UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-00552
____________________
IN RE: GREGORY SMITH,
Movant.
Motion for an Order Authorizing the United States
District Court for the Eastern District of
Louisiana to Consider a Successive Habeas Corpus
Application
(E-97-2841)
May 28, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Concerning the request by Gregory Smith, Louisiana prisoner
#92399, for leave, pursuant to the Antiterrorism and Effective
Death Penalty Act (AEDPA), Pub. L. 104-132, 110 Stat. 1214 (1996),
to file a successive 28 U.S.C. § 2254 habeas application in the
district court, the principal issue at hand is whether, as required
by AEDPA, 28 U.S.C. § 2244(b)(2)(A), Smith presents a new claim
that “relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable”. Because Smith does not do so, and because
he fails to satisfy AEDPA as to the other new claim presented
(concerning allegedly withheld exculpatory material), leave to file
the successive application is DENIED.
I.
Smith was convicted in 1979 in Louisiana state court of second
degree murder and sentenced to life in prison. See State of
Louisiana v. Smith, 392 So. 2d 454 (La. 1980).
In 1997, Smith filed his fourth federal habeas application.
The three prior filings are: Gregory Smith v. Larry Smith, No. 88-
1111 (E.D. La. 21 Nov. 1988) (dismissed/denied with prejudice on
the merits); Gregory Smith v. Ross Magio, Jr., No. 83-883 (E.D. La.
20 Apr. 1983) (dismissed/denied with prejudice); and Gregory Smith
v. Charles Foti, Jr., No. 79-4613 (E.D. La. 4 Mar. 1980)
(dismissed/denied without prejudice for failure to exhaust).
The district court construed Smith’s petition, in part, as a
motion for authorization for that court to consider Smith’s
successive application. But, as the district court recognized,
under AEDPA, 28 U.S.C. § 2244(b)(3)(A), the decision whether a
successive § 2254 application may be filed in district court is
made instead by a court of appeals. Accordingly, pursuant to 28
U.S.C. § 1631, the district court transferred the application to
our court for that filing-ruling. The district court ruled, by
implication, that the two claims presented in the application had
not been presented in a prior application. See 28 U.S.C. §
2244(b)(1).
In accordance with detailed instructions provided by our court
to Smith, regarding the prerequisites for being permitted under
AEDPA to file a successive application in district court, Smith
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filed a motion in this court for leave to so file. Attached to
that motion is the proposed petition, with supporting documents.
This matter was held in abeyance, pending our en banc review
in Humphrey v. Cain, 120 F.3d 526 (5th Cir. 1997), reinstated by
138 F.3d 552 (5th Cir. 1998) (en banc), because Smith’s reasonable-
doubt-jury-instruction-issue was similar to one in Humphrey. Our
en banc court having ruled in Humphrey, discussed infra, we can now
decide whether Smith can file his successive application.
II.
Again, because Smith attempted to file the application in
1997, we must apply AEDPA in determining whether it may be filed.
See Lindh v. Murphy, ____ U.S. ____, 117 S. Ct. 2059, 2063 (1997).
Section 2244(b) provides:
(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
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would have found the applicant guilty of the
underlying offense.
In seeking leave to file his successive application, Smith
presents two claims: for his trial for murder, the trial judge
instructed erroneously on reasonable doubt, and the prosecutor
withheld exculpatory material from the defense. Based upon the
district court transfer order, discussed supra, we assume that the
claims have not been “presented in a prior application”; had they
been, Smith could not file them again. See 28 U.S.C. § 2244(b)(1).
A.
According to Smith, the jury was instructed, in relevant part,
as follows:
If you entertain any reasonable doubt as to
any fact or element necessary to constitute
the defendant’s guilt, it is your sworn duty
to give him the benefit of that doubt and to
return a verdict of acquittal. Even where the
evidence demonstrates a probability of guilt,
yet, if it does not establish it beyond a
reasonable doubt, you must acquit the accused.
This doubt must be a reasonable one, that is,
one founded upon a real, tangible, substantial
basis, and not upon mere caprice, fancy or
conjecture. It must be such a doubt as would
give rise to a grave uncertainty, raised in
your minds as to the unsatisfactory character
of the evidence; one that would make you feel
that you had not an abiding conviction to a
moral certainty of the defendant’s guilt. A
reasonable doubt is not a mere possible doubt.
It should be an actual or substantial doubt.
It is such a doubt as a reasonable person
would seriously entertain. It is a serious
doubt for which you could give good reason.
In Cage v. Louisiana, 498 U.S. 39, 41 (1990), the Supreme
Court held that an instruction containing similar language was
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unconstitutional, because it permitted finding guilt based upon a
degree of proof below that required by the Due Process Clause of
the Fourteenth Amendment. Smith maintains that, for purposes of §
2244(b)(2)(A), Cage announced a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.
It is undisputed that Cage announced a new rule of
constitutional law. See Sullivan v. Louisiana, 508 U.S. 275, 282
(1993) (denying right to beyond-reasonable-doubt-jury-verdict is
structural defect that takes away “basic protectio[n] whose precise
effects are unmeasurable, but without which a criminal trial cannot
reliably serve its function”). Moreover, the Cage-rule was
“previously unavailable” to Smith; his last § 2254 application was
denied in 1988, two years before the Supreme Court’s decision in
Cage.
We must deny leave to file this claim, however, because Smith
fails to make a “prima facie showing”, as required by §
2244(b)(2)(C), that the Cage-rule has been “made retroactive to
cases on collateral review by the Supreme Court”, as required by §
2244(b)(2)(A). In so doing, we join those other circuits holding
that
an application to file a second or successive
habeas petition must point to a Supreme Court
decision that either expressly declares the
collateral availability of the rule (such as
by holding or stating that the particular rule
upon which the petitioner seeks to rely is
retroactively available on collateral review)
or applies the rule in a collateral
proceeding.
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Rodriguez v. Superintendent, Bay State Correctional Ctr., 1998 WL
119670 at *5 (1st Cir. 1998); see also In re Vial, 115 F.3d 1192,
1197 (4th Cir. 1997) (en banc) (“a new rule of constitutional law
has been ‘made retroactive to cases on collateral review by the
Supreme Court’ within the meaning of § 2255 only when the Supreme
Court declares the collateral availability of the rule in question,
either by explicitly so stating or by applying the rule in a
collateral proceeding”); In re Hill, 113 F.3d 181, 184 (11th Cir.
1997) (Cage-rule not applicable in successive habeas petition
because applicant failed to establish that Supreme Court has made
the new rule of constitutional law retroactive to cases on
collateral review). In short, as the First Circuit held in
Rodriguez, “[Smith] is unable to identify a Supreme Court edict
that renders Cage retroactively applicable to cases on collateral
review.” Rodriguez, 1998 WL 119670 at *7.
Like the First Circuit in Rodriguez, 1998 WL 119670 at *7, we
cannot follow the approach utilized in Nevius v. Sumner, 105 F.3d
453 (9th Cir. 1996). It allowed a successive habeas application
which claimed that Cage was made retroactive by the Supreme Court
in Adams v. Evatt, 511 U.S. 1001 (1994). Nevius stated that,
although the court was not “intimating any view concerning the
merits of [the prisoner’s] Cage claim, or any view regarding
whether he has in fact met the requirements of 28 U.S.C. § 2244(b),
we conclude that he has made ‘a prima facie showing that the
application satisfies the requirements of this subsection.’”
Nevius, 105 F.3d at 462 (emphasis added) (quoting 28 U.S.C. §
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2244(b)(3)(C)). At the very least, this statement seems
inconsistent. Moreover, the ruling seems to disregard the plain
language of § 2244(b)(2)(A), which requires an applicant seeking to
present a new claim in a successive application to “show[] that the
claim relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court”. Again, Smith
has not made the requisite prima facie showing.
In Humphrey, our en banc court held that Cage-errors, as
clarified in Victor v. Nebraska, 511 U.S. 1 (1994) (“proper inquiry
[in reviewing reasonable doubt instruction] is not whether
instruction ‘could have’ been applied in unconstitutional manner,
but whether there is a reasonable likelihood that the jury did so
apply it”), qualify for retroactive application on collateral
review. Humphrey, 138 F.3d at 553 (5th Cir. 1998) (en banc). Our
en banc court relied upon the reinstated panel opinion, which held
that, consistent with Teague v. Lane, 489 U.S. 288 (1989), “the
Supreme Court has made it plain that Cage-Victor errors fit with
the second Teague exception”, and are to be applied retroactively.
Humphrey, 120 F.3d at 529.
But, the § 2254 application in Humphrey was the first one in
that case and was filed prior to the effective date of AEDPA.
Therefore, that application did not have to clear the “formidable
barriers erected by [§ 2244(b)(2)(A)]”, as does Smith. Id. at 529.
In short,“AEDPA sets tough standards that severely restrict state
prisoners’ abilities to file second or successive habeas
petitions.” Rodriguez, 1998 WL 119670 at *7.
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Accordingly, our en banc decision in Humphrey does not control
whether, in the light of § 2244(b)(2)(A), an applicant can file a
successive § 2254 application.
In denying Smith leave to now file this Cage-rule claim, we
are neither presented with, nor do we intimate any view on,
whether, should the Supreme Court make Cage retroactive to cases on
collateral review, Smith can then file this claim. See 28 U.S.C.
§ 2244(b)(1).
B.
As for his claim that the State withheld exculpatory material
in violation of Brady v. Maryland, 373 U.S. 83 (1963), Smith
presents a copy of the first, and perhaps second, page of a New
Orleans Police Department report. Smith contends it shows that the
arresting officer had received information from another officer,
who in turn had received it from his confidential informant, that
someone else had committed the crime. Smith states that he did not
become aware of this until 1990, 11 years after his trial in 1979.
“A successful Brady claim must show (1) the prosecution’s
suppression of the evidence, (2) the favorableness of that
evidence, and (3) the materiality of that evidence.” United States
v. Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, 515 U.S. 1167
(1995). Evidence is material only if a reasonable probability
exists that, had the evidence been disclosed, the result of the
proceeding would have been different. Id. And, if the defendant,
using reasonable diligence, could have obtained the information, a
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Brady claim does not arise. Williams v. Scott, 35 F.3d 159, 163
(5th Cir. 1994), cert. denied, 513 U.S. 1137 (1995).
A fact-based claim of this type, presented for the first time
in a successive § 2254 application, must be dismissed unless “the
factual predicate for the claim could not have been discovered
previously through the exercise of due diligence”, and the facts
underlying the claim “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”. 28 U.S.C. § 2244(b)(2)(B)(i-ii).
Even assuming that Smith has discovered new evidence that was
unavailable to him earlier, the submitted portion of the report,
which merely contains descriptive information about the crime,
falls far short of satisfying § 2244(b)(2)(B)(ii).
III.
For the foregoing reasons, Smith’s motion for leave to file
this fourth § 2254 application in district court is
DENIED.
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