Robert Carl Foley v. Laura Plappert, Warden

The Court recently granted certiorari in Guerrero v. Johnson, No. 25-1003, to address in the successive habeas petition context, “[w]hether a claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition” but would have then lost under the existing law. Simply, the Court will address whether a second habeas petition can proceed if the claim’s basis existed beforehand but adverse law meant that without a change in law, the claim would have failed. The instant Petition presents a companion issue regarding whether a second-intime habeas petition is permissible when information a court deems necessary to make a claim viable, and thus to have any possibility of prevailing, becomes available after the conclusion of the first habeas proceeding. Rather than apply the Court’s long-standing, workable abuse-of-the-writ doctrine that recognizes a claim is not successive where there is a legitimate excuse for the failure to raise the claim within the first petition, see Banister v. Davis, 590 U.S. 504 (2020) & McCleskey v. Zant, 499 U.S. 467 (1991), the Sixth Circuit applied its own standard. Specifically, the Sixth Circuit held that a claim is successive unless one of three exclusive situations exist – regardless of the existence of a legitimate reason for not raising the claim earlier. Whether the court could deviate from the abuse-of-the-writ doctrine in this way and whether the Sixth Circuit’s decision conflicts with the Court’s long-standing abuse-of-the-writ doctrine are significant questions warranting review and that give rise to these questions presented:

1. Is a second-in-time habeas petition claim not successive if there is a legitimate excuse for the failure to raise the claim within the first petition, under the Court’s long-standing abuse-of-the-writ doctrine (McCleskey v. Zant, 499 U.S. 467 (1991), reaffirmed post-AEDPA in Banister v. Davis, 590 U.S. 504 (2020)); or, is a non-successive second-in-time habeas petition limited to where a claim: a) challenges a new state-court judgment; b) was unripe when the first petition was filed; or c) was unexhausted and not decided, although raised, within the first petition?

2. Does “factual predicate,” and thus ripeness, when determining whether a federal habeas claim is not successive, mean a fact necessary to overcome summary dismissal of an underlying constitutional claim or does the “factual predicate” exist, and thus the claim is ripe, solely because the claim relates to conduct (or lack of conduct) at an early stage of proceedings, even though the fact necessary to overcome summary dismissal did not then exist?