Whether the Sixth Circuit's standard for determining whether a second-in-time habeas petition is initial or successive conflicts with the Supreme Court's longstanding abuse of the writ doctrine and the standard established in Banister v. Davis

No question identified. : On November 14, 2023, the Sixth Circuit denied Matthews’ motion to retransfer/remand his second-in-time habeas petition to the United States District Court for the Western District of Kentucky to be decided as an initial habeas petition. That makes the petition for a writ of certiorari due on February 12, 2024. This Court has jurisdiction under 28 U.S.C. §1254(1). After Matthews’ second-in-time habeas petition was filed, the district court found good cause to authorize depositions despite the Warden having argued the petition was successive and thus had to be transferred to the Sixth Circuit for authorization to file a successive petition. Those depositions were then taken, and postdeposition briefing was then filed. Approximately eight years later, which was approximately eleven years after the habeas petition had been filed, the district court sua sponte determined the habeas petition was successive and transferred it to the Sixth Circuit. Relying on the long-standing abuse of the writ doctrine and Banister v. Davis, 140 S.Ct. 1698 (2020), Matthews argued it was an initial petition and sought retransfer/remand to the district court. Relying on the intervening en banc Sixth Circuit decision of Jn re Hill, 81 F.4th 560 (6th Cir. 2023), Matthews’ Sixth Circuit panel held it was bound to hold Matthews’ habeas petition was successive. A petition for a writ of certiorari in Hz//is currently pending, with the brief in opposition having been filed on January 12, 2024, and thus a likely conference date of February 16, 2024 —four days after Matthews’ petition for a writ of certiorari is currently due. A certiorari grant in Hi// would undoubtedly impact Matthews’ case because the Sixth Circuit 2 relied on AHi//to rule against Matthews. Thus, it would be prudent to await this Court’s action in Hil/before filing Matthews’ petition for a writ of certiorari. Matthews’ petition will address the legal standard for determining whether a second-in-time habeas petition is an initial or successive petition. More specifically, it will address how the standard the Sixth Circuit applied conflicts with the application of the abuse of the writ doctrine this Court has long applied for determining whether a habeas petition is successive, including after the adoption of AEDPA. See Banister v. Davis, 140 S.Ct. 1698 (2020). In that regard, it will also address the Sixth Circuit’s standard being in conflict with Banister, along with the importance of this Court addressing the issue to bring uniformity to the circuit court of appeals as to how to determine whether a second-in-time habeas petition is initial or successive. This issue is important, and resolution of it will impact many cases across the country and bring uniformity to how courts of appeals determine whether a habeas petition is not successive. CJA appointed counsels’ deadlines in other cases, along with the prudence of awaiting this Court’s action in Hi//, provide reason to grant the unopposed requested extension of time. Supreme Court Rule 13.5 permits a Justice of this Court “for good cause” to extend the time to file a petition for a writ of certiorari for a period not exceeding sixty (60) days, as long as the Clerk receives the application at least ten (10) days before the petition is due. Rule 30.2. This request for an extension of time has been filed in advance of that, and as explained herein, good cause exists. Undersigned counsel of record, David M. Barron, represents eleven of Kentucky’s twenty-six death-sentenced inmates, some of whom have multiple legal actions pending in state and federal court. Since the Sixth Circuit’s decision in Matthews’ case, Barron filed numerous pleadings in capital cases in state and federal courts. Currently, he has the following pleadings due in the near future: a reply to a response in opposition to a certificate of appealability in a case where the district court entirely denied a certificate of appealability, due February