Does limiting second-in-time initial habeas petitions to only petitions that raise (a) a claim that was unripe when the first petition was filed, or (b) an unexhausted claim that was raised in the first petition, conflict with the Court's more than three-decade precedent regarding the abuse of the writ doctrine, reaffirmed less than four years ago in Banister?

QUESTIONS PRESENTED For over three decades, the Court has applied the abuse of the writ doctrine to determine if a second-in-time habeas petition is an initial or successive petition. If the petition is successive, 28 U.S.C. §2244(b)’s gatekeeper must open for the petition to be allowed to proceed. But that gatekeeper does not apply to second-in-time initial petitions. Under the Court’s decades-long abuse of the writ doctrine, the answer to a simple question determines entirely whether a petition is successive or not: does the petitioner “ha[ve] a legitimate excuse for failing to raise a claim at the appropriate time?” McCleskey v. Zant, 499 U.S. 467 (1991). If the answer is yes, the petition is an initial one that shall proceed in the same manner as a first petition, regardless of the nature of the claim. Banister v. Davis, 140 8.Ct. 1698, 1706 (2020). This doctrine balances the value of not requiring every conceivable habeas claim to be raised to preserve it in case the law changes to make a claim viable, with the importance of streamlining habeas and promoting finality. It eliminates any “incentives to withhold claims for manipulative purposes,” McCleskey, 499 U.S. at 491, and thus ended the practice of saving claims for future petitions. Congress did not change, or even address, the abuse of the writ doctrine when it modified 28 U.S.C. §2244(b) to create limits on when a petition that has been determined to be successive can proceed, as Banister recognized less than four years ago. Despite Banister having reaffirmed the doctrine’s post-AEDPA applicability, the Sixth Circuit recently held that even if a petitioner has a legitimate excuse for not raising a claim within a first petition, the claim is successive unless it was unripe at the time of the first petition or presented in that petition but unexhausted. That rule conflicts with Banister and over three decades of the Court’s continued adherence to the abuse of the writ doctrine, and it will result in habeas petitioners no longer winnowing claims foreclosed by existing law, thereby undermining AEDPA’s core goals of streamlining habeas and furthering finality. The Sixth Circuit’s ruling threatens AEDPA’s purpose and provides another in a long list of Sixth Circuit cases that failed to remain faithful to this Court’s precedent and holdings. This gives rise to two questions presented: 1) Does limiting second-in-time initial habeas petitions to only petitions that raise (a) a claim that was unripe when the first petition was filed, or (b) an unexhausted claim that was raised in the first petition, conflict with the Court’s more than three-decade precedent regarding the abuse of the writ doctrine, reaffirmed less than four years ago in Banister, that a petition is not successive so long as the petitioner had a legitimate excuse for not raising the claim in the first petition? i 2) If categorically limiting second-in-time habeas petitions to only petitions that raise claims that were (a) unripe when the first petition was filed, or (b) an unexhausted claim that was raised in the petition, does not conflict with the abuse of the writ doctrine and Banister, should the Court still exercise its equitable powers over habeas rules to make clear the abuse of the writ doctrine’s question—whether the petitioner has a legitimate excuse for not raising the claim in the first habeas governs whether a habeas petition is successive? ii