When a state prisoner has previously filed a federal habeas corpus petition that has been denied on the merits, federal courts will generally not consider another petition or a successive petition that is filed by the prisoner. The rationale for this policy is that the federal habeas corpus process should not be abused.

There are two situations under which federal courts will consider successive petitions for federal habeas corpus relief. If a state prisoner's claim relies on a new federal rule that has constitutional implications and that has been made retroactive by decisions of the United States Supreme Court, a successive petition will be considered. The successive petition will also be considered if the facts that support the prisoner's claim could not have been previously discovered by the prisoner through the exercise of due diligence and if the prisoner's claim establishes by clear and convincing evidence that no jury or no trial judge would have found the prisoner guilty of his or her underlying offense without a federal constitutional error.

A state prisoner who believes that the above exceptions apply to his or her claim must present his or her successive federal habeas corpus petition to a federal appellate court. The federal appellate court will decide whether a federal district court is authorized to consider the successive petition. If the federal appellate court denies authorization for the successive petition, its decision cannot be appealed to the United States Supreme Court.

If a state prisoner's initial federal habeas corpus petition is dismissed without a determination of the merits of the prisoner's claims, any second or successive petition that is filed by the prisoner is not considered to be subject to the general prohibition against filing successive petitions. Any petition that is refiled by the prisoner is not considered to be an abuse of the federal habeas corpus process.

If a state prisoner's successive federal habeas corpus petition involves claims that were not mature at the time of his or her initial petition, the prisoner is entitled to file the successive petition without seeking authorization from a federal appellate court.

Even though a state prisoner may be entitled to file a successive federal habeas corpus petition after his or her initial petition is dismissed, it is a safer practice for the prisoner's initial petition to raise all potential claims for which the prisoner may be entitled to federal habeas corpus relief.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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