Slack v. McDaniel

PETITIONER: Slack
RESPONDENT: McDaniel
LOCATION: Erie City Council

DOCKET NO.: 98-6322
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 529 US 473 (2000)
REARGUED: Mar 29, 2000
DECIDED: Apr 26, 2000
ARGUED: Oct 04, 1999

ADVOCATES:
David F. Sarnowski - Carson City, Nevada, argued and reargued the cause for respondents
Michael Pescetta - Las Vegas, Nevada, argued and reargued the cause for the petitioner
Matthew D. Roberts - Department of Justice, argued the cause for the United States, as amicus curiae, by special leave of court

Facts of the case

Antonio Tonton Slack was convicted of second-degree murder in Nevada. In 1991, after an unsuccessful direct appeal, Slack filed a petition for a writ of habeas corpus in federal court. In federal court, Slack attempted to litigate claims he had not yet presented to the Nevada courts and was prevented from doing so. Slack, therefore, filed a motion to hold his federal petition in abeyance while he returned to state court to exhaust his new claims. The Federal District Court ordered the habeas petition dismissed and granted Slack leave to file an application to renew upon his exhaustion of state remedies. In 1995, after unsuccessful state post-conviction proceedings, Slack filed again in the federal court. The state moved to dismiss, arguing that Slack's petition raised claims that had not been presented to the state courts and that claims not raised in Slack's 1991 federal petition had to be dismissed as an abuse of the writ. The District Court granted the state's motion. Slack then filed a notice of appeal. The court denied Slack leave to appeal, concluding the appeal would raise no substantial issue. The Court of Appeals also denied Slack leave to appeal.

Question

If a person's petition for a federal writ of habeas corpus is dismissed without prejudice for failure to exhaust state remedies and is re-filed after those remedies are exhausted, are any claims not raised in the first petition "second or successive" and abusive of the right?

Media for Slack v. McDaniel

Audio Transcription for Oral Reargument - March 29, 2000 in Slack v. McDaniel

Audio Transcription for Oral Argument - October 04, 1999 in Slack v. McDaniel

William H. Rehnquist:

We'll hear argument next in Antonio Slack v. Eldon McDaniel.

Mr. Pescetta.

Michael Pescetta:

Mr. Chief Justice, and may it please the Court:

Although this case also arises in the thicket of habeas proceedings, I think the question that this Court posed on certiorari can be answered by answering two common-sense questions.

One is, can we have a dismissal without prejudice, that is, a dismissal with some prejudice?

Two, can we apply a res judicata rule when there has been no previous adjudication in the matter?

Can we have res judicata without judicata?

I submit that the common-sense answers to both of those questions are no, we can't, and that those answers control the disposition of this case.

William H. Rehnquist:

If you're right, Mr. Pescetta, would it be possible for a habeas corpus applicant to have his first petition dismissed because it contained unexhausted claims and then come back the second time and have a bunch of new claims, as I think your client did here, and simply have them considered, or perhaps be dismissed as unexhausted, and keep going that way?

Michael Pescetta:

In theory, yes, Your Honor, but as we pointed out in our briefing, there are other ways to control that problem if it becomes a problem in the case.

The conditional--

William H. Rehnquist:

What are they?

Michael Pescetta:

--The conditional dismissal order or practice that can be used under Rule 41 of the Federal Rules of Civil Procedure can control that if a petitioner... if a Federal district judge believes that there is a problem with what the State refers to in this case as the ping-pong effect of going back and forth from State to Federal court by filing repeated unexhausted petitions.

That can be controlled by a district court saying, this is your last chance.

We're going to issue an order that dismisses you without prejudice but, as a condition of that order, when you come back we will entertain only your exhausted claims.

That is a technique that has been used successfully in capital cases in the District of Nevada--

Sandra Day O'Connor:

Well, that's not what this judge did.

Just... this judge just dismissed in compliance with Rose for exhaustion.

Michael Pescetta:

--Yes, Your Honor.

Sandra Day O'Connor:

And didn't go on to speculate that the prisoner might come back with new unexhausted claims, right?

Michael Pescetta:

That's true, Your Honor, and that may not occur.

Sandra Day O'Connor:

So what does the judge do when the judge hasn't speculated in advance about this possibility?

Michael Pescetta:

I--

Sandra Day O'Connor:

So back the prisoner comes with, yes, some that are exhausted now, but adding on some new, unexhausted claims.

Michael Pescetta:

--But I think, Your Honor, that's a decision that the judge can make in the district judge's discretion when the district judge perceives that that is a problem.

Sandra Day O'Connor:

Well, in light of Rose v. Lundy, what does the judge do, faced with the situation that happened here--

Michael Pescetta:

I think--

Sandra Day O'Connor:

--with the unexhausted claims?

Michael Pescetta:

--I think the district judge in this case had followed what we believe to be the law, that is that the prior dismissal without prejudice does not make this petition a second or successive petition.

Sandra Day O'Connor:

As to the exhausted claims.