OCTOBER TERM, 1997
Syllabus
HOHN
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 96-8986. Argued March 3, 1998-Decided June 15, 1998
Petitioner Hohn filed a motion under 28 U. S. C. § 2255 to
vacate his conviction for "use" of a firearm during a drug
trafficking offense, 18 U. S. C. § 924(c)(I), claiming the evidence
was insufficient to prove such "use" under this Court's intervening
decision in
Bailey v.
United States, 516 U. S. 137.
While the motion was pending, Congress enacted the Antiterrorism
and Effective Death Penalty Act of 1996, § 102 of which amends the
statutory provision which had required state prisoners to obtain a
certificate of probable cause before appealing the denial of a
habeas petition. The amended provision specifies,
inter
alia, that an appeal may not be taken to a court of appeals
from the final order in a § 2255 proceeding, § 2253(c)(I)(B),
unless a circuit justice or judge issues a certificate of
appealability, § 2253(c)(I), upon a substantial showing of the
denial of a constitutional right, § 2253(c)(2). The District Court
denied Hohn's motion, and he filed a notice of appeal, which the
Eighth Circuit treated as an application for a certificate of
appealability. A three-judge panel declined to issue a certificate,
ruling that Hohn did not satisfy § 2253(c)(2). In the panel's view,
Bailey simply interpreted § 924(c)(I), and a district
court's incorrect application of a statute does not violate the
Constitution. Hohn then petitioned for review of the certificate
denial under 28 U. S. C. § 1254(1), which provides in relevant part
that "[c]ases in the courts of appeals may be reviewed by the
Supreme Court" "[b]y writ of certiorari." The Government now says
that Hohn's claim was, in fact, constitutional in nature and asks
the Court to vacate the judgment and remand so the Eighth Circuit
can reconsider in light of this concession. Since both parties
argue that this Court has jurisdiction, an
amicus curiae was
appointed to argue the contrary position.
Held: This Court has jurisdiction under § 1254(1) to
review denials of applications for certificates of appealability by
a circuit judge or a court of appeals panel. Hohn's certificate
application is a "case in" the Court of Appeals under § 1254(1)
because the word "case," as used in a statute, means a court
proceeding, suit, or action,
Blyew v.
United States,
13 Wall. 581, 595; the dispute here is a proceeding seeking relief
for an immediate and redressable injury, i.
e., wrongful
detention in violation of the Constitution; and there is adversity
as well as the other requisite
237
qualities of a "case." That § 2253(c)(I) permits the certificate
to be issued by a "circuit justice or judge" does not mean the
judge's denial of a certificate is his or her own action, rather
than the court's. The fact that Hohn's application moved through
the Eighth Circuit in the same manner as cases in general do,
yielding a decision that has been regarded in that court as
precedential, suggests the application was as much a case in the
Court of Appeals as any other matter. This conclusion is also
confirmed by the adoption by every Court of Appeals but one of
rules governing the disposition of certificate applications; by the
issuance of the order denying Hohn's certificate in the name of the
court and under its seal; by Federal Rule of Appellate Procedure
22(b), which specifically provides for consideration of certificate
applications by the entire court of appeals; by Federal Rule 27(c),
which authorizes the court of appeals to review decisions that
individual judges are authorized to make on their own; by Eighth
Circuit Rule 27B(b)(2), which lists grants of probable cause
certificates by individual judges as reviewable decisions under
Rule 27(c); and by the uniform practice of the courts of appeals,
see
In re Burwell, 350 U. S. 521, 522. Early
cases acknowledging that this Court may not review a federal
judge's actions performed in an administrative, as opposed to a
judicial, capacity, see,
e. g., United States v.
Ferreira, 13 How. 40, 51-52, are inapposite because
certificate application decisions are judicial in nature. The
contention of the dissent and the Court-appointed
amicus
that the failure to satisfy a threshold prerequisite for court of
appeals jurisdiction, such as the issuance of a certificate of
appealability, prevents a case from ever being "in" that court
under § 1254(1) is foreclosed by precedent. See,
e. g., Ex parte
Quirin, 317 U. S.
1,24;
Nixon v.
Fitzgerald, 457 U. S. 731, 742-743,
and n. 23; and
Automobile Workers v.
Scofield,
382 U. S. 205,
208-209. The argument is also refuted by the recent amendment to §
2244(b)(3)(E) barring certiorari review of court of appeals denials
of motions to file second or successive habeas applications, which
would have been superfluous were such a motion not a case in the
court of appeals for § 1254(1) purposes, see,
e. g.,
Kawaauhau v.
Geiger, 523 U. S. 57, 62, and
which contrasts tellingly with the absence of an analogous
limitation on certiorari review of denials of appealability
certificate applications, see,
e. g.,
Bates v.
United States, 522 U. S. 23, 29-30.
Today's holding conforms the Court's commonsense practice to the
statutory scheme, making it unnecessary to invoke the Court's
extraordinary jurisdiction in routine cases, which present
important and meritorious claims such as Hohn's. Although the
decision directly conflicts with the portion of
House v.
Mayo, 324 U. S.
42,48
(per curiam), holding this Court lacks statutory
certiorari jurisdiction to review denials of certificates of
probable cause,
stare decisis does not require adherence to
that erroneous conclusion,
238
which is hereby overruled. The Eight Circuit's decision is
vacated in light of the Solicitor General's position in this Court.
Pp. 241-253.
99 F.3d
892, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J.,
filed a concurring opinion,
post, p. 253. SCALIA, J., filed
a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and
THOMAS, JJ., joined,
post, p. 254.
Eileen Penner argued the cause for petitioner. With her
on the briefs was
Alan Untereiner.
Matthew D. Roberts argued the cause for the United States. With
him on the briefs were Solicitor General Waxman, Acting Assistant
Attorney General Keeney, and Deputy Solicitor General Dreeben.
Jeffrey S.
Sutton, by invitation of the Court, 522
U. S. 944, argued the cause and filed a brief as
amicus
curiae. *
JUSTICE KENNEDY delivered the opinion of the Court. We granted
certiorari to determine whether the Court has jurisdiction to
review decisions of the courts of appeals deny-
*Briefs of
amici curiae were filed for the State of
California et al. by
Daniel E. Lungren, Attorney General of
California,
George H. Williamson, Chief Assistant Attorney
General,
Robert R. Anderson, Senior Assistant Attorney
General, and
Eric L. Christoffersen and
Ward A.
Campbell, Deputy Attorneys General, and by the Attorneys
General for their respective States as follows:
Bill Pryor
of Alabama,
Winston Bryant of Arkansas,
Gale A.
Norton of Colorado,
M. Jane Brady of Delaware,
Robert
A. Butterworth of Florida,
Margery S.
Bronster of
Hawaii,
James E. Ryan of Illinois,
Jeffrey A.
Modisett of Indiana,
Richard P. Ieyoub of Louisiana,
Michael C.
Moore of Mississippi,
Jeremiah W (Jay)
Nixon of Missouri,
Joseph P. Mazurek of Montana,
Don
Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
Dennis C.
Vacco of New York,
W A. Drew
Edmondson of Oklahoma,
D. Michael Fisher of
Pennsylvania,
Jeffrey B. Pine of Rhode Island,
Mark
Barnett of South Dakota,
John Knox Walkup of Tennessee,
Jan Graham of Utah,
Mark L. Earley of Virginia, and
William U Hill of Wyoming; and for the National Association
of Criminal Defense Lawyers by
Edward M. Chikofsky and
Lisa Kemler.
239
ing applications for certificates of appealability. The Court,
we hold, does have jurisdiction.
I
In 1992, petitioner Arnold Hohn was charged with a number of
drug-related offenses, including the use or carrying of a firearm
during and in relation to a drug trafficking offense, 18 U. S. C. §
924(c)(1). Over defense counsel's objection, the District Court
instructed the jury that "use" of a firearm meant having the
firearm "available to aid in the commission of" the offense. App.
7, 32. The jury convicted Hohn on all counts. Hohn did not
challenge the instruction in his direct appeal, and the Court of
Appeals affirmed.
United States v. Hohn,
8 F.3d
1301 (CA8 1993).
Two years after Hohn's conviction became final, we held the term
"use" in § 924(c)(1) required active employment of the firearm.
Proximity and accessibility alone were not sufficient.
Bailey v.
United States, 516 U. S. 137 (1995).
Hohn filed a
pro se motion under 28 U. S. C. § 2255 to
vacate his 18 U. S. C. § 924(c)(1) conviction in light of
Bailey on the grounds the evidence presented at his trial
was insufficient to prove use of a firearm. Although the Government
conceded the jury instruction given at Hohn's trial did not comply
with
Bailey, the District Court denied relief because, in
its view, Hohn had waived the claim by failing to challenge the
instruction on direct appeal.
While Hohn's motion was pending before the District Court,
Congress enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 110 Stat. 1214. Section 102 of AEDPA amends the
statutory provision which had required state prisoners to obtain a
certificate of probable cause before appealing the denial of a
habeas petition. The amended provision provides:
"Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from-
240
"(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or
"(B) the final order in a proceeding under section
2255." 28 U. S. C. § 2253(c)(1) (1994 ed., Supp. II).
Certificates of appealability may issue "only if the applicant
has made a substantial showing of the denial of a constitutional
right." § 2253(c)(2).
Hohn filed a notice of appeal on July 29, 1996, three months
after AEDPA's enactment. The Court of Appeals treated the notice of
appeal as an application for a certificate of appealability and
referred it to a three-judge panel. The panel decided Hohn's
application did not meet the standard for a § 2253(c) certificate.
In the panel's view,
"Bailey did no more than interpret a
statute, and an incorrect application of a statute by a district
court, or any other court, does not violate the Constitution."
99 F.3d
892, 893 (CA8 1996). Given this determination, the panel
declined to issue a certificate of appealability.
Judge McMillian dissented. In his view,
Bailey cast doubt
on whether Hohn's conduct in fact violated 18 U. S. C. § 924(c)(1).
The Due Process Clause, he reasoned, does not "tolerat[e]
convictions for conduct that was never criminal," so Hohn had made
a sufficient showing of a constitutional deprivation. 99 F. 3d, at
895. When the Court of Appeals denied Hohn's rehearing petition and
a suggestion for rehearing en banc, four judges noted they would
have granted the suggestion.
Hohn petitioned this Court for a writ of certiorari to review
the denial of the certificate, seeking to invoke our jurisdiction
under 28 U. S. C. § 1254(1). The Government now found itself in
agreement with Hohn, saying his claim was, in fact, constitutional
in nature. It asked us to vacate the judgment and remand so the
Court of Appeals could reconsider in light of this concession. We
may not vacate and remand, of course, unless we first have
jurisdiction over the
241
case; and since Hohn and the Government both argue in favor of
our jurisdiction, we appointed an
amicus curiae to argue the
contrary position. 522 U. S. 944 (1997).
II
Title 28 U. S. C. § 1254 is the statute most often invoked for
jurisdiction in this Court. It provides in relevant part:
"Cases in the courts of appeals may be reviewed by the Supreme
Court by the following methods:
"(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree."
The first phrase of the quoted statute confines our jurisdiction
to "[c]ases in" the courts of appeals.
Nixon v.
Fitzgerald, 457 U. S. 731, 741-742
(1982). The question is whether an application for a certificate
meets the description.
There can be little doubt that Hohn's application for a
certificate of appealability constitutes a case under § 1254(1). As
we have noted, "[t]he words 'case' and 'cause' are constantly used
as synonyms in statutes ... , each meaning a proceeding in court, a
suit, or action."
Blyew v.
United States, 13 Wall.
581, 595 (1872). The dispute over Hohn's entitlement to a
certificate falls within this definition. It is a proceeding
seeking relief for an immediate and redressable injury, i.
e., wrongful detention in violation of the Constitution.
There is adversity as well as the other requisite qualities of a
"case" as the term is used in both Article III of the Constitution
and the statute here under consideration. This is significant, we
think, for cases are addressed in the ordinary course of the
judicial process, and, as a general rule, when the district court
has denied relief and applicable requirements of finality have been
satisfied, the next step is review in the court of appeals. That
the statute permits the certificate to be issued by a "circuit
justice or judge" does not mean the action of the circuit judge in
denying the cer-
242
tificate is his or her own action, rather than the action of the
court of appeals to whom the judge is appointed.
The course of events here illustrates the point. The application
moved through the Eighth Circuit in the same manner as cases in
general do. The matter was entered on the docket of the Court of
Appeals, submitted to a panel, and decided in a published opinion,
including a dissent. App. 4-5. The court entered judgment on it,
issued a mandate, and entertained a petition for rehearing and
suggestion for rehearing en banco
Id., at 5-6. The Eighth
Circuit has since acknowledged its rejection of Hohn's application
made Circuit law. United States v. Apker,
101
F.3d 75 (CA8 1996), cert. pending, No. 97-5460. One judge
specifically indicated he was bound by the decision even though he
believed it was wrongly decided. 101 F. 3d, at 75-76 (Henley, J.,
concurring in result). These factors suggest Hohn's certificate
application was as much a case in the Court of Appeals as are the
other matters decided by it.
We also draw guidance from the fact that every Court of Appeals
except the Court of Appeals for the District of Columbia Circuit
has adopted Rules to govern the disposition of certificate
applications. E. g., Rules 22, 22.1 (CA1 1998); Rules 22, 27(b) and
(f) (CA2 1998); Rules 3.4, 22.1, ll1.3(b) and (c), ll1.4(a) and
(b)(vii) (CA3 1998); Rules 22(a) and (b)(3)(g), 34(b) (CA4 1998);
Rules 8.1(g), 8.6, 8.10, 22, 27.2.3 (CA5 1998); Rules 28(f), (g),
and (j) (CA6 1998); Rules 22(a)(2), (h)(2), and (h)(3)(i), 22.1
(CA7 1998); Rules 22A(d), 27B(b)(2) and (c)(2) (CA8 1998); Rules
3-1(b), 22-2, 22-3(a)(3) and (b)(4), 22-4(c), 22-5(c), (d)(l),
(d)(3), and (e) (CA9 1998); Rules 11.2(b), 22.1, 22.2.3 (CAlO
1998); Rules 22-1, 22-3(a)(3), (a)(4), (a)(6), and (a)(7), and (b),
27-1(d)(3) (CAll 1998). We also note the Internal Operating
Procedures for the Court of Appeals for the Eighth Circuit require
certificate applications to be heard as a general matter by
three-judge administrative panels. Internal Operating Procedures,
pt. LD.3 (1998); see also Interim Processing Guidelines for
Certifi-
243
cates of Appealability under 28 U. S. C. § 2253 and for Motions
under 28 U. S. C. § 2244, pt. I (CA1), 28 U. S. C. A., p. 135 (1998
Pamphlet); Internal Operating Procedures 10.3.2, 15.1 (CA3 1998);
Criminal Justice Act Implementation Plan, pt. 1.2 (CA4), 28 U. S.
C. A., p. 576 (1998 Pamphlet); Internal Operating Procedures
l(a)(l) and (c)(7) (CA7 1998); Rule 27-1, Advisory Committee Note
(1) (CA9), 28 U. S. C. A., p. 290 (1998 Pamphlet); Emergency
General Order in re Procedures Regarding the Prison Litigation
Reform Act and the Antiterrorism and Effective Death Penalty Act
(CAlO), 28 U. S. C. A., p. 487 (1998 Pamphlet); Internal Operating
Procedure 11, following Rule 47-6 (CAll 1998). These directives
would be meaningless if applications for certificates of
appealability were not matters subject to the control and
disposition of the courts of appeals.
It is true the President appoints "circuit judges for the
several circuits," 28 U. S. C. § 44, but it is true as well the
court of appeals "consist[s] of the circuit judges of the circuit
in regular active service," § 43. In this instance, as in all other
cases of which we are aware, the order denying the certificate was
issued in the name of the court and under its seal. That is as it
should be, for the order was judicial in character and had
consequences with respect to the finality of the order of the
District Court and the continuing jurisdiction of the Court of
Appeals.
The Federal Rules of Appellate Procedure make specific provision
for consideration of applications for certificates of appealability
by the entire court. Rule 22(b) states:
"In a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court, an appeal by the
applicant for the writ may not proceed unless a district or a
circuit judge issues a certificate of appealability pursuant to
section 2253(c) of title 28, United States Code .... If the
district judge has denied the certificate, the applicant for the
writ may then request issuance of the certificate by a circuit
244
judge. If such a request is addressed to the court of appeals,
it shall be deemed addressed to the judges thereof and shall be
considered by a circuit judge or judges as the court deems
appropriate. If no express request for a certificate is filed, the
notice of appeal shall be deemed to constitute a request addressed
to the judges of the court of appeals."
On its face, the Rule applies only to state, and not federal,
prisoners. It is nonetheless instructive on the proper construction
of § 2253(c).
Rule 22(b) by no means prohibits application to an individual
judge, nor could it, given the language of the statute. There would
be incongruity, nevertheless, were the same ruling deemed in one
instance the order of a judge acting
ex curia and in a
second the action of the court, depending upon the caption of the
application or the style of the order.
Our conclusion is further confirmed by Federal Rule of
Appellate Procedure 27(c). It states:
"In addition to the authority expressly conferred by these rules
or by law, a single judge of a court of appeals may entertain and
may grant or deny any request for relief which under these rules
may properly be sought by motion, except that a single judge may
not dismiss or otherwise determine an appeal or other proceeding,
and except that a court of appeals may provide by order or rule
that any motion or class of motions must be acted upon by the
court. The action of a single judge may be reviewed by the
court."
As the Rule makes clear, even when individual judges are
authorized under the Rules to entertain certain requests for
relief, the court may review their decisions. The Eighth Circuit's
Rules are even more explicit, specifically listing grants of
certificates of probable cause by an individual judge as one of the
decisions subject to revision by the court under Federal Rule
27(c). Rule 27B(b)(2) (CA8 1998). The recog-
245
nition that decisions made by individual circuit judges remain
subject to correction by the entire court of appeals reinforces our
determination that decisions with regard to an application for a
certificate of appealability should be regarded as an action of the
court itself and not of the individual judge. We must reject the
suggestion contained in the Advisory Committee's Notes on Federal
Rule of Appellate Procedure 22(b) that "28 U. S. C. § 2253 does not
authorize the court of appeals as a court to grant a certificate of
probable cause." 28 U. S. C. App., p. 609. It is more consistent
with the Federal Rules and the uniform practice of the courts of
appeals to construe § 2253(c)(1) as conferring the jurisdiction to
issue certificates of appealability upon the court of appeals
rather than by a judge acting under his or her own seal. See
In
re Burwell, 350
U. S. 521, 522 (1956).
Some early cases from this Court acknowledged a distinction
between acting in an administrative and a judicial capacity. When
judges perform administrative functions, their decisions are not
subject to our review.
United States v.
Ferreira, 13
How. 40, 51-52 (1852); see also
Gordon v.
United
States, 117 U. S. Appx. 697, 702, 704 (1864). Those opinions
were careful to say it was the nonjudicial character of the judges'
actions which deprived this Court of jurisdiction.
Ferreira,
supra, at 46-47 (tribunal not judicial when the proceedings
were
ex parte and did not involve the issuance of process,
summoning of witnesses, or entry of a judgment);
Gordon,
supra, at 699, 702 (tribunal not judicial when it lacks power
to enter and enforce judgments). Decisions regarding applications
for certificates of appealability, in contrast, are judicial in
nature. It is typical for both parties to enter appearances and to
submit briefs at appropriate times and for the court of appeals to
enter a judgment and to issue a mandate at the end of the
proceedings, as happened here. App. 4-6. Construing the issuance of
a certificate of appealability as an administrative function,
moreover, would suggest an entity not wielding judicial power might
review the
246
decision of an Article III court. In light of the constitutional
questions which would surround such an arrangement, see
Gordon,
supra; Hayburn's Case, 2 Dall. 409 (1792), we should avoid any
such implication.
We further disagree with the contention, advanced by the dissent
and by Court-appointed
amicus, that a request to proceed
before a court of appeals should be regarded as a threshold inquiry
separate from the merits which, if denied, prevents the case from
ever being in the court of appeals. Precedent forecloses this
argument. In
Ex parte Quirin, 317 U. S. 1 (1942), we
confronted the analogous question whether a request for leave to
file a petition for a writ of habeas corpus was a case in a
district court for the purposes of the then-extant statute
governing court of appeals review of district court decisions. See
28 U. S. C. § 225(a) First (1940 ed.) (courts of appeals had
jurisdiction to review final decisions "[i]n the district courts,
in all cases save where a direct review of the decision may be had
in the Supreme Court"). We held the request for leave constituted a
case in the district court over which the court of appeals could
assert jurisdiction, even though the district court had denied the
request. We reasoned, "[p]resentation of the petition for judicial
action is the institution of a suit. Hence the denial by the
district court of leave to file the petitions in these causes was
the judicial determination of a case or controversy, reviewable on
appeal to the Court of Appeals." 317 U. S., at 24.
We reached a similar conclusion in
Nixon v.
Fitzgerald.
There President Nixon sought to appeal an interlocutory District
Court order rejecting his claim of absolute immunity. The Court of
Appeals summarily dismissed the appeal because, in its view, the
order failed to present a "serious and unsettled question" of law
sufficient to bring the case within the collateral order doctrine
announced in
Cohen v.
Beneficial Industrial Loan
Corp., 337 U. S.
541, 547 (1949). Because the Court of Appeals had dismissed for
failure to
247
satisfy this threshold jurisdictional requirement, respondent
Fitzgerald argued, "the District Court's order was not an
appealable 'case' properly 'in' the Court of Appeals within the
meaning of § 1254." 457 U. S., at 742. Turning aside this argument,
we ruled "petitioner did present a 'serious and unsettled' and
therefore appealable question to the Court of Appeals. It
follow[ed] that the case was 'in' the Court of Appeals under § 1254
and properly within our certiorari jurisdiction."
Id., at
743. We elaborated: "There can be no serious doubt concerning our
power to review a court of appeals' decision to dismiss for lack of
jurisdiction .... If we lacked authority to do so, decisions to
dismiss for want of jurisdiction would be insulated entirely from
review by this Court."
Id., at 743, n. 23; see also
United States v.
Nixon, 418 U. S. 683, 692 (1974)
(holding appeal of District Court's denial of motion to quash
subpoena duces tecum was in the Court of Appeals for
purposes of § 1254(1)).
We have shown no doubts about our jurisdiction to review
dismissals by the Courts of Appeals for failure to file a timely
notice of appeal under § 1254(1). The filing of a proper notice of
appeal is mandatory and jurisdictional.
Torres v.
Oakland
Scavenger Co., 487 U. S. 312, 315
(1988);
United States v.
Robinson, 361 U. S. 220, 224
(1960); Advisory Committee's Notes on Fed. Rule App. Proc. 3, 28 U.
S. C. App., p. 589. The failure to satisfy this jurisdictional
prerequisite has not kept the case from entering the Court of
Appeals, however. We have reviewed these dismissals often and
without insisting the petitioner satisfy the requirements for an
extraordinary writ and without suggesting our lack of jurisdiction
to do so.
E. g., Houston v.
Lack, 487 U. S. 266 (1988);
Torres, supra; Fallen v.
United States, 378 U. S. 139 (1964);
United States v.
Robinson, supra; Leishman v.
Associated Wholesale Elec. Co., 318 U. S. 203 (1943).
We have also held that § 1254(1) permits us to review denials of
motions for leave to intervene in the Court of Appeals in
proceedings to review the decision of an administra-
248
tive agency.
Automobile Workers v.
Scofield,
382 U. S. 205,
208-209 (1965); see also
Izumi Seimitsu Kogyo Kabushiki
Kaisha v.
U. S.
Philips Corp., 510 U. S. 27, 30 (1993)
(per curiam). Together these decisions foreclose the
proposition that the failure to satisfy a threshold prerequisite
for court of appeals jurisdiction, such as the issuance of a
certificate of appealability, prevents a case from being in the
court of appeals for purposes of § 1254(1).
It would have made no difference had the Government declined to
oppose Hohn's application for a certificate of appealability. In
Scofield, we held that § 1254(1) gave us jurisdiction to
review the Court of Appeals' denial of a motion for leave to
intervene despite the fact that neither the agency nor any of the
other parties opposed intervention. 382 U. S., at 207. In the same
manner, petitions for certiorari to this Court are often met with
silence or even acquiescence; yet no one would suggest this
deprives the petitions of the adversity needed to constitute a
case. Assuming, of course, the underlying action satisfies the
other requisites of a case, including injury in fact, the
circumstance that the question before the court is a preliminary
issue, such as the denial of a certificate of appealability or
venue, does not oust appellate courts of the jurisdiction to review
a ruling on the matter. For instance, a case does not lack
adversity simply because the remedy sought from a particular court
is dismissal for improper venue rather than resolution of the
merits. Federal Rule of Civil Procedure 12(b)(3) specifically
permits a party to move to dismiss for improper venue before
joining issue on any substantive point through the filing of a
responsive pleading, and we have long treated appeals of dismissals
for improper venue as cases in the courts of appeals, see,
e.
g., Radzanower v.
Touche Ross &
Co., 426 U. S. 148, 151
(1976);
Brunette Machine Works, Ltd. v.
Kockum
Industries, Inc., 406 U. S. 706, 707
(1972);
Schnell v.
Peter Eckrich & Sons, Inc.,
365 U. S. 260,
261 (1961);
Fourco Glass Co. v.
Transmirra Products
Corp., 353 U. S.
222, 223 (1957);
Mis-
249
sissippi Publishing Corp. v.
Murphree, 326 U. S. 438, 440
(1946). It is true we have held appellate jurisdiction improper
when district courts have denied, rather than granted, motions to
dismiss for improper venue. The jurisdictional problem in those
cases, however, was the interlocutory nature of the appeal, not the
absence of a proper case.
Lauro Lines s.r.l. v.
Chasser, 490
U. S. 495 (1989);
Van Cauwenberghe v.
Biard,
486 U. S. 517
(1988). In any event, concerns about adversity are misplaced in
this case. Here the Government entered an appearance in response to
the initial application and filed a response opposing Hohn's
petition for rehearing and suggestion for rehearing en banco App.
4, 5.
The argument that this Court lacks jurisdiction under § 1254(1)
to review threshold jurisdictional inquiries is further refuted by
the recent amendment to 28 U. S. C. § 2244(b)(3). The statute
requires state prisoners filing second or successive habeas
applications under § 2254 to first "move in the appropriate court
of appeals for an order authorizing the district court to consider
the application." 28 U. S. C. § 2244(b)(3)(A) (1994 ed., Supp. II).
The statute further provides "[t]he grant or denial of an
authorization by a court of appeals to file a second or successive
application shall not be appealable and shall not be the subject of
a petition for rehearing or for a writ of certiorari." §
2244(b)(3)(E). It would have been unnecessary to include a
provision barring certiorari review if a motion to file a second or
successive application would not otherwise have constituted a case
in the court of appeals for purposes of 28 U. S. C. § 1254(1). We
are reluctant to adopt a construction making another statutory
provision superfluous. See,
e. g., Kawaauhau v.
Geiger, 523 U.
S. 57, 62 (1998);
United States v.
Menasche,
348 U. S. 528,
538-539 (1955).
Inclusion of a specific provision barring certiorari review of
denials of motions to file second or successive applications is
instructive for another reason. The requirements for cer-
250
tificates of appealability and motions for second or successive
applications were enacted in the same statute. The clear limit on
this Court's jurisdiction to review denials of motions to file
second or successive petitions by writ of certiorari contrasts with
the absence of an analogous limitation to certiorari review of
denials of applications for certificates of appealability. True,
the phrase concerning the grant or denial of second or successive
applications refers to an action "by a court of appeals"; still, we
think a Congress concerned enough to bar our jurisdiction in one
instance would have been just as explicit in denying it in the
other, were that its intention. See,
e. g.,
Bates v.
United States, 522 U. S. 23, 29-30 (1997)
(" '[W]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion''') (quoting
Russello v.
United States, 464 U. S. 16, 23 (1983)
(other internal quotation marks omitted)). The dissent claims the
absence of similar language in § 2253(c) can be explained by
Congress' reliance on the rule holding certificate applications
unreviewable under § 1254(1).
Post, at 261-262. As we later
discuss, any such reliance is lessened by the Court's consistent
practice of treating denials of certificate applications as falling
within its statutory certiorari jurisdiction. See
infra, at
252.
Today's holding conforms our commonsense practice to the
statutory scheme, making it unnecessary to invoke our extraordinary
jurisdiction in routine cases, which present important and
meritorious claims. The United States does not dispute that Hohn's
claim has considerable merit and acknowledges that the trial court
committed an error of constitutional magnitude. The only contested
issue is whether the constitutional violation was a substantial
one. Brief in Opposition 7-8. Were we to adopt the position
advanced by the dissent, the only way we could consider his
meritorious claim would be through the All Writs Act, 28 U. S.
C.
251
§ 1651(a). Our rule permits us to carry out our normal function
of reviewing possible misapplications of law by the courts of
appeals without having to resort to extraordinary remedies.
Our decision, we must acknowledge, is in direct conflict with
the portion of our decision in
House v.
Mayo,
324 U. S. 42, 44
(1945)
(per curiam), holding that we lack statutory
certiorari jurisdiction to review refusals to issue certificates of
probable cause. Given the number and frequency of the cases, and
the difficulty of reconciling our practice with a requirement that
only an extraordinary writ can be used to address them, we do not
think
stare decisis concerns require us to adhere to that
decision. Its conclusion was erroneous, and it should not be
followed.
Stare decisis is "the preferred course because it
promotes the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process."
Payne v.
Tennessee, 501 U. S. 808, 827
(1991). "Considerations of
stare decisis have special force
in the area of statutory interpretation, for here, unlike in the
context of constitutional interpretation, the legislative power is
implicated, and Congress remains free to alter what we have done."
Patterson v.
McLean Credit Union, 491 U. S. 164, 172-173
(1989).
We have recognized, however, that
stare decisis is a
"principle of policy" rather than "an inexorable command."
Payne, supra, at 828. For example, we have felt less
constrained to follow precedent where, as here, the opinion was
rendered without full briefing or argument.
Gray v.
Mississippi, 481 U. S. 648, 651, n. 1
(1987) (questioning the precedential value of
Davis v.
Georgia, 429
U. S. 122 (1976)
(per curiam)). The role of
stare
decisis, furthermore, is "somewhat reduced ... in the case of a
procedural rule ... which does not serve as a guide to lawful
behavior."
United States v.
Gaudin, 515 U. S. 506, 521 (1995)
(citing
Payne, supra, at
252
828). Here we have a rule of procedure that does not alter
primary conduct. And what is more, the rule of procedure announced
in
House v.
Mayo has often been disregarded in our
own practice. Both Hohn and the United States cite numerous
instances in which we have granted writs of certiorari to review
denials of certificate applications without requiring the
petitioner to move for leave to file for an extraordinary writ, as
previously required by our rules, and without requiring any
extraordinary showing or exhibiting any doubts about our
jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 4036, pp. 15-16 (2d ed. 1988)
(collecting cases). Included among these examples are several
noteworthy decisions which resolved significant issues of federal
law. See,
e. g., Allen v.
Hardy, 478 U. S. 255, 257-258
(1986)
(per curiam) (refusing to permit retroactive
application of
Batson v.
Kentucky, 476 U. S. 79
(1986), on collateral attack);
Lynce v.
Mathis, 519
U. S. 433, 436 (1997) (holding the cancellation of early release
credits violated the
Ex Post Facto Clause). These deviations
have led litigants and the legal community to question the vitality
of the rule announced in
House v.
Mayo. As
commentators have observed: "More recent cases ... have regularly
granted certiorari following denial of leave to proceed in forma
pauperis, or refusal to certify probable cause, without any
indication that review was by common law writ rather than statutory
certiorari. At least as to these two questions, statutory
certiorari should be available." Wright, Miller, & Cooper,
supra, at 15-16 (footnotes omitted). Our frequent disregard
for the rule announced in
House v.
Mayo weakens the
suggestion that Congress could have placed significant reliance on
it, especially in light of the commentary on our practice in the
legal literature.
This is not to say opinions passing on jurisdictional issues
sub silentio may be said to have overruled an opinion
addressing the issue directly. See,
e. g., United States v.
More, 3 Cranch 159, 172 (1805) (Marshall, C. J.). Our
decisions re-
253
main binding precedent until we see fit to reconsider them,
regardless of whether subsequent cases have raised doubts about
their continuing vitality.
Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 484
(1989). Once we have decided to reconsider a particular rule,
however, we would be remiss if we did not consider the consistency
with which it has been applied in practice.
Swift &
Co. v.
Wickham, 382 U. S. 111, 116
(1965); see also
Brown Shoe Co. v.
United States,
370 U. S. 294,
307 (1962). This consideration, when combined with our analysis of
the legal issue in question, convinces us the contrary holding of
House v.
Mayo cannot stand.
We hold this Court has jurisdiction under § 1254(1) to review
denials of applications for certificates of appealability by a
circuit judge or a panel of a court of appeals. The portion of
House v.
Mayo holding this Court lacks statutory
certiorari jurisdiction over denials of certificates of probable
cause is overruled. In light of the position asserted by the
Solicitor General in the brief for the United States filed August
18, 1997, the judgment of the Court of Appeals is vacated, and the
case is remanded for further consideration consistent with this
opinion.
It is so ordered.
JUSTICE SOUTER, concurring.
I would be content to decide this case on the authority of
House v.
Mayo, 324 U. S. 42 (1945)
(per curiam), that common-law certiorari is available to
review the denial of the certificate, leaving
House's
precarious future for another day when its precedential value might
have to be faced squarely. But that course would command no more
than a minority of one, and there is good reason to deny it even
that support.
House's holding on what may be "'in' the court
of appeals," id., at 44, was virtually unreasoned, and the Court
correctly notes our subsequent practice of honoring this rule in
the breach. Given the weakness of the precedent, the
254
advantage of having a clear majority for a rule governing our
jurisdiction to reverse erroneous denials of certificates of
appealability persuades me to join the others in overruling
House insofar as it would bear on issuance of a statutory
writ of certiorari under 28 U. S. C. § 1254(1).
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE THOMAS join, dissenting.
Today's opinion permits review where Congress, with unmistakable
clarity, has denied it. To reach this result, the Court ignores the
obvious intent of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. 104132, 110 Stat. 1214, distorts the
meaning of our own jurisdictional statute, 28 U. S. C. § 1254(1),
and overrules a 53year-old precedent,
House v.
Mayo,
324 U. S. 42
(1945)
(per curiam). I respectfully dissent.
I
This Court's jurisdiction under 28 U. S. C. § 1254(1) is limited
to "[c]ases in the courts of appeals." Section 102 of AEDPA
provides that "[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from ... the final order in a habeas corpus
proceeding under section 2255," that is, a district court habeas
proceeding challenging federal custody. Petitioner, who is
challenging federal custody under 28 U. S. C. § 2255, did not
obtain a certificate of appealability (COA). By the plain language
of AEDPA, his appeal "from" the district court's "final order" "may
not be taken to the court of appeals." Because it could not be
taken
to the Court of Appeals, it quite obviously was never
in the Court of Appeals; and because it was never in the
Court of Appeals, we lack jurisdiction under § 1254(1) to entertain
it.
We have already squarely and explicitly endorsed this
straightforward interpretation. In
House v.
Mayo, 324
U. S., at 44, involving the predecessors to §§ 1254(1) and
255
2253(c)(1), the statutorily required certificate was called a
"certificate of probable cause" rather than a certificate of
appealability, but the effect of failure to obtain it was precisely
the same: The case could not proceed to the court of appeals. On an
attempt to obtain review of denial of the certificate in this
Court, we held that since petitioner's "case was never 'in' the
court of appeals, for want of a certificate," we lacked
jurisdiction under § 1254(1).
Ibid.
The Court concedes that
House is squarely on point but
opts to overrule it because its "conclusion was erroneous,"
ante, at 251. The Court does not dispute that petitioner's §
2255 action was never in the Court of Appeals; its overruling of
House is instead based on the proposition that petitioner's
request for a COA is, in and of itself, a "case" within the meaning
of § 1254(1), see
ante, at 241-242, 246-249, and that
that case was "in" the Court of Appeals and hence can be
reviewed here,
ante, at 241-246. Most of the Court's
analysis is expended in the effort to establish that petitioner
made his request for a COA to the Court of Appeals as such, rather
than to the circuit judges in their individual capacity,
ibid. Even that effort is unsuccessful, since it comes up
against the pellucid language of AEDPA to the contrary. Section 102
does not permit application for a COA to a court of appeals; it
states that the application must be made to a "circuit justice or
judge." That this means precisely what it says is underscored by §
103 of AEDPA, which amends Rule 22 of the Federal Rules of
Appellate Procedure: "If [a COA] request is addressed to the court
of appeals, it shall be deemed addressed to the judges thereof and
shall be considered by a circuit judge or judges as the court deems
appropriate." As though drafted in anticipatory refutation of the
Court's countertextual holding today, the Advisory Committee's
Notes on Rule 22 explicitly state that "28 U. S. C. § 2253 does not
authorize the court of appeals as a court to grant a certificate of
probable cause." 28 U. S. C. App., p. 609.
256
Proclaiming the request for a COA to be "in" the Court of
Appeals is the most obvious of the Court's statutory distortions,
but not the one with the most serious collateral consequences. The
latter award goes to the Court's virtually unanalyzed pronouncement
(also essential to its holding) that the request for a COA was
itself a "case" within the meaning of § 1254(1). The notion that a
request pertaining to a case constitutes its own "case" for
purposes of § 1254 is a jawdropper. To support that remarkable
assertion, the Court relies upon circumstantial evidence-that the
"application moved through the Eighth Circuit in the same manner as
cases in general do."
Ante, at 242. Does this mean that a
request for a COA would not be a "case" in those Circuits that
treated it differently-that permitted it to be disposed of by a
single judge as Rule 22 specifically allows? Does it mean that a
motion for recusal, or a request for televised coverage, or a
motion to file under seal
would be a "case" if the court of
appeals chose to treat it in the manner the Eighth Circuit treated
the request for a COA here? Surely not.
An application for a COA, standing alone, does not have the
requisite qualities of a legal "case" under any known definition.
It does not assert a grievance against anyone, does not seek remedy
or redress for any legal injury, and does not even require a
"party" on the other side. It is nothing more than a request for
permission to seek review. Petitioner's grievance is with
respondent for unlawful custody, and the remedy he seeks is release
from that custody pursuant to § 2255. The request for a COA is not
some separate "case" that can subsist apart from that underlying
suit; it is merely a procedural requirement that must be fulfilled
before petitioner's § 2255 action-his "case" or "cause"-can advance
to the appellate court. The adversity which the Court acknowledges
is needed for a "case" under § 1254, see
ante, at 241, is
not satisfied by the dispute between petitioner and respondent as
to whether the COA should be granted-
257
any more than a "case or controversy" for purposes of initial
federal-court jurisdiction is created by a dispute over venue,
between parties who agree on everything else.1
As is true with most erroneous theories, a logical and
consistent application of the Court's reasoning yields strange
results. If dispute over the propriety of granting a COA creates a
"case," the denial of a COA request that has been unopposed (or,
better yet, has been supported by the Government) will be
unreviewable, whereas denial of a request that is vigorously
opposed will be reviewed-surely an upsidedown result. And the
"case" concerning the COA will subsist even when the § 2255 suit
has been mooted by the petitioner's release from prison. These
bizarre consequences follow inevitably from the Court's "separate
case" theory, which has been fabricated in order to achieve a
result that is fundamentally at odds with the purpose of the
statute. For the Court insists upon assuming, contrary to the plain
import of the statute, that Congress wanted petitioner's § 2255
action to proceed "in the ordinary course of the judicial process"
and to follow the "general rule" that permits an appeal from a
final district court order,
ibid. If this were Congress's
wish, there would have been no need for § 102 of AEDPA. The
whole point of that provision is to
diverge from the
ordinary course of the judicial process and to keep petitioner's
case against respondent out of the Court of Appeals unless
petitioner obtains a COA. "The certificate is a screening device,
helping to conserve judicial (and prosecutorial) resources."
Young v.
United States, 124 F.3d
794, 799
1 The Court has no response to this. Its observation that a
dispute over venue is not unreviewable simply because it is
preliminary,
ante, at 248249, is accurate but irrelevant.
The issue is not whether a venue dispute may be reviewed
at
all, but whether it may be reviewed in isolation from some case
of which it is a part. It may not, because a venue dispute,
standing alone-like a request for a COA, standing alone-lacks the
requisite qualities of a case. If the entire § 2255 proceeding was
not "in" the Court of Appeals, the COA request alone was not a
"case" that § 1254 authorizes us to review.
258
(CA7 1997). It is this unique screening function that
distinguishes a COA from the jurisdictional issues discussed by the
Court: Section 102 of AEDPA prevents petitioner's case from
entering the Court of Appeals
at all in the absence of a
COA, whereas other jurisdictional determinations are made after a
case is in the Court of Appeals (even if the case is later
dismissed because of jurisdictional defects),
ante, at
246249. See
Rosado v.
Wyman, 397 U. S. 397, 403, n. 3
(1970) (a court always has jurisdiction to determine its
jurisdiction).
The Court's only response to these arguments is that they are
foreclosed by our precedent, since we decided an analogous issue in
Ex parte Quirin, 317 U. S. 1 (1942).
Ante, at 246. (The Court displays no appreciation of the
delicious irony involved in its insistence upon hewing to an
allegedly analogous decision while overruling the case directly in
point,
House.) Quirin held that a petition for habeas corpus
constituted the institution of a suit, and that it was not
necessary for the writ to issue for the matter to be considered a
case or controversy. 317 U. S., at 24.
Quirin relied upon
our decision in
Ex parte Milligan, 4 Wall. 2, 110-113
(1866), which reasoned that a petition for habeas corpus is a suit
because the petitioner seeks "'that remedy which the law affords
him'" to recover his liberty.
Id., at 113 (quoting
Weston v.
City Council of Charleston, 2 Pet. 449, 464
(1829)). Petitioner's request for § 2255 relief is analogous to a
petition for habeas corpus, but his request for a COA is of a
wholly different nature. That is no "remedy" for any harm, but a
threshold procedural requirement that petitioner must meet in order
to carry his § 2255 suit to the appellate stage. That is why the
Court in
House, decided less than three years after
Quirin, did not treat the application for a certificate as a
separate case but did recognize the petition for habeas corpus as a
case even though it was decided without a hearing or a call for a
return. 324 U. S., at 43.
I have described above why
House was entirely correct,
but a few words are in order concerning the inappropriate-
259
ness of overruling
House, regardless of its virtue as an
original matter. "[T]he burden borne by the party advocating
abandonment of an established precedent is greater where the Court
is asked to overrule a point of statutory construction."
Patterson v.
McLean Credit Union, 491 U. S. 164, 172-173
(1989); see also
Illinois Brick Co. v.
Illinois,
431 U. S. 720,
736 (1977);
Burnet v.
Coronado Oil &
Gas Co.,
285 U. S. 393, 406 (1932) (Brandeis, J., dissenting). The Court
acknowledges this principle, but invokes cases of ours that say
that
stare decisis concerns are "'somewhat reduced'" in the
case of a procedural rule.
Ante, at 251. The basis for that
principle, of course, is that procedural rules do not
ordinarily engender detrimental reliance-and in this case,
as I shall discuss, detrimental reliance by the Congress of the
United States is self-evident. In any event, even those cases cited
by the Court as applying the "somewhat reduced" standard to
procedural holdings still felt the need to set forth special
factors justifying the overruling.
United States v.
Gaudin, 515 U.
S. 506, 521 (1995), concluded that "the decision in question
had been proved manifestly erroneous, and its underpinnings eroded,
by subsequent decisions of this Court"; and
Payne v.
Tennessee, 501
U. S. 808, 828-830 (1991), noted that the overruled cases had
been "decided by the narrowest of margins, over spirited dissents
challenging [their] basic underpinnings," had been "questioned by
Members of the Court in later decisions," and had "defied
consistent application by the lower courts."
The Court's next excuse is that
House was decided without
full briefing or argument. The sole precedent it cites for the
proposition that this makes a difference is
Gray v.
Mississippi, 481 U. S. 648, 651, n. 1
(1987).
Gray, however, did not
deny stare decisis
effect to an opinion rendered without full briefing and argument-it
accorded stare decisis effect.
I d., at 666-667. What
the Court relies upon is the mere dictum, rendered in the course of
this opinion (and dictum in a footnote, at that), that "summary
action here does not have the
260
same precedential effect as does a case decided upon full
briefing and argument."
Id., at 651, n. 1. But the sole
authority cited for that dictum was
Edelman v.
Jordan,
415 U. S. 651 (1974), which declined to give
stare
decisis effect,
not to opinions that had been issued
without briefing and argument, but to
judgments that had been
issued without opinion-"summary affirmances" that did not
"contain any substantive discussion" of the point at issue or any
other point, id., at 670-671. Such judgments, affirming without
comment the disposition appealed from, were common in the days when
this Court had an extensive mandatory jurisdiction; they carried
little more weight than denials of certiorari.
House, by
contrast, was a six-page opinion with substantive discussion on the
point at issue here. It reasoned: (1) "Our authority ... extends
only to cases 'in a circuit court of appeals ... .''' (2) "Here the
case was never 'in' the court of appeals," because of (3) "want of
a certificate of probable cause." 324 U. S., at 44.2 And it cited
as authority
Ferguson v.
District of Columbia, 270 U.
S. 633 (1926). The new rule that the Court today announces-that our
opinions rendered without full briefing and argument (hitherto
thought to be the strongest indication of certainty in the outcome)
have a diminished
stare decisis effect-may well turn out to
be the principal point for which the present opinion will be
remembered. It can be expected to affect the treatment of many
significant
per curiam opinions by the lower courts, and the
willingness of Justices to undertake summary disposition in the
future.
2 The concurrence asserts that this analysis was "virtually
unreasoned."
Ante, at 253 (opinion of SOUTER, J.). It seems to me, to
the contrary, that there was virtually nothing more to be said. Not
until today has anyone thought that a "case" could consist of a
disembodied request to appeal. The concurrence joins the Court in
relying upon a truly eccentric argument, and then blames the
House Court for not discussing this eccentricity at
length.
261
Of course even if one accepts that the two factors the Court
alludes to (procedural ruling plus absence of full briefing or
argument) reduce
House's stare decisis effect, one must
still acknowledge that its
stare decisis effect is
increased by the fact that it was a statutory holding. The
Court does not contend that
stare decisis is utterly
inapplicable, and so it must come up with
some reason for
ignoring it. Its reason is that we have "disregarded"
House
in practice.
Ante, at 252. The opinions it cites for this
proposition, however, not only fail to mention
House; they
fail to mention the jurisdictional issue to which
House
pertains. And "we have repeatedly held that the existence of
unaddressed jurisdictional defects has
no precedential effect."
Lewis v.
Casey, 518 U. S. 343, 352, n. 2
(1996) (emphasis added). Surely it constitutes "precedential
effect" to reduce the
stare decisis effect of one of the
Court's holdings. It is significant, moreover, that when Members of
the Court
have discussed
House or the jurisdictional
effect of a
COA denial, they have agreed that jurisdiction
is not available under § 1254. See
Davis v.
Jacobs,
454 U. S. 911,
912 (1981) (STEVENS, J., respecting denial of certiorari); id., at
916-917 (REHNQUIST, J., joined by Burger, C. J., and Powell, J.,
dissenting);
Jeffries v.
Barksdale, 453 U. S. 914, 915-916
(1981) (REHNQUIST, J., joined by Burger, C. J., and Powell, J.,
dissenting). The Court's new approach to unaddressed jurisdictional
defects is perhaps the second point for which the present opinion
will be remembered.
While there is scant reason for denying
stare decisis
effect to
House, there is special reason for according it:
the reliance of Congress upon an unrepudiated decision central to
the procedural scheme it was creating. Section 102 of AEDPA
continues a long tradition of provisions enacted by Congress that
limit appellate review of petitions. In 1908, Congress required a
certificate of probable cause in habeas corpus cases involving
state prisoners before an appeal would lie to
262
this Court, see Act of Mar. 10, 1908, ch. 76, 35 Stat. 40. In
1925, this requirement was extended to intermediate appellate
proceedings, see Act of Feb. 13, 1925, ch. 229, §§ 6(d), 13, 43
Stat. 940, 942. Before 1925, this Court readily concluded it had no
jurisdiction over appeals brought before it in the absence of a
certificate, see,
e. g., Bilik v.
Strassheim,
212 U. S. 551
(1908);
Ex parte Patrick, 212 U. S. 555 (1908), and
House interpreted the 1925 amendment to produce the same
effect in the courts of appeals and, consequently, in this Court
under the predecessor to § 1254(1). Quite obviously, with
House on the books-neither overruled nor even
cited
in the later opinions that the Court claims "disregarded"
itCongress presumably anticipated that § 102 of AEDPA would be
interpreted in the same manner.3 In yet another striking departure
from our ordinary practice, the Court qualifies the rule that
statutes are deemed to adopt the extant holdings of this Court, see
Keene Corp. v.
United States, 508 U. S. 200, 212
(1993): They will
not be deemed to adopt them, the Court
says, when legal commentators "question
3The Court points to the fact that another provision of AEDPA,
which requires court of appeals authorization before a state
prisoner can file a second or successive habeas petition in
district court, specifically states that the denial of the
authorization "shall not be appealable and shall not be the subject
of a petition ... for a writ of certiorari." 28 U. S. C. §
2244(b)(3)(E) (1994 ed., Supp. II). This provision, the Court says,
would be rendered "superfluous" if we followed
House, ante,
at 249. That is not so. Section 2244(b)(3) addresses whether there
will be district-court consideration of a second or successive
petition
at all, not whether the district court's
consideration may be reviewed by an appellate court. Only the
latter is covered by the holding of
House. It is true enough
that the reasoning of
House, if carried over to the other
question, would produce the same result; but Congress's
specification of that result when there is no Supreme Court holding
precisely in point would more accurately be described as cautious
than superfluous. Indeed, the greater relevance of § 2244(b)(3) to
the question before us is this: It would be exceedingly strange to
foreclose certiorari review of the denial of
all federal
intervention, as that provision does, while
according
certiorari review of the denial of appeal from the federal district
court to the court of appeals.
263
the vitality" of the holdings.
Ante, at 252. The
confusion that will be introduced by this new approach is
obvious.
At bottom, the only justification for the Court's holdingand the
only one that prompts the concurrence to overrule
House-is
convenience: it "permits us to carry out our normal function" of
appellate review.
Ante, at 251. Our "normal" function of
appellate review, however, is no more and no less than what
Congress says it is. U. S. Const., Art. III, § 2. The Court's
defiance of the scheme created by Congress in evident reliance on
our precedent is a display not of "common sense,"
ante, at
250, but of judicial willfulness. And a doctrine of
stare
decisis that is suspended when five Justices find it
inconvenient (or indeed, as the concurrence suggests, even four
Justices in search of a fifth) is no doctrine at all, but simply an
excuse for adhering to cases we like and abandoning those we do
not.
II
Since I find no jurisdiction under § 1254(1), I must address the
Government's further argument that we can issue a common-law writ
of certiorari under the All Writs Act, 28 U. S. C. § 1651. The All
Writs Act provides that "[t]he Supreme Court ... may issue all
writs necessary or appropriate in aid of [its] jurisdictio[n] and
agreeable to the usages and principles of law." As expressly noted
in this Court's Rule 20.1, issuance of a writ under § 1651 "is not
a matter of right, but of discretion sparingly exercised," and
"[t]o justify the granting of any such writ, the petition must show
that the writ will be in aid of the Court's appellate jurisdiction,
that exceptional circumstances warrant the exercise of the Court's
discretionary powers, and that adequate relief cannot be obtained
in any other form or from any other court."
Petitioner (who filed a petition for a writ of certiorari under
§ 1254(1), not under the All Writs Act, Pet. for Cert. 1) has
failed to establish that he meets these requirements. To begin
with, he has not shown that adequate relief is unobtainable in any
form or from any other court. AEDPA dif-
264
fers from the gatekeeping statute at issue in
House in a
crucial respect: when
House was decided, claimants could
seek certificates of probable cause only from "the United States
court by which the final decision was rendered or a judge of the
circuit court of appeals," 28 U. S. C. § 466 (1940 ed.), whereas §
102 of AEDPA permits claimants to seek COA's from a "circuit
justice or judge." Because petitioner may obtain the relief
he seeks from a circuit justice, relief under the All Writs Act is
not "necessary."
Relief under the Act is also not "appropriate." The only
circumstance alleged by petitioner to justify relief is that the
Eighth Circuit erroneously concluded that he failed to present a
substantial constitutional question. There is nothing "exceptional"
about this claim; it is in fact the same claim available to
every petitioner when a
COA is denied, and
entertaining it would render application for this "extraordinary"
writ utterly routine. Issuance of the writ is not "appropriate" for
another reason as well: It would frustrate the purpose of AEDPA,
which is to prevent review unless a
COA is granted. "Where a
statute specifically addresses the particular issue at hand, it is
that authority, and not the All Writs Act, that is controlling.
Although that Act empowers federal courts to fashion extraordinary
remedies when the need arises, it does not authorize them to issue
ad hoc writs whenever compliance with statutory procedures appears
inconvenient or less appropriate."
Pennsylvania Bureau of
Correction v.
United States Marshals Service, 474 U. S. 34, 43
(1985).4
***
The purpose of AEDPA is not obscure. It was to eliminate the
interminable delays in the execution of state and federal criminal
sentences, and the shameful overloading of
4 Because petitioner has not demonstrated that issuance of the
writ is "necessary" or "appropriate" under § 1651, I need not
discuss whether it fails the further requirement that it be "in aid
of" our jurisdiction.
265
our federal criminal justice system, produced by various aspects
of this Court's habeas corpus jurisprudence. And the purpose of the
specific provision of AEDPA at issue here is also not obscure: It
was designed, in intelligent reliance upon a holding of this Court,
to end § 2255 litigation in the district court unless a court of
appeals judge or the circuit justice finds reasonable basis to
appeal. By giving literally unprecedented meaning to the words in
two relevant statutes, and overruling the premise of Congress's
enactment, the Court adds new, Byzantine detail to a habeas corpus
scheme Congress meant to streamline and simplify. I respectfully
dissent.
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