subsequent" in McCleskey
and does not appear to have considered "subsequent" to mean
something materially different than "second or successive," or
"second or subsequent" something materially different than either
of those terms. See McCleskey,
499 U.S. at 487-92; see also
Sanders,
373 U.S. at 15, 17-18 (using "second or successive,"
"second," and "successive" interchangeably).
- 11 -
(1996) ("[AEDPA] codifie[d] some of the pre-existing limits on
successive petitions, and further restrict[ed] the availability of
relief to habeas petitioners."). As already explained, section
2244(b) requires the dismissal of "a second or successive habeas
corpus application" raising a new claim unless the application
falls within one of section 2244(b)(2)'s two exceptions. 28 U.S.C.
§ 2244(b)(2)(A)-(B). Those exceptions are generally stricter than
McCleskey's cause-and-prejudice and fundamental-miscarriage-of-
justice standards, compare
id., with McCleskey,
499 U.S. at 496,
and many second-or-successive petitions that would have survived
an abuse-of-the-writ analysis pre-AEDPA are now subject to
dismissal under section 2244(b)(2). See Hertz & Liebman,
§ 28.3[e]. AEDPA's effect, then, was to transform the judge-made
and somewhat flexible abuse-of-the-writ doctrine into a rigid
statutory scheme "meant to . . . bar[]" most second or successive
petitions. Jamison v. United States,
244 F.3d 44, 47 (1st Cir.
2001).
For present purposes, however, the important point is
that a habeas petitioner has to clear whatever hurdle
applies -- the McCleskey standard pre-AEDPA and section
2244(b)(2)'s restrictions thereafter -- only if the later-filed
petition was "second or successive." See Goodrum, 824 F.3d at
1193. And although AEDPA substantially restricted federal courts'
ability to consider the merits of "second or successive"
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petitions, it did not "redefine what qualifie[d] as a successive
petition" in the first place. Banister, 590 U.S. at 515; see
Magwood,
561 U.S. at 336-37 (distinguishing section "2244(b)'s
threshold inquiry into whether an application is 'second or
successive'" from "its subsequent inquiry into whether claims in
a successive application must be dismissed"); Goodrum,
824 F.3d
at 1193 ("Whether a petition is second or successive remains a
threshold question under [section] 2244(b), just as it was under
the pre-AEDPA regime.").
It follows that if pre-AEDPA courts screened later-filed
petitions asserting ineffective assistance claims in
circumstances like those present here for abuse of the writ, they
first would have determined them to be "second or successive."
28 U.S.C. § 2244(b)(2). This, in turn, would indicate that
Anderson's petition should be treated similarly. See Banister,
590 U.S. at 515; Slack,
529 U.S. at 486 ("[W]e do not suggest the
definition of second or successive would be different under
AEDPA."). But if, on the other hand, courts addressed the merits
of such petitions without screening them for abuse of the writ,
that would suggest that the petitions were not considered "second
or successive" before AEDPA, and Anderson's likely should not be
considered "second or successive" either. Cf. Banister, 590 U.S.
at 517 ("[A]fter AEDPA as before, . . . Rule 59(e) motions are
not second or successive petitions.").
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Petitions like Anderson's were unusual pre-AEDPA, and as
far as we are aware, the Supreme Court has never considered a
later-filed petition asserting an ineffective assistance claim in
circumstances similar to those present here. Cf. Deutscher v.
Angelone, 16 F.3d 981, 984 (9th Cir. 1994) ("We are faced with
the unusual situation in which ineffective counsel represented a
defendant not merely at trial and appeal, but also during
[federal] collateral attack."); Douglas v. United States, 13 F.3d
43, 48 (2d Cir. 1993) ("[I]n the context of a [section] 2255
motion, . . . a movant is less likely to retain her trial counsel
[than on direct appeal]."). But when the federal courts of appeals
were presented with petitions like Anderson's, they consistently
treated them as second or successive applications, subject to
screening for abuse of the writ.6
6 See, e.g., Sinn v. Ratelle, No. 96-55773, 1997 WL 697310,
at *1 (9th Cir. Nov. 4, 1997) (applying pre-AEDPA law and declining
to excuse failure to raise ineffective assistance claim in first
petition where "cause" offered for failure was counsel's
"ineffective assistance on direct appeal and his inability to raise
the issue of that ineffectiveness in the first habeas petition");
Bonin v. Calderon,
77 F.3d 1155, 1159 (9th Cir. 1996) (applying
pre-AEDPA cause-and-prejudice standard to ineffective assistance
of appellate counsel claim raised in second federal habeas
petition, where appellate counsel and first federal habeas counsel
were the same); Moran v. McDaniel,
80 F.3d 1261, 1270-71 (9th Cir.
1996) (similar); Booker v. Wainwright,
764 F.2d 1371, 1377 (11th
Cir. 1985) (applying abuse-of-the-writ standard to ineffective
assistance claim asserted in second federal habeas petition, where
same counsel had represented petitioner from trial through first
federal petition); In re Shriner,
735 F.2d 1236, 1239-40 (11th
Cir. 1984) (similar); cf. Irving v. Hargett,
59 F.3d 23, 24-26
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Some examples illustrate this practice. In Moran, the
Ninth Circuit screened a later-filed petition asserting a claim
of ineffective assistance of appellate counsel for abuse of the
writ, even though the petitioner claimed that the same lawyer had
represented him on direct appeal and during the first federal
habeas proceedings, creating "a conflict of interest . . . [that]
precluded his counsel from asserting his own ineffectiveness on
direct appeal in his first post-conviction petition." Moran, 80
F.3d at 1271. Concluding that counsel's alleged conflict did not
provide "cause" for the failure to assert the claim in the first
petition, the Ninth Circuit held that the petition abused the
writ.
Id.
The Eleventh Circuit employed a similar approach in
Booker. There, the petitioner was represented by the same counsel
at trial, on direct appeal, and during an unsuccessful first round
of state and federal habeas proceedings. Booker, 764 F.2d at 1373-
74. Subsequently, the petitioner, represented by new counsel,
filed a second federal habeas petition claiming, among other
things, that his prior counsel had provided constitutionally
ineffective assistance.
Id. at 1374. Seeking "to excuse his
(5th Cir. 1995) (concluding that petition asserting same
ineffective assistance claims as prior petitions abused writ,
despite petitioner's argument that the prior denial of those claims
by the district court had not been appealed because of allegedly
ineffective counsel's conflict).
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failure to raise the ineffectiveness of counsel claim in his first
federal habeas corpus petition," the petitioner argued that his
counsel had "labored under a conflict of interest" during the first
proceedings and had led him to believe that an ineffective
assistance claim would not be viable. Id.
After a hearing at which the petitioner's former counsel
testified that the petitioner had been advised of his option to
assert an ineffective assistance claim but had declined to do so,
the district court concluded that the petitioner's belated
assertion of the claim abused the writ. Id. at 1375. The Eleventh
Circuit agreed, relying in part on In re Shriner, where it had
found abuse of the writ on "virtually identical" facts.7
Id. at
1377-78; see Shriner,
735 F.2d at 1240-41.
7 The only decision of which we are aware that declined to
apply abuse-of-the-writ screening due to counsel's conflict is
Bloomer v. United States, 162 F.3d 187, 191-92 (2d Cir. 1998). In
Bloomer, the Second Circuit, applying pre-AEDPA law, "effectively
excuse[d]" the petitioner's failure to raise an ineffective
assistance claim in his first section 2255 petition. Bloomer,
162
F.3d at 192. It did so "due simply to counsel's inherent conflict
of interest,"
id., relying on Billy-Eko v. United States,
8 F.3d
111, 114 (2d Cir. 1993), which had held that the procedural default
of an ineffective assistance claim caused by the failure to raise
the claim on direct appeal in federal court could be similarly
excused under certain circumstances. This logic, however, likely
would not apply to Anderson's petition: "[I]mportant federalism
concerns" would preclude simply excusing the procedural default in
state court of an ineffective assistance claim presented in a
section 2254 petition. See Smith v. Newsome,
876 F.2d 1461, 1466
n.5 (11th Cir. 1989).
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This is not to say that, prior to AEDPA's enactment,
counsel's conduct could never provide a basis to exempt a later-
filed petition from the abuse-of-the-writ screening to which
second-or-successive petitions were subjected. On at least one
occasion, a federal court of appeals held that it could where the
lawyer filed the first petition without the petitioner's
authorization. See Deutscher, 16 F.3d at 984 (holding that a
later-filed petition "[wa]s [the petitioner's] initial habeas
corpus petition" and, as such, did not need to "meet the more
stringent standards for second and subsequent petitions that may
be deemed abuses of the writ," where counsel had filed the earlier
petition without the petitioner's knowledge or consent). But see
Williams v. Lockhart,
862 F.2d 155, 160 (8th Cir. 1988) (applying
abuse-of-the-writ screening to a petition alleged to have been
filed under similar circumstances).
The problem for Anderson, however, is that even
Deutscher recognized that counsel's conflict of interest was not
sufficient to justify disregarding the first petition. See
Deutscher, 16 F.3d at 983. Anderson, unlike the Deutscher
petitioner, authorized his first petition, and Attorney Hrones,
acting in Anderson's interest and presumably at his direction,
litigated the petition to a judgment on the merits. Although
Anderson can, of course, attempt to assert additional claims in a
subsequent petition -- including claims previously omitted
- 17 -
allegedly because of counsel's conflict -- there is no basis to
permit him to disavow his first petition wholesale. See Nevius v.
Sumner, 105 F.3d 453, 459 (9th Cir. 1996). Rather, as we have
detailed, pre-AEDPA decisions are practically uniform in holding
that under these circumstances Anderson's petition is "a second or
successive habeas corpus application" subject to section
2244(b)(2)'s restrictions.
B.
Examination of AEDPA's purposes confirms that Anderson's
petition is properly treated as "a second or successive habeas
corpus application," 28 U.S.C. § 2244(b). See Banister,
590 U.S.
512-13 ("[W]e have considered AEDPA's own purposes . . . [and]
'the implications for habeas practice' of allowing a type of
filing[] to assess whether Congress would have viewed it as
successive." (quoting Stewart, 523 U.S. at 644)); Panetti,
551
U.S. at 945-46 ("The[ statutory] purposes, and the practical
effects of our holdings, should be considered when interpreting
AEDPA."). AEDPA was intended "to 'conserve judicial resources,
reduc[e] piecemeal litigation,'" "lend[] finality to state court
judgments within a reasonable time," Banister, 590 U.S. at 512
(alterations original) (quoting Panetti,
551 U.S. at 945-46), and
"further the principles of comity . . . and federalism," Panetti,
551 U.S. at 945 (quoting Miller-El v. Cockrell,
537 U.S. 322, 337
(2003)).
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Exempting Anderson's petition from section 2244(b)(2)
would not serve any of AEDPA's purposes. "[P]iecemeal litigation"
would certainly result. Banister, 590 U.S. at 512 (quoting
Panetti,
551 U.S. at 945-46). If we were to accept Anderson's
argument, any petitioner represented in a first federal habeas
proceeding by his trial and appellate counsel could automatically
assert and litigate ineffective assistance claims challenging that
lawyer's performance in a subsequent petition. "Under AEDPA, there
is typically 'only one bite at the post-conviction apple.'"
Trenkler v. United States,
536 F.3d 85, 100 (1st Cir. 2008)
(quoting United States v. Barrett,
178 F.3d 34, 57 (1st Cir.
1999)); see also Jamison,
244 F.3d at 46 ("[Section 2244(b)(2)]
imposes a one-bite rule with a pair of narrow but important
exceptions."). Adopting Anderson's position would provide such
petitioners with at least two.
The "finality of criminal convictions" would also be
undermined, not only because a second round of federal habeas
proceedings would necessarily call the subject criminal conviction
back into question, but also because (as this case demonstrates)
the second round of proceedings could occur decades after the
conclusion of the first. Barrett, 178 F.3d at 38; see also
McCleskey,
499 U.S. at 491 ("Finality has special importance in
the context of a federal attack on a state conviction . . .
[because r]eexamination of state convictions on federal habeas
- 19 -
frustrates both the States' sovereign power to punish offenders
and their good-faith attempts to honor constitutional rights."
(internal quotations and punctuation omitted)). And none of this
would "conserve judicial resources" or "respect[] the limited
legal resources available to the States," Panetti, 551 U.S. at
946, as it would result in multiple rounds of habeas proceedings
despite all relevant claims having been ripe for consideration
when the first petition was filed.
Anderson objects to this line of analysis. He contends
that AEDPA's "core principle" is that petitioners should have a
"meaningful opportunity" to litigate the merits of constitutional
challenges to their conviction. He derives this principle from
Slack, Stewart, Panetti, and Magwood, as well as several other
Supreme Court decisions addressing different aspects of the
federal habeas regime. And he asserts that treating his petition
as "second or successive" would contravene this one-meaningful-
opportunity principle by depriving him of the chance to litigate
ineffective assistance claims involving Attorney Hrones. We
disagree.
AEDPA is intended to provide state prisoners with "one
fair opportunity to seek federal habeas relief." See Banister,
590 U.S. at 507. But what that "fair opportunity" entails,
id.,
can only be understood by reference to the statute. See Magwood,
561 U.S. at 335. And the Supreme Court has declined to interpret
- 20 -
"second or successive" to turn on whether the petitioner "had a
full and fair opportunity to raise [the later-asserted claims] in
a prior application" because such an interpretation would
"undermine" section 2244(b)(2), which is meant to bar many claims
that a petitioner did not have an opportunity to litigate. Id.;
see Jamison, 244 F.3d at 47. For example, a claim in a later-
filed petition based on newly discovered evidence that did not
bear on the petitioner's innocence or on a new and non-retroactive
rule of constitutional law likely could not have been asserted in
a prior petition, let alone meaningfully litigated. See
28 U.S.C.
§ 2244(b)(2). Nevertheless, such claims are plainly barred.
Magwood,
561 U.S. at 335.
Our decision in Bucci v. United States, 809 F.3d 23 (1st
Cir. 2015), supports this conclusion. Bucci concerned a collateral
proceeding brought by a federal prisoner under section 2255, which
imposes similar restrictions on "second or successive" motions.
Compare
28 U.S.C. § 2255(h), with
id. § 2244(b)(2). The Bucci
petitioner had previously filed a first, unsuccessful, section
2255 motion. See Bucci,
809 F.3d at 25. Several years after that
motion was denied, he filed another section 2255 motion, asserting
a Sixth Amendment violation.
Id. The second motion alleged that
the petitioner's trial counsel had ignored his instruction to seek
a plea agreement and then told the petitioner, falsely, that the
negotiations had been unsuccessful.
Id. Trial counsel had
- 21 -
allegedly admitted that he had not attempted plea negotiations,
but only after the denial of the first section 2255 motion. Id.
The petitioner argued that the later-filed motion should be exempt
from section 2255's restrictions on second-or-successive motions
because he could not have raised the Sixth Amendment claim in his
first motion.
Id. at 27.
We rejected the Bucci petitioner's contention,
concluding that adopting "[s]uch a narrow reading of 'second or
successive' would run counter to 'the clear intent of Congress
that stricter standards apply under AEDPA.'" Bucci, 809 F.3d at
27 (first quoting
28 U.S.C. § 2244(b)(2); and then quoting
Sustache-Rivera,
221 F.3d at 13). We explained that "Congress
recognized that 'cases might arise where, through no fault of the
defendant, a ground for collateral attack was unavailable at the
time of the first motion.'"
Id. (quoting Jamison,
244 F.3d at
47). But because Congress adopted a scheme that permitted only
two types of successive petitions to proceed, we concluded that
"claims not within the two categories [we]re meant to be barred,"
id. (quoting Jamison,
244 F.3d at 47), even though the outcome may
sometimes be "harsh,"
id. (quoting Rodwell v. Pepe,
324 F.3d 66,
72 (1st Cir. 2003)).
The outcome in Bucci arguably is harsher than the outcome
here. Accepting the allegations in Bucci as true, the petitioner
did not know the factual predicate for his Sixth Amendment claim
- 22 -
when he filed his first petition. See Bucci, 809 F.3d at 25. Not
so for Anderson. Anderson knew that he was represented by Attorney
Hrones at trial and on direct appeal. Presumably, Anderson knew
(or at least easily could have learned) that ineffective assistance
of counsel claims are commonly raised in habeas petitions. And
Anderson also knew, or should have known, that he was not required
to have Attorney Hrones represent him as federal habeas counsel.
Anderson's choice to retain Attorney Hrones may have limited his
ability to raise certain claims but, based on then existing
information, Anderson could have balanced the potential
disadvantages caused by any such limits against the benefits of
retaining Attorney Hrones.8 Thus, unlike the Bucci petitioner,
Anderson cannot say that the ineffective assistance of counsel
claims that he seeks to raise now were truly unavailable to him
when he filed his first petition.
Anderson makes several other arguments, but none are
convincing. First, he contends that any impact on finality is
8 Anderson's choice was by no means unreasonable.
Attorney Hrones had already succeeded in securing federal
collateral relief for Anderson once, see Anderson, 858 F.2d at 19,
and, having subsequently represented Anderson at his second trial
and through state post-conviction proceedings, was substantially
familiar with Anderson's case. The challenge to the allegedly
defective provocation instruction that was the focus of Attorney
Hrones's collateral attack on Anderson's second conviction,
although ultimately unsuccessful, had some force, and one member
of the panel in this Court would have granted Anderson's petition,
see Anderson,
23 F.3d at 598-600 (Stahl, J., dissenting).
- 23 -
exaggerated because petitions asserting ineffective assistance
claims under similar circumstances are uncommon.9 It may be that
petitions like Anderson's are relatively rare; the limited
precedent both before and after AEDPA's enactment suggests as much.
See Lesko v. Sec'y of Penn. Dep't of Corr., 34 F.4th 211, 226 (3d
Cir. 2022) (describing a similar claim as "unique"). But even so,
the small number of such petitions would not support exempting
them from section 2244(b) where historical practice and AEDPA's
purposes indicate that they should be treated as "second or
successive habeas corpus application[s]."
28 U.S.C. § 2244(b).
Anderson next observes that later-filed petitions
asserting ineffective-assistance claims still must meet other
procedural requirements for review. He offers as an example
procedural default, although others would apply too. See, e.g.,
28 U.S.C. § 2244(d). But the extent to which these barriers might
limit claims like Anderson's is beside the point. Section
2244(b)'s restrictions are meant to operate in addition to other
limitations imposed on habeas petitions. See In re Davila, 888
9 Anderson also claims that his proposed exemption from
section 2244(b) would apply only to petitioners who were
represented by the same lawyer at trial, on direct appeal, and in
all prior habeas proceedings. But because his argument is premised
on habeas counsel's inability to argue their own ineffectiveness,
any exemption would also logically apply where habeas counsel's
representation began on direct appeal and the allegedly
ineffective assistance serving as the predicate for the claim
occurred during that appeal.
- 24 -
F.3d 179, 182 (5th Cir. 2018) (applying section 2244(b) and
procedural default). That some claims asserted in a "second or
successive" petition might fail for other reasons does not mean
that we should, or can, decline to apply section 2244(b) in the
manner that Congress prescribed.
Finally, Anderson asserts that an exemption to section
2244(b)(2) for later-filed petitions asserting new ineffective
assistance claims would apply only to the subset of those petitions
that present "substantial claims." Anderson does not elaborate on
the point or explain where he locates a substantiality requirement.
Nothing about the second-or-successive screening inquiry, however,
involves measuring the substantiality of the claim, see 28 U.S.C.
§ 2244(b)(2), and a later-filed petition that is not "second or
successive" may entirely lack merit. See, e.g., Bedford v. Bobby,
645 F.3d 372, 377-78 (6th Cir. 2011).
C.
In concluding that Anderson's petition is "a second or
successive habeas corpus application," we diverge from the Third
Circuit's decision in Lesko v. Secretary of Pennsylvania
Department of Corrections, 34 F.4th 211 (3d Cir. 2022). In Lesko,
the Third Circuit, considering procedural facts materially
identical to those presented here, held that "a second-in-time
habeas petition [wa]s not second or successive to the extent it
raise[d] an ineffective assistance of counsel claim that the
- 25 -
[petitioner] lacked opportunity to raise because the same counsel
represented him both at trial and in his first round of habeas
proceedings."10 Lesko, 34 F.4th at 227.
In reaching that conclusion, the Third Circuit likened
the Lesko petitioner's practical inability to raise his
ineffective assistance claim in his first petition to the lack of
ripeness and exhaustion that, respectively, had prevented the
petitioners in Stewart and Slack from raising their claims. See
Lesko, 34 F.4th at 226-27, 227 n.9. The court also relied on its
decision in Benchoff v. Colleran,
404 F.3d 812 (3d Cir. 2005), in
which it had stated that "a subsequent petition . . . [wa]s clearly
not a 'second or successive petition' within the meaning of
[section] 2244 if the claim had not arisen or could not have been
raised at the time of the prior petition." See Lesko,
34 F.4th at
226-27 (quoting Benchoff,
404 F.3d at 817). And it observed that
if the Lesko petitioner's application were barred as second or
successive, then, "as a practical matter," the petitioner would
"have never had a chance to bring" the ineffective assistance
10 The Lesko petitioner's ineffective assistance claim was
not subject to section 2244(b)'s restrictions for the separate
reason that his prior habeas petition had succeeded in vacating
his criminal judgment. See Lesko, 34 F.4th at 223-25. The
conflicted-counsel holding that we address was an alternate ground
for the Third Circuit's ruling, and did not depend on the fact
that there had been an intervening judgment. See
id. at 225.
- 26 -
claim, which would "completely evade federal habeas review." Id.
at 227.
Our already lengthy discussion of Anderson's petition
explains why, in our view, such a petition cannot avoid
classification as "a second or successive habeas corpus
application" based on the reasons provided in Lesko. 28 U.S.C.
§ 2244(b)(2). First, the fact that treating a later-filed petition
as "second or successive" would result in a petitioner being
foreclosed from pursuing certain claims is not a reason to exempt
it from section 2244(b)(2). Magwood and Bucci make that clear, as
do many other cases. See supra II.B. Second, Slack and Stewart
do not exempt from section 2244's restrictions every claim that a
petitioner could not previously have raised; rather, those cases
held that under certain circumstances not present here, later-
filed petitions were not "second or successive habeas corpus
application[s]." See supra II.A. In any event, Anderson could
have raised his ineffective assistance claims when he filed his
first petition. His theory amounts, at most, to a contention that
he could not have discovered the claims. AEDPA anticipates that
possibility and makes a petition asserting such claims subject to
section 2244(b)(2). See
28 U.S.C. § 2244(b)(2)(B).
Inasmuch as Lesko relied on Benchoff to conclude that
the prior inability of the Lesko petitioner to assert his
ineffective assistance claim meant that his later-filed petition
- 27 -
was not "second or successive," see Lesko, 34 F.4th at 226-27, we
think that reliance was misplaced. In Benchoff, the Third Circuit
employed the "abuse of the writ doctrine . . . as a means of
determining when a petition should be deemed 'second or
successive.'" Benchoff,
404 F.3d at 817 (quoting
28 U.S.C.
§ 2244(b)). As explained above, whether a certain type of petition
was screened for abuse of the writ prior to AEDPA's enactment is
useful for determining whether it should be viewed as "second or
successive" under section 2244(b). But Benchoff appears to have
focused on whether the later-filed petition was ultimately found
to have abused the writ. See
id. at 817-18. That approach
conflates the "threshold inquiry into whether an application [wa]s
'second or successive,'" Magwood,
561 U.S. at 337, with the
separate question of whether the second or successive application
should be barred as abusive, see Goodrum,
824 F.3d at 1193;
Sustache-Rivera,
221 F.3d at 13 ("[I]t does not follow that a
petition is not second or successive simply because it does not
violate the old abuse of the writ doctrine. Indeed such a rule
would run counter to congressional intent.").
No other federal court of appeals has adopted Lesko's
approach. The two to have considered whether a later-filed habeas
petition asserting an ineffective assistance claim under
circumstances like Anderson's should be deemed "second or
successive" post-AEDPA reached decisions that support our
- 28 -
conclusion. In Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996),
the Ninth Circuit rejected the petitioner's argument that his
"first habeas petition should not count . . . because his counsel
were incapable of acting as his agents by reason of the conflict
that precluded them from asserting their own ineffectiveness at
trial and on appeal." Nevius,
105 F.3d at 459. It concluded that
the "second habeas petition must be treated as such," and affirmed
the district court's dismissal of the petition due to the
petitioner's failure to obtain pre-filing authorization under
section 2244(b)(3).
Id. at 460. Likewise, in In re Magwood,
113
F.3d 1544 (11th Cir. 1997) (per curiam), the Eleventh Circuit
rejected the petitioner's argument that "his ineffective
assistance of appellate counsel claim should not be considered
successive because his appellate counsel also represented him
during the first federal habeas proceeding," albeit without
substantial discussion of the second-or-successive issue. In re
Magwood,
113 F.3d at 1550.
III.
In transferring Anderson's application to the district
court, we also observed that Attorney Hrones's representation of
Anderson during the first federal habeas proceedings might permit
relief under Federal Rule of Civil Procedure 60(b), insofar as
Anderson's application could be treated as a motion under that
rule. The district court, concluding that any Rule 60(b) motion
- 29 -
would have been untimely, denied relief. Anderson contends that
this was an abuse of discretion. We disagree.
Assuming arguendo that Anderson's application could
properly be considered as a Rule 60(b) motion, but see Gonzalez v.
Crosby, 545 U.S. 524, 528-35 (2005); Bixby v. Stirling,
90 F.4th
140, 149-50 (4th Cir. 2023), it would not appear to attack a
"defect in the integrity of the federal habeas proceedings," see
Gonzalez,
545 U.S. at 532. Rather, the motion would challenge
Anderson's own choice of counsel, who Anderson knew, or should
have known, was limited by precisely the conflict about which he
now complains. Cf. Clark v. Davis,
850 F.3d 770, 779 (5th Cir.
2017) (concluding that Rule 60(b) motion challenged defect in the
proceedings where "[c]apital habeas petitioner[] ha[d] a statutory
right to conflict-free counsel"); Ellis v. United States,
313 F.3d
636, 652 (1st Cir. 2002) (no right to counsel in federal habeas
proceedings).
Moreover, as the district court justifiably concluded,
Anderson's application came too late. The factual and legal bases
for a Rule 60(b) motion had been available to Anderson since at
least 2003. See Rodwell, 324 F.3d at 70-71. Anderson contends
that the district court focused too narrowly on the delay, but it
is sometimes the case that "one factor predominates to such an
extent that it inexorably dictates the result," Ungar v. Palestine
Liberation Org.,
599 F.3d 79, 86 (1st Cir. 2010), and we think
- 30 -
that the approximately fifteen-year delay can fairly be said to
predominate here, cf. Farm Credit Bank v. Ferrera-Goitia, 316 F.3d
62, 66 (1st Cir. 2003) (describing an approximately six-and-a-
half-year delay as "extreme"), given the absence of any unusually
compelling circumstances cutting in Anderson's favor.
Anderson argues that he had no meaningful opportunity to
assert his ineffective assistance claims until non-conflicted
counsel first appeared on his behalf in late 2017 and submits that
this is the proper point of reference for determining the
timeliness of his Rule 60(b) motion. "Rule 60(c)['s] timeliness
requirements," however, "are not reset every time a litigant
obtains a new attorney," Clark, 850 F.3d at 782, and although a
delay to secure counsel might be properly discounted if it were
fairly slight, see, e.g., Bouret-Echevarria v. Caribbean Aviation
Maint. Corp.,
784 F.3d 37, 44 (1st Cir. 2015), or if the litigant
had a right to counsel during the proceedings at issue, here
neither condition obtains.
Moreover, excusing the substantial delay would be
particularly unwarranted here because the record belies Anderson's
contention that he was unable to assert his ineffective assistance
claims meaningfully without counsel. It was Anderson, not counsel,
who first identified the ineffective assistance claims he has
presented here and Attorney Hrones's inability to assert those
claims. And it was Anderson, not counsel, who filed his second
- 31 -
federal habeas petition in 2019. We see no reason why Anderson
could not have sought to reopen his first federal habeas
proceedings on substantially the same basis far earlier than he
did. Cf. Bouret-Echevarria, 784 F.3d at 44 ("A reasonableness
inquiry evaluates whether a movant acted promptly when put on
notice of a potential claim."). There was no abuse of discretion
in deeming the filing to be untimely under Rule 60.
IV.
In sum, we hold that Anderson's habeas petition is
"second or successive" under section 2244(b)(2), even though it
raises ineffective assistance claims involving the same lawyer who
previously represented him at trial, on direct appeal, and during
his first federal habeas proceeding. 28 U.S.C. § 2244(b).
Treating Anderson's petition as "a second or successive habeas
corpus application" accords with pre-AEDPA practice and the
purposes animating AEDPA's restrictions on "second or successive"
petitions.
Id.
Because Anderson's petition is "a second or successive
habeas corpus application," the district court should have
dismissed it, see 28 U.S.C. § 2244(b)(2); however, the district
court denied the petition instead. We therefore vacate the denial
and remand the petition to the district court with instructions
that it be dismissed. Because the district court did not abuse
its discretion in concluding that Anderson's petition, if
- 32 -
construed as a Rule 60(b) motion, would not warrant relief, we
affirm that aspect of the district court's order.
So ordered.
- 33 -
