SCOTUS grants cert to address whether/when amended habeas petition is a second application

The Supreme Court on Friday arfternoon granted cert via this order list in two new matters.  One case, Rivers v. Lumpkin, involves an issue of modern federal habeas procedure.  Here is how this cert petition, filed on behalf of a Texas prisoner, presented the question:

Under the federal habeas statute, a prisoner “always gets one chance to bring a federal habeas challenge to his conviction,” Banister v. Davis, 590 U.S. 504, 509 (2020). After that, the stringent gatekeeping requirements of 28 U.S.C. § 2244(b)(2) bar nearly all attempts to file a “second or successive habeas corpus application.” Here, petitioner sought to amend his initial habeas application while it was pending on appeal. The Fifth Circuit applied § 2244(b)(2) and rejected the amended filing.

The circuits are intractably split on whether § 2244(b)(2) applies to such filings.  The Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits hold that § 2244(b)(2) categorically applies to all secondin-time habeas filings made after the district court enters final judgment.  The Second Circuit disagrees, applying § 2244(b)(2) only after a petitioner exhausts appellate review of his initial petition.  And the Third and Tenth Circuits exempt some second-in-time filings from § 2244(b)(2), depending on whether a prisoner prevails on his initial appeal (Third Circuit) or satisfies a seven-factor test (Tenth Circuit).

The question presented is: Whether § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.