The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_7901/93_7901.zd1

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SUPREME COURT OF THE UNITED STATES
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No. 93-7901
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LLOYD SCHLUP, PETITIONER v. PAUL K. DELO,
SUPERINTENDENT, POTOSI CORRECTIONAL
CENTER
on writ of certiorari to the united states court
of appeals for the eighth circuit
[January 23, 1995]

  Justice Scalia, with whom Justice Thomas joins,
dissenting.
  A federal statute entitled -Finality of Determina-
tion--to be found at 2244 of Title 28 of the United
States Code-specifically addresses the problem of
second and subsequent petitions for the writ of habeas
corpus.  The reader of today's opinion will be unencum-
bered with knowledge of this law, since it is not there
discussed or quoted, and indeed is only cited en passant.
See ante, at 19, 21.  Rather than asking what the
statute says, or even what we have said the statute
says, the Court asks only what is the fairest standard
to apply, and answers that question by looking to the
various semi-consistent standards articulated in our most
recent decisions- minutely parsing phrases, and seeking
shades of meaning in the interstices of sentences and
words, as though a discursive judicial opinion were a
statute.  I would proceed differently.  Within the very
broad limits set by the Suspension Clause, U. S. Const.,
Art. I, 9, cl. 2, the federal writ of habeas corpus is
governed by statute.  Section 2244 controls this case; the
disposition it announces is plain enough, and our
decisions contain nothing that would justify departure
from that plain meaning.
  Section 2244(b) provides:
-When after an evidentiary hearing on the merits of
a material factual issue, or after a hearing on the
merits of an issue of law, a person in custody
pursuant to the judgment of a State court has been
denied by a court of the United States or a justice
or judge of the United States release from custody
or other remedy on an application for a writ of
habeas corpus, a subsequent application for a writ
of habeas corpus in behalf of such person need not
be entertained by a court of the United States or a
justice or judge of the United States unless the
application alleges and is predicated on a factual or
other ground not adjudicated on the hearing of the
earlier application for the writ, and unless the court,
justice, or judge is satisfied that the applicant has
not on the earlier application deliberately withheld
the newly asserted ground or otherwise abused the
writ.-
  A long sentence, but not a difficult one.  A federal
district court that receives a second or subsequent
petition for the writ of habeas corpus, when a prior
petition has been denied on the merits, -need not . . .
entertai[n]- (i.e. may dismiss) the petition unless it is
neither (to use our shorthand terminology) successive
nor abusive.  See also Habeas Corpus Rule 9(b) (-A
second or successive petition may be dismissed if the
judge finds that it fails to allege new or different
grounds for relief . . . -).  Today, however, the Court
obliquely but unmistakably pronounces that a successive
or abusive petition must be entertained and may not be
dismissed so long as the petitioner makes a sufficiently
persuasive showing that a -fundamental miscarriage of
justice- has occurred.  Ante, at 17 (-if a petitioner such
as Schlup presents [adequate] evidence of innocence . . .
the petitioner should be allowed to pass through the
gateway and argue the merits-), ante, at 20-22.  That
conclusion flatly contradicts the statute, and is not
required by our precedent.
  Our earliest cases, from an era before Congress
legislated rules to govern the finality of habeas adjudica-
tion, held that successive or abusive petitions were -to
be disposed of in the exercise of a sound judicial
discretion guided and controlled by a consideration of
whatever has a rational bearing on the propriety of the
discharge sought,- and that when weighing those
considerations the district court could give -controlling
weight- to -a prior refusal to discharge on a like
application.-  Salinger v. Loisel, 265 U. S. 224, 231
(1924) (successive petition); see also Wong Doo v. United
States, 265 U. S. 239, 240-241 (1924) (abusive petition).
In Salinger the Court particularly noted: -Here the prior
refusal to discharge [the prisoner] was by a court of
coordinate jurisdiction and was affirmed in a considered
opinion by a Circuit Court of Appeals.  Had the District
Court disposed of the later applications on that ground,
its discretion would have been well exercised and we
should sustain its action without saying more.-  265
U. S., at 232.  Section 2244 is no more and no less than
a codification of this approach.  It is one of the disheart-
ening ironies of today's decision that the Court not
merely disregards a statute, but in doing so denies
district judges the very discretion that the Court itself
freely entrusted to them before Congress spoke.
  In 1948 Congress for the first time addressed the
problem of repetitive petitions by enacting the predeces-
sor of the current 2244, which provided as follows:
-No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to
a judgment of a court of the United States, or of
any State, if it appears that the legality of such
detention has been determined by a judge or court
of the United States on a prior application for a
writ of habeas corpus and the petition presents no
new ground not theretofore presented and deter-
mined, and the judge or court is satisfied that the
ends of justice will not be served by such inquiry.-
28 U. S. C. 2244 (1964 ed.) (emphasis added).
This provision was construed in Sanders v. United
States, 373 U. S. 1 (1963), and (with unimpeachable
logic) was held to mean that -[c]ontrolling weight may
be given to a denial of a prior application for federal
habeas corpus [under 28 U. S. C. 2254] only if (1) the
same ground presented in the subsequent application
was determined adversely to the applicant on the prior
application, (2) the prior determination was on the
merits, and (3) the ends of justice would not be served
by reaching the merits of the subsequent application.-
Id., at 15.  Thus there appeared for the first time in our
decisions the notion that a habeas court has -the duty-
to reach the merits of a subsequent petition -if the ends
of justice demand,- id., at 18-19-and it appeared for
the perfectly good reason that the statute, as then
written, imposed such a duty.  And even as to that duty
the Sanders Court added a -final qualification- that the
Court today would do well to remember:
-The principles governing . . . denial of a hearing on
a successive application are addressed to the sound
discretion of the federal trial judges.  Theirs is the
major responsibility for the just and sound adminis-
tration of the federal collateral remedies, and theirs
must be the judgment as to whether a second or
successive application shall be denied without
consideration of the merits.-  Id., at 18.
  Three years after Sanders, however, Congress amended
2244 to establish different finality rules for federal
prisoner petitions (filed under 2255) and state prisoner
petitions (filed under 2254).  Section 2244(a), which
addresses petitions by federal prisoners, retains the
-ends of justice- proviso from the old statute; but
2244(b) omits it, thus restricting the district courts'
obligation to entertain petitions by state prisoners to
cases where the petition is neither successive nor
abusive.  One might have expected that this not-so-
subtle change in the statute would change our interpre-
tation of it, and that we would modify Sanders by
holding that a district court could exercise its discretion
to give controlling weight to the prior denial-which was
of course precisely what Salinger envisioned.
  Yet when the new version of 2244(b) was first con-
strued, in Kuhlmann v. Wilson, 477 U. S. 436 (1986), a
plurality of the Court announced that it would -continue
to rely on the reference in Sanders to the `ends of
justice,'- 477 U. S., at 451, and concluded that -the
`ends of justice' require federal courts to entertain
[successive] petitions only where the prisoner supple-
ments his constitutional claim with a colorable showing
of factual innocence.-  Id., at 454.  That conclusion
contains two complementary propositions.  The first is
that a habeas court may not reach the merits of a
barred claim unless actual innocence is shown; this was
the actual judgment of the opinion (one cannot say the
holding, since the opinion was a mere plurality).  See
id., at 455 (stating that the District Court and Court of
Appeals should have dismissed the successive petition
because the petitioner's claim of innocence was merit-
less).  The second is that a habeas court must hear a
claim of actual innocence and reach the merits of the
petition if the claim is sufficiently persuasive; this was
the purest dictum.  It is the Court's prerogative to adopt
that dictum today, but to adopt it without analysis, as
though it were binding precedent, will not do.  The
Kuhlmann plurality opinion lacks formal status as
authority, and, as discussed below, no holding of this
Court binds us to it.  A decision to follow it must be
justified by reason, not simply asserted by will.
  And if reasons are to be given, justification of the
Kuhlmann opinion will be found difficult indeed.  The
plurality's central theory is that -the permissive lan-
guage of 2244(b) gives federal courts discretion to
entertain successive petitions under some circumstances,-
so that -[u]nless [the] `rare instances' [in which succes-
sive petitions will be entertained] are to be identified by
whim or caprice, district judges must be given guidance
for determining when to exercise the limited discretion
granted them by 2244(b).-  See 477 U. S., at 451.
What the plurality then proceeds to do, however, is not
to -guide- the discretion, but to eliminate it entirely,
dividing the entire universe of successive and abusive
petitions into those that must not be entertained (where
there is no showing of innocence) and those that must
be entertained (where there is such a showing).  This
converts a statute redolent of permissiveness (-need not
entertain-) into a rigid command.
  The Kuhlmann plurality's concern about caprice is
met-as it is met for all decisions committed by law to
the discretion of lower courts-by applying traditional
-abuse of discretion- standards.  A judge who dismisses
a successive petition because he misconceives some
question of law, because he detests the petitioner's
religion, or because he would rather play golf, may be
reversed.  A judge who dismisses a successive petition
because it is the petitioner's twenty-second, rather than
his second, because its -only purpose is to vex, harass,
or delay,- Sanders, 373 U. S., at 18, or because the
constitutional claims can be seen to be frivolous on the
face of the papers-for any of the numerous consider-
ations that have -a rational bearing on the propriety of
the discharge sought,- Salinger, 265 U. S., at 231
(emphasis added)-may not be commanded to reach the
merits because -the ends of justice- require.  Here as
elsewhere in the law, to say that a district judge may
not abuse his discretion is merely to say that the action
in question (dismissing a successive petition) may not be
done without considering relevant factors and giving a
-justifying reason,- Foman v. Davis, 371 U. S. 178, 182
(1962).  See also American Dredging Co. v. Miller, 510
U. S. ___, ___ (1994).  It is a failure of logic, and an
arrogation of authority, to -guide- that discretion by
holding that what Congress authorized the district court
to do may not be done at all.
  The Court's assumption that the requirement imposed
by the Kuhlmann plurality should be taken as law can
find no support in our subsequent decisions.  To be sure,
some cases restate the supposed duty in the course of
historical surveys of the area.  See, e.g., McCleskey v.
Zant, 499 U. S. 467, 495 (1991) (-Kuhlmann . . .
required federal courts to entertain successive petitions
when a petitioner supplements a constitutional claim
with a `colorable showing of factual innocence'-).  But if
we are to lavish upon the verbiage of our opinions the
detailed attention more appropriately reserved for the
statute itself, more of the cases (and some of the same
cases) have described the miscarriage-of-justice doctrine
as a rule of permission rather than a rule of obligation.
See, e.g., Sawyer v. Whitley, 505 U. S. ___, ___ (1992)
(slip op., at 4) (-[Kuhlmann held that] the miscarriage
of justice exception would allow successive claims to be
heard-); McCleskey, 499 U. S., at 494 (-[f]ederal courts
retain the authority to issue the writ [in cases of
fundamental miscarriage of justice]-); id., at 494-495
(-[i]f petitioner cannot show cause, the failure to raise
the claim in an earlier petition may nonetheless be
excused if he or she can show that a fundamental
miscarriage of justice would result from a failure to
entertain the claim-); Murray v. Carrier, 477 U. S. 478,
496 (1986) (-where a constitutional violation has proba-
bly resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even
in the absence of a showing of cause for the procedural
default-) (emphasis added in all quotations).
  Of course the latter cases provide as much or as little
authority for the right reading of the statute as the
former provide for the wrong reading.  The truth is that
there is simply nothing in this scattering of phrases,
this handful of silences and assumptions, by which even
the conscience most scrupulous in matters of stare
decisis could count itself bound either way; for in no
case after Kuhlmann has the question whether 2244(b)
creates an obligation to entertain successive or abusive
petitions been necessary to the decision.  In both Sawyer
and McCleskey the Court affirmed the judgments of
lower courts that had dismissed the petition.  See
Sawyer, supra, at ___; McCleskey, supra, at 503.  Those
decisions could not, and did not, announce as a holding
that refusal to entertain a petition can be reversible
error.
  Rather than advancing a different reading of the
statute, the Court gives in essence only one response to
all of this: that the law of federal habeas corpus is a
product of -the interplay between statutory language and
judicially-managed equitable considerations.-  Ante, at
20, n. 35.  This sort of vague talk might mean one of
two things, the first inadequate, the second unconsti-
tutional.  It might mean that the habeas corpus statute
is riddled with gaps and ambiguities that we have tradi-
tionally filled or clarified by a process of statutory
interpretation that shades easily into a sort of federal
common law.  See, e.g., Brecht v. Abramson, 507 U. S.
___, ___ (1992) (slip op., at 12).  That is true enough.
There assuredly are, however, many legal questions on
which the habeas corpus statute is neither silent nor
ambiguous; and unless the question in this case is one
on which the statute is silent or ambiguous (in which
event the Court should explain why that is so), the
response is irrelevant.  On the other hand, the Court's
response might mean something altogether different and
more alarming: that even where the habeas statute does
speak clearly to the question at hand, it is but one
-consideratio[n],- ante, at 20, n. 35, relevant to resolu-
tion of that question.  Given that federal courts have no
inherent power to issue the writ, Ex parte Bollman, 4
Cranch 75, 94-95 (1807), that response would be
unconstitutional.  See U. S. Const., Art. VI, cl. 2.
  There is thus no route of escape from the Court's duty
to confront the statute today.  I would say, as the
statute does, that habeas courts need not entertain
successive or abusive petitions.  The courts whose deci-
sions we review declined to entertain the petition, and
I find no abuse of discretion in the record.  (I agree with
the Chief Justice that they were correct to use Sawyer
v. Whitley, supra, as the legal standard for determining
claims of actual innocence.  See ante, at ___.)  There-
fore, -we should sustain [their] action without saying
more.-  Salinger, 265 U. S., at 232.
  For these reasons, I respectfully dissent.