                                                                           [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                          ____________________________
                                                                      FILED
                                   No. 98-6296                 U.S. COURT OF APPEALS
                          ____________________________           ELEVENTH CIRCUIT
                                                                      04/27/99
                          D.C. Docket No. CV-97-A-1407-N          THOMAS K. KAHN
                                                                       CLERK
CARL FRANCIS GUENTHER,
                                                             Petitioner-Appellant,

                                        versus

ARNOLD HOLT, Warden, et al.,
                                                             Respondents-Appellees.

                         _____________________________

                                   No. 98-6297
                         _____________________________
                           D.C. Docket No. Cv-98-A-47-N


SAMUEL JACKSON,
                                                             Petitioner-Appellant,

                                        versus

BILLY MITCHEM, Warden, et al.,
                                                             Respondents-Appellees.


                          ____________________________

                     Appeals from the United States District Court
                         for the Middle District of Alabama
                         ____________________________

                                   (April 27, 1999)
Before ANDERSON and HULL, Circuit Judges, and HANCOCK*, Senior District Judge.

ANDERSON, Circuit Judge:

       In the two cases consolidated for this appeal, the district court dismissed the petitioners’

applications for a writ of habeas corpus as second or successive and refused to transfer the

applications to this court pursuant to 28 U.S.C. § 1631. Because such a transfer could not have

helped one of the petitioners, and was unnecessary with respect to the other, we decline to decide

the issue of whether a § 1631 transfer was potentially available and, if so, whether it should have

been made.

       Between 1990 and 1994, Guenther filed two applications1 and Jackson filed one

application for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254,

each challenging his respective conviction in the Circuit Court of Montgomery County,

Alabama. The applications were denied and dismissed with prejudice. Therefore, the presence

of these prior applications made any subsequent petitions “second or successive.” Without

receiving prior authorization from this court, Guenther filed on September 22, 1997 and Jackson

filed on January 20, 1998 another § 2254 application pro se in the district court. The magistrate

judge recommended that these latest applications be dismissed because Guenther and Jackson

had not been authorized by this court pursuant to 28 U.S.C. § 2244(b)(3)(A) to file the second or

successive applications. Both petitioners filed objections, arguing that the applications should be

transferred to this court as motions for authorization to proceed with the successive applications.


       *
      Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
       1
       Guenther also filed a third application for a writ of habeas corpus in April of 1997
which was dismissed without prejudice for failure to exhaust state remedies.

                                                 2
The district court adopted the recommendations of the magistrate judge, refused to transfer the

applications to this court, and dismissed the applications for failure to obtain authorization from

this court as required by § 2244(b)(3)(A).2 Those rulings are the subject of this appeal.

       28 U.S.C. §2244(b)(3)(A) provides that “[b]efore a second or successive application [for

a writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate

court of appeals for an order authorizing the district court to consider the application.” Guenther

and Jackson do not dispute that their §2254 applications for a writ of habeas corpus are “second

or successive” applications. Rather, they contend that the district court should have construed

their applications as motions for §2244(b)(3)(A) authorization and transferred them to this court

pursuant to 28 U.S.C. §1631.3


       2
           In a vacuum, such dismissal would not be problematic because the petitioner could
simply refile, properly seeking §2244(b)(3)(A) authorization from the court of appeals before
doing so. However, a quandary may emerge when such dismissal is combined with the one-year
statute of limitations made applicable to habeas corpus claims by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. See 28 U.S.C.
§2244(d)(1). If the limitations period runs during the course of the erroneously filed, dismissal-
prone district court proceeding, the petitioner may run out of time to refile in the correct manner.
This is the problem that has motivated some courts of appeals to hold that district courts should
transfer the first, erroneously filed case to the court of appeals pursuant to 28 U.S.C. §1631. See
Coleman v. United States, 106 F.3d 339, 341 (“[I]f the district court merely strikes or dismisses
the successive petition rather than transferring the matter, compliance with the one-year
limitations periods set forth in §§2244 and 2255 would become more difficult.”). Of course, the
reasoning of these cases that §1631 can be used to mitigate the statute of limitations problem is
predicated on the notion that once authorization is belatedly granted, the date of filing for
limitations purposes relates back to the date of the initial, albeit improper, filing in the district
court. We need not decide today whether such a transfer is appropriate or whether the date of
filing relates back in this manner, because as discussed below the record in each case is clear that
a transfer would have been either futile or unnecessary.
       3
           28 U.S.C. §1631 provides:

       Whenever a civil action is filed in a court as defined in section 610 of this title or
       an appeal, including a petition for review of administrative action, is noticed for

                                                  3
       The Second, Sixth, and Tenth Circuits have held that §1631 permits such transfers. See

In re Sims, 111 F.3d 45 (6th Cir. 1997); Coleman v. United States, 106 F.3d 339 (10th Cir.

1997); Liriano v. United States, 95 F.3d 119 (2d Cir. 1996); see also Pratt v. United States, 129

F.3d 54, 57 (1st Cir. 1997) (acknowledging, in dicta, that a district court could transfer a second

or successive application to the court of appeals under §1631), cert. denied, 118 S. Ct. 1807

(1998); Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996) (same). These cases assume

that once the court of appeals grants the authorization to file a second or successive application,

the date of filing for limitations purposes would relate back to the initial, albeit improper, filing

in the district court. Alternatively, it has been suggested that staying the action for a limited

period and directing the petitioner to seek authorization to file a second or successive petition in

the court of appeals would be a workable solution. On the other hand, significant issues arise as

to whether the language of 28 U.S.C. §2244(b)(3)(A) (requiring an applicant to move in the

court of appeals “[b]efore a second or successive application [for a writ of habeas corpus] is filed

in the district court”) is a jurisdictional bar mandating dismissal, or only a condition precedent.

       We need not decide whether such a stay or a § 1631 transfer would be viable as an

abstract matter, nor need we decide the relation back issue. 4 If applicable, §1631 authorizes a


       or filed with such a court and that court finds that there is a want of jurisdiction,
       the court shall, if it is in the interest of justice, transfer such action or appeal to
       any other such court in which the action or appeal could have been brought at the
       time it was filed or noticed, and the action or appeal shall proceed as if it had been
       filed in or noticed for the court to which it is transferred on the date upon which it
       was actually filed in or noticed for the court from which it is transferred.
       4
               We note that the cases from the Second, Sixth and Tenth Circuits cited in
the preceding paragraphs did not analyze §1631 or explain why it was appropriate
authority for the transfer. Significant arguments can be made on either side as to the
viability of §1631, and a different result may occur depending upon whether the matter to

                                                  4
transfer that “is in the interest of justice.” Neither petitioner in this case presents circumstances

that would entitle him in the interest of justice to a transfer or stay. With respect to petitioner

Jackson, he filed his §2254 application on January 20, 1998. For prisoners whose convictions

became final prior to the effective date of the AEDPA, the one-year statute of limitations

instituted by the AEDPA began to run on its effective date, i.e., April 24, 1996. Wilcox v.

Florida Dep’t of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998); Goodman v. United States,

151 F.3d 1335, 1337 (11th Cir. 1998). Jackson’s conviction became final in 1991 prior to the

effective date of the AEDPA, so his limitations period commenced on April 24, 1996 and

expired on April 23, 1997, nearly nine months before he filed his §2254 application. If

applicable, a transfer under §1631 would not benefit Jackson because his application, in addition

to being second or successive, was indisputably time-barred.

       Petitioner Guenther, who is attacking a 1967 conviction, filed his §2254 application on

September 22, 1997. Although this was more than one year after the effective date of the

AEDPA, Guenther is able to take advantage of a tolling provision built into §2244(d). “The time

during which a properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall not be counted toward any period of

limitation in [subsection (d)].” 28 U.S.C. §2244(d)(2). Guenther had filed a petition for post-

conviction relief under Ala. R. Crim P. 32 in Alabama circuit court on July 14, 1995. That


be transferred is viewed as a §2254 application or as a motion under § 2244(b)(3)(A) or
as a motion to treat the §2254 application as a motion under §2244(b)(3)(A). Also, we
note that there are concerns relating to the application of the plain language in 28 U.S.C.
§2244(b)(3)(A) requiring an applicant to move in the court of appeals “[b]efore a second
or successive application [for a writ of habeas corpus] is filed in the district court.”
(Emphasis supplied).


                                                  5
action was still pending in the Alabama court system when the AEDPA took effect on April 24,

1996. See generally Guenther v. State, 702 So. 2d 484, 486 (Ala. Crim. App. 1996) (tracing

through the chronology of Guenther’s state post-conviction case). The Alabama Court of

Criminal Appeals ruled adversely to Guenther on January 17, 1997 and the Alabama Supreme

Court denied certiorari on July 18, 1997. See id. Thus, his post-conviction action in the

Alabama courts was pending until July 18, 1997, and the limitations period was tolled under

§2244(d) until that date, and began to run on that date. The one-year limitations period did not

expire until July 18, 1998. 28 U.S.C. §2244(d)(2). When Guenther filed his application on

September 22, 1997, about ten months remained on the one year period of limitations, and when

the district court dismissed his application on April 6, 1998, over three months remained.

Moreover, the magistrate judge’s report and recommendation of February 13, 1998 put Guenther

on notice of the necessity of moving in the court of appeals for an order authorizing the district

court to consider a second or successive application. See Magistrate Judge’s Report &

Recommendation at 2. Guenther’s action was dismissed without prejudice. Guenther had ample

time to seek from this court the §2244(b)(3) authorization and refile his §2254 application, prior

to the July 18, 1998 expiration of the limitations period, had he chosen to do so.5 In the

circumstances of these two cases, the interest of justice indicates neither a transfer under §1631

nor a stay.

       Thus, neither petitioner would be entitled to relief regardless of the applicability of

§1631: Jackson, because the limitations period had already expired before he filed; and


       5
          We note in this regard that this court is required to “grant or deny the authorization to
file a second or successive application not later than 30 days after the filing of the motion.” 28
U.S.C. §2244(b)(3)(D).

                                                  6
Guenther, because the limitations period had ample time left when the action was dismissed.

Accordingly, we decline to decide whether a §1631 transfer might be a viable option in some

other case, and we decline to decide whether a stay, instead of a dismissal without prejudice,

should be ordered in some other case, and we decline to decide the relation back issue.

However, we do suggest that the problems inherent in cases like these could be greatly curtailed

if the district courts revised the forms that are provided to pro se §2254 petitioners so that they

reflect the changes made to habeas corpus law by the AEDPA. For example, the forms could

convey the necessity of obtaining authorization in the court of appeals before filing a second or

successive application, see 28 U.S.C. §2244(b)(3)(A), advise petitioners of the restrictive

circumstances that can justify a second or successive application under the AEDPA,6 see id.

§2244(b)(2), and make petitioners aware of the new one-year statute of limitations, see id.




       6
          28 U.S.C. §2244(b)(1) provides that “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application shall be
dismissed.” 28 U.S.C. §2244(b)(2) provides that a claim not presented in a prior application
shall be dismissed unless

       (A) the applicant shows that the claim relies on a new rule of constitutional law,
       made retroactive to cases on collateral review by the Supreme Court, that was
       previously unavailable; or

       (B) (i) the factual predicate for the claim could not have been discovered
       previously through the exercise of due diligence; and

       (ii) the facts underlying the claim, if proven and viewed in light of the evidence as
       a whole, would be sufficient to establish by clear and convincing evidence that,
       but for constitutional error, no reasonable factfinder would have found the
       applicant guilty of the underlying offense.


                                                  7
§2244(d).7 Such instructions would better ensure that the proper procedures are followed, both

facilitating the access to the courts which the current statute permits, and reducing erroneously

filed applications in district courts which consume scarce district court resources, and possibly

also deterring the filing of frivolous second or successive habeas applications (e.g., those clearly

barred by the statute of limitations or clearly insufficient to meet the restrictive standards for

second or successive applications), which, of course, would conserve scarce judicial resources at

both the district and appellate levels.8

       The judgments of the district court dismissing these cases are

       AFFIRMED.




       7
          Although the instant cases were §2254 applications, the same concerns are generally
applicable to motions to vacate, set aside, or correct a federal sentence under 28 U.S.C. §2255
and the forms provided to movants under that section.
       8
          We note in this regard that the form currently used by the Northern District of Georgia
contains helpful information regarding the necessity of obtaining §2244(b)(3) authorization from
the court of appeals before proceeding with a second or successive petition, and regarding the
new one-year statute of limitations. The form currently used by the Middle District of Florida
with respect to §2254 applications advises petitioners regarding the necessity of obtaining
§2244(b)(3) authorization.

                                                  8
