FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLINTON T. ELDRIDGE, 

Petitioner-Appellant,

 v. 

CATRICIA HOWARD; PATRICIA 

K. CUSHWA, Acting Chairman of the 

U.S. Parole Commission, 

Respondents-Appellees.

No. 21-15616 

D.C. No. 

4:21-cv-00081-

RCC-LAB 

OPINION

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, District Judge, Presiding

Argued and Submitted December 5, 2022

Phoenix, Arizona

Filed June 2, 2023

Before: Kim McLane Wardlaw and Patrick J. Bumatay, 

Circuit Judges, and Karen E. Schreier,* District Judge.

Opinion by Judge Schreier;

Dissent by Judge Bumatay

* The Honorable Karen E. Schreier, United States District Judge for the 

District of South Dakota, sitting by designation.
2 ELDRIDGE V. HOWARD

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment 

dismissing Clinton Eldridge’s amended habeas corpus 

petition, which the district court construed as brought under 

28 U.S.C. § 2241, and remanded to the district court to 

decide the petition on the merits.

Eldridge filed the instant habeas petition in the District 

Court for the District of Columbia in February 2020. In the 

amended petition, Eldridge challenges, among other things, 

the United States Parole Commission’s 2019 decision to 

issue a three-year “set-off,” the time he must wait until his 

next parole hearing. The District Court for the District of 

Columbia transferred the case to the District of Arizona, 

where Eldridge was incarcerated. That court dismissed 

Eldridge’s petition as an impermissible second or successive 

petition under the Antiterrorism and Effective Death Penalty 

Act, and denied Eldridge’s motion to reconsider. Relying on 

the abuse of the writ doctrine, the district court concluded 

that Eldridge’s claims were substantially similar to the

claims he raised in at least two other § 2241 petitions.

The panel held that Eldridge need not obtain a certificate 

of appealability (COA) to appeal the denial of the instant 

petition because Congress did not define or include the 

District of Columbia Superior Court as a “State court” in 28 

U.S.C. § 2253(c), where it had expressly done so in that and 

other statutes. The panel held that § 2253(c)(1)(A)’s 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
ELDRIDGE V. HOWARD 3

language, “in which the detention complained of arises out 

of process issued by a State court,” does not include the 

District of Columbia Superior Court. Prisoners whose 

detention arises out of process issued by a District of 

Columbia court are not required to obtain a COA to appeal 

the denial of habeas relief; thus, the COA jurisdictional 

requirement does not pose a barrier to Eldridge’s appeal.

The panel further held that the district court erred in 

dismissing the petition as an abuse of the writ when Eldridge 

could not have possibly raised the same claims in prior 

petitions. Looking to the substance of Eldridge’s claim—

that the Parole Commission acted arbitrarily and 

capriciously in 2019 when it issued a three-year set-off—the 

panel concluded that Eldridge did not have a fair opportunity 

to raise this claim in 2016 or 2018 because the alleged 

violation occurred only after the denial of his 2016 and 2018 

habeas petitions. Additionally, the district court did not 

address the merits of the set-off issues in its decision denying 

Eldridge’s habeas petition in 2016, even though Eldridge 

raised the issue. Thus, because no court has addressed 

Eldridge’s three-year set-off claims regarding his 2016 

parole denial, he did not abuse the writ by raising the 2019 

denial issue in his instant habeas petition.

Judge Bumatay dissented. He wrote that this court 

should have stuck with the consensus, embraced by the five 

circuit courts to consider the question, that the D.C. Superior 

Court is a “State court” under habeas law and prisoners 

challenging detention arising from a D.C. Superior Court 

conviction must obtain a COA before appealing. He wrote 

that, all told, textual and contextual evidence supports that 

overwhelming consensus. He wrote that the panel should 

therefore have required Eldridge to obtain a COA before 

exercising jurisdiction over this appeal, and that he would 
4 ELDRIDGE V. HOWARD

conclude that Eldridge does not deserve one. He wrote that 

in scheduling Eldridge’s 2010 and 2013 parole rehearings, 

the Parole Commission’s erroneous use of the longer (threeyear) 2000 guidelines set-off period, rather than the shorter 

(one-year) 1972 guidelines set-off period, did not result in 

any increase in Eldridge’s incarceration, and that his ex post 

facto constitutional challenge to those denials therefore 

fails. He wrote that Eldridge’s claims related to his 2016 and 

2019 rehearings, for which the Commission plainly used the 

appropriate 1972 guidelines, fare no better. He concluded 

that, even if the Commission had applied an ex post facto 

law, which it did not, Eldridge still can’t succeed because 

there was no basis to conclude that the longer set-offs under 

the new law would extend his actual period of confinement.

COUNSEL

Keith J. Hilzendeger (argued), Assistant Federal Public 

Defender; Jon M. Sands, Federal Public Defender, District 

of Arizona; Federal Public Defender’s Office; Phoenix, 

Arizona; for Petitioner-Appellant.

Timothy R. Cahill (argued) and Suzanne Grealy Curt, 

Assistant United States Attorneys; Office of the United 

States Attorney; Washington, D.C.; Melissa Marcus 

Kroeger, Assistant United States Attorney; Christina M. 

Cabanillas, Deputy Appellate Chief; Gary M. Restaino, 

United States Attorney, District of Arizona; Office of the 

United States Attorney; Tucson, Arizona; for RespondentsAppellees.
ELDRIDGE V. HOWARD 5

OPINION

SCHREIER, District Judge:

The issue here is whether the District of Columbia 

Superior Court counts as a “State court,” for purposes of 28 

U.S.C. § 2253(c)(1), when the statute is silent on the matter. 

We conclude, for purposes of 28 U.S.C. § 2253(c)(1), that a 

District of Columbia Superior Court is not a “State court,”

and thus petitioner Clinton Eldridge need not obtain a 

certificate of appealability (COA) to appeal the district 

court’s denial of his most recent habeas petition. We further

hold that because the district court erred in dismissing 

Eldridge’s petition, the case is reversed and remanded to the 

district court to decide Eldridge’s petition on its merits. 

I.

Eldridge pleaded guilty in 1984 to nine counts, ranging 

from burglary to rape. Eldridge v. United States, 618 A.2d 

690, 694 (D.C. 1992). The District of Columbia Superior 

Court sentenced him to prison for 40 to 120 years. Id.

1

Eldridge first became eligible for parole in 2010. The United 

States Parole Commission (Commission) denied Eldridge 

parole in 2010, 2013, 2016, 2018, and 2019.

2

1 The District of Columbia Court of Appeals vacated one of his 

convictions, but the Superior Court imposed the same aggregate sentence 

after remand. See Eldridge v. Davis, No. 10-1440, 2010 WL 3394708, 

at *1 (D.D.C. Aug. 25, 2010). 

2 The District of Columbia Board of Parole made parole decisions until 

1997, when Congress “abolished the D.C. Board of Parole and directed 

the U.S. Parole Commission to conduct parole hearings for D.C. Code 

offenders.” See Daniel v. Fulwood et al., 766 F.3d 57, 59 (D.C. Cir. 

2014).
6 ELDRIDGE V. HOWARD

In March 2016, Eldridge filed a habeas petition under 28 

U.S.C. § 2241 challenging his 2010, 2013, and 2016 parole 

denials. He alleged, among other things, that the 

Commission improperly used guidelines it had issued in 

2000, which were not in place at the time he committed his 

offense, when deciding whether to release him and how 

much time he must wait until his next parole hearing (also 

known as a “set-off” date). The United States District Court

for the District of Colorado denied relief but did not 

explicitly address Eldridge’s set-off arguments. See 

Eldridge v. Oliver, 16-00690, 2017 WL 2812824, at *1–9 

(D. Colo. June 29, 2017). The Tenth Circuit denied 

Eldridge’s request for a COA and dismissed his appeal. See 

Eldridge v. Oliver, 710 F. App’x 348, 349 (10th Cir. 2018). 

In April 2018, Eldridge filed another 28 U.S.C. § 2241 

petition challenging the denial of parole in 2010 and 2013. 

He also alleged that he was improperly denied access to a 

sex offender treatment program. Further, he argued that in 

2016 the Commission improperly issued a three-year set-off 

(the presumptive time under the Commission’s 2000 

guidelines), rather than a one-year set-off (the presumptive 

time under the District of Columbia Parole Board’s 1972 

guidelines, which were in place at the time of his offense). 3 

The District of Colorado ultimately dismissed Eldridge’s 

2018 habeas petition as “malicious” and “repetitive” without 

deciding the merits of his claims. See Eldridge v. U.S.

Parole Comm’n, 18-00797, 2018 WL 10426189, at *1–2 (D. 

Colo. May 8, 2018). Once again, the Tenth Circuit denied 

Eldridge’s request for a COA and dismissed his appeal. See 

3 Eldridge’s April 2018 petition could not challenge his 2018 parole 

denial because the Commission did not deny his parole request until 

November 2018.
ELDRIDGE V. HOWARD 7

Eldridge v. U.S. Parole Comm’n, 737 F. App’x 901, 902 

(10th Cir. 2018). 

In February 2020, Eldridge filed the instant habeas 

petition in the District Court for the District of Columbia. 

After a district court judge ordered him to do so, Eldridge 

filed an amended petition. Although he styled his petition as 

a writ of habeas corpus under D.C. Code § 16-1091(b), the 

district court construed his petition under 28 U.S.C. § 2241. 

See Eldridge v. Blanckensee, 20-1009, 2021 WL 325959, at 

*3 (D.D.C. Feb. 1, 2021). In his amended petition, Eldridge 

challenges, among other things, the Commission’s 2019 

decision to issue a three-year set-off. In support, he points 

to the Commission’s 2018 decision issuing a one-year setoff. He correctly notes that the Commission justified both 

its 2018 and 2019 set-off decisions for similar reasons: that 

he is an untreated sex offender and needs to participate in a 

sex offender treatment program. 

The District Court for the District of Columbia 

transferred the case to the District of Arizona, the district in

which Eldridge was incarcerated, and flagged that Eldridge’s 

claims appeared “substantially similar” to claims he had 

made in his 2016 and 2018 petitions. Id. at *2 n.2, 4–5. The 

district court for the District of Arizona dismissed Eldridge’s 

petition as an impermissible second or successive petition 

under the Antiterrorism and Effective Death Penalty Act 

(AEDPA), citing to 28 U.S.C. §§ 2244(a) and 2244(b). 

Eldridge v. Blanckensee, 21-00081, 2021 U.S. Dist. LEXIS 

36254, at *4 (D. Ariz. Feb. 24, 2021). 

Eldridge moved the District of Arizona court to 

reconsider its dismissal, arguing that the court improperly 

dismissed the case “without any notice.” Eldridge contends 

that his new petition challenges the Commission’s 2019 
8 ELDRIDGE V. HOWARD

decision to issue a three-year set-off, which he “could not 

[have] foresee[n]” when he filed his earlier habeas petitions. 

The District of Arizona denied Eldridge’s motion to 

reconsider. See Eldridge v. Blanckensee, No. CV 21-00081-

TUC-RCC (LAB), ECF No. 29 at *5 (D. Ariz. Mar. 18, 

2021). Relying on the abuse of the writ doctrine, it 

concluded that Eldridge’s claims were “substantially similar 

to the claims [he] raised in at least two other § 2241 

petitions.” See id.

This appeal followed. We have jurisdiction under 28 

U.S.C. §§ 1291 and 2253(a), and we reverse and remand.

II.

We first must determine whether 28 U.S.C. § 2253(c)(1)

requires Eldridge to obtain a COA. If a COA is required in 

this case, then it is a jurisdictional requirement that cannot 

be waived, and we must decide whether to issue one. See 

Gonzalez v. Thaler, 565 U.S. 134, 142 (2012) (noting that 28 

U.S.C. § 2253(c)(1) is jurisdictional); Miller-El v. Cockrell, 

537 U.S. 322, 336 (2003). Absent a COA requirement,

however, we have jurisdiction to decide whether the district 

court erred in dismissing Eldridge’s instant petition. See, 

e.g., Harbison v. Bell, 556 U.S. 180, 183–84 (2009) 

(concluding that a COA was not required and thereafter 

deciding the issue raised on appeal); Harrison v. Ollison, 

519 F.3d 952, 958 (9th Cir. 2008) (“In the absence of a 

statutory COA requirement for federal prisoners bringing 

legitimate § 2241 petitions, we cannot require one as a 

condition for our exercise of jurisdiction.”).
ELDRIDGE V. HOWARD 9

Section 2253(c)(1) provides:

Unless a circuit justice or judge issues a 

certificate of appealability, an appeal may not 

be taken to the court of appeals from--

(A)the final order in a habeas corpus 

proceeding in which the detention 

complained of arises out of process 

issued by a State court; or

(B) the final order in a proceeding under 

section 2255.

(emphasis added).

We agree with both parties that § 2253(c)(1)(B) does not 

apply because Eldridge properly brought his habeas petition 

under 28 U.S.C. § 2241. See Herndon v. U.S. Parole 

Comm’n, 961 F. Supp. 2d 138, 141 (D.D.C. 2013) 

(describing § 2241 as the “exclusive federal avenue 

available to a District of Columbia prisoner challenging the 

manner of execution of a sentence, rather than the sentence 

itself” (cleaned up)). Thus, the issue is whether 

§ 2253(c)(1)(A)’s “State Court” requirement applies to 

habeas corpus proceedings, such as Eldridge’s, which

challenge a detention that arose out of a process issued by 

the District of Columbia Superior Court.

4

4 Both parties assume that Eldridge’s detention “arises out of process 

issued by” the District of Columbia Superior Court, and both cite 

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), overruled 

on other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011), in support 

of their conclusion. Because the parties do not brief the issue, we 

assume, without deciding, the same.
10 ELDRIDGE V. HOWARD

We begin with the text of § 2253(c)(1)(A). See Ross v. 

Blake, 578 U.S. 632, 638 (2016). Here, the text requires a 

COA for an appeal from a final order in a habeas proceeding 

“in which the detention complained of arises out of process 

issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). None 

of AEDPA’s habeas corpus amendments define “State 

court.” See generally 28 U.S.C. §§ 2241–2255. Congress 

also does not provide a broadly applicable definition of 

“State” in the Dictionary Act. See 1 U.S.C. §§ 1–8.

Without a definition, we must look to the ordinary 

meaning of the term “State court” and “state.” See, e.g.,

Wooden v. United States, 142 S. Ct. 1063, 1069 (2022) 

(looking to the ordinary meaning of the word “occasion”); 

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020)

(looking to the ordinary meaning of the language used in 

Title VII at the time the statute was enacted). The ordinary 

meaning of the word “state” does not—and did not at the 

time § 2254 was enacted—include the District of Columbia. 

See, e.g., Zachary B. Wolf, Why DC Should (and Should 

Not) Be the 51st State, CNN (June 26, 2020, 8:09 PM)5; 

Tessa Berenson, Here’s Why Washington D.C. Isn’t a State, 

Time, (Apr. 15, 2016, 1:57 PM)

6

. The Supreme Court has 

recognized that “[t]he District of Columbia is 

constitutionally distinct from the States[.]” Palmore v. 

United States, 411 U.S. 389, 395 (1973). And the Federal 

Rules of Criminal Procedure expressly define the term 

“State” to include non-state entities such as the District of 

Columbia, Fed. R. Crim. P. 1(b)(9), suggesting that without 

5 https://www.cnn.com/2020/06/26/politics/dc-statehood-101 (last visited

May 23, 2023).

6 https://time.com/4296175/washington-dc-statehood-history/ (last visited

May 23, 2023).
ELDRIDGE V. HOWARD 11

this express definition, the term “state” would not include

the District of Columbia. See Palmore, 411 U.S. at 395. 

Congress’s use of the word “state,” in Title 28, the same 

Title to which § 2253 belongs, confirms this ordinary 

meaning: when Congress wishes to treat the District of 

Columbia as a state in Title 28, it expressly says so.

7 See 28 

U.S.C. § 1257 (expressly defining “highest court of a State” 

to include the District of Columbia Court of Appeals, but not 

defining “statute of any State” to include District of 

Columbia statutes for purposes of Supreme Court 

jurisdiction); 28 U.S.C. § 1332(e) (expressly defining 

“States” to include, among other things, the District of 

Columbia for purposes of diversity jurisdiction); 28 U.S.C 

§ 1451(1) (expressly defining “State court” to include the 

Superior Court of the District of Columbia for purposes of 

removal jurisdiction). 

Congress has defined “state” to include the District of 

Columbia in other contexts too. See, e.g., 34 U.S.C. 

§ 20142(f) (rules for closed circuit televising of court 

proceedings for crime victims); 42 U.S.C. § 6802(6) 

(electric utility rate design initiatives); 10 U.S.C. 

§ 1045(e)(1) (voluntary withholding of state income tax 

from retired or retainer pay for current and past members of 

7 The dissent acknowledges that “absent strong textual reasons to do 

otherwise, we ought to embrace the ordinary meaning of a term.” 

However, the dissent concludes that here, we should not rely on the 

ordinary understanding “that D.C. is not a ‘State’” once we take the term 

“State court” in the context of the statute as a whole. The dissent ignores 

the fact that before reaching our conclusion, we consider Congress’s use 

of the word “state” in Title 28 and that we apply the relevant canons of 

construction. Both of these contextual factors support our determination

that the ordinary use of the term “state” is appropriately used here.
12 ELDRIDGE V. HOWARD

military); 12 U.S.C. § 4001(21) (expedited funds availability 

in banking); 5 U.S.C. 

§ 5707a(f)(3) (federal employee travel expense 

requirements and procedures). By specifying that the word 

“state” includes the District of Columbia in certain 

circumstances within these statutes, Congress is 

acknowledging that the ordinary definition of the word 

“state” does not include the District of Columbia.

The Supreme Court’s decision in Palmore confirms this 

conclusion. In Palmore, the Court interpreted whether 28 

U.S.C. § 1257 gave the United States Supreme Court 

appellate jurisdiction. See 411 U.S. at 394. There, Palmore 

was convicted in the District of Columbia Superior Court of 

carrying an unregistered pistol after having been convicted 

of a felony, which violated the District of Columbia Code. 

See id. at 391. Palmore appealed his conviction to the 

District of Columbia Court of Appeals, arguing that the

provision of the District of Columbia Code establishing the 

Superior Court violated the Constitution because only an

Article III court could constitutionally try him for a felony 

prosecution under the District of Columbia Code. See id. at 

392–93. The District of Columbia Court of Appeals rejected 

his argument. See id. at 393.

When Palmore sought review by the Supreme Court, he

argued that the Supreme Court had jurisdiction under 

§ 1257(2) because the statute he challenged constituted a

“statute of any state.” See Palmore, 411 U.S. at 394–95. The 

Supreme Court rejected his argument, noting that even 

though Congress “plainly provided [in the text of § 1257] 

that the District of Columbia Court of Appeals should be 

treated as the ‘highest court of a state[,]’” Congress did not 

provide that the phrase “‘statute of any state’” included the 
ELDRIDGE V. HOWARD 13

District of Columbia Code. See id. at 395. The Court 

recognized that “[a] reference to ‘state statutes’ would 

ordinarily not include provisions of the District of Columbia 

Code,” because “[t]he District of Columbia is 

constitutionally distinct from the States.” 8 See id. The 

Supreme Court emphasized that Congress “legislated with 

care, and that had Congress intended to equate the District 

Code and state statutes for the purposes of [§] 1257, it would 

have done so expressly, and not left the matter to mere 

implication.” Id.

Here, we assume Congress “legislated with care” when 

it did not expressly include District of Columbia courts as 

state courts in 28 U.S.C. § 2253(c). Just as the Supreme 

Court in Palmore determined that Congress would have 

expressly provided that the District of Columbia Code 

equated to a state statute if it intended such result, so too do 

we when interpreting the phrase “process issued by a State 

court.” 28 U.S.C. § 2253(c); see Palmore, 411 U.S. at 395. 

If Congress meant for “State court” to include the District of 

Columbia Superior Court, it could have easily said so. See, 

e.g., 28 U.S.C § 1451(1) (defining “State court” to include 

the Superior Court of the District of Columbia for purposes 

of removal jurisdiction). Congress did not. A reference to a 

state court ordinarily does not include a District of Columbia

court, and thus we must follow Congress’s express words 

when interpreting 28 U.S.C. § 2253.

We also observe Palmore’s warning that 

“[j]urisdictional statutes are to be construed ‘with precision 

8 The dissent suggests that we look to the “legal (rather than a literal) 

meaning” of “State court” here. But Palmore itself illustrates that the 

Supreme Court has not distinguished between a “literal meaning” and 

“legal meaning” of the term “state.”
14 ELDRIDGE V. HOWARD

and with fidelity to the terms by which Congress has 

expressed its wishes[.]’” Palmore, 411 U.S. at 396 (quoting 

Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968)). The 

Supreme Court has repeatedly instructed courts to exercise 

caution when declaring statutory provisions jurisdictional, 

and to do so only if a statute clearly states it is jurisdictional. 

See, e.g., Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849

(2019); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 

153 (2013); Henderson ex rel. Henderson v. Shinseki, 562 

U.S. 428, 435 (2011). Section 2253(c)(1) is a jurisdictional 

requirement. See Gonzalez, 565 U.S. at 142; Miller-El, 537 

U.S. at 336. Therefore, we must exercise caution and not 

extend 28 U.S.C. § 2253(c)(1)’s text beyond its ordinary 

meaning to include the District of Columbia Superior Court.

To do otherwise would limit Congress’s conferral of 

jurisdiction without a clear textual basis, a move that the 

Supreme Court has repeatedly cautioned against doing. 

Appellees and our unpublished opinion in Johnson v. 

Clay, 539 F. App’x 748, 748 (9th Cir. 2013), rely heavily on 

our sister circuit’s decision in Madley v. U.S. Parole 

Comm’n, 278 F.3d 1306 (D.C. Cir. 2002).

9 Madley 

concluded that the District of Columbia Superior Court is a

state court for purposes of 28 U.S.C. § 2253(c).10 278 F.3d 

9 Although the dissent asserts that “our court treated it as settled that” the 

District of Columbia qualifies as a “State court” for purposes of 28 

U.S.C. § 2253(c)(1)(A), it also acknowledges that “we did so in a nonprecedential memorandum disposition and another panel of this court 

may disagree with that conclusion.” The dissent thus concedes that this 

question, which has never been decided in a precedential disposition in 

our circuit, is far from “settled.”

10 We also recognize that several of our sister circuits have followed 

Madley. See Sanchez-Rengifo v. Caraway, 798 F.3d 532, 535 (7th Cir. 

2015); Eldridge v. Berkebile, 791 F.3d 1239, 1244 (10th Cir. 2015); 
ELDRIDGE V. HOWARD 15

at 1310. In Madley, the court relied on its prior precedent 

that interpreted a previous version of § 2253(c). See id. at 

1308–09. It noted that before AEDPA was enacted, 

§ 2253(c) required a certificate of “probable cause” instead 

of a COA. See id. at 1308. The relevant language of the 

previous version was the same:

An appeal may not be taken to the court of 

appeals from the final order in a habeas 

corpus proceeding where the detention 

complained of arises out of process issued by 

a State court, unless the justice or judge who 

rendered the order or a circuit justice or judge 

issues a certificate of probable cause.

Id. (quoting Pub. L. No. 773, § 2253, 62 Stat. 869, 967 

(1948) (emphasis added)). In 1986, before the passage of 

AEDPA, the Court of Appeals for the District of Columbia 

Circuit concluded that “District of Columbia prisoners are 

‘state’ prisoners for purposes of [the probable cause]

requirement.” Garris v. Lindsay, 794 F.2d 722, 724 n.8 

(D.C. Cir. 1986). Madley observed that when Congress 

revised § 2253(c) it left unchanged the phrase “‘the 

detention complained of arises out of process issued by a 

State court,’” and “made no effort to disapprove Garris.” 

Terry v. Deeboo, 473 F. App’x 282, 283 (4th Cir. 2012), Wilson v. U.S.

Parole Comm’n, 652 F.3d 348, 351–52 (3d. Cir. 2011). While we agree 

with the dissent that “as a general rule, we decline to create a circuit split 

unless there is a compelling reason to do so[,]” Padilla-Ramirez v. Bible, 

882 F.3d 826, 837 (9th Cir. 2017) (internal quotation marks and citations 

omitted), we find compelling reasons to do so here, including the 

ordinary meaning of the word “state” and Congress’s omission of a clear 

indication that the term “State court” includes the District of Columbia 

in § 2253(c)(1)(A).
16 ELDRIDGE V. HOWARD

See 278 F.3d at 1309. Because Congress is “presumed to 

adopt existing judicial interpretations of a statute when it reenacts without change[,]” Madley reasoned that Garris’s

decision and Congress’s later enactment of AEDPA means

that “a court of the District is a state court for the purposes 

of [§ 2253(c)].” Id. (citing Lorillard v. Pons, 434 U.S. 575, 

580 (1978)). 

We disagree. At the time Congress passed AEDPA, it 

was not well established that the phrase “the detention 

complained of arises out of process issued by a State court” 

included the District of Columbia Superior Court. In fact,

Garris appears to be the sole federal decision before the 

passage of AEDPA that had interpreted the phrase to include

the District of Columbia Superior Court. See id.; Garris, 

794 F.2d at 724 n.8. The only other court of which we are 

aware to consider the District of Columbia Superior Court 

issue before AEDPA was passed was a Tenth Circuit 

decision, Blango v. Thornburgh, 942 F.2d 1487 (10th Cir. 

1991), in which the court declared the issue was “still an 

open question” and expressly declined to resolve it. See id. 

at 1488 n.1 (“[W]e express no view on the matter” of 

“[w]hether prisoners sentenced by the District of Columbia 

Superior Court . . . should be treated as prisoners under 

sentence of state court[.]”). Blango made no mention to 

Garris in its opinion, which suggests that Garris’s 

declaration on the issue was either unknown or 

unremarkable. 

Indeed, Garris declared its view in a single footnote, and 

thus the issue was far from the central focus of the case. See 

794 F.2d at 724 n.8. Rather, the main issue in Garris was 

whether the court should issue a certificate of probable cause

to the prisoner, not whether the prisoner needed one. See id.

at 725 (“[W]e are called upon to determine whether we 
ELDRIDGE V. HOWARD 17

should [issue a certificate of probable cause.]”). Garris, the 

sole case to state that the District of Columbia Superior 

Court is a state court for purposes of a certificate of probable 

cause under § 2253(c) prior to AEDPA, does not 

demonstrate that such an interpretation was well-settled. 

Nor does the passage of AEDPA suggest that Congress 

approved of Garris’s holding. There is no evidence that 

Congress approved, or was even aware of, Garris’s view 

when it enacted AEDPA. Instead, “Congress enacted 

AEDPA to reduce delays in the execution of state and federal 

criminal sentences, particularly in capital cases[.]” 

Woodford v. Garceau, 538 U.S. 202, 206 (2003); see also 

Williams v. Taylor, 529 U.S. 362, 386 (2000). Congress 

shortened the time for prisoners to file habeas petitions;

before AEDPA, “state prisoners had almost unfettered

discretion in deciding when to file a federal habeas petition.” 

Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th 

Cir. 1997), partially overruled on other grounds by 

Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th 

Cir. 1998), abrogated on other grounds by Garceau, 538 

U.S. at 206. But “AEDPA dramatically changed this 

landscape, shortening the time for filing a federal habeas 

petition to one year.” Id. 

Related to Congress’s goal of shortening the time period 

for petitioners to file federal habeas petitions, it also sought 

to promote principles of federalism and respect for state 

court adjudications. See Shinn v. Ramirez, 142 S.Ct. 1718, 

1730–32 (2022) (describing AEDPA’s design in preserving 

states’ primary role in criminal law enforcement); Williams

v. Taylor, 529 U.S. 420, 436 (2000) (“There is no doubt 

Congress intended AEDPA to advance [the principles of 

comity, finality, and federalism.]”); Cook v. Kernan, 948 

F.3d 952, 965 (9th Cir. 2020) (outlining the deferential 
18 ELDRIDGE V. HOWARD

standard of review for habeas petitions filed on behalf of 

petitioners in state custody and which were adjudicated in 

state court).

Here, the issue we resolve—whether the District of 

Columbia Superior Court is considered a “State court” for 

purposes of deciding whether Congress requires a COA—

does not implicate the main purposes for which Congress 

passed AEDPA. Thus, we decline to presume that Congress

decided, in re-codifying the relevant language after Garris’s 

holding, that the District of Columbia Superior Court counts

as a “State court” for purposes of § 2253. 

Even if the presumption on which Madley relies should 

apply to this case, that presumption must yield to the 

“cardinal canon” that “courts must presume that a legislature 

says in a statute what it means and means in a statute what it 

says there.” Conn. Nat’l. Bank v. Germain, 503 U.S. 249, 

253–54 (1992); see also Babb v. Wilkie, 140 S. Ct. 1168, 

1177 (2020) (“Where . . . the words of a statute are 

unambiguous, the judicial inquiry is complete.”) (cleaned

up). Because the plain meaning of the word “state” does not 

include the District of Columbia, and because Congress has 

expressly defined “state” to include the District of Columbia 

as a state in other contexts, we hold that § 2253(c)’s 

language, “in which the detention complained of arises out 

of process issued by a State court,” does not include the 

District of Columbia Superior Court. Prisoners whose 

detention arises out of process issued by a District of 

Columbia court are not required to obtain a COA to appeal a 

federal district court’s denial of habeas relief. Thus, the 

COA jurisdictional requirement does not pose a barrier to 

Eldridge’s appeal.
ELDRIDGE V. HOWARD 19

III.

Next, we must decide whether the district court properly 

dismissed Eldridge’s instant petition as an abuse of the writ.

We review dismissal of a habeas petition de novo. Alaimalo

v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011).

The abuse of the writ doctrine “forbids the 

reconsideration of claims that were or could have been raised 

in a prior habeas petition.” Kelly, 163 F.3d at 538. Under 

this doctrine, “a successive petition that raises identical

grounds for relief as a prior petition must be dismissed unless 

the petitioner can show (1) cause for bringing a successive 

petition and that prejudice would result or (2) that a 

fundamental miscarriage of justice would result from failure 

to entertain the claim.” Alaimalo, 645 F.3d at 1049 

(emphasis added). The doctrine “refers to a complex and 

evolving body of equitable principles informed and 

controlled by historical usage, statutory developments, and 

judicial decisions.” McCleskey v. Zant, 499 U.S. 467, 489 

(1991). 

Liberally construing Eldridge’s current petition, as we 

must, Eldridge primarily argues that the Commission’s 

decision to give him a three-year set-off in 2019 is arbitrary 

and capricious, because the Commission gave him a oneyear set-off in 2018 and both parole requests were denied for 

the same reason—namely, he was an untreated sex offender. 

See Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016) 

(noting court must construe pro se filings liberally)11.

11 Eldridge proceeded pro se when filing his original habeas petition. 

The court later appointed counsel to represent Eldridge in this appeal. 

Order at 1, Eldridge v. Blanckensee, No. 21-15616 (9th Cir. Oct. 20, 

2021), ECF No. 6. 
20 ELDRIDGE V. HOWARD

On appeal, Eldridge argues that this habeas petition was 

not abusive “because it contained claims that he could not 

have raised in his prior habeas filings—challenges to the 

2018 and 2019 denials of parole, which had not occurred 

when he filed those prior habeas petitions.” Thus, Eldridge 

argues his 2019 denial is not second or successive. And even 

if it is second or successive, Eldridge argues he has good 

cause for not raising his challenge in 2016 because he could 

not foresee the Commission’s future rationales in 2018 and 

2019.

Our discussion in Brown v. Muniz, 889 F.3d 661, 674 

(9th Cir. 2018) guides our analysis here. Drawing on preAEDPA abuse of the writ principles, we stated that “to

determine whether [a claim] is ‘second or successive,’ [we]

must look to the substance of the claim . . . and decide 

whether the petitioner had a full and fair opportunity to raise 

the claim in the prior application.” Id. (quoting Magwood v. 

Patterson, 561 U.S. 320, 346 (2010) (Kennedy, J., 

dissenting)). “[A] petitioner ‘had no fair opportunity to raise 

the claim in the prior application’ if ‘[1] the claim was not 

yet ripe at the time of the first petition, or [2] where the 

alleged violation occurred only after the denial of the first 

petition.’” Id. (quoting Magwood, 561 U.S. at 345–46 

(Kennedy, J. dissenting)). Here, looking to the substance of 

Eldridge’s claim—that the Commission acted arbitrarily and 

capriciously in 2019 when it issued a three-year set-off—

Eldridge did not have a fair opportunity to raise this claim in 

2016 or 2018 because “the alleged violation occurred only 

after the denial of” his previous habeas petitions. Id.

Additionally, the district court did not address the merits 

of the set-off issues in its decision denying Eldridge’s habeas 

petition in 2016, even though Eldridge raised the issue. See 

Eldridge v. Oliver, 2017 WL 2812824, at *1–8. Instead, it 
ELDRIDGE V. HOWARD 21

denied his petition on other grounds. See id. at *5–9. And 

the district court dismissed Eldridge’s 2018 petition, which 

also raised the three-year set-off issue, without deciding it on 

its merits. See Eldridge v. U.S. Parole Comm’n, 2018 WL 

10426189, at *2. Thus, because no court has addressed 

Eldridge’s three-year set-off claims regarding his 2016 

parole denial, he did not abuse the writ by raising the 2019 

denial issue in his instant habeas petition. See Hill v. State 

of Alaska, 297 F.3d 895, 899 (9th Cir. 2002) (“Because the 

district court has never addressed [petitioner’s] claims 

relating to mandatory parole on the merits, and those claims 

could not have been included in earlier petitions challenging 

his conviction and sentence, [petitioner] is not obliged to 

secure this court’s permission prior to filing his habeas 

petition in the district court.”).

The Government resists Eldridge’s argument and cites to 

a Third Circuit decision in Benchoff v. Colleran, 404 F.3d 

812 (3d. Cir. 2005) and an unpublished Eleventh Circuit 

decision in Watson v. Coleman, 644 F. App’x 996 (11th Cir. 

2016). Both cases are distinguishable from Eldridge’s 

situation.

Benchoff was denied parole three times. See 404 F.3d at

817–18. Between the second and third denial, Benchoff 

filed a habeas petition making claims related to his 

underlying criminal trial. See id. at 813–14. Benchoff filed 

another habeas petition between the second and third denial, 

this time challenging his first two parole denials. See id. at 

814. Benchoff’s third parole denial was initially for the 

same reason as the first two, namely that the parole board 

had determined that “the fair administration of justice cannot 

be achieved through [his] release on parole.” Id. (internal 

quotation marks omitted). The Third Circuit found that

“even one of the parole denials would have been sufficient 
22 ELDRIDGE V. HOWARD

for Benchoff to formulate his complaint.” Id. at 818. 

Because Benchoff did not have a legitimate excuse for 

failing to raise the denial of the due process parole claim in 

his first petition, which also challenged his underlying 

criminal trial, the court found an abuse of the writ despite 

Benchoff’s argument that he could not have challenged his 

third parole denial in his first petition. Id. at 818–19.

Eldridge’s case differs from Benchoff. Eldridge’s 

current petition raises a specific challenge to the 

Commission’s decision to issue a three-year set-off in 2019, 

after the Commission had issued him a one-year set-off for 

similar reasons in 2018. Unlike in Benchoff, in which the 

petitioner raised the same claims because the parole board’s 

language in its notice of denial was identical, 404 F.3d at 

818, Eldridge did not make an identical argument when he 

filed his 2016 and 2018 habeas petitions because he could 

not have known of the subsequent one-year set-off that was 

issued later in 2018. Thus, he did not abuse the writ when 

filing the instant petition. 

It is true, as the Government highlights, that Eldridge 

challenged the Commission’s 2016 decision to issue him 

three-year set-offs in his 2016 petition, arguing it was 

“punitive” because it would not take three years to complete 

the sex offender treatment program. And in his 2018 

petition, he argued his 2016 three-year set-off “went beyond 

the ordinary 12-month rehearing guidelines[.]” But at the 

time Eldridge lodged his 2016 and 2018 petitions 

challenging his 2016 set-off, the Commission had never 

issued him a one-year set-off, much less one for similar

reasons when it issued the three-year set-offs. Similarly, the 

Commission had not yet issued its 2019 decision. Thus, the 

Commission’s 2018 and 2019 decisions served as necessary 

factual predicates for Eldridge’s current petition, and these 
ELDRIDGE V. HOWARD 23

facts were unavailable to Eldridge at the time of his 2016 and 

2018 petitions.

The Government’s citation to the unpublished Eleventh 

Circuit disposition in Watson similarly does not alter our 

analysis. In Watson, a D.C. Code offender was convicted in 

1978 and sentenced to serve a minimum of 30 years in 

prison. See 644 F. App’x at 998. Watson had his first parole 

hearing in 2004, where the Commission denied parole and 

calculated his eligible parole date using the 2000 guidelines. 

See id. In 2009, Watson filed a habeas petition challenging 

the calculation of his eligible parole date. See id. The 

district court rejected this claim, and the Eleventh Circuit 

affirmed. See id. at 999. Watson then filed another habeas 

petition, alleging among other things, that the Commission’s 

use of the 2000 guidelines violated the Ex Post Facto Clause

when the Commission denied him parole in 2011. See 

Watson v. Warden, FCC Coleman-USP I, 5:12-491-0C-27, 

2015 WL 78775, at *2 (M.D. Fla. Jan. 6, 2015). The 

Eleventh Circuit held that the abuse of the writ doctrine 

barred his claim because his “central allegation—that the 

2000 guidelines resulted in him receiving a harsher sentence 

than what was available at the time of his crime—has been 

available to him since the denial of parole in 2004.” Watson, 

644 F. App’x at 1000. Thus, even though he could not have 

challenged his 2011 eligible parole denial when he filed his 

2009 petition, the Eleventh Circuit still found that the abuse 

of the writ doctrine applied. See id. 

Eldridge’s current petition differs from Watson’s: unlike 

Watson, who could have alleged the Ex Post Facto violation 

in 2009 because Watson knew all the relevant facts at that 

time, Eldridge did not have all the necessary facts in 2016 to 

argue that the Commission abused its discretion in 2019 in 

light of the Commission’s 2018 decision. 
24 ELDRIDGE V. HOWARD

Additionally, no district court has ruled on Eldridge’s 

set-off claims on the merits, even though Eldridge raised the 

three-year set-offs in his 2016 and 2018 petitions. In fact, a 

similar occurrence happened in Watson. Prior to Watson’s 

2009 petition, he had filed “numerous” habeas challenges 

arguing that the Commission incorrectly calculated his 

parole eligibility date. See Watson, 644 F. App’x at 998. 

The district court originally dismissed Watson’s 2009 

petition as an abuse of the writ, but the Eleventh Circuit held 

that his petitions “had never been adjudicated on the merits 

and that his case had been improperly dismissed by the 

district court.” Id. at 999 (citing Watson v. United States, 

392 F. App’x 737, 742 (11th Cir. 2010)). Thus, just as the 

Eleventh Circuit held it would be inappropriate to dismiss 

Watson’s 2009 petition as an abuse of the writ given the 

district court’s failure to decide the merits of his previous 

petitions, we hold that Eldridge’s instant petition is not an 

abuse of the writ because his precise claim has not been 

adjudicated on the merits. See id.

IV.

In conclusion, we hold that Eldridge need not obtain a 

COA because Congress did not define or include the District 

of Columbia Superior Court as a “State court” in 28 U.S.C. 

§ 2253(c), where it had expressly done so in that and other 

statutes. We further hold that the district court erred in 

dismissing Eldridge’s instant petition as an abuse of the writ

when Eldridge could not have possibly raised the same 

claims in prior petitions. We reverse and remand the case to

the district court to decide Eldridge’s instant petition on its 

merits.
ELDRIDGE V. HOWARD 25

BUMATAY, Circuit Judge, dissenting:

Congress has determined that we have no jurisdiction to 

review habeas petitions filed by prisoners detained out of 

process “issued by a State court” unless the state prisoner 

first obtains a certificate of appealability. 28 U.S.C. 

§ 2253(c)(1)(A). And we may only issue a certificate of 

appealability “if the applicant has made a substantial 

showing of the denial of a constitutional right.” 

§ 2253(c)(2). In this case, we are asked to relitigate a 

virtually settled question—whether the Superior Court of the 

District of Columbia is a “State court” under 

§ 2253(c)(1)(A).

Every circuit court to consider this question has reached 

the same result—that the D.C. Superior Court is a “State 

court” under habeas law and prisoners challenging detention 

arising from a D.C. Superior Court conviction must obtain a 

certificate of appealability before appealing. And this 

consensus is significant—the D.C., Third, Fourth, Seventh, 

and Tenth Circuits have all embraced this approach. See 

Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310 (D.C. 

Cir. 2002); Wilson v. U.S. Parole Comm’n, 652 F.3d 348, 

351–52 (3d Cir. 2011); Terry v. Deeboo, 473 F. App’x 282, 

283 (4th Cir. 2012) (unpublished); Sanchez-Rengifo v. 

Caraway, 798 F.3d 532, 535 (7th Cir. 2015); Eldridge v. 

Berkebile, 791 F.3d 1239, 1243–44 (10th Cir. 2015). 

And, until today, so had we. Ten years ago, our court 

treated it as settled that “the Superior Court of the District of 

Columbia qualifies as a state court under 28 U.S.C. 

§ 2253(c)(1)(A).” Johnson v. Clay, 539 F. App’x 748 (9th 

Cir. 2013) (unpublished). To be sure, we did so in a nonprecedential memorandum disposition and another panel of 

this court may disagree with that conclusion. But that we 
26 ELDRIDGE V. HOWARD

once thought this proposition of law so uneventful that it 

didn’t warrant a published opinion just shows how widely 

accepted it is. 

Of course, we have “no warrant to ignore clear statutory 

language on the ground that other courts have done so.” 

Milner v. Dep’t of Navy, 562 U.S. 562, 576 (2011). But 

“absent a strong reason to do so,” our general practice is to 

refrain from creating “a direct conflict with other circuits.” 

United States v. Cuevas-Lopez, 934 F.3d 1056, 1067 (9th 

Cir. 2019) (simplified). And here, there’s no strong reason. 

Indeed, given the text and its context, the best reading of 

§ 2253(c)(1)(A) is that the D.C. Superior Court is a “State 

court.” Rather than opening a circuit split, we should have 

stuck with consensus. 

So before considering this appeal, we should have first 

determined whether Clinton Eldridge deserves a certificate 

of appealability. On that score, I would conclude he does 

not. I thus would have dismissed this appeal, and I 

respectfully dissent. 

I.

Section 2253(c)(1)(A) provides that, “[u]nless a circuit 

justice or judge issues a certificate of appealability, an appeal 

may not be taken to the court of appeals from . . . the final 

order in a habeas corpus proceeding in which the detention 

complained of arises out of process issued by a State court.” 

28 U.S.C. § 2253(c)(1)(A). Thus, when it’s required, “[t]he 

issuance of a certificate of appealability . . . is a 

jurisdictional prerequisite to appeal in a habeas corpus 

proceeding.” Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir. 

2003). Because Eldridge’s detention arises from a D.C. 

Superior Court conviction, our jurisdiction to hear this 
ELDRIDGE V. HOWARD 27

appeal turns on whether that court is a “State court” under 

§ 2253(c)(1)(A). 

In the majority’s view, no certificate of appealability is 

necessary here because the D.C. Superior Court isn’t a “State 

court.” The majority relies mainly on the fact that the 

District of Columbia is not a “State” under the ordinary 

meaning of the word. The majority then looks to other 

federal statutes where Congress has expressly defined “State 

court” to include the D.C. Superior Court and concludes that 

Congress’s silence in § 2253(c)(1)(A) should be read as a 

purposeful exclusion. 

In fairness, the majority’s reading of § 2253(c)(1)(A) is 

plausible. We all know that D.C. is not a “State.” And 

generally, absent strong textual reasons to do otherwise, we 

ought to embrace the ordinary meaning of a term. But 

sometimes, adhering only to ordinary meaning—without 

understanding legal context—may cross into literalism and 

blind us to the best reading of a statute. Indeed, “[w]ords 

are to be understood in their ordinary, everyday meanings—

unless the context indicates that they bear a technical sense.” 

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 69 (2012) (“Reading Law”). 

And in my view, our duty is always “to ‘seek the best

reading of the statute by interpreting the words of the statute, 

taking account of the context of the whole statute, and 

applying the agreed upon semantic canons.’” Rojas v. FAA, 

989 F.3d 666, 694 n.5 (9th Cir. 2021) (en banc) (Bumatay, 

J., dissenting in part) (quoting Brett M. Kavanaugh, Fixing 

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 

(2016) (emphasis added)). As Learned Hand once wrote, “a 

sterile literalism . . . loses sight of the forest for the trees.” 

Reading Law, at 356 (quoting New York Tr. Co. v. 

Commissioner, 68 F.2d 19, 20 (2d. Cir. 1933)). Instead, we 
28 ELDRIDGE V. HOWARD

must recognize that “[t]he full body of a text contains 

implications that can alter the literal meaning of individual 

words.” Id. 

While we should never breezily depart from ordinary 

meaning, here “the context of the whole statute” and “agreed 

upon semantic canons” all point to the best reading of 

§ 2253(c)(1)(A) being that “State court” includes the D.C. 

Superior Court.

A.

The “prior construction” canon derives from the 

principle that when Congress enacts legislation borrowing 

language with a settled meaning, the newly enacted 

legislation “brings the old soil with it.” Sekhar v. United

States, 570 U.S. 729, 733 (2013) (quoting Felix Frankfurter, 

Some Reflections on the Reading of Statutes, 47 Colum. L. 

Rev. 527, 537 (1947)). “In other words, when Congress 

adopts a phrase with a settled judicial interpretation, absent 

some indication to the contrary, we presume that Congress 

chose to give the phrase its established meaning.” United 

States v. Randall, 34 F.4th 867, 875 (9th Cir. 2022) 

(simplified). Under the prior-construction canon, “Congress 

is presumed to be aware of an administrative or judicial 

interpretation of a statute and to adopt that interpretation 

when it re-enacts a statute without change.” Lorillard v. 

Pons, 434 U.S. 575, 580 (1978); Chugach Mgmt. Servs. v. 

Jetnil, 863 F.3d 1168, 1174 (9th Cir. 2017).

The current version of § 2253(c)(1)(A) was enacted as 

part of the Anti-Terrorism and Effective Death Penalty Act 

(“AEDPA”) in 1996. But Congress didn’t operate on a blank 

slate. Prior to AEDPA, back in 1948, Congress adopted the 

predecessor of § 2253(c)(1)(A), which required a “certificate 
ELDRIDGE V. HOWARD 29

of probable cause” rather than a “certificate of appealability” 

to appeal a habeas petition. Before 1996, § 2253 said:

An appeal may not be taken to the court of 

appeals from the final order in a habeas 

corpus proceeding where the detention 

complained of arises out of process issued by 

a State court, unless the justice or judge who 

rendered the order or a circuit justice or judge 

issues a certificate of probable cause.

Pub. L. No. 80-773, § 2253, 62 Stat. 869, 967 (1948).

Ten years before AEDPA, the D.C. Circuit grappled with 

the status of the modern D.C. court system under the 1948 

language. Garris v. Lindsay 794 F.2d 722, 724 n.8 (D.C. 

Cir. 1986) (per curiam). Given that Congress created the 

D.C. courts to be analogous to State courts, the D.C. Circuit 

concluded that “District of Columbia prisoners are ‘state’ 

prisoners for purposes of this requirement.” Id.; see also 

Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir. 1976) 

(“[T]his Court has treated local courts as ‘state’ courts for 

the purposes of exhaustion and federal habeas corpus 

jurisdiction.”). That conclusion remained unchallenged up 

through Congress’s enactment of AEDPA and 

§ 2253(c)(1)(A).

When, as here, “Congress adopts a new law 

incorporating sections of a prior law, Congress normally can 

be presumed to have had knowledge of the interpretation 

given to the incorporated law.” Lorillard, 434 U.S. at 581. 

In other words, because § 2253(c)(1)(A) “perpetuat[es] the 

wording” of the 1948 version, we can “presume[]” that 

Congress meant to “carry forward” the uncontested 

interpretation of “State court” from Garris. Tex. Dep’t of 
30 ELDRIDGE V. HOWARD

Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 

U.S. 519, 536 (2015) (quoting Reading Law, at 322). After 

all, Congress presumably did not ignore the legal gloss that 

the D.C. Circuit—the court with the greatest connection to 

the District—placed on the meaning of the words of 

§ 2253(c)(1)(A).

The D.C. Circuit followed this analysis in reaffirming its 

position that § 2253(c)(1)(A)’s certificate of appealability 

requirement applies to D.C. prisoners. See Madley, 278 F.3d 

at 1309. As Judge Sentelle wrote, “Congress’s 1996 

amendment to section 2253 left th[e] interpreted language 

unchanged and made no effort to disapprove Garris.” Id. 

Judges from the Third, Fourth, Seventh, Ninth, and Tenth 

Circuits all found this analysis persuasive and relied on 

Madley to require a certificate of appealability for D.C. 

prisoners. See Wilson, 652 F.3d at 351–52; Terry, 473 F. 

App’x. at 283; Sanchez-Rengifo, 798 F.3d at 535; Johnson, 

539 F. App’x at 748; Eldridge, 791 F.3d at 1243–44.

To be fair, as the majority points out, the D.C. Circuit is 

the only court that had to address whether the pre-AEDPA 

§ 2253 applied to D.C. courts. Thus, in the majority’s view, 

that court’s interpretation was not “well-settled” enough to 

warrant applying the prior-construction canon. The majority 

raises a valid question: What degree of judicial consensus is 

needed for an interpretation to be “settled”? In its strongest 

form, we can agree that meaning is definitively settled by a 

ruling of “a court of last resort.” Reading Law, at 323. But 

the prior construction canon also applies to “uniform 

holdings of lower courts and even to well-established agency 

interpretations.” Id. at 324; see also Bragdon v. Abbott, 524 

U.S. 624, 645 (1998) (“When administrative and judicial 

interpretations have settled the meaning of an existing 

statutory provision, repetition of the same language in a new 
ELDRIDGE V. HOWARD 31

statute indicates, as a general matter, the intent to incorporate 

its administrative and judicial interpretations as well.”). But 

“how numerous must the lower-court opinions be, or how 

prominent and long-standing the administrative interpretation,

to justify the level of lawyerly reliance that justifies the 

canon?” Reading Law, at 325. While there is no universally 

applicable answer, the “criterion ought to be whether the 

uniform weight of authority is significant enough that [we] 

can justifiably regard the point as settled law.” Id.; see also 

Caleb Nelson, Statutory Interpretation 454 (2011) 

(observing that the canon applies to “prominent decisions by 

lower courts”). 

Consider Fitzgerald v. Barnstable School Committee, 

555 U.S. 246 (2009). In that case, the Supreme Court 

examined whether Title IX of the Civil Rights Act allows for 

parallel and concurrent 42 U.S.C. § 1983 claims. Id. at 258. 

In deciding that question, the Court looked to how Title VI 

of the Civil Rights Act (after which Title IX was modeled) 

was understood at the time of Title IX’s passage. Id. at 258-

59. The Court found that Title VI was “routinely 

interpreted” to allow for parallel § 1983 claims, citing as an 

example only the decisions of the Fifth and Sixth Circuits. 

Id. (citing Alvarado v. El Paso Indep. Sch. Dist., 445 F.2d 

1011 (5th Cir. 1971); Nashville I–40 Steering Comm. v. 

Ellington, 387 F.2d 179 (6th Cir. 1967); Bossier Par. Sch. 

Bd. v. Lemon, 370 F.2d 847 (5th Cir. 1967)). The Court 

“presume[d] Congress was aware of this when it passed Title 

IX” and “[i]n the absence of any contrary evidence,” the 

Court held that “it follows that Congress intended Title IX 

to be interpreted similarly.” Id. at 259. 

Here, unlike some of our sister courts, I would not rely 

solely on Garris to give us a “well-settled” meaning. But 

other clues reinforce carrying forward the D.C. Circuit’s 
32 ELDRIDGE V. HOWARD

interpretation of § 2253 after AEDPA. Include, for example, 

the significant judicial consensus that the District of 

Columbia’s local courts were to be viewed as state courts. 

In 1970, Congress created the “new local court system” of 

trial and appellate courts of general jurisdiction in the 

District of Columbia and “transferred in its entirety . . . 

responsibility for processing local litigation” to the D.C. 

Superior Court. Swain v. Pressley, 430 U.S. 372, 375 (1977) 

(citing the District of Columbia Court Reform and Criminal 

Procedure Act of 1970, 84 Stat. 475, Pub. L. No. 91-358, 

Title I, § 111 (1970); D.C. Code § 11–101); see also

Theodore Voorhees, The District of Columbia Courts: A 

Judicial Anomaly, 29 Cath. U. L. Rev. 917 (1980) (providing 

a history of courts in the District of Columbia). Congress 

then took pains to establish the D.C. Superior Court as a 

“State court” for jurisdictional purposes. See 28 U.S.C. 

§§ 1257, 1451(2), 2113.

The Supreme Court thus recognized that “[o]ne of the 

primary purposes” of the local courts’ creation “was to 

restructure the District’s court system so that the District will 

have a court system comparable to those of the states.” 

Pernell v. Southall Realty, 416 U.S. 363, 367 (1974) 

(simplified) (emphasis added). The result was “a system of 

courts analogous to those found in the States.” Swain, 430 

U.S. at 375 n.4. And based on Congress’s actions, the 

Supreme Court viewed judgments of the District of 

Columbia Court of Appeals, the highest court in the 

District’s local court system, as it would the judgments of 

the “highest courts of the several States.” Pernell, 416 U.S. 

at 368 (simplified). 

So, along with Garris, we can presume that Congress 

was aware of the judicial consensus that the D.C. Superior 
ELDRIDGE V. HOWARD 33

Court was viewed as a “State court” when it enacted 

§ 2253(c)(1)(A). Even so, I think we should require more 

evidence before departing from ordinary meaning. And 

here, contextual evidence tilts the analysis in favor of 

reading “State court” to include the D.C. courts. 

B.

Statutory language “cannot be interpreted apart from 

context.” Smith v. United States, 508 U.S. 223, 229 (1993). 

Thus, one of the most important interpretive tools we have 

is the “whole-text canon, which calls on the judicial 

interpreter to consider the entire text, in view of its structure 

and of the physical and logical relation of its many parts.” 

Rojas, 989 F.3d at 696 n.6 (Bumatay, J., dissenting in part) 

(quoting Reading Law, at 167). So when interpreting a 

statutory phrase, we consider “the language itself, the 

specific context in which that language is used, and the 

broader context of the statute as a whole.” Robinson v. Shell 

Oil Co., 519 U.S. 337, 341 (1997).

And sometimes, this broader context means recognizing 

that laws are “part of an entire corpus juris,” Reading Law, 

at 252, and may require analyzing the use of the same terms 

across related provisions or laws. At its most useful, this 

consistent-use canon “provides that identical words and 

phrases within the same statute should normally be given the 

same meaning.” Powerex Corp. v. Reliant Energy Servs., 

Inc., 551 U.S. 224, 232 (2007). But, as a matter of logic, the 

interpretive principle may extend to identical terms across 

different statutes closely related in time and subject matter—

this is sometimes called the “in pari materia” canon. See

Erlenbaugh v. United States, 409 U.S. 239, 243–44 (1972). 

After all, “a legislative body generally uses a particular word 

with a consistent meaning in a given context” and it’s a fair 
34 ELDRIDGE V. HOWARD

assumption that “whenever Congress passes a new statute, it 

acts aware of all previous statutes on the same subject.” Id.; 

see, e.g., United States v. Stewart, 311 U.S. 60, 63–65 (1940) 

(interpreting the phrase “income derived” similarly across 

two statutes because they dealt with the same subject 

matter—tax exemptions for farm loan bonds). 

First, look at the use of “State” elsewhere in AEDPA. 

Congress defined “State” two times in AEDPA. And both 

times, Congress expressly said that a “State” includes the 

“District of Columbia”: 

• AEDPA § 235, Closed circuit televised 

court proceedings for victims of crime:

“As used in this section, the term “State” 

means any State, the District of 

Columbia, or any possession or territory 

of the United States.” 34 U.S.C. 

§ 20142(f).

• AEDPA § 811, Federal Bureau of 

Investigation: “For purposes of this 

paragraph, the term ‘State’ means any 

State of the United States, the District of 

Columbia, the Commonwealth of Puerto 

Rico, the Virgin Islands, American 

Samoa, Guam, and the Commonwealth of 

the Northern Mariana Islands[.]” 28 

U.S.C. § 531 Statutory Notes.

Thus, when Congress felt the need to define “State” in 

AEDPA, it had the District of Columbia in mind. While not 

dispositive in our case, it provides further evidence of what 

Congress meant by “State court” in § 2253(c)(1)(A). See, 

e.g., United States v. Garcia-Paz, 282 F.3d 1212, 1214 (9th 
ELDRIDGE V. HOWARD 35

Cir. 2002) (importing the definition of “merchandise” from 

Title 19 of the U.S. Code into Title 18 because the two 

statutes were “part of the same act,” even though the Title 19 

definition was expressly limited to “the purposes of th[at 

particular] chapter”). 

Second, at the time of AEDPA’s enactment, every time

Congress defined “State court” in a Title 28 jurisdictional 

statute, the definition invariably included the District of 

Columbia’s local court system: 

• 28 U.S.C. § 1257(b): defining “highest 

court of a State” to include “the District 

of Columbia Court of Appeals” for the 

writ of certiorari 

• 28 U.S.C. § 1451(1)–(2): defining “State 

court” to include “Superior Court of the 

District of Columbia” and “State” to 

include “the District of Columbia” for 

removal jurisdiction

• 28 U.S.C. § 2113: defining “State court,” 

“State courts,” and “highest court of a 

State” to include “the District of 

Columbia Court of Appeals” for filing the 

writ of certiorari in criminal appeals 

And whenever Congress sought to define a “State” for 

jurisdictional questions, it included D.C.:

• 28 U.S.C. § 1332(e): defining “States” to 

include “the District of Columbia” for 

diversity jurisdiction 
36 ELDRIDGE V. HOWARD

• 28 U.S.C. § 1367(e): defining “State” to 

include “the District of Columbia” for 

supplemental jurisdiction

To my knowledge, no jurisdictional provision of Title 28 

excludes the D.C. Superior Court from the definition of 

“State court.” 

With such uniformity in jurisdictional statutes, we can 

presume that Congress was “aware of all previous statutes 

on the same subject,” Erlenbaugh, 409 U.S. at 244, and used 

“State court” in § 2253(c)(1)(A) like it did in other 

jurisdictional provisions—to include the D.C. Superior 

Court. In other words, absent a reason to believe otherwise, 

“State court” in § 2253(c)(1)(A) takes on a legal (rather than 

a literal) meaning, and we should interpret the phrase 

consistently with other jurisdictional provisions. So I 

disagree with the majority’s view that silence in 

§ 2253(c)(1)(A) reflects Congress’s intent to exclude D.C. 

prisoners from the certificate of appealability requirement. 

Instead, the better view is that Congress was legislating

within a well-known legal backdrop that included the D.C. 

Superior Court within the legal meaning of “State court.” 

Also, contrary to the majority’s reading, Palmore v. 

United States, 411 U.S. 389 (1973), supports this reading of 

“State court.” The majority argues that Palmore shows that 

we can’t treat the District as a “State” for all purposes. Of 

course, that’s true. Without strong textual evidence 

otherwise, we should construe that term to apply only to the 

50 States. So in considering whether a provision of the 

District of Columbia Code counts as a “statute of any State” 

under 28 U.S.C. § 1257, the Court said it does not. Palmore, 

411 U.S. at 395. That’s because “nowhere in § 1257, or 

elsewhere,” had Congress ever identified the D.C. Code as a 
ELDRIDGE V. HOWARD 37

“state statute.” Id. (emphasis added). But that’s not the case 

when it comes to D.C. courts. Congress has identified them 

as a “State court” “elsewhere”—in fact, it has done so at least 

three times within Title 28. See 28 U.S.C. §§ 1257, 1451(2), 

2113. So Palmore confirms that we ought to look to related 

provisions of law to determine the meaning of a 

jurisdictional term like “State court.” 

* * *

All told, textual and contextual evidence supports the 

overwhelming consensus among courts that the D.C. 

Superior Court is a “State court” for purposes of the 

certificate of appealability requirement. See also O’Neal 

Smalls, Habeas Corpus in the District of Columbia, 24 Cath. 

U. L. Rev. 75, 85 (1974) (“The history of the [District of 

Columbia Court Reform and Criminal Procedure] Act, its 

language, and experience with the local courts indicate that 

the District of Columbia Superior Court and Court of 

Appeals should be treated, at least for habeas corpus 

purposes, as state courts[.]”). While the question is 

concededly a close one, we should have declined to open a 

circuit split. 

II.

Because the D.C. Superior Court is a “State court” within 

the meaning of § 2253(c)(1)(A), we should have required 

Eldridge to obtain a certificate of appealability before 

exercising jurisdiction over this appeal. When the district 

court denies a certificate of appealability on procedural 

grounds, we only issue such a certificate when a prisoner 

shows both that (1) “jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a 

constitutional right” and (2) “jurists of reason would find it 

debatable whether the district court was correct in its 
38 ELDRIDGE V. HOWARD

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). Eldridge’s constitutional claim fails to meet the first 

prong of this standard and so we should have declined a 

certificate of appealability and dismissed this appeal.

Eldridge alleges that the U.S. Parole Commission 

violated the Ex Post Facto Clause in its application of parole 

guidelines. In 1984, Eldridge was convicted of several 

criminal offenses, including rape, armed robbery, and 

burglary. The D.C. Superior Court sentenced him to a term 

of 40 to 120 years of imprisonment. After he became 

eligible for parole and was initially denied, the Commission 

again denied him parole on rehearings in 2010, 2013, 2016, 

2018, and 2019. At the time of Eldridge’s conviction, 1972 

parole guidelines governed. Under those guidelines, 

prisoners denied parole after serving sentences of five years 

or longer were eligible for a parole rehearing “ordinarily” 

after a one-year set-off period, but the parole board had 

discretion to “establish a rehearing date at any time it fe[lt] 

such would be proper.” 9 D.C.R.R. § 103 (1972); see also 

Daniel v. Smoot, 316 F. Supp. 3d 79, 82 (D.D.C. 2018). In 

2000, the guidelines changed. The 2000 guidelines 

lengthened the “presumptive” set-off period to three years 

while permitting the Commission to shorten that period at its 

discretion. Smoot, 316 F. Supp. 3d at 83 (quoting 28 C.F.R. 

§ 2.75(a)(1)(iv), (e)). 

In his petition, Eldridge argues that the Commission 

improperly applied the longer 2000 guidelines “set-off” 

period to his 2010, 2013, 2016, and 2019 parole rehearings, 

rather than the shorter 1972 guidelines period. The Ex Post 

Facto Clause forbids laws “that change[] the punishment, 

and inflict[] a greater punishment, than the law annexed to 

the crime, when committed.” Peugh v. United States, 569 

U.S. 530, 532–33 (2013) (simplified); see U.S. Const. art. I, 
ELDRIDGE V. HOWARD 39

§ 9, cl. 3. A denial of parole can violate the Ex Post Facto 

Clause when the retroactive use of revised guidelines creates 

“a sufficient risk of increasing” the duration of a prisoner’s 

incarceration. Garner v. Jones, 529 U.S. 244, 250 (2000) 

(simplified).

Eldridge is right that the Commission used the 2000 

guidelines in scheduling his 2010 and 2013 rehearings. But 

even so, Eldridge can’t show an ex post facto violation. 

Because the Commission continued to deny Eldridge’s 

parole after his 2013 rehearing, he would not have been 

released any earlier under the proper one-year set-off period. 

Thus, the erroneous use of the 2000 guidelines in 2010 and 

2013 did not result in any increase in Eldridge’s 

incarceration and his constitutional challenge to those parole 

denials fails. See Garner, 529 U.S. at 250. 

Elridge’s claims related to his 2016 and 2019 rehearings 

fare no better. The Commission plainly used the appropriate 

1972 guidelines for those rehearings. While the 

Commission imposed three-year set-off periods for those 

rehearings, it did so under the 1972 guidelines’ discretionary 

authority to extend the “ordinary” one-year period. See 9 

D.C.R.R. § 103 (1972). Take the 2016 rehearing. The 

Commission expressly said that the “ordinary” one-year setoff period was improper because Eldridge needed to 

complete drug and sex offender treatment programs. The 

same occurred in 2019. Then, the Commission 

acknowledged that it was “exceeding the normal rehearing 

schedule” because Eldridge was “an untreated sexual 

predator.” Thus, it’s not debatable that the Commission 

applied an ex post facto law; it did not. 

Even if the Commission did, Eldridge still can’t succeed 

because he only challenges the extended set-off periods—
40 ELDRIDGE V. HOWARD

not that the Commission should have released him under the 

1972 guidelines. In California Department of Corrections 

v. Morales, 514 U.S. 499 (1995), the Court considered the 

retroactive application of a California law that allowed the 

state parole board to hold hearings every three years rather 

than the annual rehearing required by law at the time of the 

offender’s crime. See id. at 503. Because the amended law 

did not change the substantive standards for parole eligibility 

and only lengthened the set-off period, the Court held the 

amendment “simply alters the method to be followed in 

fixing a parole release date under identical substantive 

standards.” Id. at 508 (simplified). The new law only 

relieved the parole board from conducting time-consuming 

annual parole hearings for offenders “who have no 

reasonable chance of being released.” Id. at 507. In this 

situation, the retroactive application of the law would only 

result in “the most speculative and attenuated possibility of 

producing the prohibited effect of increasing the measure of 

punishment” for the defendant. Id. at 509. Because there 

was no basis to conclude that the longer set-offs under the 

new law “would extend any prisoner’s actual period of 

confinement,” they didn’t alter the “quantum of 

punishment,” and so did not create an ex post facto violation. 

Id. at 513 (simplified). Thus, Eldridge’s constitutional 

claims must fail. 

For these reasons, Eldridge is not entitled to a certificate 

of appealability.

III.

While not an easy decision, the weight of interpretive 

guidance counsels against creating a circuit split here. I 

would instead follow our sister circuits and read 

§ 2253(c)(1) harmoniously with prior court decisions, the 
ELDRIDGE V. HOWARD 41

rest of AEDPA, and related jurisdictional provisions. We 

thus should have interpreted “State court” to include the 

D.C. Superior Court. Under this reading, Eldridge needed a 

certificate of appealability, which is unwarranted here. We 

should have dismissed this case. 

I respectfully dissent from the judgment of the court.