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November 15, 2005

Notable 4th Circuit AEDPA parole ruling

The Fourth Circuit today in In re Cabey, No. 04-274 (4th Cir. Nov. 15, 2005) (available here) gave an interesting spin to AEDPA's restriction on successive habeas corpus application in the context of an effort to challenge North Carolina's application of its parole statutes.  Here is the opening paragraph of majority opinion in the 2-1 ruling in Cabey:

Richard Cabey, a North Carolina inmate, moves for authorization, pursuant to 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, sec. 105, 110 Stat. 1214, 1221, to file a successive habeas corpus application challenging North Carolina’s application of its parole statutes to him. Because Cabey seeks to raise only issues related to his parole that he could not have raised at the time of his prior habeas applications, we hold that he is not required to obtain pre-filing authorization under § 2244(b) before filing the instant petition. Accordingly, we deny authorization to file a successive habeas application as unnecessary and transfer Cabey's application to the district court for further proceedings.

Judge Luttig's dissent in Cabey, which is longer than the majority's opinion, starts with this paragraph:

The majority holds today that a second or successive habeas petition is not a "second or successive" petition within the meaning of 28 U.S.C. § 2244 if it is based on "new issues that did not exist and therefore could not have been raised" in a previous section 2254 petition.  Created out of whole cloth as it has been, this exception is irreconcilable with both the plain meaning of the phrase "second or successive" in AEDPA and even with the understanding of that phrase as it was used in habeas corpus jurisprudence prior to AEDPA's enactment.  Needless to say, this wholesale exception for any "new issue" of law or fact that did not exist at the time of a previous petition overrides the carefully-crafted and narrow limitations that Congress imposed on the filing of second or successive petitions in section 2244.

November 15, 2005 at 04:34 PM | Permalink


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