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The Following is Part 3 of AEDPA. This article surveys the state of the decisional law of the AEDPA as of June 30, 2000. |
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X. SECOND
OR SUCCESSIVE APPLICATIONS AND ORIGINAL PROCEEDINGS B
AEDPA '' 105
and 106, codified at 28 U.S.C. '' 2244(b),
2255.
Under
pre-AEDPA law, a second or successive habeas petition or ' 2255
motion could be pursued unless the government established that it was
an abuse of the writ.[1]
This was a very difficult standard under which relief was
rarely granted. The AEDPA
now makes it even more difficult to obtain relief on second or
successive applications. AAs
a result . . ., it is essential that habeas petitioners include in
their first petition all potential claims for which they might
desire to seek review and relief.@[2] AEDPA
' 106
amends 28 U.S.C. ' 2244,
and AEDPA ' 105 amends 28 U.S.C. '
2255 to state in pertinent part: '
2244. Finality of
determination *
* * (b)(1)
A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed. (2)
A claim presented in a second or successive habeas corpus
application under section 2254 that was 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. (3)(A)
Before a second or successive application permitted by this
section 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.
(B) A motion in
the court of appeals for an order authorizing the district court to
consider a second or successive application shall be determined by a
three-judge panel of the court of appeals.
(C)
The court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection. (D)
The court of appeals shall grant or deny the authorization to
file a second or successive application not later than 30 days after
the filing of the motion. (E)
The grant or denial of an authorization by a court of appeals
to file a second or successive application shall not be appealable and
shall not be the subject of a petition for rehearing or for a writ of
certiorari. (4)
A district court shall dismiss any claim presented in a second
or successive application that the court of appeals has authorized to
be filed unless the applicant shows that the claim satisfies the
requirements of this section. 28
U.S.C. '
2244(b) (as amended by AEDPA ' 106).
'
2255. Federal custody;
remedies on motion attacking sentence *
* * A
second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain -- (1)
newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or (2)
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. 28
U.S.C. ' 2255
& 8
(as amended by AEDPA ' 105). Under
these provisions, a second or successive application will be dismissed
unless certain very specific and rare circumstances exist.
State prisoners can no longer obtain relief on a claim that was
raised in earlier petition.[3]
In addition, relief is available to state prisoners raising new
claims not presented in an earlier petition, or to federal prisoners,
only if the prisoner demonstrates that the claim relies on (1) Aa
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable,@[4]
or (2) newly discovered evidence which demonstrates
clearly and convincingly that no reasonable factfinder would have
convicted petitioner.[5]
These are, needless to say, extremely difficult standards to
meet.[6]
The AEDPA also creates elaborate pre-filing procedures B
so-called Agatekeeping@
provisions B
requiring both state and federal prisoners to receive permission to
file a second or successive application from the court of appeals
before being able to proceed in the district court.[7]
However,
these harsh provisions do not necessarily apply to every subsequent
habeas corpus petition or '
2255 motion filed in federal court.
They apply only if a subsequent application is Asecond
or successive@
for purposes of the AEDPA. A.
When is a Habeas Petition
or ' 2255 Motion ASecond
or Successive@? For
the limitations on relief contained in ' 2244(b)
or ' 2255
to apply, the government has the burden of establishing that the
petition or motion at issue is Asecond
or successive.@[8]
The fact that an applicant has already filed one application Ais not necessarily determinative of whether the current attempt is a >second
or successive= application.@[9] The
AEDPA Adoes
not define what is meant by >second=
or >successive.=@[10]
Some courts have held that the genesis of these words may be
found in Rule 9(b), Rules Governing Section 2254 Cases,[11]
and they retain the meaning they had under that rule.[12]
Whether or not this is the case, post-AEDPA it remains the case
that not all multiple collateral attacks are Asecond
or successive.@[13]
Thus, the AEDPA=s
limitations on second or successive applications do not apply where: B
The prior application was not determined on the merits. If the prior petition was not adjudicated and decided on the
merits, any subsequent application is not Asecond
or successive@
for purposes of the AEDPA.[14]
The converse is also true: a latter petition is second or
successive under the AEDPA where the prior petition was adjudicated on
the merits.[15]
Note that the denial of a first application for procedural
default, where the default was not overcome by a showing of cause and
prejudice or miscarriage of justice, is a determination on the merits
for considering whether a subsequent application is second or
successive under the AEDPA.[16] Similarly,
the rejection of an application for leave to file a second or
successive application Ais
>on
the merits=
in the sense that it rejects the arguments advanced by the petitioner
as justification for a successive filing.
Rejected justifications may not be reiterated in a successive
motion for leave to file.@[17] B
The prior application was voluntarily dismissed or dismissed
without prejudice. Generally,
any application for relief filed after a prior application was
voluntarily dismissed or dismissed without prejudice will not be
considered a Asecond
or successive@
application.[18]
However, courts will focus on the substance of the prior
proceedings to determine whether any subsequent application is Asecond
or successive@ for purposes of the AEDPA.[19] B
The prior habeas corpus petition was dismissed for failure
to exhaust. If a ' 2254
petition is dismissed for failure to exhaust, the renewal of the
application after exhaustion is not considered Asecond
or successive@
under the AEDPA.[20]
The Tenth Circuit has held, however, that where a petitioner
who filed a Amixed@
petition containing exhausted and unexhausted claims agrees to go
forward on the exhausted claims, any subsequent petition will be
considered second or successive, even if the unexhausted claims were
dismissed without prejudice.[21]
B
The subsequent application presents a claim that was not
ripe at the time of the first application.[22]
Where a competency to be executed claim was raised in a prior
application and dismissed as premature, or where the facts underlying
a competency to be executed claim came to light after the filing of
the initial petition, the claim will not be subjected to the AEDPA=s
stringent limitations on second or successive applications.[23] The
lower courts are split, however, as to whether a competency to be
executed claim asserted for the first time after a previous denial of
relief, where all the operative facts were known at the time of filing
the first application, will be treated as a second or successive
application.[24] Similarly,
a challenge to a method of execution may be raised in a subsequent
application and not be subject to ' 2244(b)=s
limitations on second or successive applications if that challenge was
not ripe at the time of the first application.[25]
In contrast, capital habeas petitioners who have asserted in a
subsequent petition that the length of time they have spent on death
row constitutes cruel and unusual punishment must comply with the
AEDPA=s
gatekeeping requirements.[26]
B
The prior application was
dismissed for want of jurisdiction.[27]
B
The prior application was returned due to some technical
deficiency unrelated to the substantive claims for relief.
An application not accepted for filing due to a formal
deficiency is not considered a prior petition under the Act.
For example, a renewed application is not considered second or
successive if a prior application was dismissed for failure to pay the
filing fee,[28]
or for failure to file in the proper district.[29]
B
The prior application was not authorized by the prisoner. Under pre-AEDPA law, if a Afirst@
habeas petition was not authorized by the petitioner, it was
considered invalid and the abuse of the writ doctrine was
inapplicable.[30]
The same may be true post-AEDPA.[31]
B
The presentation of claims in the prior proceeding was
limited. If the
district court prevented the applicant from presenting all substantive
claims in the prior proceeding, any subsequent application cannot be
considered Asecond
or successive.@[32]
B
The prisoner obtained relief on a prior application and the
subsequent application raised only claims that originated from the
retrial or resentencing.[33]
B
The prior application was incorrectly dismissed as second or
successive.[34] B
A '
2255 movant used his first application solely to reinstate his right
to direct appeal.[35]
B
The prior or subsequent application was not an application
under '
2254 or ' 2255.
The Act=s
provisions apply only to Aa
second or successive habeas corpus application under section 2254,@[36]
or A[a]
second or successive motion@
under '
2255.[37]
For this reason, a section 2255 motion is not a Asecond
or successive@ motion where the prior application sought relief on grounds concerning
the execution but not the validity of the conviction and sentence
under 28 U.S.C. ' 2241;
and, conversely, a '
2241 petition filed after the denial of prior applications under '
2255 is not a Asecond
or successive@
application.[38]
For the same reasons, where a civil rights action under 42
U.S.C. ' 1983
is filed after a prior habeas proceeding, the Act=s
limitations on second or successive applications do not apply, if the
claims presented in the civil rights action are not of the type which
must necessarily be raised in a habeas proceeding.[39]
This
does not mean that simply re-labeling a filing will suffice.
How a petitioner labels a filing will not control application
of the AEDPA=s successor provisions; the court will determine whether a later filing
is indeed a second or successive application, although not labeled as
such.[40]
Thus, a subsequent habeas petition or ' 2255
motion mislabeled as one brought under ' 2241
will be subject to the AEDPA=s
harsh limitations on second and successive applications,[41] as will a subsequent ' 2255
motion mislabeled as a petition for writ of mandamus,[42] or a writ of error coram nobis,[43]
or a motion under Fed. R. Crim. P. 35(a).[44]
Similarly, a court may sua sponte apply the AEDPA=s
restrictions on second or successive applications to a filing labeled
as a motion under Fed. R. Civ. P. 60(b) for relief from the denial of
a prior application,[45]
or a motion to reopen,[46]
where the motion was filed in an attempt to circumvent the Act=s
provisions. A motion to
recall the mandate filed in the court of appeals may also be construed
as a second or successive application subject to the AEDPA=s
harsh limitations.[47]
Finally, the courts are split as to whether a motion to amend
implicates the AEDPA=s
second or successive provisions.[48] Concerned
by the effect that recharacterization may have on an applicant=s
rights to bring a future application for relief, the Second Circuit
has required courts within its purview to take the following actions: At
least until it is decided whether such a conversion or
recharacterization can affect the movant=s
right to bring a future habeas petition, district courts should not
recharacterize a motion purportedly made under some other rule as a
motion under '
2255 unless (a) the movant, with knowledge of the potential adverse
consequences of such recharacterization, agrees to have the motion so
recharacterized, or (b) the court finds that, notwithstanding its
designation, the motion should be considered as made under '
2255 because of the nature of the relief sought, and offers the movant
the opportunity to withdraw the motion rather than have it so
recharacterized.[49] The
Third Circuit has recently followed suit,[50]
and the Seventh Circuit has also acknowledged
Athat
converting a case from one kind of action to another can have
consequences that the prisoner may not have anticipated.@[51]
The Eleventh Circuit has also seemed sympathetic to the
pitfalls of recharacterizing filings.[52] Similar
concerns may cause reevaluation of the long-standing rule that courts
of appeal ordinarily will not review a federal defendant=s
ineffective assistance of counsel claim on direct appeal.[53]
In light of its concerns that the AEDPA=s
strict restrictions on second and successive ' 2255
motions, the Second Circuit has concluded that, at least in cases
where the ineffective assistance of counsel claim raised on direct
appeal is Asimple,@
the better course is to remand the direct appeal to the district court
for additional factfinding Arather than to dismiss the appeal and force the appellant to use up his
only habeas petition.@[54] Finally,
the Fifth Circuit has left open the question as to whether Athere
exists an equitable remedy, independent of 28 U.S.C. '
2254(b), which would allow a federal court to vacate a fraudulently
obtained judgment in a prior federal habeas proceeding.@[55]
B.
State Prisoners: 1. Same-Claim
ASecond
or Successive@
Petitions.
If
a state prisoner files a subsequent ' 2254
petition that is truly Asecond
or successive@ for purposes of the AEDPA, the Act appears to totally eliminate the
ability to obtain relief on a claim that was previously presented in a
prior petition. Section
2244(b)(1) states, AA
claim presented in a second or successive habeas application under
section 2254 that was presented in a prior application shall be
dismissed.@
A number of courts of appeal have held that under this
provision, A[a]
claim that has been presented in a prior petition cannot be presented
in a second. Period.@[56]
That petitioner may present new evidence in support of the
claim appears irrelevant.[57]
2.
New-Claim ASecond
or Successive@
Petitions. If
a state prisoner files a subsequent '
2254 petition that is truly a Asecond
or successive@ petition for purposes of the Act, any claim contained in the subsequent
petition that was not presented in a prior petition must be dismissed
unless the claim relies on Aa
new of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,@[58]
or is based on newly discovered evidence that Awould
be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the applicant [or movant]
guilty of the underlying offense.@[59]
Needless to say, these are very difficult standards to meet.[60]
The contours of these requirements are addressed at length in ''
XIII., XIV., and XV., infra. C.
Federal Prisoners: Unlike
'
2244(b), which distinguishes between Asame-claim@
and Anew-claim@
second or successive habeas petitions brought by state prisoners, the
AEDPA=s
amendments to '
2255 limiting second or successive motions make no such distinction.
Thus, no matter the type of claim raised,[61]
if a federal prisoner files a subsequent '
2255 motion that is truly a Asecond
or successive@
motion for purposes of the Act, the motion must contain newly
discovered evidence that Awould
be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense,@[62]
or Aa
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.@[63]
These are very difficult standards to meet. The contours of
these requirements are addressed at length in ''
XIII., XIV., and XV. D.
APrima
Facie Showing@
Required. Before
a second or successive application may be filed in the district court,
the applicant must make a Aprima facie showing@ to
the court of appeals that the application satisfies the requirements
of ' 2244(b)(2)
or ' 2255.[64]
The showing required has been described as Asimply
a sufficient showing of possible merit to warrant a fuller exploration
by the district court. . . . If
in light of the documents submitted with the application it appears
reasonably likely that the application satisfies the stringent
requirements for the filing of a second or successive petition, we
shall grant the application.@[65]
Despite this superficially lenient language, however, Athe
standard erects a high hurdle.@[66] The
application to file a second or successive application must be
specific; it will be denied if it does not indicate the specific
issues or arguments sought to be raised.[67]
Exhaustion is not a prerequisite to consideration by the court
of appeals of the question as to whether a successive application is
appropriate.[68]
E.
Pre-filing Authorization
from the Court of Appeals. In
addition to its stringent substantive requirements, the AEDPA creates
elaborate pre-filing procedures that require a litigant to receive
permission to file a second or successive application from the court
of appeals before proceeding on the petition in the district court.[69]
Without pre-authorization from the court of appeals, a district
court has no jurisdiction to address the merits of a second or
successive application.[70]
Dismissal
by the district court for failure to move for authorization to file a
second or successive application is an appealable final order.[71] In
some circuits, the court of appeals has decided that Ain
the interests of justice,@
the district court may transfer to the court of appeals under 28 U.S.C.
' 1631
an unauthorized second or successive application, rather than
dismissing it.[72]
In addition, a court of appeals may construe a notice of appeal
from a district court=s
dismissal[73] or an appellate brief[74] as an application for permission to file
a second or successive application.
No filing fee is required in the court of appeals; if
authorization is granted, a fee will be collected by the district
court.[75]
A
motion for appointment of counsel may be brought in the court of
appeals as part of a request for authorization to file a second or
successive application.[76]
Counsel may be appointed in accordance with 21 U.S.C. ' 848(q)(4)(B)
to represent capital petitioners seeking leave to file a second or
successive application.[77]
In one case where the Second Circuit had concerns regarding a pro
se application for permission to file a second or successive
application, the court denied the application, stayed its denial,
appointed counsel to argue the issue, and then gave sua sponte
reconsideration to the prior order denying permission to file.[78] Section
2244(b)(3)(D) requires the court of appeals Ato
grant or deny the authorization to file a second or successive
application not later than 30 days after the filing of the motion.@[79]
However, the courts of appeal have construed this time limit
very flexibly.[80]
The decision of a court of appeals exercising its gate-keeping
function is not appealable and may not be the subject of a petition
for rehearing nor a petition for writ of certiorari.[81]
Any such appeal or petition will be dismissed as unauthorized,[82]
or not ruled on at all.[83]
AHowever,
while ' 2244(b)(3)(E)
prohibits those petitions [for rehearing] that seek reconsideration of
the merits underlying a grant or denial of a habeas petition it does
not bar petitions that ask for reconsideration of whether the AEDPA
even applies.@[84]
Moreover, '
2244(b)(3)(E) does not prohibit petitions for rehearing ordered sua
sponte by the court of appeals.[85] If
the court of appeals authorizes the filing of a second or successive
application for habeas corpus or '
2255 relief, Athe
proper procedure . . . is for [the court of appeals] to
authorize the filing of the entire successive application.@[86]
The district court must thereafter review the application claim
by claim to determine if the requirements of ' 2244(b)(2)(B)
or ' 2255 are met.[87]
The district court must dismiss any application the court of
appeals has allowed to be filed, without reaching its merits, if the
court finds that the applicant has not satisfied these requirements.[88] In
other words, the applicant Amust
get through two gates before the merits of the [application] can be
considered.@[89]
If
the existing record does not conclusively resolve whether petitioner
has satisfied the requirements for filing a second or successive
application, then the district court should order a response and hold
an evidentiary hearing.[90]
The showing before the district court that the application has
met the requirements of ' 2244(b)(2)(B)
or ' 2255 must be more than a prima facie showing.[91]
F.
Writ of Habeas Corpus in
the Original Jurisdiction of the United States Supreme Court. If
a court of appeals, when exercising its Agatekeeping@
function under the AEDPA, denies permission to file a second or
successive petition, that decision is not reviewable on petition for
rehearing or by the Supreme Court on appeal or by petition for writ of
certiorari.[92]
The AEDPA, however, has not repealed the Supreme Court=s
authority to entertain original habeas petitions under 28 U.S.C. '' 2241
and 2242.[93]
Therefore, if the court of appeals denies petitioner=s
request for permission to file a second or successive application, a
petition for writ of habeas corpus in the original jurisdiction of the
Supreme Court may be filed. The
standards governing the Supreme Court=s
consideration of an original habeas petition are unclear.
The Court has stated that the AEDPA=s
restrictions on repetitive and new claims delineated in 28 U.S.C. ' 2244(b)(1)
& (2) Ainform@ its
decision to consider an original habeas petition,[94]
but other considerations are also relevant.
The Court=s
own rules governing the grant of an original habeas petition require a
petitioner to demonstrate Aexceptional circumstances@
that justify the issuance of the writ and notes that AThese
writs are rarely granted.@[95]
The Supreme Court has not yet defined when circumstances are
sufficiently Aexceptional@
that it will consider an original petition. Once
an original habeas corpus petition is filed, it appears that a Arule
of five@
is required before the Justices will hear oral argument on the
petition.[96]
Since the enactment of the AEDPA, a number of original
petitions for relief have been filed in the Supreme Court; none has
been granted. XI. CHAPTER
154 AOPT-IN@
PROVISIONS B AEDPA '
107, codified at 28 U.S.C. '' 2261-2266.[97] AEDPA
' 107
creates a new Chapter 154 of the Judiciary Code.[98]
Chapter 154 contains special optional provisions for death
penalty cases only, and creates a quid pro quo relationship:[99]
If a state establishes a mechanism for the appointment and
compensation of counsel in state postconviction or Aunitary@
proceedings,[100] then the state obtains certain benefits: B
The statute of limitations for filing a first federal petition
shrinks from one year to 180 days, and the statute of limitations
begins to run from affirmance on direct appeal rather than from final
judgment.[101]
B
The scope of federal review narrows further -- a federal court
can consider only claims that have been Adecided
on the merits@ by the state courts, unless the petitioner meets certain exceptions.[102]
B
Once the State has filed an answer to the petition, any
amendment petitioner files thereafter is treated as a second or
successive petition, and must comply with the AEDPA=s
stringent gatekeeping requirements for the filing of such petitions.[103]
B
The process of decision is accelerated.
The district court has 180 days after the filing of the
petition to issue a final decision; of that 180 days, the parties have
120 days to complete all proceedings in the case, including an
evidentiary hearing. The
court of appeals is required to issue its decision within 120 days
after the filing of the reply brief.
If a court does not meet these deadlines, the state can seek
enforcement of the time periods by filing a writ of mandamus in the
next highest court.[104]
B
There are additional limitations on the issuance of stays of
execution. The petitioner
has no right to a stay of execution to obtain appellate review of the
denial of relief, and Ano
Federal court thereafter shall have the authority to enter a stay of
execution in the case, unless the court of appeals approves the filing
of a second or successive application.@[105]
The
prerequisites for application of Chapter 154's provisions in
non-unitary states are enumerated in 28 U.S.C. ' 2261;
the requirements for unitary states are contained in 28 U.S.C. ' 2265.
These provisions state: '
2261. Prisoners in State custody
subject to capital sentence; appointment of counsel; requirement of
rule of court or statute; procedures for appointment (a)
This chapter shall apply to cases arising under section 2254
brought by prisoners in State custody who are subject to a capital
sentence. It shall apply only if the provisions of subsections (b) and
(c) are satisfied. (b)
This chapter is applicable if a State establishes by statute,
rule of its court of last resort, or by another agency authorized by
State law, a mechanism for the appointment, compensation, and payment
of reasonable litigation expenses of competent counsel in State
post-conviction proceedings brought by indigent prisoners whose
capital convictions and sentences have been upheld on direct appeal to
the court of last resort in the State or have otherwise become final
for State law purposes. The
rule of court or statute must provide standards of competency for the
appointment of such counsel. (c)
Any mechanism for the appointment, compensation, and
reimbursement of counsel as provided in subsection (b) must offer
counsel to all State prisoners under capital sentence and must provide
for the entry of an order by a court of record ‑‑ (1)
appointing one or more counsels to represent the prisoner upon
a finding that the prisoner is indigent and accepted the offer or is
unable competently to decide whether to accept or reject the offer; (2)
finding, after a hearing if necessary, that the prisoner
rejected the offer of counsel and made the decision with an
understanding of its legal consequences; or (3)
denying the appointment of counsel upon a finding that the
prisoner is not indigent. (d)
No counsel appointed pursuant to subsections (b) and (c) to
represent a State prisoner under capital sentence shall have
previously represented the prisoner at trial or on direct appeal in
the case for which appointment is made unless the prisoner and counsel
expressly request continued representation. *
* * 28
U.S.C. '
2261 (as amended by AEDPA '
107). '
2265. Application to
State unitary review procedure. (a)
For purposes of this section, a Aunitary
review@
procedure means a State procedure that authorizes a person under
sentence of death to raise, in the course of direct review of the
judgment, such claims as could be raised on collateral attack.
This chapter shall apply, as provided in this section, in
relation to a State unitary review procedure if the State establishes
by rule of its court of last resort or by statute a mechanism for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in the unitary review proceedings. The rule of court or statute must provide standards of
competency for the appointment of such counsel. (b)
To qualify under this section, a unitary review procedure must
include an offer of counsel following trial for the purpose of
representation on unitary review, and entry of an order, as provided
in section 2261(c), concerning appointment of counsel or waiver or
denial of appointment of counsel for that purpose.
No counsel appointed to represent the petitioner in unitary
review proceedings shall have previously represented the prisoner at
trial in the case for which the appointment is made unless the
prisoner and counsel expressly request continued representation. *
* * 28
U.S.C. '
2265 (as amended by AEDPA '
107). No
state has yet been found to meet all of the prerequisites for
application of Chapter 154's provisions.
States have declined to seek, or courts have declined to
provide the Abenefits@
of 28 U.S.C. '' 2261
or 2265 in the following states: Arizona;[106]
California;[107] Florida;[108] Georgia;[109] Idaho;[110] Indiana;[111] Illinois;[112] Louisiana;[113] Maryland;[114] Mississippi;[115] Missouri;[116] Montana;[117] North Carolina;[118]
Ohio;[119] Oklahoma;[120] Pennsylvania;[121] South Carolina;[122]
Tennessee;[123] Texas;[124] Utah;[125] and Virginia.[126] Texas=s Astrict
guidelines limiting compensation to $7,500 and reimbursement of
expenses to $2,500 for each appointment@
of postconviction counsel, however, have been held by the Fifth
Circuit to meet the Act=s
requirements.[127] Once
a state=s
mechanism is held to comply with the prerequisites for application of
Chapter 154, the state may obtain the Aquid@
-- the benefits of Chapter 154 outlined above -- only as to those
petitioners who obtained the Aquo@
of state postconviction counsel appointed under this mechanism.[128] Some
petitioners have argued that the enactment of Chapter 154 has
abrogated the judicially-created procedural default doctrine for those
cases not covered by its provision.
This has met with no success.[129] XII. AMENDMENTS
TO 21 U.S.C. '
848(q) -- AEDPA '
108, codified at 21 U.S.C. ' 848(q)(9). Section
108 of the AEDPA, entitled ATechnical
Amendment,@ amends 21 U.S.C. '
848(q)(9), which deals with the provision of counsel and funds for
investigation and experts in capital cases.
Amended 848(q)(9) states as follows: (9)
Upon a finding that investigative, expert, or other services
are reasonably necessary for the representation of the defendant, the
court may authorize the defendant=s
attorneys to obtain such services on behalf of the defendant and, if
so authorized, shall order the payment of fees and expenses therefor
under paragraph (10). No
ex parte proceeding, communication, or request may be considered
pursuant to this section unless a proper showing is made concerning
the need for confidentiality. Any
such proceeding, communication, or request shall be transcribed and
made a part of the record available to appellate review. 21
U.S.C. '
848(q)(9) (as amended by AEDPA '
108). The
AEDPA=s
amendments to '
848(q)(9) do not change the provisions relating to the appointment of
counsel in capital cases. They
do, however, make changes regarding the availability of expert and
investigative funds. Under
pre-Act law, a federal court was required to provide funds for
investigation and experts where Areasonably
necessary.@[130]
Under the amended '
848(q)(9), the provision of these funds is now in the court=s
discretion. A district
court does not abuse its discretion in denying appointment of counsel
or the expenditure of investigative funds under '
848(q) where the petitioner is barred by some provision of the AEDPA
from obtaining relief.[131]
Moreover,
in cases where amended '
848(q)(9) applies, requests for funds for experts and investigation
can no longer be made ex parte Aunless
a proper showing is made regarding the need for confidentiality.@[132]
A general showing of the need for confidentiality may be
insufficient.[133]
Moreover, amended '
848(q)(9) requires the petitioner to demonstrate the need for
confidentiality in an adversary hearing.[134]
The
information disclosed at the hearing is within the discretion of the
district court.[135]
To balance the petitioner=s
need for confidentiality with the statute=s
dictates, the district courts in Texas have crafted the following
procedure: First,
Petitioner must file and serve a concise motion seeking authorization
for investigative and expert assistance that includes a short
case-specific statement of the need for confidentiality.
This statement of the need for confidentiality must generically
identify the type of services needed and the broad issue or topic (for
example, innocence) for which the services are needed.
Second, petitioner must simultaneously file ex parte and under
seal his detailed application for authorization for the investigator
or expert. In this
application, Petitioner must estimate the amount of fees or expenses
likely to be incurred and provide factual support for the funding
request. The motion B
but not the application with supporting materials B
must be served upon Respondent.[136] Finally,
no certificate of appealability is required for appeals under '
848(q)(4)(B).[137]
XIII.
THE FACTUAL PREDICATE FOR THE CLAIM ACOULD
NOT HAVE BEEN DISCOVERED PREVIOUSLY THROUGH THE EXERCISE OF DUE
DILIGENCE@ -- AEDPA '' 101,
104, 105, 106 & 107, codified at 28 U.S.C. '' 2244(b)(2)(B)(i),
2244(d)(1)(D), 2254(e)(2)(A)(ii); 2255, and 2264(a)(3). The
statute of limitations provisions in AEDPA '' 101
and 105, the limitations on evidentiary hearings enacted by AEDPA ' 104,
the restrictions on second or successive applications contained in
AEDPA '' 105
and 106, and the Chapter 154 provisions enacted by AEDPA '
107 all contain exceptions that allow habeas petitioners and '
2255 movants to escape some of the Act=s
restrictions if it can be demonstrated that the facts in support of
the claim or claims presented could not have been discovered
previously through the exercise of due diligence.[138]
However, this exception is not available with respect to three
of these provisions -- the restrictions on evidentiary hearings in ' 2254(e)(2)(A)(ii),
and the limitations on second or successive applications contained in '' 2244(b)(2)(B)(i)
and 2255 & 8(1)
-- unless the applicant also demonstrates that facts in support
of the claim establish by clear and convincing evidence that no
reasonable factfinder would have found the applicant guilty of the
underlying offense. This
section will discuss the Acould
not have been discovered previously through the exercise of due
diligence@
standard; ' XV.,
infra, discusses the Aclear
and convincing evidence that no reasonable factfinder would have found
the applicant guilty of the underlying offense@
standard. To
demonstrate that the facts underlying a claim Acould
not have been discovered previously through the exercise of due
diligence,@ an
applicant must Ashow
some good reason why he or she was unable to discover the facts@
supporting the claim previously.[139]
If seeking to file a second or successive petition under ' 2244(b)(2),
petitioner must show some good reason for the inability to discover
the facts Abefore filing the first motion,@[140]
or at least by the time the district court denied relief on the first
petition.[141]
Note that these sections may be relied upon only if the facts
supporting a legal claim were undiscoverable despite due diligence;
belated discovery or realization of the legal consequences of known
facts will not suffice.[142] Thus,
where the factual predicate for a claim is apparent on the face of the
record, a petitioner cannot demonstrate Adue
diligence.@[143]
Similarly, a petitioner cannot demonstrate Adue
diligence@
in failing to present a claim based on what occurred during a court
hearing if petitioner and/or his trial attorneys attended the hearing.[144] Finally,
Acriminal
defendants are presumed to have conducted a reasonable investigation
of all facts surrounding their prosecution.@[145]
Thus, where the use of discovery
or investigative efforts have recently uncovered previously unknown
facts, to demonstrate Adue
diligence,@
petitioner must also show why these same facts would not have been
discovered previously had similar efforts been undertaken at an
earlier time.[146]
XIV. NEW RIGHT OR RULE AMADE RETROACTIVE TO CASES ON COLLATERAL REVIEW@
-- AEDPA '' 101, 104, 105, and 106, codified at 28 U.S.C. ' 2244(b)(2)(A),
2244(d)(1)(C), 2254(e)(2), & 2255. AEDPA
'' 101,
104, 105, and 106 also include provisions allowing escape from some of
the Act=s
limitations on habeas relief for petitioners who demonstrate that
their claim is based on a new right or rule announced by a decision of
the Supreme Court that has been made retroactively applicable to cases
on collateral review.[147]
The statute of limitations provisions require only that the
right or rule be Anewly
recognized.@[148]
The other provisions, however, require that this new right or
rule also be Apreviously
unavailable.@[149]
In
addition to demonstrating the existence of a Anew
rule,@
a state prisoner wishing escape the AEDPA=s
restrictions on evidentiary hearings must make an additional showing
-- he must demonstrate that the facts underlying the claim establish
by clear and convincing evidence that no reasonable factfinder would
have found the applicant guilty of the underlying offense.[150]
Section XV., infra, discusses the Aclear
and convincing evidence that no reasonable factfinder would have found
the applicant guilty of the underlying offense@
standard. A.
New Right or Rule of Law. First,
the rule of law upon which petitioner relies must be Anew.@[151]
Although there is little case law discussing when a rule of law
is Anew@ for
purposes of the AEDPA, some courts have looked to the new rule
analysis employed in Teague v. Lane[152] for guidance.[153] In
addition, the new right or rule must be announced by a decision of the
Supreme Court; a state court decision will not suffice.[154]
Finally,
under all but one of these provisions, the Supreme Court decision
relied upon by the petitioner must involve a new rule of constitutional
law.[155]
If no new rule of constitutional law is announced, even a
recent Supreme Court decision is of no help under the Act.[156]
B.
AMade
Retroactively Applicable to Cases on Collateral Review...@ It
is not enough that the Anew
rule@
in question has been applied retroactively to cases on direct
review; the rule must also have been Amade
retroactive@
applicable to cases on collateral review.[157]
It is not enough that the rule in question have been applied
retroactively to cases on direct review; the rule in question
must have been applied to collateral review cases.[158]
Moreover, the new rule must be made retroactive by the
Supreme Court. However,
there is a split in the circuits as to what that means.
The majority have held that under the plain meaning of ' 2255,
if the Supreme Court has never applied the rule retroactively or
stated that the rule so applies, a second or successive motion based
on that rule is unavailable.[159]
The Third Circuit, however, has stated that Aalthough
>made
retroactive=
obviously encompasses direct retroactive application of a rule by the
Supreme Court or express statements to that effect, we doubt that
those meanings exhaust the phrase.@[160]
That court has held that one alternative method by which a new
rule may be made retroactive is if it is clear from the Supreme Court=s
pronouncements that the rule falls within the second Teague
exception, Aeven
if the pronouncements are not made in the context of actual
retroactive application of the new rule on habeas review.@[161]
C.
A.
. . That Was Previously Unavailable.@ Finally,
to obtain an evidentiary hearing if the petitioner failed to develop
the facts in state court, or to file a second or successive '
2254 petition or ' 2255
motion, petitioner must also demonstrate that the new rule of
constitutional law was Apreviously
unavailable.@[162]
For second or successive applications, the Apreviously
unavailable@ requirement is interpreted with reference to the availability of the
claim at the time the first petition was filed.[163]
However, Aa
petitioner intent upon establishing the >unavailability=
of a claim based upon a new rule of constitutional law may also be
required to demonstrate the infeasibility of amending a habeas
petition that was pending when the new rule was announced.@[164]
XV. ANO
REASONABLE FACTFINDER WOULD HAVE FOUND THE APPLICANT GUILTY OF THE
UNDERLYING OFFENSE@
-- AEDPA '' 104, 105 & 106, codified at 28 U.S.C. ''
2244(b)(2)(B)(ii), 2254(e)(2)(B), and 2255 &
8(1). The
final exception to the AEDPA=s
restrictions on evidentiary hearings for state prisoners and
limitations on second or successive applications applies to habeas
petitioners and section 2255 movants who can Aestablish
by clear and convincing evidence that . . . no reasonable factfinder
would have found the applicant [or movant] guilty of the underlying
offense.@[165]
Courts
have held this language forecloses claims unrelated to guilt or
innocence, including claims: B
asserting the bias of a judge[166]
or juror;[167] B
asserting that petitioner is incompetent to be tried,[168]
or executed;[169] B
challenging a method of execution as unconstitutional;[170] B
relying on Justice Stevens=s
dissent from the denial of certiorari in Lackey v. Texas[171] to assert it would be cruel and unusual
punishment to execute someone after an extended period of time on
death row;[172]
B
contending that an arraignment was unconstitutionally delayed;[173] B
challenging clemency proceedings;[174] B
challenging the adequacy of
collateral counsel in state postconviction proceedings.[175] There
is a split in the circuits, however, whether this language also
forecloses all claims of sentencing error, including claims of
actual innocence of the death penalty.[176]
Finally,
the evidence of innocence must be Aclear
and convincing.@ This is a stringent
standard.[177] XVI. AINEFFECTIVE
ASSISTANCE OF COUNSEL IN STATE POSTCONVICTION PROCEEDINGS@
-- AEDPA '' 104 & 107, codified at 28 U.S.C. '
2254(i) & '
2261(e). AEDPA
' 104
creates a new 28 U.S.C. '
2254(i), which states: The
ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254. 28
U.S.C. '
2254(i) (as amended by AEDPA '
104). AEDPA '
107, codified in Title 28, Chapter 154, contains a similar provision.[178]
However, because no state has yet been found to comply with
section 107's opt-in requirements, see '
XI., supra, only the amendments to section 2254(i) will be
discussed here. Section
2254(i) Aconfirms@
prior Supreme Court decisions holding that because there is no federal
constitutional right to counsel in postconviction proceedings, any claim
asserting the ineffective assistance of postconviction counsel is not
cognizable in a federal habeas proceeding,[179]
and Aprocedural
defaults due to the blunderings of such counsel are not to be excused.@[180]
[1]
See McCleskey v. Zant, 499 U.S. 467, 477, 494-495
(1991). [2]
Mason v. Meyers, 208 F.3d 414, 417 (3d Cir. 2000)
(emphasis added). [3]
See 28 U.S.C. '
2244(b)(1). [4]
See 28 U.S.C. '' 2244(b)(2)(A),
2255 & 8(2). [5]
See 28 U.S.C. '' 2244(b)(2)(B); 2255
& 8(1). [6]
See Kilgore v. Bowersox, 181 F.3d 895, 896 (8th Cir.
1999) (per curiam) (describing as Ademanding@ the requirements of ' 2244(b)(2)); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th
Cir.) (describing requirements for second or successive petitions as
Aextremely
stringent.@),
cert. denied, 519 U.S. 1102 (1997). [7]
See 28 U.S.C. '' 2244(b)(3),
'
2255. [8]
Thomas v. Superintendent, 136 F.3d 227, 229 (2d Cir.
1997). [9]
See In re Cook, ___ F.3d ___, 2000 WL 726993 (6th Cir.
June 6, 2000). [10]
Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997).
Accord United States v. Orozco-Ramirez, 211 F.3d 862,
867 (5th Cir. 2000); United States v. Barrett, 178 F.3d 34,
___ (1st Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000); Carlson
v. Pitcher, 137 F.3d 416, ___ (6th Cir. 1998); In re Cain,
137 F.3d 234, 235 (5th Cir. 1998) (per curiam); Pratt v.
United States, 129 F.3d 54, 60 (1st Cir. 1997), cert. denied,
523 U.S. 1123 (1998); United States v. Scott, 124 F.3d 1328,
___ (10th Cir. 1997) (per curiam); Chambers v. United
States, 106 F.3d 472, ___ (2d Cir. 1997); Benton v.
Washington, 106 F.3d 162, 163 (7th Cir. 1996); Camarano v.
Irvin, 98 F.3d 44, 45-46 (2d Cir. 1996).
[11]
The AEDPA did not amend Rule 9(b), Rules Governing Section
2254 Cases in the United States District Courts, which states: (b) Successive Petitions.
A second or successive petition may be dismissed if the
judge finds that it fails to allege new or different grounds for
relief and the prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that the failure of
the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ. [12]
Benton v. Washington, 106 F.3d 162, 164 (7th Cir.
1996). See Stewart v. Martinez-Villareal, 523 U.S. 637, 118
S. Ct. 1618, 140 L.Ed.2d 849 (1998) (construing ' 2244(b) in a manner that recognizes that some types of Asecond@ petitions do not implicate the judicially developed abuse of the writ
principles that were the basis for the AEDPA=s statutory restrictions); In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997); Vancleave
v. Norris, 150 F.3d 926, ___ (8th Cir. 1998); Reeves v.
Little, 120 F.3d 1136, ___ (10th Cir. 1997); United States v.
Scott, 124 F.3d 1328, ___ (10th Cir. 1997) (per curiam). [13]
See Stewart v. Martinez-Villareal, 523 U.S. 637, 118
S. Ct. 1618, 140 L.Ed.2d 849 (1998); United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (Aa
motion is not >second
or successive=
under AEDPA merely because it is numerically a second (or
subsequent) motion@). [14]
See Pratt v. United States, 129 F.3d 54, 60
(1st Cir. 1997), cert. denied, 523 U.S. 1123 (1998); Carrao
v. United States, 152 F.3d 188, ___ (2d Cir. 1998); Garrett
v. United States, 178 F.3d 940, ___ (7th Cir. 1999); O=Connor
v. United States,
133 F.3d 548, ___ (7th Cir. 1998) (concluding subsequent ' 2255 motion was not second or successive where prior petition was
returned because appeal from denial of Rule 32 and 35 motions were
pending). [15]
See Vancleave v. Norris,
150 F.3d 926, ___ (8th Cir. 1998); United States v. Barrett,
178 F.3d 34, ___ (1st Cir. 1999), cert. denied, 120 S. Ct.
1208 (2000). [16]
See In re Cook, ___ F.3d ___, 2000 WL 726993 (6th Cir.
June 6, 2000); Carter v. United States, 150 F.3d 202, ___ (2d
Cir. 1998). [17]
Alexander v. United States, 121 F.3d 312, ___ (7th
Cir. 1997). [18]
See Haro-Arteaga v. United States, 199 F.3d 1195 (10th
Cir. 1999); In re Moore, 196 F.3d 252, ___ (D.C. Cir. 1999); Garrett
v. United States, 178 F.3d 940, ___ (7th Cir. 1999); Camarano
v. Irvin, 98 F.3d 44, 45-46 (2d Cir. 1996); Vancleave v.
Norris, 150 F.3d 926, ___ (8th Cir. 1998); Martin v. Jones,
969 F. Supp. 1058, 1063 (M.D. Tenn. 1997). [19]
See Potts v. United States, 210 F.3d 770, 771 (7th
Cir. 2000); Feldar v. McVicar, 113 F.3d 696, 697-698 (7th
Cir. 1997) (holding that any petition filed after voluntary
dismissal of a prior petition, where the reason for the dismissal
was petitioner=s concession that the claims contained therein were meritless, must meet
the AEDPA=s
strict requirements for second and successive petitions); Dunn v.
Singletary, 168 F.3d 440, ___ (11th Cir. 1999) (looking behind
scrivener=s error and concluding that prior petition dismissed Awithout
prejudice@
was actually resolved on the merits; accordingly, subsequent
petition is Asecond or successive@). [20]
See Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595,
1605, ___ L.Ed.2d ___ (2000); Sacco v. Cooksey, 214 F.3d 270,
___ (2d Cir. 2000); Carlson v. Pitcher, 137 F.3d 416, 420
(6th Cir. 1998); McWilliams v. State of Colorado, 121 F.3d
573, 575 (10th Cir. 1997); In re Gasery, 116 F.3d 1051, 1052
(5th Cir. 1997); Christy v. Horn, 115 F.3d 201, 208
(3d Cir. 1997); Benton v. Washington, 106 F.3d 162, 164 (7th
Cir. 1996); In re Turner, 101 F.3d 1323, 1323 (9th Cir.
1997); Dickinson v. Maine, 101 F.3d 791, 791 (1st Cir. 1996);
Camarano v. Irvin, 98 F.3d 44, 46-48 (2d Cir. 1996). See also Stewart v. Martinez- Villareal, 523 U.S. 637,
644, 118 S. Ct. 1618, 1622, 140 L.Ed.2d 849 (1998) (stating, in dicta,
that Anone
of our cases expounding [the exhaustion] doctrine have ever
suggested that a prisoner whose habeas petition was dismissed for
failure to exhaust state remedies, and who then did exhaust those
remedies and returned to federal court, was by such action filing a
successive petition.@) [21]
See Tapia v. Lemaster, 172 F.3d 1193, ___ (10th Cir.
1999), cert. denied, 120 S. Ct. 92 (1999). [22]
See Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45, 118 S. Ct. 1618, 1622, 140 L.Ed.2d 849 (1998);
United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th
Cir. 2000). [23]
See Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45, 118 S. Ct. 1618, 1622, 140 L.Ed.2d 849 (1998) (competency to
be executed claim presented in initial petition and dismissed as
premature); Poland v. Stewart, 41 F.Supp.2d 1037, 1038-39 (D.
Ariz. 1999) (facts underlying competency to be executed claim arose
after filing of initial petition). [24]
Compare Nguyen v. Gibson, 162 F.3d 600, 601 (10th Cir.
1998) (concluding competency to be executed claim asserted for the
first time after a previous denial of relief, where all of the
operative facts were known at the time the first petition was filed,
is Asecond or successive@ application); In re Provenzano, ___ F.3d ___, 2000 WL 796749
(11th Cir. June 21, 2000) (same), cert. denied, 120 S.
Ct. 2710 (2000); and In re Davis, 121 F.3d 952, 953 (5th Cir.
1997) (same); and In re Medina, 109 F.3d 1556, 1561, 1563-64
(11th Cir.) (same), cert. denied, 520 U.S. 1151 (1997); with
Schornhorst v. Anderson, 77 F.Supp.2d. 944 (S.D. Ind. 1999)
(holding second or successive application rules do not apply to a
second petition raising competency to be executed claim even though
the claim was not included in the initial habeas petition;
explaining that court is Anot
persuaded by respondent=s
argument that a prisoner=s
ability to present a Ford claim to a district court shortly
before a scheduled execution should depend on whether the prisoner
had B
or could have B
included an unripe, unexhausted Ford claim in an earlier
petition. That reading
of '
2244(b) would surely create a powerful and strange incentive to
raise a claim at a time when it must be dismissed.@). [25]
Compare LaGrand v. Stewart, 170 F.3d 1158, 1159 &
n.1 (9th Cir. 1999) (holding petitioner need not meet ' 2244(b)=s
gatekeeping requirements before presenting claim challenging
execution by lethal gas to district court where challenge was not
ripe at the time of the initial application); with Ceja v.
Stewart, 134 F.3d 1368, ___ (9th Cir. 1998) (holding petitioner
must comply with '
2244(b)=s gatekeeping requirements where challenge to execution by lethal
injection was ripe when petitioner filed initial application).
But see In re Provenzano, ___ F.3d ___, 2000 WL 796749
(11th Cir. June 21, 2000) (treating challenge to lethal injection as
an second or successive application even though the factual basis of
the claim was not available to petitioner at the time of his first
petition because Florida did not use lethal injection at that time). [26]
See LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir.
1999); Gerlaugh v. Stewart, 167 F.3d 1222 (9th Cir. 1999); Ortiz
v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998), cert. denied,
119 S. Ct. 1777 (1999); Gretzler v. Stewart, 146 F.3d 675,
___ (9th Cir. 1998), cert. denied, 524 U.S. 912 (1998); Ceja
v. Stewart, 134 F.3d 1368, ___ (9th Cir. 1998). [27]
See Phillips v. Seiter, 173 F.3d 609, ___ (7th Cir.
1999). [28]
See Benton v. Washington, 106 F.3d 162, 164-165 (7th
Cir. 1996). [29]
See Phillips v. Seiter, 173 F.3d 609, ___ (7th Cir.
1999). [30]
See, e.g., Deutscher v. Angelone, 16 F.3d 981 (9th
Cir. 1994). [31]
See Nevius v. Sumner, 105 F.3d 453, 458-459 (9th Cir.
1996) (considering, but rejecting, petitioner=s
contention that his first petition was unauthorized and therefore
the AEDPA=s
successor provisions do not apply), cert. denied, 527 U.S.
1006 (1999); Vancleave v. Norris, 150 F.3d 926, ___ (8th Cir.
1998) (same). [32]
See Reeves v. Little, 120 F.3d 1136 (10th Cir. 1997)
(concluding second application for habeas relief was not second or
successive for purposes of AEDPA where petitioner was prevented, in
a prior habeas proceeding, from presenting claims other than the
issue of whether state appellate delay violated his due process
rights). [33]
Compare In re Green, ___ F.3d ___, 2000 WL 796765
(11th Cir. June 5, 2000); and In re Taylor, 171 F.3d 185, ___
(4th Cir. 1999); and Walker v. Roth, 133 F.3d 454,455 (7th
Cir. 1997); and Esposito v. United States, 135 F.3d 111, ___
(2d Cir. 1997); and Pratt v. United States, 129 F.3d 54, 62
(1st Cir. 1997), cert. denied, 523 U.S. 1123 (1998) (AUnder
ordinary circumstances, a prisoner who successfully brings a habeas
petition and is retried, reconvicted, and resentenced may
collaterally attack the new judgment without fear of hindrance by
the legal restrictions that encumber second or successive habeas
petitions.@);
with Galtieri v. United States, 128 F.3d 33, 35 (2d Cir.
1997) (A[A]fter a first habeas petition has resulted in an amended sentence, a
second habeas petition challenging only the undisturbed underlying
conviction and the unamended components of the sentence is a >second= petition for purposes of [the AEDPA].@); and In re Magwood, 113 F.3d 1544, ___ (11th Cir. 1997)
(concluding that where capital habeas petitioner obtained penalty
phase relief in prior proceeding and was resentenced to death, any
later challenge to the underlying conviction must meet the AEDPA=s requirements for second and successive applications). [34]
See In re Moore, 196 F.3d 252, ___ (D.C. Cir. 1999)
(concluding district court=s
incorrect dismissal of a motion as successive was not a decision on
the merits and therefore did not bar petitioner=s
subsequent petition). [35]
See In re Goddard, 170 F.3d 435, 437 (4th Cir. 1999); Shepeck
v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (per
curiam) (Aan
order granting a '
2255 petition, and reimposing sentence [to permit a direct appeal]
resets to zero the counter of collateral attacks pursued.@);
United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997)
(per curiam). But see Pratt v. United States, 129 F.3d 54
(1st Cir. 1997) (requiring prisoner to join all attacks on his
judgment, including his appeal reinstatement claim, in his first ' 2255 motion), cert. denied, 523 U.S. 1123 (1998); United
States v. Orozco-Ramirez, 211 F.3d 862, 869-70 (5th Cir. 2000)
(concluding claims presented in subsequent petition that could have
been raised in earlier successful habeas petition were Asecond or successive,@ where earlier petition asserted only claim of ineffective assistance of
counsel on direct appeal; claims in subsequent petition arising out
of the out-of-time appeal were not Asecond or successive@ because they could not have been raised in earlier petition). [36]
28 U.S.C. '
2244(b)(1). [37]
28 U.S.C. '
2255. [38]
See Gray-Bey v. United States, 209 F.3d 986, 990 (7th
Cir. 2000); Chambers v. United States, 106 F.3d 472, 474 (2d
Cir. 1997); Stantini v. United States, 140 F.3d 424, ___ (2d
Cir. 1998); In re Cain, 137 F.3d 234, ___ (5th Cir. 1998);
Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000); Valona
v. United States, 138 F.3d 693, ___ (7th Cir. 1998).
A federal prisoner, however, may get only one Abite@ from the '
2255 Aapple@ and one Abite@
from the ' 2241 Aapple@:
the Second Circuit has held that the AEDPA also limits second
or successive '
2241 petitions brought by federal prisoners.
Triestman v. United States, 124 F.3d 361 (2d Cir.
1997). [39]
Compare Woratzeck v. Arizona Board of Executive Clemency,
117 F.3d 400 (9th Cir.
1997) (holding due process challenge to clemency hearing brought
under 42 U.S.C. '
1983 is not subject to successor petition provisions of the Act); with
In re Sapp, 118 F.3d 460 (6th Cir.) (concluding that '
1983 action challenging electrocution as method of execution was, in
reality, an unauthorized successive habeas application filed after
the enactment of the AEDPA), cert. denied, 521 U.S. 1130
(1997); and Williams v. Hopkins, 130 F.3d 333 (8th Cir.
1997), cert. denied, 522 U.S. 1010 (U.S. 1997) (same); and
Felker v. Turpin , 101 F.3d 95, ___ (11th Cir.) (per curiam),
cert. denied, 519 U.S. 988, 989 (1996) (same); and Hill v.
Hopper, 112 F.3d 1088, ___ (11th Cir.), cert. denied, 520
U.S. 123 (1997). [40]
See Adams v. United States, 155 F.3d 582, ___ (2d Cir.
1998); Chambers v. United States, 106 F.3d 472, 475 (2d Cir.
1997) (Aif
a prisoner erroneously labels a petition as being filed under
Section 2255 when the relief it seeks is available only under
Section 2241, the mis-labeling must be disregarded.@);
United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (Athere is a trend among the courts to look beyond the formal title
affixed to a motion@),
cert. denied, 526 U.S. 1011 (1999); Wilson v. United
States, 969 F. Supp. 1054 (E.D. Mich. 1997) (pro se letter
asking that federal sentence be made to run concurrent with state
sentence was, in reality, a ' 2255
motion). [41]
See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.
2000); United States v. Barrett, 178 F.3d 34, ___ (1st Cir.
1999), cert. denied, 120 S. Ct. 1208; In re Gregory,
181 F.3d 713, ___ (6th Cir. 1999); Greenawalt v. Stewart, 105
F.3d 1287, 1287 (9th Cir. ), cert. denied, 519 U.S. 1103
(1997); Sandles v. Scott, 26 F.Supp.2d 1355, ___ (N.D. Ga.
1998), aff=d, 190 F.3d 543 (11th Cir. 1999) (Table); United States v. Walker,
980 F. Supp. 144, ___ (E.D.Pa. 1997).
Although a federal prisoner may resort to ' 2241 to seek relief if the remedy provided by '
2255 Ais inadequate or ineffective to test the legality of his detention,@
' 2255, the courts of appeal concur that the '
2255 remedy is not rendered inadequate or ineffective by the AEDPA=s harsh restrictions on successive applications, unless a fundamental
miscarriage of justice would otherwise result.
See Tolliver v. Dobre, 211 F.3d 876, ___ (5th Cir. 2000); Charles v. Chandler,
180 F.3d 753 (6th Cir. 1999); In re Davenport, 147 F.3d 605,
___ (7th Cir. 1998); Triestman v. United States, 124 F.3d
361, ___ (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, ___
(3d Cir. 1997); Lee v. Wetzel, 49 F.Supp.2d 875, ___ (E.D.
La. 1999); Sandles v. Scott, 26 F.Supp.2d 1355, ___ (N.D. Ga.
1998), aff=d, 190 F.3d 543 (11th Cir. 1999) (Table); Millan v. Parks, 18
F.Supp.2d 144, ___ (D.P.R. 1998); United States v. Ransom,
985 F.Supp. 1017, ___ (D.Kan. 1997).
See also Wofford v. Scott, 177 F.3d 1236, 1244 (11th
Cir. 1999) (concluding savings clause in '
2255 applies only to sentencing claims that are Abased
upon a retroactively applicable Supreme Court decision overturning
circuit precedent.@). [42]
Boyer v. Conaboy, 983 F. Supp. 4, ___ (D. D.C. 1997). [43]
United States v. Clay, 56 F. Supp.2d 1020, ___ (N.D.
Ill. 1999); United States v. Farley, 971 F. Supp. 184, 186
(E.D. Pa. 1997) (noting section 2255 relief is not unavailable, as
would be required to obtain coram nobis relief, A>it
just offers . . . no relief.=@),
aff=d, 151 F.3d 1027 (3d Cir. 1998) (Table). [44]
See United States v. Canino, 212 F.3d 383 (7th Cir.
2000). [45]
See Ortiz v. Stewart, 195 F.3d 520, 520 (9th Cir.
1999); United States v. Rich, 141 F.3d 550, 551 (5th Cir.
1998), cert. denied, 526 U.S. 1011 (1999); Thompson v.
Calderon, 151 F.3d 918, ___ (9th Cir.) (en banc), cert.
denied, 524 U.S. 965 (1998); Lopez v. Douglas, 141 F.3d
974, ___ (10th Cir.), cert. denied, 525 U.S. 1024 (1998);
In re Medina, 109 F.3d 1566, 1561 (11th Cir. ), cert. denied,
520 U.S. 1151 (1997); Felker v. Turpin, 101 F.3d 657, 660-661
(11th Cir.), cert. denied, 519 U.S. 989 (1996).
But see Thompson, 151 F.3d at 921 & n.3 (leaving
open the possibility that a Rule 60(b) motion filed after denial of
an initial petition would not have to comply with the AEDPA=s
successive petition requirements). [46]
See Malone v. Vasquez, 167 F.3d 1186, ___ (8th Cir.
1999); United States v. McDonald, 979 F.Supp. 1057, ___
(E.D.N.C. 1997), aff=d, 161 F.3d 4 (4th Cir. 1998) (Mem.).
[47]
See Calderon v. Thompson, 523 U.S. 538, ___, 118 S.
Ct. 1489, ___, 140 L.Ed.2d 720 (1998); Gray-Bey v. United States,
209 F.3d 986, 988 (7th Cir. 2000); Walls v. Bowersox, 180
F.3d 986, ___ (8th Cir. 1999); Graham v. Johnson, 168 F.3d
762, ___ (5th Cir.1999), cert. denied, 120 S. Ct. 1830
(2000); Burris v. Parke, 130 F.3d 782, ___ (7th Cir. 1997); Ruiz
v. Norris, 104 F.3d 163, ___ (8th Cir.), cert. denied,
519 U.S. 1073 (1997). Where
a court of appeals instead recalls the mandate on its own initiative
and does not consider new claims or evidence presented in any later
filing, the AEDPA=s
limitations on successive applications do not apply. Thompson,
523 U.S. at 554. [48]
Compare Johnson v. United States, 196 F.3d
802, 805 (7th Cir. 1999) (concluding district court erred in
treating motion to amend the petition as second or successive; A[T]he
AEDPA allows every prisoner one full opportunity to seek collateral
review. Part of that
opportunity B part of every civil case B is an entitlement to add or drop issues while the litigation continues.@);
with McCool v. New York, 29 F.Supp.2d 151, ___ (W.D.N.Y. 1998)
(considering motion to amend original application, where claims
could have been raised in original petition, to be a second or
successive application).. [49]
See Adams v. United States, 155 F.3d 582, ___ (2d Cir.
1998); Hendrickson v. Bureau of Prisons, ___ F.3d ___, 2000
WL 900173 (2d Cir. 2000) (remanding to district court to allow it to
inform petitioner that his motion is to be construed as a '
2255 motion). In giving notice to the movant on the issue of
recharacterization, the district court may also have to advise the
movant of the AEDPA=s
statute of limitations. Adams
v. United States, 155 F.3d 582, ___ (2d Cir. 1998). [50]
See Mason v. Meyers, 208 F.3d 414, ___ (3d Cir. 2000)
(holding that where a district court fails to provide a pro se
litigant warnings about the AEDPA, the statute of limitations will
be deemed tolled in order to allow the petitioner the opportunity to
file all of his claims in the proper manner); United States v.
Miller, 197 F.3d 644, ___ (3d Cir. 1999). [51]
See Romandine v. United States, 206 F.3d 731, 736 (7th
Cir. 2000). [52]
See United States v. Garcia, 181 F.3d 1274 (11th Cir.
1999) (refusing to construe petitioner=s
erroneous attempt to seek coram nobis relief, while still in
custody, as a second or successive '
2255 motion, where petitioner did not seek leave to file a second or
successive application as required by ' 2244(b)(2)). [53]
See, e.g., Billy-Eko v. United States, 8 F.3d 111 (2d
Cir. 1993). [54]
United States v. Leone, ___ F.3d ___, 2000 WL 767373
(2d Cir. June 14, 2000). [55]
Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999) (Aeven
if the AEDPA does not foreclose the use of courts=
inherent powers to vacate prior judgments, Fierro has not met the
standards for vacating a decision due to fraud on the federal
courts,@
despite newly discovered evidence that a police officer lied during
a pretrial suppression hearing), cert. denied, 120 S. Ct.
2204 (2000). [56]
Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997). Accord Nevius
v. McDaniel, ___ F.3d ___, 2000 WL 691103 (9th Cir. May 31,
2000); Babbitt v. Woodford, 177 F.3d 744, ___ (9th Cir.), cert.
denied, 119 S. Ct. 1594 (1999); LaGrand v. Stewart, 170
F.3d 1158, 1159, 1161 (9th Cir. 1999); In re Smith, 142 F.3d
832, ___ (5th Cir. 1998); In re Jones, 137 F.3d 1271, ___
(11th Cir.), cert. denied, 523 U.S. 1041 (1998); Wainwright
v. Norris, 121 F.3d 339, ___ (8th Cir. 1997); Alexander v.
United States, 121 F.3d 312,
314 (7th Cir. 1997); In re West, 119 F.3d 295, 296
(5th Cir. 1997); Denton v. Norris, 104 F.3d 166, 167 (8th
Cir. 1997) (AThe
statute could hardly be plainer.@);
In re Mills, 101 F.3d 1369, 1371 (11th Cir. 1996); Hatch
v. State of Oklahoma, 92 F.3d 1012, 1016-1017 (10th Cir. 1996).
[57]
Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997); In
re Mills, 101 F.3d 1368, 1371 (11th Cir. 1996). [58]
28 U.S.C. '' 2244(b)(2)(A),
2255. [59]
28 U.S.C. '' 2244(b)(2)(B)(ii),
2255. [60]
See In re McGinn, 213 F.3d 884, 885 (5th Cir. 2000)
(denying leave to file successive petition seeking leave to conduct
exculpatory DNA testing that was not available to time of trial
because petitioner cannot show that the Afactual
predicate for the claim could not have been discovered previously
through the exercise of due diligence,@
where the new DNA testing was available before petitioner=s
first federal habeas petition was
denied. AWe do not suggest that in striving to both convict the guilty and free
the innocent, criminal process can look away from exculpatory
evidence with such potential explanatory power.
Rather, we remind that this is a court of limited
jurisdiction. . . . We
are persuaded that Congress has withheld jurisdiction from this
court to grant the requested relief here. . .@)
[61]
But see Charles v. Chandler, 180 F.3d 753, 758 (6th
Cir. 1999) (stating, in dicta, that ACharles
is not entitled to file a successive '
2255 motion to vacate because he seeks permission to file the same
claims that have already been denied on the merits.
See '
2244(b)(1).@) [62]
28 U.S.C. '
2255. [63]
28 U.S.C. '
2255. [64]
28 U.S.C. ''
2244(b)(3)(C), 2255; Bennett v. United States, 119 F.3d 468,
___ (7th Cir. 1997) (holding that '
2255 movants must make prima facie showing of second or successive
application=s adequacy). [65]
Bennett v. United States, 119 F.3d 468, 469-470 (7th
Cir. 1997); Rodriguez v. Superintendent, 139 F.3d 270, ___
(1st Cir. 1998) (adopting standard articulated in Bennett); Woratzeck
v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997) (same). [66]
Rodriguez v. Superintendent, 139 F.3d 270, ___ (1st
Cir. 1998). [67]
In re Tolliver, 97 F.3d 89 (5th Cir. 1996).
[68]
Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th
Cir. 1996). [69]
28 U.S.C. '
2244(b)(3). [70]
See Potts v. United States, 210 F.3d 770, 771 (7th
Cir. 2000); United States v. Canino, 212 F.3d 383, ___ (7th
Cir. 2000); Libby v. Magnusson, 177 F.3d 43, ___ (1st Cir.
1999); Nelson v. United States, 115 F.3d 136, 136 (2d Cir.
1997); United States v. Woods, 169 F.3d 1077, ___ (7th Cir.
1999); Nunez v. United States, 96 F.3d 990, 991 (7th Cir.
1996); United States v. Gallegos, 142 F.3d 1211, ___ (10th
Cir. 1998); United States v. Avila-Avila, 132 F.3d 1347, ___
(10th Cir. 1997); Pease v. Klinger, 115 F.3d 763, 764 (10th
Cir. 1997). [71]
See Graham v. Johnson, 168 F.3d 762, 774-75 (5th Cir.
1999), cert. denied, 120 S. Ct. 1830 (2000); Spotville v.
Cain, 149 F.3d 374, 375 (5th Cir. 1998); Pratt v. United
States, 129 F.3d 54, 57-58 (1st Cir. 1997), cert. denied,
523 U.S. 1123 (1998). [72]
See Liriano v. United States, 95 F.3d 119, 122-123 (2d
Cir. 1996); In re Sims, 111 F.3d 45, ___ (6th Cir. 1997); Coleman
v. United States, 106 F.3d 339, 340-341 (10th Cir. 1997).; United
States v. Vancol, 972 F.Supp. 833, ___ (D. Del. 1997).
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, 523 U.S. 1123 (1998); Benton v.
Washington, 106 F.3d 162, 165 (7th Cir. 1996) (same).
But see Jackson v. Mitchem, 998 F.Supp. 1375 (M.D. Ala.
1998) (concluding that transfer under ' 1631
is not appropriate). [73]
See Libby v. Magnusson, 177 F.3d 43, ___ (1st Cir.
1999); Pratt v. United States, 129 F.3d 54, ___ (1st Cir.
1997), cert. denied, 523 U.S. 1123 (1998); Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996); United States v.
Woods, 169 F.3d 1077, ___ (7th Cir. 1999); Greenawalt v.
Stewart, 105 F.3d 1287, 1287 (9th Cir.), cert. denied,
519 U.S. 1103 (1997); Pease v. Klinger, 115 F.3d 763, 764
(10th Cir. 1997); United States v. Gallegos, 142 F.3d 1211,
___ (10th Cir. 1998). [74]
See United States v. Canino, 212 F.3d 383, ___ (7th
Cir. 2000). [75]
Liriano v. United States, 95 F.3d 119, 123 (2d Cir.
1996). [76]
See United States v. Key, 205 F.3d 773, 774 (5th Cir.
2000). [77]
See In re Demps, 213 F.3d 1357 (11th Cir. 2000)
(appointing counsel to represent capital petitioner seeking leave to
file fourth federal habeas petition). [78]
See Underwood v. United States, 166 F.3d 84, ___ (2d
Cir. 1999). [79]
This requirement applies to motions to file second or
successive '
2255 motions. See Galtieri v. United States, 128 F.3d 33, ___ (2d
Cir. 1997); Triestman v. United States, 124 F.3d 361, 367 (2d
Cir. 1997). [80]
See Gray-Bey v. United States, 201 F.3d 866, 867 (7th
Cir. 2000) (30-day period may be extended Afor
those few cases which require reasoned adjudication and cannot be
resolved within the statutory period@);
Rodriguez v. Superintendent, 139 F.3d 270, 273 (1st Cir. 1998)
(excusing court of appeals=
failure to comply with ' 2244(b)(3)(D)
in complex or novel cases); Carter v. United States, 150 F.3d
202, ___ (2d Cir. 1998) (holding ' 2244(b)
deadline is tolled where an issue requires a published opinion that
cannot reasonably be prepared in 30 days); Thomas v.
Superintendent, 136 F.3d 227, 230 (2d Cir. 1997) (same); In
re Siggers, 132 F.3d 333, 336 (6th Cir. 1997)
(holding ' 2244(b)(3)(D) Ais hortatory or advisory rather than mandatory@). [81]
28 U.S.C. '' 2244(b)(3)(E),
2255. See In re King,
190 F.3d 479, 480-82 (6th Cir. 1999), cert. denied, 120 S.
Ct. 1538 (2000); Hatch v. State of Oklahoma, 92 F.3d 1012,
1017 (10th Cir. 1996); Triestman v. United States, 124 F.3d
361, ___ (2d Cir. 1997). See
also Felker v. Turpin, 518 U.S. 651, ___, 116 S. Ct. 2333, 2340,
135 L.Ed.2d 827 (1996) (finding constitutional that portion of the
AEDPA which limits petitions for rehearing in the court of appeals).
[82]
See United States v. Lorentsen, 106 F.3d 278, 279 (9th
Cir. 1997) [83]
See In re Sonshine, 132 F.3d 1133, 1134 (6th Cir.
1997). [84]
Mancuso v. Herbert, 166 F.3d 97, ___ (2d Cir.), cert.
denied, 527 U.S. 1026 (1999) (considering State=s petition for rehearing of order of court of appeals determining AEDPA=s
second or successive provisions do not apply and remanding case to
district court). [85]
See Triestman v. United States, 124 F.3d 361, ___ (2d
Cir. 1997). [86]
Nevius v. McDaniel, 104 F.3d 1120, 1121 (9th Cir.
1996). Accord, Woratzeck v. Stewart, 118 F.3d 648, ___ (9th
Cir. 1997); In re Sims, 111 F.3d 45, ___ (6th Cir. 1997). [87]
28 U.S.C. '
2244(b)(4); United States v. Villa-Gonzalez, 208 F.3d 1160,
___(9th Cir. 2000); In re Sims, 111 F.3d 45, 48 n.2 (6th Cir.
1997); Nevius v. McDaniel, 104 F.3d 1120, 1121 (9th Cir.
1996); Bennett v. United States, 119 F.3d 468, 470 (7th Cir.
1997); Ferrazza v. Tessmer, 36 F.Supp.2d 965, ___ (E.D. Mich.
1999). [88]
28 U.S.C. '
2244(b)(4). See
United States v. Villa-Gonzalez, 208 F.3d 1160, ___(9th Cir.
2000); In re Sims, 111 F.3d 45, 48 n.2 (6th Cir. 1997) (AOur
initial order, authorizing a district court to consider a successive
petition for a writ of habeas corpus or '
2255 motion, is based on a prima facie showing that the requirements
of the statute have been met and does not indicate whether or not
the claims are meritorious.@);
Bennett v. United States, 119 F.3d 468, 470 (7th Cir. 1997); Ferrazza
v. Tessmer, 36 F.Supp.2d 965, ___ (E.D. Mich. 1999). [89]
See Bennett v. United States, 119 F.3d 468, 470 (7th
Cir. 1997). [90]
See United States v. Villa-Gonzalez, 208 F.3d 1160,
___ (9th Cir. 2000). [91]
See United States v. Villa-Gonzalez, 208 F.3d 1160,
___ (9th Cir. 2000). [92]
28 U.S.C. ' 2244(b)(3)(E).
See ' X.E., supra. [93]
Felker v. Turpin, 518 U.S. 651, ___, 116 S. Ct. 2333,
2338, 135 L.Ed.2d 827 (1996). [94]
Felker, 518 U.S. at ___, 116 S. Ct. at 2339. [95]
Supreme Court Rule 20.4(a).
[96]
See, e.g., In re Tarver, ___ U.S. ___, 120 S. Ct.
1235, 145 L.Ed.2d 1123 (2000) (Mem.); In re Wright, ___ U.S.
___, 120 S. Ct. 1266, ___ L.Ed.2d ___
(2000) (Mem). In
Tarver and Wright, the court=s
brief orders denied the original petition, despite listing four
Justices who were in favor of oral argument.
These orders appear to signal that, unlike a certiorari
petition where only four votes are required for the court to hear
the case, no argument will be held on an original habeas petition
without the votes of five justices.
[97]
See generally B. Ogletree, The Antiterrorism and
Effective Death Penalty Act of 1994, Chapter 154:
The Key to the Courthouse Door or Slaughterhouse Justice?,
47 Cath. U. L. Rev. 603 (Winter 1998). [98]
28 U.S.C. ''
2261-2266. [99]
See Ashmus v. Woodford, 202 F.3d 1160, 1163 (9th Cir.
2000), ptn. for cert. filed, 68 U.S.L.W. 3686, No. 99-1720
(U.S. April 25, 2000); Bennett v. Angelone, 92 F.3d 1336,
1342 (4th Cir.), cert. denied, 519 U.S. 1002 (1996).
See also Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.
Ct. 2059, 138 L.Ed.2d 481 (1997).
[100]
28 U.S.C. '' 2261,
2265. [101]
28 U.S.C. '
2263. [102]
28 U.S.C. '
2264. [103]
28 U.S.C. '
2266(b)(2)(B). [104]
28 U.S.C. '
2266. [105]
28 U.S.C. '
2262(b)(3), (c). [106]
See Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir.
1998), cert. denied, 119 S. Ct. 1777 (1999). [107]
See Ashmus v.
Woodford, 202 F.3d 1160, 1170 (9th Cir. March 9, 2000) (Auntil at least January 1, 1998, California=s
unitary review scheme did not comply with the eligibility
requirements of Chapter 154@), ptn. for cert. filed, 68 U.S.L.W. 3686, No. 99-1720 (U.S.
April 25, 2000); Jackson v. Calderon, 211 F.3d 1148, 1153
(9th Cir. 2000). [108]
See Hill v. Butterworth, 941 F. Supp. 1129 (N.D. Fla.
1996) (inadequate requirements for competency of counsel; backlog of
unrepresented defendants demonstrates no bona fide offer of counsel
to all state prisoners), reversed in other part, 147 F.3d
1333 (11th Cir. 1998). [109]
See, e.g., High v. Head, 209 F.3d 1257, 1262 n.4 (11th
Cir. 2000); Spivey v. Head, 207 F.3d 1263, 1270 n.4 (11th
Cir. 2000); Mincey v. Head, 206 F.3d 1106, 1131 n.58 (11th
Cir. 2000) (waiver by state); Neelley v. Nagle, 138 F.3d 917,
921-22 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999); Cargill
v. Turpin, 120 F.3d 1366, 1369 (11th Cir. 1997) (nonassertion by
state), cert. denied, 523 U.S. 1145 (1998). [110]
See Leavitt v. Arave, 927 F. Supp. 394 (D. Idaho
1996). [111]
See Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (en
banc) (concession by state). [112]
See Thomas v. Gramley, 951 F. Supp. 1338 (N.D. Ill.
1996), aff=d, 144 F.3d 513 (7th Cir. 1998), cert. denied, 525 U.S. 1123
(1999). [113]
See Williams v. Cain, 942 F. Supp. 1088 (W.D. La.
1996) (no standards for competency of counsel), reversed in other
part, 125 F.3d 269 (5th Cir. 1997), cert. denied, 525
U.S. 859 (1998). [114]
See Evans v Smith, 54 F.Supp.2d 503, 509 n.8 (D. Md.
1999) (noting the parties agree Chapter 154 does not apply where
state court did not deny state postconviction petition until 1997); Oken
v. Nuth, 30 F.Supp.2d 877, 879 (D. Md. 1998) [115]
See Lockett v. Puckett, 980 F. Supp. 201, 210 n.11
(S.D. Miss. Oct. 16, 1997), amended in other part, 988 F.
Supp. 1019 (S.D. Miss. 1997). [116]
See Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir.
1999), cert. denied, 120 S. Ct. 840 (2000); Hunter v.
Bowersox, 172 F.3d 1016, 1021 n.3 (8th Cir. 1999). [117]
See Langford v. Day, 110 F.3d 1380, 1386 n.2 (9th
Cir.), cert. denied, 522 U.S. 881 (1997). [118]
See Sexton v. French, 163 F.3d 874, 876 n.1 (4th Cir.
1998), cert. denied, 120 S. Ct. 139 (1999); Keel v. French,
162 F.3d 263, 267 n.1 (4th Cir. 1998), cert. denied, 527 U.S.
1011 (1999). [119]
See Scott v. Anderson, 958 F. Supp. 330 (N.D. Ohio
1997) (noting public defender has discretion to deny counsel); Mills
v. Anderson, 961 F. Supp. 198 (S.D. Ohio 1997) (same; in
addition, when public defender represents indigent capital
petitioners, she does not do so by order of the court; there are
inadequate compensation and competency standards for counsel; and
the state=s
mechanism does not preclude appointment of trial or appellate
counsel in post-conviction proceedings); Hamblin v. Anderson,
947 F. Supp. 1179 (N.D. Ohio 1996); Zuern v. Tate, 938 F.
Supp. 468 (S.D. Ohio 1996). [120]
See Moore v. Gibson, 195 F.3d 1152, 161 n.1 (10th Cir.
1999), cert. denied, 120 S. Ct. 2206 (2000);
Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir.), cert.
denied, 525 U.S. 933 (1998); Nguyen v. Reynolds, 131 F.3d
1340, 1345 (10th Cir. 1997), cert. denied, 525 U.S. 852
(1998); Williamson v. Ward, 110 F.3d 1508, 1513 n.5 (10th
Cir. 1997) (concession by state). [121]
See Death Row Prisoners of Pennsylvania v. Ridge, 106
F.3d 35 (3rd Cir. 1997) (concession by state). [122]
See Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th
Cir. June 13, 2000) (concluding the Amere
promulgation of a >mechanism= is not sufficient to permit
a state to invoke the capital-specific provisions of AEDPA. . . .
It would be an astounding proposition if a state could
benefit from the capital-specific provisions of the AEDPA by
enacting, but not following, procedures promulgated pursuant to 28
U.S.C. ' 2261.@) [123]
See Austin v. Bell, 126 F.3d 843, 846 n.3 (6th Cir.
1997), cert. denied, 523 U.S. 1079, 1088 (1998). [124]
See, e.g., Perillo v. Johnson, 205 F.3d 775, 793-94
(5th Cir. 2000); Cannon v. Johnson, 134 F.3d 683, 685 n.1
(5th Cir. 1998); Carter v. Johnson, 131 F.3d 452, 457 n.5
(5th Cir. 1997), cert. denied, 523 U.S. 1099 (1998); Mata
v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in
part on other grounds, 105 F.3d 209 (5th Cir. 1997) (conlcuding
state failed to establish Aspecific,
mandatory standards for capital habeas counsel@). [125]
See Tillman v. Cook, 25 F. Supp.2d 1245, 1253 (D. Utah
1998), aff=d, ___ F.3d ___, 2000 WL 771764 (10th Cir. June 15, 2000). [126]
See Burket v. Angelone, 208 F.3d 172, 177 n.2 (4th
Cir. 2000) (relying on waiver by state), cert. denied, 120 S.
Ct. 2761 (2000); Burket v. Angelone, 37 F.Supp.2d 457 (E.D.
Va. 1999) (citing cases), appeal dismissed, 208 F.3d 172 (4th
Cir. 2000); Goins v. Angelone, 52 F.Supp.2d 638, 648 (E.D.
Va. 1999); Cardwell v. Netherland, 971 F.Supp. 997, 1013 n.21
(E.D. Va. 1997), aff=d sub nom. Cardwell
v. Greene, 152 F.3d 331 (4th Cir.), cert. denied, 525
U.S. 1037 (1998). [127]
Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated
in part on other grounds, 165 F.3d 209 (5th Cir. 1996). [128]
See Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th
Cir. June 13, 2000) (concluding the Amere
promulgation of a >mechanism= is not sufficient to permit
a state to invoke the capital-specific provisions of AEDPA. . . .
It would be an astounding proposition if a state could
benefit from the capital-specific provisions of the AEDPA by
enacting, but not following, procedures promulgated pursuant to 28
U.S.C. ' 2261.@); Ortiz v. Stewart, 195 F.3d 520, 521 (9th Cir. 1999); Howard
v. Moore, 131 F.3d 399, 403 n.1 (4th Cir. 1997) (en banc),
cert. denied, 525 U.S. 843 (1998); Bennett v. Angelone,
92 F.3d 1336, 1342 (4th Cir.), cert. denied, 519 U.S. 1002
(1996). [129]
See, e.g., Ortiz v. Stewart, 195 F.3d 520, 520 (9th
Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir.
1998), cert. denied, 119 S. Ct. 1777 (1999); Truesdale v.
Moore, 142 F.3d 749, 753 n.2 (4th Cir. ), cert. denied,
525 U.S. 951 (1998). [130]
Former 21 U.S.C. 848(q)(9). [131]
See Cantu-Tzin v. Johnson, 162 F.3d 295, 296 (5th Cir.
1998) (concluding neither McFarland v. Scott, 512 U.S. 849
(1994) Anor
'
848(q)(4)(B) requires appointment of counsel for the wholly futile
enterprise of addressing the merits of a time-barred habeas petition@),
cert. denied, 525 U.S. 1091 (1999); Wright v. Angelone,
151 F.3d 151, 163-64 (4th Cir. 1998) (holding district court did not
abuse its discretion in denying an expert where even if petitioner
received a favorable report, he would not be entitled to an
evidentiary hearing under ' 2254(e)(2)(B)). [132]
21 U.S.C. '
848(q)(9). [133]
See, e.g., Patrick v. Johnson, 37 F.Supp.2d 815, 816
(N.D. Tex. 1999); Shields v. Johnson, 48 F.Supp.2d 719, 721
(S.D. Tex. 1999). [134]
See Williams v. Taylor, 189 F.3d 421 (4th Cir. 1999), reversed
on other grounds, 120 S. Ct. 1479 (2000). [135]
See Williams v. Taylor, 189 F.3d 421 (4th Cir. 1999), reversed
on other grounds, 120 S. Ct. 1479 (2000). [136]
Shields v. Johnson, 48 F.Supp.2d 719, 721 (S.D. Tex.
1999). [137]
See Hill v. Johnson, 210 F.3d 470, 487 n.2 (5th Cir.
2000); Clark v. Johnson, 202 F.3d 760, 768 n.1 (5th Cir.
2000); Fuller v. Johnson, 114 F.3d 491, 501 n.4 (5th Cir.
1997), cert. denied, 522 U.S. 963 (1997). [138]
See 28 U.S.C. ' 2244(d)(1)(D)
(as amended by AEDPA ' 101)
and 28 U.S.C. ' 2255
(as amended by AEDPA ' 105(2))
(statute of limitations provisions); 28 U.S.C. ' 2254(e)(2)(A)(ii) (as amended by AEDPA '
104(4)) (evidentiary hearing provision); 28 U.S.C. ' 2244(b)(2)(B)(i)
(as amended by AEDPA ' 106(b))
(limitations on second or successive petitions); 28 U.S.C. ' 2264(a)(3) (as amended by AEDPA ' 107) (Chapter 154 provisions). Note
that the limitations on second and successive provisions contained
in 28 U.S.C. '
2255 require only Anewly
discovered evidence@;
no mention is made of the need of the movant to demonstrate Adue
diligence.@ See 28 U.S.C. '
2255 &8(1) (requiring Anewly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense@.) [139]
In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997).
[140]
In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997).
Accord United States v. Orozco-Ramirez, 211 F.3d 862,
869 (5th Cir. 2000); In re Provenzano, ___ F.3d ___, 2000 WL
796749 (11th Cir. 2000); Libby v. Magnusson, 177 F.3d 43, 50
(1st Cir. 1999) (AThe
eight alleged errors that the petitioner now seeks to pursue were
known to him (or, at least, knowable by him) before he filed his
first section 2254 petition.@); McDonald v. Bowersox, 125 F.3d 1183, 1186 (8th Cir. 1999); In
re Magwood, 113 F.3d 1544, 1549 (11th Cir. 1997); In re Hill,
113 F.3d 181, 182 (11th Cir. 1997); Felker v. Turpin, 83 F.3d
1303, 1306 (11th Cir.) (per curiam), cert. dismissed,
518 U.S. 651 (1996). But
see Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997)
(petitioner failed to show why he could not have raised issue under Arizona
v. Youngblood, 488 U.S. 51 (1988), Apreviously@ where he had known about the (possible) destruction of evidence for
several years.) [141]
See In re McGinn, 213 F.3d 884, 885 (5th Cir. 2000)
(denying leave to file successive petition seeking leave to conduct
exculpatory DNA testing that was not available to time of trial
because petitioner cannot show that the Afactual
predicate for the claim could not have been discovered previously
through the exercise of due diligence,@
where the new DNA testing was available before petitioner=s
first federal habeas petition was denied.)
[142]
See Fraser v. United States, 47 F.Supp.2d 629, 630
(D.Md. 1999), appeal dismissed, 188 F.3d 504 (4th Cir. 1999)
(Table). [143]
See Libby v. Magnusson, 177 F.3d 43, 50 (1st Cir.
1999) (denying request to file successive petition because error
alleged Aare apparent from the fact of the trial record@
and Afrom the face of the petitioner=s [earlier] motion@); Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998)
(concluding that for purposes of one year limitations period under
28 U.S.C. '
2244(d)(1)(D), factual predicate of claim was known to petitioner
when he executed an affidavit in support of his state habeas
petition four years earlier); United States v. Ortiz, 136
F.3d 161, 168 (D.C. Cir. 1998) (AThe traditional definition of newly discovered evidence is evidence >discovered
since the trial=.@); Hatch v. State of Oklahoma, 92 F.3d 1012, 1015 (10th Cir.
1996) (denying request to file successive petition challenge to
sufficiency of information document because Athe errors were apparent on the face of the charging document.@);
Felker v. Turpin, 83 F.3d 1302, 1306
(11th Cir.) (denying request to file successive petition
because A[t]he factual predicate, to the extent any exists, is apparent on the
face of the trial record@), cert. dismissed, 518 U.S. 651 (1996); Raynor v. Dufrain,
28 F.Supp.2d 896, 899 (S.D.N.Y. 1998) (concluding that even if the
statute of limitations under '
2244(d)(1)(D) did not begin to run until petitioner discovered that
his attorney had failed to file an appeal, the factual predicate of
the claim was discovered when petitioner was informed by the court
that no appeal had been filed);
see also In re Siggers, 132 F.3d 333, 338 (6th Cir.
1997) (denying request to authorize successive petition based on
timing of petitioner=s arraignment where arraignment was delayed as a result of injuries
petitioner suffered during an escape attempt). [144]
See In re Magwood, 113 F.3d 1544, 1548 (11th Cir.
1997) (denying request to file successive petition despite state=s concealment of transcript of pre-trial sanity hearing where petitioner
and prior counsel attended hearing because their personal knowledge
is imputed to petitioner=s later attorneys). [145]
In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997) (citing
McCleskey v. Zant, 499 U.S. 467, 498 (1991)).
[146]
See Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir.
1999) (denying leave to file successive application where recent
allegations of trial counsel=s
alcohol abuse during trial stem from persons known to petitioner
prior to filing initial petition, and most facts and witnesses
alleged to support claim of counsel=s racial bias have been known to him since the conclusion of the trial);
Siripongs v. Calderon, 167 F.3d 1225, 1228 (9th Cir. 1999)
(concluding declarations of recently hired experts who examined
laboratory reports and photographs that had been provided counsel at
trial Acould
have been discovered through the exercise of due diligence@); Wright v. Angelone, 151 F.3d 151, 164 (4th Cir. 1998)
(declining funding for neurologist=s report to determine if petitioner has organic brain disorder where Apetitioner
has failed to show why the factual predicate . . . could not have
been discovered earlier.@);
Galtieri v. United States, 128 F.3d 33, 38 (2d Cir. 1997)
(denying leave to file successive motion where transcripts of
conversations between co-conspirators available before filing of
first petition); Woratzeck v. Stewart, 118 F.3d 648, 652 (9th
Cir. 1997) (assertion that jurors would not talk to prior counsel
insufficient to demonstrate Adue
diligence@ and permission to file juror misconduct claim in successor petition
denied); In re Magwood, 113 F.3d 1544, 1549 (11th Cir. 1997);
In re Boshears, 110 F.3d 1538, 1540-1541 (11th Cir. 1997). [147]
See 28 U.S.C. ' 2244(d)(1)(C)
(as amended by AEDPA ' 101)
(statute of limitations); 28 U.S.C. ' 2255 (as amended by AEDPA ' 105) (statute of limitations and successor petition provisions);
28 U.S.C. ' 2254(e)(2)
(as amended by AEDPA ' 104(4))
(limits on evidentiary hearings); 28 U.S.C. ' 2244(b)(2)(A)
(as amended by AEDPA ' 106)
(limits on successor petitions).
[148]
See 28 U.S.C. '
2244(d)(1)(C) & 2255. [149]
See 28 U.S.C. '' 2254(e)(2),
2244(b)(2)(A), 2244(d)(1)(C) & 2255.
[150]
See 28 U.S.C. '
2254(e)(2). [151]
See Nguyen v. Gibson, 162 F.3d 600, 601 (10th
Cir. 1998) (concluding competency to be executed claim under Ford
v. Wainwright, 477 U.S. 399 (1986), was not based upon a Anew@
rule of law because the Supreme Court decided Ford in 1986); In
re Davis, 121 F.3d 952, 956 (5th Cir. 1997) (same); Villafuerte
v. Stewart, 142 F.3d 1124, 1125 (9th Cir. 1998) (holding Vienna
Convention claims were not Anew@
as Convention has been in effect since 1969); Lopez v. Douglas,
141 F.3d 974, 976 (10th Cir.) (holding claim under Cooper v.
Oklahoma, 517 U.S. 348 (1996), not Anew@ where A[i]n
Cooper, the Supreme Court explained at great length how years
of case and statutory law supported its holding), cert. denied,
525 U.S. 1024 (1998); In re Jones, 137 F.3d 1271, 1273 (11th
Cir.) (Eighth Amendment challenge to electric chair does not rely on
a new rule of constitutional law), cert. denied, 523 U.S.
1041 (1998); In re Provenzano, 179 F.3d 1326, 1327 (11th Cir.
1999) (same); Ruiz v. Norris, 104 F.3d 163, 163 (8th Cir.) (Athe
rule of constitutional law [upon which petitioner relies] -- that
the Eighth Amendment requires an adequate narrowing of the class of
death-eligible defendants -- has remained the same.@),
cert. denied,519 U.S. 1073 (1997). [152]
489 U.S. 288 (1989). [153]
See Bannister v. Bowersox, 128 F.3d 621, 622-623 (8th
Cir. 1997) (Teague analysis is Ainstructive@); In re Green, 144 F.3d 384, 386 (6th Cir. 1998).
[154]
See Pease v. Klinger, 115 F.3d 763, 765 (10th Cir.
1997) (order issued in a state postconviction proceeding in another
case is not Aan
authorized ground upon which this court can grant permission to file
a successive habeas petition@);
In re Medina, 109 F.3d 1556, 1566 (11th Cir.) (no
authorization to file successive petition where claim based on
decisions of state supreme court), cert. denied, 520 U.S.
1151 (1997); Ruiz v. Norris, 104 F.3d 163, 163 (8th Cir.)
(same), cert. denied, 519 U.S. 1073 91997); Bush v.
Singletary, 99 F.3d 373, 375 (11th Cir. 1996) (same).
[155]
The statute of limitations provision contained in 28 U.S.C. ' 2255
does not require that the right asserted be Aconstitutional.@ A ' 2255
movant may file a motion that would otherwise be untimely under the
Act=s one-year statute of limitations on the basis of a new Supreme Court
decision that involves a Aright [that] has been newly recognized by the Supreme Court.@
28 U.S.C. ' 2255. [156]
See In re Vial, 115 F.3d 1192, 1993 (4th Cir. 1997) (en
banc) (Supreme Court=s
decision in Bailey v. United States, 116 S. Ct. 501 (1995),
not a new rule of constitutional law, but of statutory
interpretation, and therefore no successive petition may be filed); Gray-Bey
v. United States, 209 F.3d 986, 988-89 (7th Cir. 2000) (same).
Accord Triestman v. United States, 124 F.3d
361, 369 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 248
(3d Cir. 1997); Coleman v. United States, 106 F.3d 339, 341
(10th Cir. 1997) (per curiam); United States v. Lorentsen,
106 F.3d 278, 279 (9th Cir. 1997); In re Blackshire, 98 F.3d
1293, 1294 (11th Cir. 1996) (per curiam); Nunez v. United
States, 96 F.3d 990, 992 (7th Cir. 1996).
See also In re Provenzano, 179 F.3d 1326, 1327
(11th Cir. 1999) (concluding that no new rule of constitutional law
exists relating to petitioner=s
claim that the failure of the State of Florida to provide petitioner
in a more timely fashion adequate collateral counsel violated due
process); Woratzeck v. Stewart, 118 F.3d 648, 652 (9th Cir.
1997) (there is no constitutional right to clemency; accordingly,
clemency claim is not cognizable in successor petition under the
Act); Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th
Cir. 1996) (same). [157]
See 28 U.S.C. ''
2244(b)(2)(A); 2244(d)(1)(c); 2254(e)(2)(A)(i); 2255&
6(3); 2255 & 8(2). [158]
See In re Siggers, 132 F.3d 333, 337 (6th Cir. 1997). [159]
See Brown v. Lensing, 171 F.3d 1031, 1032 (5th
Cir. 1999); Rodriguez v. Supt., 139 F.3d 270, 275 (1st Cir.
1998); Bennett v. United States, 119 F.3d 468, 469-70 (7th
Cir. 1997); In re Vial, 115 F.3d 1192, 1196 (4th Cir. 1997) (en
banc)(rejecting petitioner=s
urging to interpret this phrase Ato
encompass those situations in which the Supreme Court does not
declare the collateral applicability of a rule simultaneously with
its announcement, but in which Supreme Court precedent establishes
that the new rule is of the type available to those proceeding on
collateral review@
as contrary to the plain language of the AEDPA and the Asparse
legislative history@
of this provision) (citing H.R. Conf. Rep. No. 104‑518,
at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 944); In
re Hill, 113 F.3d 181, 184 (11th Cir. 1997); United States v.
Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997). See also Nevius v. Sumner, 105 F.3d at 462 (holding
petitioner made prima facie showing that he met the requirements of ' 2244(b)
by arguing that Supreme Court=s
decision in Cage v. Louisiana, 498 U.S. 11 (1990), was made
retroactive by the Supreme Court in Adams v. Evatt, 114 S.
Ct. 1365 (1994), which vacated a decision of the Eleventh Circuit
holding Cage was not retroactive). [160]
West v. Vaughn, 204 F.3d 53, 59 (3d Cir. 2000). [161]
West, 204 F.3d at 59-60.
A rule falls within the second Teague exception if it
is a Awatershed rule[] of criminal procedure implicating fundamental fairness
and accuracy of the criminal proceeding that alters our
understanding of the bedrock procedural elements essential to
the fairness of a proceeding.@
Id. (internal quotations omitted) (emphasis in
original). [162]
See 28 U.S.C. '' 2254(e)(2)(A)(i),
2244(b)(2)(A) & 2255 & 8(2).
[163]
See Villafuerte v. Stewart, 142 F.3d 1124, ___ (9th
Cir. 1998) (Vienna Convention claims not Apreviously
unavailable@
where Convention has been in effect since 1969); In re Smith,
142 F.3d 832, ___ (5th Cir. 1998); Rodriguez v. Supt., 139
F.3d 270, ___ (1st Cir. 1998); Nevius, 105 F.3d at 462 (certiorari
was denied on first petition in 1989, Anew rule@
on which petitioner relies was announced by Supreme Court in 1990
and made retroactive in 1994); In re Hill, 113 F.3d 181,
182-183 (11th Cir. 1997); In re Medina, 109 F.3d 1556, 1565
(11th Cir. 1997); Felker v. Turpin, 83 F.3d 1303, 1306 (11th
Cir. 1996), cert. dismissed, 116 S. Ct. 2333 (1996). [164]
In re Hill, 113 F.3d 181, 183 (11th Cir. 1997). See Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir. 1996) (rejecting leave to file
successor petition containing claim under Cage v. Louisiana,
498 U.S. 39 (1990), in part due to petitioner=s failure to seek amendment of the petition that was pending when Cage
was decided), cert. dismissed, 116 S. Ct. 2333 (1996).
[165]
See 28 U.S.C. ''
2254(e)(2)(B); 2244(b)(2)(B)(ii), 2255 &
8(1). [166]
See Villafuerte v. Stewart, 142 F.3d 1124, 1126 (9th
Cir. 1998) (denying leave to file successive petition because
claimed racial bias of trial judge Ahas
nothing to do with Villafuerte=s
innocence of the crime@). [167]
See In re Magwood, 113 F.3d 1544, 1552 (11th Cir.
1997). [168]
See United States ex rel. Smith v. Washington, 992
F.Supp. 964, 968 (N.D.Ill. 1998). [169]
See Nguyen v. Gibson, 162 F.3d 600, 601 (10th
Cir. 1998); In re Medina, 109 F.3d 1556, 1565 (11th Cir.), cert.
denied, 520 U.S. 1151 (1997). [170]
See In re Provenzano, ___ F.3d ___, 2000 WL 796749
(11th Cir. June 21, 2000) (method of execution claim is not
cognizable in second or successive application); In re Jones,
137 F.3d 1271, 1274 (11th Cir.) (same), cert. denied, 523
U.S. 1041 (1998); In re Provenzano, 179 F.3d 1326, 1327 (11th
Cir. 1999) (same); Greenawalt v. Stewart, 105 F.3d 1287, 1288
(9th Cir.) (petitioner=s
Aclaim
that execution by lethal injection violates his federal
constitutional rights is not relevant to the question of whether he
is guilty of murder@), cert. denied, 519 U.S. 1102 (1997). [171]
Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131
L.Ed.2d 304 (1995) (Stevens, J., dissenting from the denial of certiorari). [172]
See LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir.
1999); Gerlaugh v. Stewart, 167 F.3d 1222 (9th Cir. 1999); Ortiz
v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998), cert. denied,
119 S. Ct. 1777 (1999); Gretzler v. Stewart, 146 F.3d 675,
675 (9th Cir. 1998); Ceja v. Stewart, 134 F.3d 1368, 1369
(9th Cir. 1998) [173]
See In re Siggers, 132 F.3d 333, 338 (6th Cir. 1997) (ASiggers
has failed to demonstrate that the timing of his arraignment has any
bearing on the question of his guilt or innocence.@). [174]
See Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir.
1997); Hatch v. State of Oklahoma, 92 F.3d 1012, 1016 (10th
Cir. 1996). [175]
See In re Provenzano, 179 F.3d 1326, 1327 (11th Cir.
1999). [176]
Compare Thompson v. Calderon, 151 F.3d 918, 924 &
n.4 (9th Cir. 1998) (en banc) (court may consider second or
successive application raising claim of ineligibility for the death
penalty); and Weeks v. Angelone, 4 F.Supp.2d 497, 509 (E.D.
Va. 1998) (A[W]here the faulty [state court] record is attributable to the state,
and not the defendant, ' 2254(e)(2) will not apply .@ Therefore, A'
2254(e)(2)(B) does not necessarily dispense with the concept of >actual
innocence of the death penalty.=@), certification denied, 176 F.3d 249 (4th Cir. 1999), aff=d
in other part,
120 S. Ct. 727 (2000); with In re Provenzano, ___ F.3d ___,
2000 WL 796749 (11th Cir. June 21, 2000) (stating '
2244(b)(2)(B) exception Adoes
not fit sentence stage claims@)
(quoting Medina, 109 F.3d at 1565-66); Hope v. United
States, 108 F.3d 119, 120 (7th Cir. 1997) (although Aactual
innocence@
exception of prior law was extended to sentencing claims, Awe
do not think the exception survives the [AEDPA]@; thus successive '2254 petitions and ' 2255 motions Amay not be filed . . . unless the motion challenges the conviction
and not merely the sentence.@); and Burris v. Parke, 116 F.3d 256, 258 (7th Cir. 1997)
(rejecting petitioner=s
claim of innocence of the death penalty as not cognizable under '
2244(b)(2)(B)); and In re Medina, 109 F.3d 1556, 1565-66
(11th Cir.) (same), cert. denied, 520 U.S. 1151 (1997); and
Galtieri v. United States, 128 F.3d 33, 38 (2d Cir. 1997) (A[t]he two sentencing claims do not purport to meet the statutory
standard concerning a finding of guilt.@); and In re Vial, 115 F.3d 1192, 1198 (4th Cir. 1997) (en
banc) (exception to bar on successive petitions Ais
not available to assert sentencing error.@).
[177]
See United States v. Ortiz, 136 F.3d 161, ___ (D.C.
Cir. 1998) (concluding Anew@ reliable evidence would not have any significant impact on the outcome
of the trial); Villafuerte v. Stewart, 142 F.3d 1124, ___
(9th Cir. 1998) (same); In re Boshears, 110 F.3d 1538, 1542
(11th Cir. 1997) (denying leave to file successive petition
asserting Brady claim based on state=s
failure to disclose a police report containing an ambiguous hearsay
statement of the doctor who examined the victim -- AThis
is simply not enough to overcome the strict evidentiary standard
outlined in ' 2244(b)(2)(B)(ii).@) [178]
See 28 U.S.C. '
2261(e) (as amended by AEDPA '
107). [179]
Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996), cert.
denied, 522 U.S. 834 (1997); United States ex rel. Kelley v.
Scott, 51F. Supp.2d 910, 912 (N.D. Ill. 1999); United States
ex rel. Johnson v. Tally, 47 F.Supp.2d 943, 955 (N.D.Ill. 1999);
Breard v. Netherland, 949 F.Supp. 1255, 1265 (E.D. Va. 1996),
aff=d, 134 F.3d 615 (4th
Cir.); cert. denied, 523 U.S. 371 (1998). [180]
Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996), cert.
denied, 522 U.S. 834 (1997).
Accord, Gosier v. Welborn, 175 F.3d 504, 510
(7th Cir.), cert. denied, 120 S. Ct. 502 (1999) Story v.
Kindt, 957 F.Supp. 716, 722 n.4 (W.D. Pa. 1997).
|