Ethridge v. Bell ( 2022 )

20-1685-pr
Ethridge v. Bell
United States Court of Appeals
for the Second Circuit
_____________________________________
August Term 2021
(Argued: June 9, 2022 Decided: September 20, 2022)
No. 20-1685-pr
_____________________________________
JAMEL ETHRIDGE,
Petitioner-Appellant,
— v. —
EARL BELL,
Respondent-Appellee.
_____________________________________
Before: LYNCH, BIANCO, and NARDINI, Circuit Judges.
Petitioner-appellant Jamel Ethridge appeals from a judgment of the United
States District Court for the Eastern District of New York (Cogan, J.), dismissing
his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, and an order
denying his motion for reconsideration. Ethridge challenged his conviction on the
ground that the state court erroneously denied his motion to suppress a gun seized
during an allegedly unlawful search. Without giving Ethridge prior notice and an
opportunity to be heard, the district court dismissed the petition sua sponte,
concluding that his Fourth Amendment claim could not provide a basis for habeas
relief under Stone v. Powell, 428 U.S. 465 (1976), because Ethridge had a full and
fair opportunity to litigate the claim in state court.
This appeal presents two legal issues: (1) whether a district court may
dismiss a petition sua sponte under Stone without providing a petitioner notice and
an opportunity to be heard; and (2) if such notice and an opportunity to be heard
are required, whether Ethridge’s subsequent discussion of the Stone issue in his
motion for reconsideration, which the district court then denied, satisfied that
requirement.
We hold that, although a district court has the authority to raise the Stone
issue sua sponte, a habeas petitioner is entitled to notice and an opportunity to be
heard before a petition is dismissed under Stone. We further conclude that, in this
case, the district court did not comply with that procedure, and the denial of a
post-judgment motion for reconsideration, which objects to the sua sponte
dismissal under Stone, is not an adequate substitute for that requirement.
Accordingly, we VACATE the judgment of the district court and REMAND
the case for further proceedings consistent with this opinion.
JONATHAN I. EDELSTEIN, Edelstein &
Grossman, New York, NY, for
Petitioner-Appellant.
MARGARET A. CIEPRISZ (Barbara D.
Underwood, Nikki Kowalski, Andrew
W. Amend, on the brief), for Letitia
James, Attorney General of the State of
New York, New York, NY, for
Respondent-Appellee.
2
JOSEPH F. BIANCO, Circuit Judge:
Petitioner-appellant Jamel Ethridge appeals from a judgment of the United
States District Court for the Eastern District of New York (Cogan, J.), dismissing
his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, and an order
denying his motion for reconsideration. Ethridge challenged his conviction on the
ground that the state court erroneously denied his motion to suppress a gun seized
during an allegedly unlawful search. Without giving Ethridge prior notice and an
opportunity to be heard, the district court dismissed the petition sua sponte,
concluding that his Fourth Amendment claim could not provide a basis for habeas
relief under Stone v. Powell, 428 U.S. 465 (1976), because Ethridge had a full and
fair opportunity to litigate the claim in state court. In Stone, the Supreme Court
held that a petitioner may not obtain habeas relief under the Fourth Amendment
on the ground that the state court erroneously declined to suppress evidence
obtained in an unlawful search if he had a full and fair opportunity to litigate the
claim in state court. See 428 U.S. at 494.
This appeal presents two legal issues: (1) whether a district court may
dismiss a petition sua sponte under Stone without providing a petitioner notice and
an opportunity to be heard; and (2) if such notice and an opportunity to be heard
3
are required, whether Ethridge’s subsequent discussion of the Stone issue in his
motion for reconsideration, which the district court then denied, satisfied that
requirement.
We hold that, although a district court has the authority to raise the Stone
issue sua sponte, a habeas petitioner is entitled to notice and an opportunity to be
heard before a petition is dismissed under Stone. We further conclude that, in this
case, the district court did not comply with that procedure, and the denial of a
post-judgment motion for reconsideration, which objects to the sua sponte
dismissal under Stone, is not an adequate substitute for that requirement.
Accordingly, we VACATE the judgment of the district court and REMAND
the case for further proceedings consistent with this opinion.
BACKGROUND
I. Ethridge’s Arrest and State Court Proceedings
In May 2015, police officers observed Ethridge using a cell phone while
driving. When the officers attempted to stop his car, Ethridge sped away and led
the officers on a chase. After committing numerous traffic violations and crashing
4
into four parked vehicles, Ethridge abandoned the car and fled on foot. He was
apprehended shortly thereafter.
During his arrest, Ethridge told the officers that he had been driving a rental
vehicle. With Ethridge’s consent, the officers entered the car to search for the
rental agreement. As part of that search, the officers inspected the trunk and found
a gun, which was wrapped in a t-shirt and placed in a shopping bag. Additionally,
the officers discovered ten glassine envelopes of heroin on Ethridge’s person.
On June 4, 2015, Ethridge was indicted in the Queens County Supreme
Court for various offenses under New York state law, including second and third-
degree criminal possession of a weapon, seventh-degree criminal possession of a
controlled substance, fourth-degree criminal mischief, third-degree unlawful
fleeing in a motor vehicle, and several traffic infractions. Following the
indictment, Ethridge moved to suppress, among other things, the gun seized from
the rental car, arguing that it was obtained in violation of his Fourth Amendment
rights. 1 Ethridge asserted that the gun was obtained during an unlawful search
because, although he had authorized the officers to search the car for the rental
1 Ethridge also moved to suppress the heroin found on his person and certain statements
he made to the police officers during the arrest. In his habeas petition, Ethridge did not
challenge the trial court’s rulings regarding the admissibility of that evidence. Instead,
his petition focused only on the trial court’s denial of his motion to suppress the gun.
5
agreement, his consent extended only to the cab of the car, not the trunk where the
gun was found.
After conducting an evidentiary hearing, the trial court denied Ethridge’s
motion to suppress the gun. The trial court concluded that Ethridge’s consent to
the search of the car included the trunk. In the alternative, the trial court found
that Ethridge had no standing to challenge the search of the car because it was
rented by his girlfriend, and that, in any event, he had no reasonable expectation
of privacy in the car once he abandoned it.
On March 23, 2017, Ethridge pled guilty to the indictment, reserving the
right to appeal any issue arising from the court’s pretrial rulings, including those
related to his suppression motion. On May 9, 2017, Ethridge was sentenced to
seven years’ imprisonment and five years of supervised release.
Ethridge appealed his judgment of conviction to the Appellate Division,
Second Department, challenging the trial court’s denial of his motion to suppress
the gun under the Fourth Amendment. Ethridge again argued that the gun should
have been suppressed because the search of the car’s trunk exceeded the scope of
his consent. He also contested the trial court’s finding that he lacked standing to
challenge the search and asserted that he had a reasonable expectation of privacy
6
in the car, which he did not intend to abandon. On August 21, 2019, the Second
Department affirmed the conviction, finding that the trial court properly denied
the motion to suppress the gun because the evidence established that Ethridge
abandoned the car, “thereby undermining any claim he may have had to an
expectation of privacy in the vehicle or its contents,” and thus, he lacked standing
to challenge the search. People v. Ethridge, 175 A.D.3d 552, 553 (2d Dep’t 2019).
Although Ethridge sought leave to appeal the Second Department’s
decision to the New York Court of Appeals, his application was denied.
II. Federal Habeas Proceeding
On March 13, 2020, Ethridge filed a pro se petition for a writ of habeas corpus
under Section 2254 in the United States District Court for the Eastern District of
New York. He challenged his conviction under the Fourth Amendment on the
ground that the state court erroneously denied his motion to suppress the gun
because, contrary to the state court decision, he had standing to challenge the
search of the rental car and had a reasonable expectation of privacy in the car,
which he did not intend to abandon.
On March 20, 2020, the district court issued an order to show cause directing
the state respondent (the “State”) to electronically file a record of the state court
7
proceedings. The district court also instructed the State that it need not file an
opposition to the petition unless directed to do so in a subsequent order. On April
17, 2020—the same day that the state record was filed—the district court issued a
memorandum decision and order sua sponte dismissing Ethridge’s habeas petition.
Relying on Stone, the district court concluded that Ethridge could not obtain
habeas relief on the ground that the state court erroneously denied his motion to
suppress a gun seized during an allegedly unlawful search in violation of the
Fourth Amendment. Although recognizing that Stone’s limitation on habeas relief
was subject to exceptions, including where the state had provided no corrective
procedures for Fourth Amendment violations, or where the petitioner had been
precluded from utilizing the corrective procedures that existed, the district court
found that neither of those exceptions applied to Ethridge’s case. Specifically, the
district court concluded that “there is no question of the adequacy of the state law
remedy,” and that Ethridge had a full and fair opportunity to litigate his claim in
state court. App’x at 42. For these reasons, the district court dismissed Ethridge’s
8
petition and declined to issue a certificate of appealability. On April 20, 2020,
judgment was entered dismissing the case.
On May 26, 2020, Ethridge simultaneously filed a motion for
reconsideration and a notice of appeal. In his motion for reconsideration, Ethridge
argued that the district court’s sua sponte dismissal denied him notice and the
ability to argue that he did not have a full and fair opportunity to litigate his Fourth
Amendment claim in state court. In particular, Ethridge contended that he did not
have a full and fair opportunity to litigate his claim because the state court’s
determination that he had no standing to challenge the search was contrary to the
Supreme Court’s decision in Byrd v. United States, 138 S. Ct. 1518 (2018), which held
that “the mere fact that a driver in lawful possession or control of a rental car is
not listed on the rental agreement will not defeat his or her otherwise reasonable
expectation of privacy.” Id. at 1531. Ethridge further asserted that a hearing was
necessary for the district court to assess if external factors prevented the state court
from considering his standing to contest the search. Additionally, Ethridge argued
that the State had waived any defense under Stone by failing to raise it.
Without waiting for the State to respond, the district court denied the
reconsideration motion, concluding that it had the authority to dismiss the petition
9
sua sponte under Stone and that it was “plain” that Ethridge could not overcome
Stone. App’x at 70. The district court also reasoned that the State did not waive
its defense under Stone because the State was not required to oppose the petition
unless ordered to do so. See Rule 5(a) of the Rules Governing Section 2254 Cases
in the U.S. District Courts.
Ethridge filed an amended notice of appeal, and we granted the certificate
of appealability on the following issues: (1) whether a court needs to provide
notice and an opportunity to be heard when sua sponte applying Stone to dismiss a
28 U.S.C. § 2254 habeas petition; and (2) if notice and an opportunity to be heard
are required, whether the district court’s dismissal order and Ethridge’s
reconsideration motion provided adequate notice and an opportunity to be heard
in this case.
DISCUSSION
As a threshold matter, separate from the notice issue, we note (as Ethridge
concedes), that the district court was not required to wait until the State filed a
motion to dismiss based upon Stone, but rather, had the discretion to raise that
issue sua sponte. We have recognized “the authority of courts to raise sua sponte
affirmative defenses where the defense implicates values beyond the interests of
10
the parties.” Acosta v. Artuz, 221 F.3d 117, 121–22 (2d Cir. 2000) (holding that a
district court may raise sua sponte a habeas petitioner’s failure to comply with the
statute of limitations); see Femia v. United States, 47 F.3d 519, 523 (2d Cir. 1995)
(holding that a district court may raise sua sponte the affirmative defense of abuse
of the writ); see also Day v. McDonough, 547 U.S. 198, 209 (2006) (“[W]e hold that
district courts are permitted, but not obliged, to consider, sua sponte, the timeliness
of a state prisoner’s habeas petition.”). In Stone, the Supreme Court held that a
petitioner may not obtain habeas relief under the Fourth Amendment on the
ground that the state court declined to suppress evidence obtained in an unlawful
search if he had a full and fair opportunity to litigate the claim in state court. See
428 U.S. at 494. This limitation on habeas relief, though not jurisdictional,
necessarily implicates values beyond the interests of the parties, as it rests on
prudential concerns counseling against the application of the Fourth Amendment
exclusionary rule on collateral review, including considerations of judicial
efficiency, comity, federalism, and the necessity of finality in criminal trials. See
Withrow v. Williams, 507 U.S. 680, 686 (1993); Stone, 428 U.S. at 491 n.31. For these
reasons, courts have the authority to raise Stone sua sponte, but are not required to
do so. See Davis v. Blackburn, 803 F.2d 1371, 1373 (5th Cir. 1986) (per curiam)
11
(holding that, in appropriate cases, “a federal court is not foreclosed from sua
sponte applying the principle of Stone”); see also Tart v. Massachusetts, 949 F.2d 490,
497 n.6 (1st Cir. 1991) (noting “the discretionary authority of federal appellate
courts to raise the Stone prohibition sua sponte”); Wallace v. Duckworth, 778 F.2d
1215, 1219 n.1 (7th Cir. 1985) (“[S]ince the rule of Stone v. Powell is not a
jurisdictional rule, we need not raise the issue sua sponte.” (citation omitted)). 2
A district court’s power to raise a defense sua sponte is distinct, however,
from the question of whether it has authority to dismiss a petition without
affording the petitioner notice and an opportunity to be heard prior to dismissal.
See Acosta, 221 F.3d at 124 (holding that, although a district court had the authority
to raise the untimeliness of a habeas petition sua sponte, the district court erred in
dismissing the petition without giving the petitioner notice and an opportunity to
be heard); Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (“The problem with
the court’s dismissal was not that it was done on the court’s own motion, but rather
2 Indeed, the Ninth Circuit has held that not only does a court have the authority to raise
the Stone issue sua sponte, but it must raise it where the state failed to do so. See Woolery
v. Arave, 8 F.3d 1325, 1327 (9th Cir. 1993) (“While this [Stone] requirement may be
prudential rather than jurisdictional, it is founded in policy considerations that oblige the
court to raise the issue sua sponte if the state neglects to assert it.”).
12
that it was done without affording [the petitioner] notice and opportunity to be
heard.”).
We thus turn to the notice issue, which we review de novo. See Murray v.
Noeth, 32 F.4th 154, 157 (2d Cir. 2022). As set forth below, we hold that a district
court, prior to dismissing a habeas petition sua sponte under Stone, is required to
provide a petitioner with notice and an opportunity to be heard. Here, the district
court failed to comply with that procedure, and Ethridge’s subsequent discussion
of the Stone issue in his motion for reconsideration, which the district court then
denied, did not provide him with the requisite notice and an opportunity to be
heard.
I. A Dismissal Under Stone Must Be Preceded by Notice and an
Opportunity to Be Heard
Although sua sponte dismissals are warranted in certain circumstances, the
general rule is that a district court has no authority to dismiss an action sua sponte
without first providing a plaintiff with notice and an opportunity to be heard. See
Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988). In fact, we have emphasized that
“dismissing a case without an opportunity to be heard is, at a minimum, bad
practice in numerous contexts and is reversible error in others.” Catzin v. Thank
You & Good Luck Corp., 899 F.3d 77, 82 (2d Cir. 2018) (collecting cases).
13
In habeas proceedings, a district court’s authority to dismiss a petition sua
sponte without affording the petitioner prior notice and an opportunity to be heard
depends on the grounds for the dismissal. See Acosta, 221 F.3d at 124. Although
in some circumstances, a district court may dismiss a petition “on the merits”
without affording the petitioner prior notice, a district court must provide notice
and an opportunity to be heard before dismissing a petition “on procedural
grounds.” Id.In particular, a district court has the power to dismiss the petition on the
merits without prior notice “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules
Governing Section 2254 Cases in the U.S. District Courts (“Rule 4”). Therefore,
such dismissals under Rule 4 are “appropriate only in those cases where the
pleadings indicate that petitioner can prove no set of facts to support a claim
entitling him to relief.” Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983); see
also Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003) (recognizing “the power to
dismiss a habeas petition [without notice] when it is patently apparent that the
court lacks jurisdiction to grant the relief demanded”).
14
However, a district court generally must provide the petitioner notice and
an opportunity to be heard before dismissing the petition on procedural grounds,
such as untimeliness, see Acosta, 221 F.3d at 124–25, or abuse of the writ based upon
a failure to show cause for not raising the claim in a prior petition, see Lugo v. Keane,
15 F.3d 29, 31 (2d Cir. 1994); Femia, 47 F.3d at 524. We explained that such
dismissals require prior notice and an opportunity to be heard because they are
adjudicated based on factors that are “usually outside of the record” and will not
come to light unless properly asserted by the petitioner. See Acosta, 221 F.3d at 125
(citing Femia, 47 F.3d at 524).
For example, in Acosta, we held that a district court erred in dismissing a
habeas petition as untimely under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), without affording the petitioner prior
notice and an opportunity to be heard, because the determination of timeliness did
not implicate the merits and instead depended on the existence of special
circumstances that could have prevented the petitioner from raising his claim. See
Acosta, 221 F.3d at 125 (citing Section 2244(d)(1)). These circumstances included
“existence of an unconstitutional impediment to filing a claim,” a “situation where
the constitutional right was recognized and made retroactive on collateral review
15
after the date the conviction became final,” and “a situation where the factual basis
for the claim first became discoverable through the exercise of due diligence after
the date the conviction became final.” Id. We reasoned that, because such
circumstances usually were not reflected in the record and would not be “fully
addressed in the petition of an unlearned and unskilled pro se petitioner,” the
district court was required to provide the petitioner advance notice, “unless it
[was] unmistakably clear from the facts alleged in the petition” that it was
“untimely.” Id.Similarly, in Lugo, we held that “a district court may not properly dismiss a
habeas petition on the ground of abuse of the writ without providing the petitioner
with notice of the proposed dismissal and an opportunity to be heard in
opposition.” 15 F.3d at 31. In reaching this decision, we emphasized that “[n]o
principle is more fundamental to our system of judicial administration than that a
person is entitled to notice before adverse judicial action is taken against him.” Id.
at 30.
In Femia, we held that “the rule set forth in Lugo applies with equal force
when the petition is brought under [28 U.S.C.] § 2255.” 47 F.3d at 522 (“We see no
reason why a petitioner should have any less opportunity under § 2255 than under
16
§ 2254 to explain why his second or successive petition is not an abuse.”).
However, we then considered “whether, notwithstanding the general rule, there
are certain instances in which a petition may be dismissed for abuse of the writ
without prior notice to petitioner,” id., and held that there were indeed such
“limited instances,” id. at 523. More specifically, we concluded that a successive
petition under Section 2255 can be dismissed sua sponte for abuse of the writ
without prior notice to the petitioner where the ground for dismissal is a lack of
actual prejudice, but that a district court must provide notice before dismissing a
successive petition based on a failure to show cause for not raising the claim in the
first petition. Id. at 524. We reasoned that “a finding of actual prejudice is one
made on the merits based on the record” and, thus, “notice serves little purpose
when only prejudice is at issue.” Id. However, “[c]ause is quite a different matter.”
Id. In contrast to a finding of prejudice, the factors relevant to the determination
of cause included “official interference or the reasonable unavailability to counsel
of a factual or legal basis for a claim”—in other words, factors that would “only
come to light if properly asserted by the petitioner.” Id. We thus emphasized that,
because the determination of cause, unlike a finding on the merits such as
prejudice, depended on the existence of circumstances that were “usually outside
17
the record,” the petitioner, “who may be unlearned in law and unskilled in
pleading,” must be given notice and an opportunity to explain why he failed to
raise the claim in the first petition. Id.
Ethridge contends that, because a dismissal under Stone does not adjudicate
the merits of the underlying constitutional claim, such dismissal is not appropriate
under Rule 4 and must be preceded by notice and an opportunity to be heard.
More specifically, relying on our reasoning in Acosta, Lugo, and Femia, Ethridge
contends that, because Stone’s limitation on habeas review of Fourth Amendment
claims allows for exceptions that depend on the existence of circumstances that are
often outside of the record, a pro se petitioner must be given notice and an
opportunity to present the circumstances that may support an exception to Stone.
We agree. Stone imposes a prudential limitation on a petitioner’s ability to
obtain habeas relief on the ground that the state court declined to suppress
evidence obtained in an unlawful search. See Withrow, 507 U.S. at 686 (citing Stone,
428 U.S. at 494–95, 494 n.37). As such, Stone applies irrespective of the merits of
the underlying Fourth Amendment claim. In adopting this limitation, the
Supreme Court explained that the exclusionary rule, which bars admission of
unlawfully discovered evidence, is not “a personal constitutional right,” but “a
18
judicially created remedy” that applies only where its remedial objectives are best
served. Stone, 428 U.S. at 486–87 (internal citations omitted). The Court concluded
that the exclusionary rule generally should not apply on habeas review because,
in this context, its contribution “to the effectuation of the Fourth Amendment is
minimal” compared to “the substantial societal costs” of applying the rule. See id.at 494–95. The Court noted that considerations of comity and federalism, limited
judicial resources, and the necessity of finality in criminal trials, weighed against
applying the exclusionary rule on habeas review. See id. at 491 n.31.
However, Stone’s limitation on habeas review of Fourth Amendment claims
is not absolute: a petitioner may obtain habeas relief if he shows that the state
denied him an opportunity for full and fair litigation of his Fourth Amendment
claim. See Stone, 428 U.S. at 494 n.37; Gates v. Henderson, 568 F.2d 830, 847–48 (2d
Cir. 1977) (en banc). To do so, a petitioner must establish either that “the state has
provided no corrective procedures at all to redress the alleged fourth amendment
violations,” or, “if the state has provided a corrective mechanism,” that the
petitioner “was precluded from using that mechanism because of an
unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d
67, 70 (2d Cir. 1992).
19
Thus, whether a habeas petition will be dismissed under Stone does not
depend on the merits of the underlying Fourth Amendment claim, but on whether
the petitioner had a full and fair opportunity to litigate the claim in state court. In
other words, a determination that Stone precludes a petitioner from obtaining
habeas relief on his Fourth Amendment claim is not an adjudication on the merits
of that claim, but, rather, an application of a prudential rule akin to a procedural
bar. See Withrow, 507 U.S. at 686 (describing Stone’s limitation as prudential);
United States v. Ishmael, 343 F.3d 741, 743 (5th Cir. 2003) (describing Stone as a
”procedural bar[]”). Furthermore, a dismissal under Stone implicates concerns
similar to those that guided our decisions in Acosta and Femia because the
determination of whether the petitioner was precluded from fully and fairly
litigating his claim in state court may depend on facts that are not apparent from
the record.
The State argues that, because we consider a dismissal under Stone to be “on
the merits” for the purposes of AEDPA’s gatekeeping provisions governing the
filing of successive petitions, such a dismissal also must be deemed “on the merits”
under Rule 4 and thereby can be done without notice. See Graham v. Costello, 299
F.3d 129, 132, 134 (2d Cir. 2002). We find this argument unpersuasive because it
20
fails to recognize that the definition of an “on the merits” determination in the
context of a court’s performance of its AEDPA gatekeeping function is quite
different from the general meaning of that term.
In Graham, we held that, because a dismissal under Stone was “on the
merits” for the purposes of AEDPA’s gatekeeping provisions, such dismissal
would render any subsequent petition challenging the same conviction
“successive” and require a petitioner to seek pre-filing authorization from the
court of appeals. See id. at 134; 28 U.S.C. § 2244(b)(3)(A). Graham’s holding is not
dispositive, however, on whether a dismissal under Stone must be preceded by
notice and an opportunity to be heard when reviewing a first petition because not
every dismissal that is deemed “on the merits” for the purposes of the AEDPA’s
gatekeeping provisions can be granted sua sponte under Rule 4. Indeed, dismissals
“on the merits” that trigger AEDPA’s gatekeeping provisions include dismissals
based on procedural grounds, such as failure to show cause and untimeliness. See
Graham, 299 F.3d at 133; Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003).
Dismissals based on such instances of “procedural default” are deemed “on the
merits” in the context of successive petitions because they conclusively preclude
habeas relief, “even though the underlying merits of those claims are not reviewed
21
by any federal court.” 3 Graham, 299 F.3d at 133. Importantly, in holding that a
dismissal under Stone was “on the merits,” Graham concluded that such a dismissal
had “the same effect as the denial of a petition presenting procedurally defaulted
claims when there is no showing of cause and prejudice.” Id. at 134.
Although dismissals based on procedural grounds, such as untimeliness
and failure to show cause for a successive petition, are deemed “on the merits” for
the limited purposes of AEDPA’s gatekeeping provisions, our decisions in Acosta
and Femia make abundantly clear that such dismissals may not be granted sua
sponte under Rule 4 and must be preceded by notice and an opportunity to be
heard. See Acosta, 221 F.3d at 124; Femia, 47 F.3d at 524. In declining to extend the
reach of Rule 4 to such dismissals, we emphasized that, because procedural default
is determined based on factors that may not be reflected in the record, it is essential
to afford a petitioner, who may be unskilled in pleading, prior notice and an
opportunity to be heard. See Acosta, 221 F.3d at 124; Femia, 47 F.3d at 524.
3 As we explained, in the context of successive filings, “our distinction between petitions
that are denied ‘on the merits’ and those that are not does not depend on whether the federal
court actually determined the merits of the underlying claims but rather on whether the prior
denial of the petition conclusively determined that the claims presented could not
establish a ground for federal habeas relief.” Graham, 299 F.3d at 133 (emphasis added).
22
By contrast, these concerns are less prevalent in the context of successive
filings, where the petitioner has had an opportunity to be heard on his first
petition, and courts must perform a gatekeeping function under the AEDPA. See
Felker v. Turpin, 518 U.S. 651, 664 (1996) (discussing the “screening function” that
courts must perform under the AEDPA); cf. Villanueva, 346 F.3d at 62 (“[C]ontrary
to [the petitioner]’s arguments, the application of AEDPA’s ‘second or successive’
requirements to his petition does not violate the Suspension Clause because he
had some reasonable opportunity to have [his] claims heard on the merits.”
(internal quotation marks omitted)). Indeed, in Graham, the state raised Stone in
its opposition to the petitioner’s first petition, presumably providing him with
notice and an opportunity to argue why Stone did not bar his claim. See Graham,
299 F.3d at 131. Thus, Graham’s holding does not change our analysis that a
dismissal under Stone is not “on the merits” for the purposes of Rule 4 and must
be preceded by notice and an opportunity to be heard.
We also find unavailing the State’s argument that, because we have
recognized that New York state courts provide an adequate corrective mechanism
for redressing Fourth Amendment violations and Ethridge relied on that
mechanism to litigate his claim at all levels of the state court system, Stone
23
categorically bars habeas review of his claim and any opportunity to be heard
would thus be meaningless. Cf. Acosta, 221 F.3d at 125 (holding that a district court
must provide notice and an opportunity to be heard prior to the dismissal on
timeliness grounds unless “it is unmistakably clear from the facts alleged in the
petition” and “all of the special circumstances” that the petition is untimely). To
be sure, we have held that New York state courts provide facially adequate
procedures to redress Fourth Amendment violations. See, e.g., Capellan, 975 F.2d
at 70 n.1 (“[F]ederal courts have approved New York’s procedure for litigating
Fourth Amendment claims . . . as being facially adequate.”). Therefore, we agree
with the State that the first exception to the application of Stone—namely, the
adequacy of a state’s corrective mechanism to redress Fourth Amendment
violations—does not generally depend on factual matters outside the record, and,
thus, notice and an opportunity to be heard would be of limited or no value to a
petitioner relying on that exception.
The same, however, cannot be said for the second exception to the
application of the Stone rule—that is, whether a petitioner “was precluded from
using that [state court] mechanism because of an unconscionable breakdown in
the underlying process.” Id. at 70. In other words, the fact that a state has a series
24
of procedural mechanisms within its legal framework to redress Fourth
Amendment violations does not necessarily preclude a finding that there was an
unconscionable breakdown in that process in a particular case. See, e.g., Branch v.
McClellan, 234 F.3d 1261, 2000 WL 1720934 (Table), at *3 (2d Cir. 2000) (summary
order) (remanding to the district court to consider whether the habeas petitioner
was precluded from litigating his Fourth Amendment claim because of an
unconscionable breakdown in the state corrective process).
Moreover, in the rare instance where such an unconscionable breakdown
may have occurred, the critical facts regarding such a breakdown may be based
on conduct that is outside the record, such as a conversation between the petitioner
and the defense attorney about filing the motion, or even perhaps a state court’s
failure to properly docket a suppression motion that was submitted by a
defendant. As in Acosta, the existence of these types of circumstances may “not
be fully addressed in the petition of an unlearned and unskilled pro se petitioner”
who files a petition on standard forms that “are not designed to elicit” facts
relating to the applicability of Stone. Acosta, 221 F.3d at 125. In short, because
Stone’s application may depend on the existence of circumstances that may be
outside the record and not pled in the petition, it is “essential” to afford a petitioner
25
notice and an opportunity to be heard before any such dismissal under Stone.
Femia, 47 F.3d at 524.
This conclusion is consistent with our precedent. In Young v. Conway, 698
F.3d 69 (2d Cir. 2012), we declined to consider the state’s invocation of Stone for
the first time on appeal, reasoning that “indulging that argument would require a
remand to afford [the petitioner] the opportunity to argue either why Stone does
not apply or why he did not have a full and fair opportunity to litigate his claim.”
See id. at 86. In that case, we noted that the petitioner’s Fourth Amendment claim
was far from “typical” and had “everything to do with the basic justice of his
incarceration.” Id. at 87 (citing Stone, 428 U.S. at 491 n.31 (internal quotation marks
omitted)). Specifically, the evidence admitted in the state proceedings “lack[ed]
the typical indicia of reliability that [would] ordinarily weigh against re-litigating
a Fourth Amendment claim on collateral review.” Id.Although not every case will present factual questions as compelling as
those in Young, a petitioner must still be given notice prior to dismissal and an
opportunity to argue that his petition should not be barred under Stone because
he did not receive a full and fair opportunity to litigate his Fourth Amendment
claim in state court. See, e.g., Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir. 2000)
26
(sua sponte directing the parties to file supplemental briefs addressing whether the
petition is barred by Stone); Caver v. Alabama, 537 F.2d 1333, 1336 (5th Cir. 1976)
(holding that, “[d]ifficult as it may be” for a petitioner to establish that the state
failed to provide him with an opportunity for full and fair litigation of his claim,
“the petitioner should be given a chance to be heard upon the legal standard
announced in Stone v. Powell”). Additionally, allowing a district court to dismiss
a petition sua sponte under Stone, without prior notice or an opportunity to be
heard, would not only deprive a petitioner of an opportunity to argue why Stone
does not bar his claim, but would also preempt the state’s ability to waive its
defense under Stone. See Young, 698 F.3d at 85 (holding that a state may waive its
defense under Stone).
In sum, we hold that a district court must afford a petitioner notice and an
opportunity to be heard before dismissing his petition sua sponte under Stone.
II. Ethridge’s Reconsideration Motion Did Not Provide Adequate Notice
and an Opportunity to Be Heard
Here, it is uncontroverted that the district court dismissed Ethridge’s petition
sua sponte without first providing notice of the potential dismissal of the petition
under Stone and affording Ethridge an opportunity to argue why Stone did not bar
his Fourth Amendment claim. The State nevertheless argues that Ethridge’s
27
motion for reconsideration, which objected to the sua sponte dismissal under Stone
and was subsequently denied by the district court, provided the requisite
opportunity to be heard after receiving notice of the dismissal order. We disagree.
Where notice and an opportunity to be heard are required in connection with
the sua sponte dismissal of an action, they must be provided before the dismissal.
As we have explained:
An opportunity to be heard prior to dismissing a case is not a mere
formality and the reasons are straightforward: No principle is more
fundamental to our system of judicial administration than that a
person is entitled to notice before adverse judicial action is taken
against him. This is because providing the adversely affected party
with notice and an opportunity to be heard plays an important role in
establishing the fairness and reliability of the court’s decision and
avoids the risk that the court may overlook valid answers to its
perception of defects in the plaintiff’s case. Sua sponte dismissals
without notice and an opportunity to be heard deviate from the
traditions of the adversarial system and tend to produce the very
effect they seek to avoid—a waste of judicial resources—by leading to
appeals and remands.
Catzin, 899 F.3d at 82 (internal quotation marks and citations omitted). For these
reasons, in Acosta, we held that a district court must afford the petitioner notice of
the proposed dismissal and an opportunity to respond “before dismissing” the
habeas petition sua sponte on statute of limitation grounds. 221 F.3d at 121.
Similarly, in Lugo, we held that a district court must provide the petitioner notice
28
and an opportunity to be heard “prior to the dismissal” of the habeas petition
under Section 2254 on the ground of abuse of the writ. 15 F.3d at 31. Therefore,
although the district court had the discretion to raise the Stone issue sua sponte,
Ethridge was entitled to receive notice of the proposed dismissal and an
opportunity to respond before the district court dismissed his petition. The failure
of the district court to do so here requires remand.
In reaching this conclusion, we reject the State’s contention that Ethridge’s
post-judgment motion for reconsideration gave him an adequate opportunity to
be heard after receiving notice of the dismissal under Stone. A motion for
reconsideration is not an opportunity for a petitioner to “relitigate an issue already
decided” or present arguments that could have been made before the judgment
was entered. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Instead,
such a motion may be granted only in limited circumstances when the petitioner
identifies “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel
Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013); see also United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001)
(“A motion for relief from judgment . . . is properly granted only upon a showing
29
of exceptional circumstances.”). Moreover, unlike the underlying dismissal, the
denial of a motion for reconsideration is reviewed on appeal only for an abuse of
discretion. See Gomez v. City of New York, 805 F.3d 419, 423 (2d Cir. 2015).
Therefore, because a motion for reconsideration provides a narrow basis for relief
and precludes the petitioner from re-litigating issues already decided or raising
arguments that could have been made prior to the entry of judgment, it is not an
adequate opportunity for a petitioner to be heard on the Stone issue. See Progressive
Credit Union v. City of New York, 889 F.3d 40, 52 (2d Cir. 2018) (stating that an
opportunity to be heard must be given “at a meaningful time and in a meaningful
manner” (internal quotation marks omitted)).
Although the State contends that the district court did not constrain itself to
the narrow standard governing reconsideration motions and, instead, fully
considered Ethridge’s arguments, the circumstances surrounding Ethridge’s
reconsideration motion illustrate the inadequacies of this procedural posture for
the purpose of providing a full and meaningful opportunity to be heard under this
rule. As an initial matter, the district court did not explicitly state whether it was
reviewing Ethridge’s arguments de novo or under the narrower reconsideration
standard. Moreover, the district court did not specifically address Ethridge’s
30
argument that he did not have a full and fair opportunity to litigate his Fourth
Amendment claim because the state court’s determination that he lacked standing
to challenge the search was contrary to the Supreme Court’s decision in Byrd,
which held that a driver of a rental car who is not listed on the rental agreement
may have a reasonable expectation of privacy in the vehicle. 4 138 S. Ct. at 1531.
Instead, the district court reiterated that New York state provides adequate
corrective procedures for Fourth Amendment violations and that Ethridge
litigated his claim at the trial and the appellate levels. In addition, even assuming
arguendo that the district court considered and rejected all of these arguments de
novo, it is always possible that a pro se litigant who is aware of the rules governing
motions for reconsideration might feel constrained by those rules not to present
all of his factual and/or legal grounds for overcoming the Stone bar to habeas
review. In short, the legal and practical limitations of the post-judgment
procedural posture prevented Ethridge’s reconsideration motion from
“establishing the fairness and reliability of the court’s decision and avoid[ing] the
risk that the court may overlook valid answers to its perception of defects” in the
4 We express no view on whether Ethridge’s argument has any merit as a basis for
finding an exception to Stone. Our point is only that the district court cannot be said to
have addressed all of Ethridge’s arguments de novo, when it did not directly address
this argument at all.
31
petition, Catzin, 899 F.3d at 82 (internal quotation marks omitted), which we have
emphasized are critical goals of affording the affected party with notice and a full
and fair opportunity to be heard prior to the dismissal of the action. Thus, we
conclude that Ethridge’s motion for reconsideration was not an adequate
substitute for an opportunity to be heard prior to the dismissal of his petition
under Stone.
Our conclusion is consistent with the views of other circuits that have
considered the issue. See, e.g., Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001)
(“[A] motion for reconsideration is not an adequate substitute opportunity for a
habeas petitioner to respond when a district court sua sponte dismisses the
petition.”); Hill v. Braxton, 277 F.3d 701, 707–08 (4th Cir. 2002) (holding that a
motion for reconsideration does not provide a habeas petitioner an adequate
opportunity to be heard); Beatrice Foods Co. v. New Eng. Printing & Lithographing
Co., 899 F.2d 1171, 1177 (Fed. Cir. 1990) (“[R]econsideration after a decision is
rendered is not a substitute for a pre-decision hearing, when such hearing is
otherwise required.”).
Accordingly, because Ethridge did not receive the requisite notice and an
opportunity to be heard prior to the dismissal of his habeas petition under Stone,
32
and his post-judgment motion for reconsideration was not an adequate substitute
for that requirement, we must remand the case to allow Ethridge a full and fair
opportunity to present his arguments as to why Stone does not bar his Fourth
Amendment claim.
CONCLUSION
For the reasons set forth above, we VACATE the judgment of the district
court and REMAND the case for further proceedings consistent with this opinion.
33