Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.