In re Williams

¶3Motion denied by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge WILKINSON and Judge MOTZ joined.

¶4OPINION

¶5WILLIAM W. WILKINS, Chief Judge:

¶6Billy Williams moves for authorization to file a successive habeas corpus application pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp.2003). See 28 U.S.C.A. § 2244(b) (West Supp.2003). We deny this motion.

¶7I.

¶8Williams was convicted in Virginia state court of second degree murder and other offenses arising from a shooting incident on May 5, 1997. His convictions were upheld on appeal, and his ensuing § .2254 application was denied. See Williams v. Angelone, 26 Fed.Appx. 373 (4th Cir.) (per curiam) (dismissing appeal of denial of habeas relief), cert. denied, 537 U.S. 844, 123 S.Ct. 177, 154 L.Ed.2d 70 (2002).

¶9Since his first § 2254 application was denied, Williams has filed three motions pursuant to § 2244(b) seeking authorization to file successive applications. His first motion for pre-filing authorization (“PFA motion”) alleged that he had been convicted based primarily on the testimony of two eyewitnesses, Torrey Wright and Richard Teach. He further alleged that Teach had recently recanted his testimony and admitted that — contrary to his trial testimony — he had criminal charges pending against him when he testified at Williams’ trial. We denied Williams’ motion without prejudice because he failed to provide materials required by Fourth Circuit Rule 22(d). See In re Williams, No. 02-176 (4th Cir. June 18, 2002) (unpublished order).

¶10Williams filed a second PFA motion eight days after his first motion was denied, this time complying fully with Rule 22(d). Once again, Williams relied on Teach’s recantation. We denied pre-filing authorization, concluding that the new evidence described in Williams’ motion did not satisfy the requirements of § 2244(b). See In re Williams, 330 F.3d 277, 284 (4th Cir.2003) (Williams I). We did not decide, however, “whether we would be willing to consider a new PFA motion reiterating the current claim and providing additional information favorable to Williams.” Id.at 282 n. 2.

¶11Williams has now filed a third PFA motion, which expands his previous description of the trial evidence and the new evidence he has allegedly obtained. In particular, the new motion alleges that Williams was tried twice on charges relat*238ing to the May 5 shooting; the first trial ended with a hung jury, but the second trial — the only one in which Teach testified — resulted in Williams being convicted on all counts. The new motion also avers that Wright, the only eyewitness other than Teach, testified that he had never seen Williams before the shooting; in contrast, Teach and Williams were acquainted before the shooting occurred. We appointed counsel for Williams and ordered briefing and oral argument on the question of whether a prisoner may file a successive PFA motion that reiterates — with additional support — the claims in a previous, unsuccessful PFA motion.

¶12II.

¶13The problem of repetitive collateral litigation has absorbed the attention of Congress and the federal courts for at least a century. See generally McCleskey v. Zant, 499 U.S. 467, 479-89, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (discussing history of rules governing successive applications for collateral review). Section 2244(b) and its counterpart for federal prisoners, 28 U.S.C.A. § 2255 ¶ 8 (West Supp.2003), represent the most recent congressional response to this problem. As we have previously explained, Congress enacted § 2244(b) as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in order to raise the threshold that a prisoner must cross to obtain review of claims presented in a successive application for collateral review. See United States v. Winestock, 340 F.3d 200, 204 (4th Cir.), cert. denied, — U.S. -, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003).

¶14Under § 2244(b)(2), a claim presented for the first time in a successive § 2254 application may not be reviewed 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.

¶1528 U.S.C.A. § 2244(b)(2). The initial determination of whether a claim satisfies these requirements must be made by a court of appeals. See id.§ 2244(b)(3)(A). By assigning this role to the court of appeals, the AEDPA “transfer[red] ... to the court of appeals a screening process previously performed by the district court.” In re King, 190 F.3d 479, 482 (6th Cir.1999) (en banc).

¶16In transferring responsibility for screening successive applications, the AEDPA potentially exposes the courts of appeals to the very problem it alleviates in the district courts: a deluge of repetitive applications for collateral review. We implicitly acknowledged this concern in Williams I, when we left open the question of whether we would be willing to consider a third PFA motion raising similar claims, noting at the time that two other circuit courts had faced this question and reached divergent results. See Williams I, 330 F.3d at 282 n. 2. Williams’ current PFA motion compels us to resolve the question we reserved in Williams I.

¶17A.

¶18We begin our analysis of § 2244(b) by examining the language of the statute. *239See Ramey v. Director, 326 F.3d 474, 476 (4th Cir.2003). We conclude that this language, construed in light of pre-AEDPA habeas practices, requires us to deny a successive PFA motion that relies entirely on evidence and constitutional decisions that were available to the applicant during previous PFA proceedings.

¶19In order to satisfy the requirements of § 2244(b)(2), a prisoner filing a PFA motion must cite a legal rule that was “previously unavailable,” 28 U.S.C.A. § 2244(b)(2)(A), or proffer facts that “could not have been discovered previously,” id.§ 2244(b)(2)(B)(i). Although both of these clauses use the word “previously,” neither clause indicates what the availability of a new rule or the discovery of new evidence must be “previous” to. We hold that the word “previously” refers to the last federal proceeding — including a PFA proceeding — -in which the applicant challenged the same criminal judgment. Consequently, constitutional rules that were established at the time of the applicant’s last PFA motion were not “previously unavailable,” and facts known or reasonably discoverable at the time of the applicant’s last PFA motion cannot satisfy the “could not have been discovered previously” requirement.1

¶20Our conclusion is based on longstanding principles of habeas practice that were incorporated into the AEDPA. Before the AEDPA was enacted, review of successive applications was governed by the abuse of the writ doctrine. See McCleskey, 499 U.S. at 470, 111 S.Ct. 1454. This doctrine generally precluded a federal court from considering claims presented in a successive application unless the applicant could demonstrate cause and prejudice.2See Noble v. Barnett, 24 F.3d 582, 585 (4th Cir.1994). “Cause” was defined as an “external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, ... [that] prevented petitioner from raising the claim.” Id. at 586 (internal quotation marks omitted). Significantly, the cause inquiry focused on whether the applicant was prevented from including a particular claim in his most recent application. See id.(holding that the claims presented in the applicant’s third habeas petition were barred by the abuse of the writ doctrine because the applicant “had full knowledge of the facts central to each of these claims at the time that he filed his second petition for a writ of habe-as corpus” (emphasis added)).

¶21The word “previously,” as used in § 2244(b)(2), codifies the cause requirement associated with the abuse of the writ doctrine. See Daniels v. United States, 254 F.3d 1180, 1198 (10th Cir.2001) (en banc). For this reason, previousness inquiries under § 2244(b)(2) should follow the same path as pre-AEDPA cause inquiries. Because pre-AEDPA courts evaluat*240ing cause considered whether the applicant’s new claims were available at the time of the most recent federal proceeding, it is appropriate for post-AEDPA courts applying § 2244(b)(2) to do likewise. Accordingly, a successive PFA motion must present claims that rely, at least in part, on evidence or Supreme Court decisions that the applicant could not have relied on in his last PFA motion. See Bennett v. United States, 119 F.3d 470, 472 (7th Cir.1997).3

¶22B.

¶23As noted in Williams I, two other courts have already issued opinions addressing the proper treatment of successive PFA motions. See Williams I, 330 F.3d at 282 n. 2 (citing Bennett and Bell v. United States, 296 F.3d 127 (2d Cir.2002) (per curiam)). We consider it appropriate to explain why our approach differs from those chosen by our sister circuits.

¶241.

¶25In Bell v. United States, 296 F.3d 127 (2d Cir.2002) (per curiam), the Second Circuit considered an initial PFA motion alleging that a prosecution witness perjured himself at Bell’s trial. See Bell, 296 F.3d at 127-28. The court denied pre-filing authorization because it could not determine from the PFA motion how great a role the witness’ testimony played in securing Bell’s conviction. See id. at 129. The denial was, however, “without prejudice to Bell’s filing a subsequent [PFA motion] that fully addresses the prima facie showing required by § 2255.” Id.

¶26Relying on Bell, Williams urges us to review his current PFA motion without any limitations arising from the denial of his last PFA motion. If this is indeed the approach that Bell espouses, we respectfully decline to follow the same course. As explained above, we believe that § 2244(b) precludes a court of appeals from granting a successive PFA motion that merely embellishes an earlier motion with citations or allegations that could have been included in the earlier motion.

¶27We are not persuaded, however, that Bell announces a general policy allowing successive PFA motions to be filed and considered without limitation. Bell may reflect nothing more than a determination that one particular prisoner should be permitted to file a successive PFA motion. If that is so, then we perceive no conflict between Bell and the rule we announce today. We agree with the Second Circuit that in some circumstances a court should deny a PFA motion without prejudice; in*241deed, we did so ourselves with respect to Williams’ first PFA motion, which was filed without the attachments required by our 6030 35 2 local rule, see 4th Cir. R. 22(d).4 On this understanding of Bell, that decision neither conflicts with our holding nor supports Williams’ argument for open-ended review of successive PFA motions.

¶282.

¶29Whereas Williams maintains that this court should adopt his interpretation of Bell, the Commonwealth urges us to follow the course charted by the Seventh Circuit in Bennett. In Bennett, the applicant filed a second PFA motion that essentially reasserted the claim in his first PFA motion, augmented with a citation to Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). See Bennett, 119 F.3d at 471. The Seventh Circuit denied the motion on two alternative grounds. One ground was that the rule announced in Riggins was not “previously unavailable,” because the applicant could have relied on Riggins in his previous PFA motion. See id. at 472. We agree with this reasoning, as discussed above in Part II.A of this opinion.

¶30The other rationale set forth in Bennett was based on 28 U.S.C.A. § 2244(b)(1), which provides that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”5 The Seventh Circuit defined the word “claim,” as used in § 2244(b)(1), to refer to “a set of facts giving rise to a right to a legal remedy.” Bennett, 119 F.3d at 471-72. Applying this definition, the court determined that the Riggins claim in the second PFA motion was the same as the claim presented in the applicant’s first PFA motion. See id. at 472. The court then held that pre-filing authorization was barred by § 2244(b)(1), even though the Riggins claim was previously presented in a PFA motion rather than an application for collateral review. See id.

¶31We respectfully disagree with this analysis. By its terms, § 2244(b)(1) applies *242only when a particular claim was presented in “a prior application.” Throughout § 2244(b), including within § 2244(b)(1) itself, the word “application” refers to a collateral review application filed or sought to be filed in the district court. See 28 U.S.C.A. § 2244(b)(1) (alluding to “a second or successive habeas corpus application under section 225k ” (emphasis added)). In contrast, a motion for leave to file such an application is called a “motion.” See, e.g., id.§ 2244(b)(3)(B). Thus, as the Seventh Circuit conceded in Bennett, § 2244(b)(1) is “more naturally read to refer to the [habeas petition] than to” the PFA motion.6Bennett, 119 F.3d at 471.

¶32Notwithstanding this natural reading, the Seventh Circuit held that application of § 2244(b)(1) to successive PFA motions is necessary because not applying § 2244(b)(1) would have the effect of imposing more stringent limitations on prisoners whose previous PFA motions had been granted than on those whose PFA motions were denied. See id.Such a disparity would ostensibly arise from the fact that a prisoner whose PFA motion was granted would file a collateral review application raising particular claims and then would be barred from raising those claims in future PFA motions, while a prisoner whose PFA motion was denied would be free to repeat the same claims in successive PFA motions without restraint.

¶33With respect, we do not believe that § 2244(b)(1), as construed by the Seventh Circuit, provides an effective safeguard in this context, let alone a necessary one. Although application of § 2244(b)(1) would prevent prisoners from filing PFA motions presenting new legal justifications for claims based on facts alleged in previous PFA motions, this approach would have no impact on motions relying on new evidence, as the presentation of new evidence alters the “set of facts giving rise to a right to a legal remedy”; thus, under the definition of the term “claim” employed by the Seventh Circuit, motions containing new allegations necessarily present new claims. In contrast, the previousness inquiry described in Part II.A above — and endorsed as an alternative rationale in Bennett — -not only avoids a strained-reading of § 2244(b)(1) but also establishes a barrier against all claims that could have been presented earlier, not just claims relying on facts that were alleged in earlier PFA motions. Accordingly, we respectfully decline to follow Bennett insofar as it treats § 2244(b)(1) as a limitation on successive PFA motions.

¶34III.

¶35Application of the rule wé have announced is straightforward here. Williams’ current PFA motion presents the same claim as his second PFA motion, augmented by two new allegations relating to events at Williams’ trial. But Williams Was surely aware of these events when they occurred, long before he filed his second PFA motion. Thus, Williams’ current motion does not rely on any fact or legal rule that he could not have relied on in his second PFA motion. Accordingly, pursuant to § 2244(b), we deny pre-filing authorization.

¶36We note that we would deny Williams’ motion even if he could satisfy *243the previousness requirement. Although the new facts alleged in the current PFA motion highlight the significance of Teach’s testimony at Williams’ trial, they do not undermine the value of Torrey Wright’s testimony to the extent necessary to “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Williams] guilty of the underlying offense,” 28 U.S.C.A. § 2244(b)(2)(B)(ii).

¶37IV.

¶38For the foregoing reasons, we hold that § 2244(b)(2) precludes us from granting a PFA motion that relies exclusively on evidence and constitutional rules that the applicant could have relied on in his last federal collateral challenge. Because Williams’ current PFA motion does not cite any facts or legal authority that became available since his last PFA motion, we deny authorization to file a successive § 2254 application.

¶39MOTION DENIED