William & Mary Law Review


Gregory Winder


[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus in the United States and allowable under even the restrictive approach of the AEDPA. Finally, this Note advocates for Supreme Court intervention on this issue despite the Court’s reluctance up to this point.

Part I of this Note provides a background on the right of habeas corpus in American history and discusses the changes and developments accompanying the AEDPA since its passage in 1996. Part II discusses the Supreme Court’s rulings in Gonzalez v. Crosby and Banister v. Davis, with particular focus placed on the Court’s analysis of Rule 60(b) and 59(e) motions. Part III uses cases in the Second, Third, and Ninth Circuit Courts to illustrate federal courts’ various approaches to appeals after trial courts have adjudicated the merits of initial habeas petitions. Part IV puts forth various arguments as to why these motions should be allowed and why the Supreme Court should intervene on this issue. It also proposes a test that the Supreme Court should utilize when coming to a decision, which utilizes the approaches currently used by the circuit courts as well as related approaches to other procedural obstacles of the AEDPA.

This abstract has been adapted from the author's introduction.