Daniels v. United States

F I L E D
United States Court of Appeals
Tenth Circuit

PUBLISH JUN 25 2001
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

STEVE ALAN DANIELS,

Petitioner-Appellant,

v. No. 00-6298
(W. Dist. Okla.)
UNITED STATES OF AMERICA,

Respondent-Appellee.

ON APPLICATION FOR AUTHORIZATION TO FILE
SECOND OR SUCCESSIVE HABEAS MOTION UNDER 28 U.S.C. § 2255

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, and Vicki Mandell-King, Assistant Federal Public Defender,
with him on the briefs), Denver, Colorado, for Petitioner-Appellant.

Nina Goodman, Department of Justice, Washington, D.C. (Daniel G. Webber, Jr.,
United States Attorney, Leslie M. Maye, Assistant U.S. Attorney, Western District
of Oklahoma and Bruce Green, United States Attorney and Paul G. Hess,
Assistant U.S. Attorney, Eastern District of Oklahoma, and Michael A. Rotker,
Department of Justice, Washington, D.C., with her on the brief), for Respondent-
Appellee.

Before TACHA, Chief Judge, SEYMOUR, BALDOCK, BRORBY, EBEL,
KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.
 Steve Alan Daniels requests leave to file an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2255, arguing the Supreme Court's recent

decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), renders his sentence

unconstitutional. Because Mr. Daniels has filed previous applications for habeas

relief, we construed his motion as a request to file a second or successive

application. We initially consolidated his pro se application with that of Edwin

Browning, another prisoner seeking permission to file a second or successive

habeas application based upon Apprendi. We appointed joint counsel and heard

argument on both applications en banc. We then separated Mr. Browning’s

application for disposition, holding in that case that Apprendi’s new rule has not

yet been “made retroactive to cases on collateral review by the Supreme Court,”

as required by section 2255, and thus may not be used as a basis for second or

successive habeas applications. Browning v. United States, 241 F.3d 1262 (10th

Cir. 2001).

That holding does not entirely dispose of Mr. Daniels’ case, however.

Because this is his first habeas application following the amendment of section

2255 by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), he raises an additional question for

our consideration: whether, assuming he can meet the pre-AEDPA requirements

for raising an Apprendi claim in a successive petition under section 2255,

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applying AEDPA’s standards to his application is impermissibly retroactive.

After a detailed consideration of the requirements for raising new claims based on

new rules of criminal procedure pre- and post-AEDPA, we conclude that no

impermissible retroactive result will arise from the application of AEDPA’s rules

to Mr. Daniels’ request.

I

BACKGROUND

Steve Daniels was convicted in 1988 on several counts of racketeering and

heroin distribution, receiving a twenty-one-year sentence for the drug charges and

concurrent sentences of five to twenty years for the other crimes. He appealed,

asserting, inter alia, that his sentence on the drug distribution charges exceeded

the period authorized by the statute under which he was indicted. After this court

upheld his conviction and sentence on appeal, United States v. Ware, 897 F.2d

1538 (10th Cir. 1990), Mr. Daniels filed two habeas petitions disputing other

aspects of his sentence. Each petition was denied. See United States v. Daniels,

No. 91-6333, 1992 WL 97997 (10th Cir. May 6, 1992); Daniels v. United States,

No. 94-6289, 1995 WL 139398 (10th Cir. Mar. 31, 1995).

In seeking permission to file this latest habeas petition, Mr. Daniels

contends his conviction and sentence are unconstitutional under Apprendi, which

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establishes that “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." 120 S.Ct. at 2362-63. Although Apprendi did not explicitly

include indictment practices in this rule, it suggested that the relevant facts must

be included in an indictment as well. See id. at 2356-57. We so held in United

States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000) (holding drug quantity must

be included in indictment after Apprendi). Accord United States v. Keith, 230

F.3d 784, 786-87 (5th Cir. 2000) (same); United States v. Aguayo-Delgado, 220

F.3d 926, 933 (8th Cir. 2000) (same).

The amount of drugs underlying the charges against Mr. Daniels was not

stated in his indictment nor presented to the jury for determination as required

after Apprendi. He was, however, indicted for and convicted of distributing an

identifiable quantity of heroin, which is prohibited under 21 U.S.C. §

841(b)(1)(C). This statutory subsection sets forth a maximum sentence of twenty

years, one year shorter than the twenty-one-year sentence Mr. Daniels received.

Thus, if Apprendi were applied to his case on collateral review, Mr. Daniels

would be resentenced within the lower twenty-year maximum on the drug charge.

See Jones, 235 F.3d at 1237 (conviction for drug offense proper despite Apprendi

violation, but resentencing required because sentence exceeded maximum of

section 841(b)(1)(C)).

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 Under AEDPA, the rule of Apprendi is not applicable to second or

successive habeas motions unless and until it has been “made applicable to cases

on collateral review by the Supreme Court,” as required by 28 U.S.C. § 2255. In

Browning, we interpreted the phrase “made applicable . . . by the Supreme Court”

to require a specific collateral application by the Court, or words to that effect,

and noted the Court has been silent with regard to collateral application of

Apprendi. 241 F.3d at 1265-66. Under current habeas law, therefore,

applications to file second or successive habeas petitions based on Apprendi will

be dismissed until such time as the Supreme Court chooses specifically to declare

the new rule applicable to cases on collateral review. Id. at 1266-67.

If AEDPA’s requirements are applied to Mr. Daniels’ application, his

petition to assert an Apprendi claim must be denied. He argues, however, that

because this is his first section 2255 habeas application after AEDPA’s

enactment, and because he could meet the pre-AEDPA standard for raising an

Apprendi claim in a section 2255 second or successive habeas petition, applying

AEDPA’s new standard to deny this application would render the standard

impermissibly retroactive.

Mr. Daniels filed his prior section 2255 petitions in 1991 and 1993, before

section 2255 was amended by AEDPA in 1996. According to Mr. Daniels, when

those earlier petitions were filed a prisoner could present a new legal claim in a

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second or successive petition under section 2255 if he could show both sufficient

“cause” for his failure to raise the claim, i.e., “that the factual or legal basis for

[the] claim was not reasonably available” earlier, and “actual prejudice” as a

result of the claimed legal error. McCleskey v. Zant, 499 U.S. 467, 494 (1991).

Mr. Daniels contends that he can meet this “cause and prejudice” test. In

contrast, the new standard imposed by AEDPA requires reliance on 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 at para. 8. As

discussed in Browning, applications seeking to raise an Apprendi claim must be

denied under the new standard. Mr. Daniels therefore contends that applying the

new standard will work a retroactive change which takes away his pre-AEDPA

right to file a subsequent habeas petition based on Apprendi. As a result, he

argues, AEDPA’s section 2255 amendments should not be applied to his case.

The government, on the other hand, asserts that applying the AEDPA

standard will have no actual retroactive effect because Mr. Daniels could not have

satisfied the pre-AEDPA cause and prejudice test to excuse his earlier failure to

raise the claim. The government further contends AEDPA’s changes were

procedural rather than substantive and thus constitute an exception to the usual

retroactivity analysis. Finally, the government argues that, even assuming

AEDPA altered the substantive standards under which we consider Mr. Daniels’

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application, there can be no impermissible retroactive effect because Mr. Daniels

did not reasonably rely on the continued validity of the old law at the time he

filed his initial habeas petition.

We hold, first, that AEDPA’s purely procedural “gatekeeping”

requirements are applicable to all petitioners seeking to file post-AEDPA second

or successive habeas applications, regardless of when their initial habeas petitions

were filed. We then assess the substantive requirements for raising claims based

on new rules of criminal procedure before and after AEDPA. Ultimately, we

conclude there is no retroactive effect in applying post-AEDPA substantive

standards to Mr. Daniels.

II

POST-AEDPA PROCEDURAL REQUIREMENTS

The AEDPA amendments changed both procedural and substantive aspects

of federal habeas law. See In re Minarik, 166 F.3d 591, 599-600 (3rd Cir. 1999)

(considering procedural and substantive retroactivity separately); Pratt v. United

States, 129 F.3d 54, 57 (1st Cir. 1997) (observing AEDPA contains both aspects).

On a procedural level, a prisoner seeking to file a second or successive

application for habeas relief must now apply directly to the court of appeals,

which applies the proper AEDPA substantive standard and then grants or denies

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the prisoner permission to proceed in the district court. Before considering the

post-AEDPA substantive standard, we recognize that, for the reasons set out

below, there is no impermissible retroactivity in applying AEDPA’s procedural

amendments to habeas petitions. This is true regardless of when a petitioner’s

first habeas application was filed.

In general, the Supreme Court has established a two-part analysis for

determining statutory retroactivity:

When a case implicates a federal statute enacted after the
events in suit, the court’s first task is to determine whether
Congress has expressly prescribed the statute’s proper reach. If
Congress has done so, of course, there is no need to resort to
judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute
would have retroactive effect, i.e., whether it would impair rights a
party possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions already
completed. If the statute would operate retroactively, our
traditional presumption teaches that it does not govern absent clear
congressional intent favoring such a result.

Landgraf v. USI Film Prod., 511 U.S. 244, 280 (1994). In other words, when a

new statute is passed, the general rule is that courts will not apply the statute in

ways that would create new legal consequences for events completed before the

statute was enacted. Congress, of course, has the power to override this

traditional presumption and direct the statute’s retroactive application, but it must

do so explicitly. If Congress does not provide clear guidance, courts apply a

case-by-case analysis to determine whether application of the new statute acts to

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“impair rights a party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already completed.”

Id. If so, the new statute is impermissibly retroactive and will not be applied to

that case.

With regard to the potential retroactivity of AEDPA, the Supreme Court

considered the first part of the retroactivity inquiry in Lindh v. Murphy, 521 U.S.

320 (1997), that is, whether Congress expressly declared the reach of the statute.

The Court discerned Congress’ implied (but not express) intent “that the new

provisions . . . generally apply only to cases filed after the Act became effective,”

as opposed to cases pending at the time the Act was passed, id. at 336. The Court

therefore held that the AEDPA amendments to 28 U.S.C. § 2254(d) did not apply

to the petitioner’s pending noncapital case. Id. The Court expanded this analysis

in Slack v. McDaniel, 529 U.S. 473 (2000), determining that an appeal of the

denial of a habeas petition is a new “case” to which AEDPA’s procedural

gatekeeping amendments apply, even if the original petition was filed before that

act was passed, id. at 482. The Court reasoned: “When Congress instructs us (as

Lindh says it has) that application of a statute is triggered by the commencement

of a ‘case,’ the relevant case for a statute directed to appeals is the one initiated

in the appellate court.” Id. at 1603.

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 The holdings in Lindh and Slack were based on the Court’s determination,

by negative implication, that Congress did not intend AEDPA to apply

retroactively to cases pending at the time the Act was passed. Because that

determination paralleled the traditional presumption against retroactivity, the

Court relied upon basic rules of statutory interpretation to discern Congress’

intention, rather than seeking the explicit Congressional guidance required to

apply a statute retroactively.

We agree with those courts of appeals holding that reasoning based solely

on Lindh and Slack does not reflect the unambiguous Congressional intent

required to overcome the presumption against statutory retroactivity if retroactive

effect is present in a particular case. See Mueller v. Angelone, 181 F.3d 557, 566-

68 (4th Cir. 1999); Minarik, 166 F.3d at 598-99; United States v. Ortiz, 136 F.3d

161, 165 (D.C. Cir. 1998); In re Hanserd, 123 F.3d 922, 934 & n.22 (6th Cir.

1997); see also In re Jones, 226 F.3d 328, 331 (4th Cir. 2000) (noting holdings of

Lindh and Slack but applying Landgraf analysis). In the case of AEDPA, no

unambiguous guidance exists that Congress intended to apply the statute

retroactively. See, e.g., Minarik, 166 F.3d at 598-99 (discussing Landgraf’s

requirements in AEDPA context and concluding “Congress did not clearly express

its intent”).

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 Where the “statute contains no [explicit Congressional] command, the

court must determine whether the new statute would have retroactive effect” for a

particular case under the standard set out in Landgraf, 511 U.S. at 280. If so, its

terms will not be applied to that case. See Lindh, 521 U.S. at 326 (“if the

application of a term would be retroactive as to Lindh, the term will not be

applied, even if, in the absence of retroactive effect, we might find the term

applicable”). Since AEDPA contains no express command declaring its

amendments to be retroactive, we turn to the second step in the Landgraf

retroactivity analysis and consider whether AEDPA’s amendments could “impair

rights a party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already completed.”

Landgraf, 511 U.S. at 280. 1 In doing so, we consider separately the Act’s

procedural and substantive aspects. See Minarik, 166 F.3d at 599-600; Pratt, 129

F.3d at 57.

It is clearly proper to apply AEDPA’s procedural framework to all second

or successive habeas applications filed after the Act’s effective date. The

1
In Hatch v. Oklahoma, 92 F.3d 1012 (10th Cir. 1996) (per curiam),
decided prior to Lindh and Slack, we held without analysis that applying AEDPA
to a second or successive habeas petition filed after the Act’s enactment did not
violate the Ex Post Facto Clause because the Act was “not retroactive,” id. at
1014. To the extent that Hatch implies a Landgraf analysis is unnecessary in the
current situation, we overrule it.

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presumption against retroactivity contains a well-established exception for rules

of procedure, since procedural rules “regulate secondary rather than primary

conduct” and avoid attaching new legal consequences to earlier actions.

Landgraf, 511 U.S. at 275; see also Slack, 529 U.S. at 482; Minarik, 166 F.3d at

599 (AEDPA’s establishment of courts of appeals as gatekeepers “is a change in

procedural law which falls within the firmly established ‘procedural change’

category described in Landgraf that may be retrospectively applied”). That a

would-be petitioner must apply to a gatekeeping court of appeals for permission

to file a subsequent habeas petition, rather than directly to a district court, does

not affect the petitioner’s underlying legal rights; it merely speaks to which court

will consider his application. See Graham v. Johnson, 168 F.3d 767, 782 (5th

Cir. 1999) (“Substituting the court of appeals for the district court as the

gatekeeper against abusive or procedurally defaulted claims would seem to raise

no retroactivity concerns. A litigant has no reasonable expectation that a

particular tribunal will adjudicate his claims.”). Consequently, regardless of

when their first petitions were filed, prisoners must turn to our court as a

gatekeeper under section 2244 of AEDPA. See Minarik, 166 F.3d at 599-600; In

re Hanserd, 123 F.3d at 934; accord United States v. Gallegos, 142 F.3d 1211,

1212 (10th Cir. 1998) (per curiam) (“Because [petitioner’s third § 2255] motion

was filed after . . . the effective date of AEDPA, he was required to comply with

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the Act and obtain prior authorization from this court before filing in the district

court.”).

III

PRE-AEDPA SUBSTANTIVE REQUIREMENTS

The Landgraf retroactivity analysis focuses on whether a change in law

“would impair rights a party possessed when he acted, increase a party’s liability

for past conduct, or impose new duties with respect to transactions already

completed.” 511 U.S. at 280. Although we have just determined that AEDPA’s

procedural amendments work no retroactive change to a party’s rights and duties,

we must now compare the substantive requirements for raising new rules of

criminal procedure before and after AEDPA to determine whether any changes

impair Mr. Daniels’ ability to raise an Apprendi claim. We turn first to the pre-

AEDPA requirements.

The traditional pre-AEDPA test for legal claims raised in a second or

successive habeas encompassed two separate inquiries, asking first whether the

new claim was procedurally defaulted as an “abuse of the writ” because it was not

raised in earlier petitions, and then, if the claim was not defaulted because it was

based on a new and hence previously unavailable rule of law, asking whether the

new rule of law would be retroactively applied to that claim under Teague v.

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Lane, 489 U.S. 288 (1989). 2 See, e.g., Andrews v. Deland, 943 F.2d 1162, 1180

(10th Cir. 1991) (claim dismissed as abuse of writ, or “additionally, and

alternatively” unavailable because new legal rule not applied retroactively);

Moore v. Zant, 885 F.2d 1497, 1503 n.8 (11th Cir. 1989) (“Both parties concede

that they conceive of the abuse of the writ and retroactivity issues as being two

separate analyses which must be conducted pursuant to a petitioner’s filing of a

successful federal habeas petition”); see also McCleskey, 499 U.S. at 495

(application of cause and prejudice standard “does not mitigate the force of

Teague v. Lane”).

2
Some decisions of the federal courts of appeals express difficulty
determining which step should be applied first. The Supreme Court appears to
have definitively answered that question in Lambrix v. Singletary, 520 U.S. 518
(1997). The Court noted it had “never had occasion to consider whether a federal
court should resolve a . . . contention that a petitioner’s claim is procedurally
barred before considering whether his claim is Teague barred.” Id. at 524. It
then concluded that its earlier opinions “certainly suggest that the procedural-bar
issue should ordinarily be considered first.” Id. Although Teague states that
“[r]etroactivity is properly treated as a threshold question,” 489 U.S. at 300,
Lambrix clarified that this merely means Teague retroactivity “should be
addressed ‘before considering the merits of [a] claim.’” Lambrix, 520 U.S. at 524
(quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)). It is preferable that
procedural default issues be addressed first, in part because it is wise to avoid
constitutional considerations whenever possible, and unlike the cause and
prejudice question, “the Teague inquiry requires a detailed analysis of federal
constitutional law.” Id.

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 Abuse of the Writ

Prior to AEDPA’s amendments, 28 U.S.C. § 2244 provided that prisoners

could raise only new legal or factual claims in a second or subsequent habeas

petition and then only if “the applicant [had] not on the earlier application

deliberately withheld the newly asserted ground or otherwise abused the writ.”

McCleskey, 499 U.S. at 486 (quoting statute). According to the established

common-law test for procedural default, which survived enactment of the

statutory regime, id. at 487, any claim not raised in an earlier petition was

presumptively an abuse of the writ 3 unless the petitioner could demonstrate

“cause” for his earlier failure to raise the claim and “actual prejudice” resulting

from the claimed error. 4 Id. at 493; Andrews, 943 F.2d at 1171. Complicating

this cause-and-prejudice inquiry is the fact that the Supreme Court has never

“attempted to establish conclusively the contours of the standard.” Amadeo v.

3
The government bears the initial burden of raising this presumption, and
only then will the petitioner be asked to demonstrate cause and prejudice.
McCleskey v. Zant, 499 U.S. 467, 494 (1991); Andrews v. Deland, 943 F.2d 1162,
1172 (10th Cir. 1991); see also United States v. Talk, 158 F.3d 1064, 1067 (10th
Cir. 1998) (deeming the default question waived where not raised by the
government).
4
In fact, on direct appeal Mr. Daniels did raise an objection to the use of a
quantity enhancement for his sentence, arguing the enhancement was invalid
because drug quantity had not been specified in his indictment. See United States
v. Ware, 897 F.2d 1538, 1542 (10th Cir. 1990). We rejected that argument based
on the then-extant Sentencing Guidelines (but pre-Apprendi) law governing
sentencing enhancements. Id.

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Zant, 486 U.S. 214, 221 (1988); see also Reed v. Ross, 468 U.S. 1, 13 (1984)

(Court has provided no “precise content” defining “cause”); United States v.

Frady, 456 U.S. 152, 168 (1982) (exact understanding of “prejudice” remains

“open question” in most contexts). Nevertheless, certain general guidelines have

emerged from the Court’s jurisprudence.

A petitioner must first show “cause” for his failure to raise the legal claim

in an earlier petition. Habeas petitioners may not choose to withhold claims for

disposition in later proceedings, and even negligence in discovering a claim will

not excuse a delay. Instead, a petitioner must show that his efforts to raise the

claim at earlier stages were “impeded” by “some objective factor external to the

defense,” for example, where “the factual or legal basis for a claim was not

reasonably available to counsel” during earlier proceedings. McCleskey, 499 U.S.

at 493-94. The standard is an objective one, asking not what a particular attorney

or pro se petitioner actually knew but whether the claim was “reasonably

available” upon diligent inquiry. Id. at 494, 496.

When controlling law changes after earlier review has been completed, a

petitioner may be able to demonstrate that the new legal claim was “not

reasonably available” under the old prevailing standard. Changes in law do not

automatically constitute cause, however: “even if the law has changed since the

earlier petition [a petitioner] also must show that he or his attorney reasonably

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should not have been aware of the possibility or legal basis for such a claim.”

Coleman v. Saffle, 869 F.2d 1377, 1380-81 (10th Cir. 1989). Cause is present if

“a constitutional claim is so novel that its legal basis is not reasonably available

to counsel” prior to the change in law. Reed, 468 U.S. 1 at 16.

It can be difficult to define exactly when a claim becomes “available” to

counsel. As the Court explained in Reed:

It is in the nature of our legal system that legal concepts, including
constitutional concepts, develop slowly, finding partial acceptance
in some courts while meeting rejection in others. Despite the fact
that a constitutional concept may ultimately enjoy general
acceptance, . . . when the concept is in its embryonic stage, it will,
by hypothesis, be rejected by most courts.

Id. at 15. This strong likelihood of rejection led to the Court’s decision that there

is no “functional purpose” in any rule “requiring a defendant to raise a truly novel

issue.” Id.

While the cause inquiry continues to analyze whether a claim was

“reasonably available” prior to a change in law, the Supreme Court narrowed the

broad Reed “novelty” test in Bousley v. United States, 523 U.S. 614 (1998).

There, the court held that a claim was not “novel” where “Federal Reporters were

replete with cases involving challenges” to the legal regime at issue. Id. at 622.

Even if it appears “futile” to attempt a particular legal argument, that perceived

futility “cannot constitute cause if it means simply that a claim was ‘unacceptable

to that particular court at that particular time.’” Id. “[T]he question is not

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whether subsequent legal developments have made counsel’s task easier, but

whether at the time of the default the claim was ‘available’ at all.” United States

v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (quoting Smith v. Murray, 477

U.S. 527, 537 (1986)). Thus, even a futile claim may be “reasonably available”

for “cause” purposes prior to a change in the law.

If a petitioner succeeds in showing cause for failure to raise the new legal

claim, he must then demonstrate “‘actual prejudice’ resulting from the errors of

which he complains.” McCleskey, 499 U.S. at 494. In the context of jury

instructions that are later determined to be unconstitutional, the Supreme Court

has explained that the prejudice inquiry asks “not merely whether ‘the instruction

is undesirable, erroneous, or even universally condemned;’” instead, a court must

determine “‘whether the ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process.’” Frady, 456 U.S. at 168. This in

itself is by no means a bright-line rule, and the Court noted in Frady that the

definition of prejudice in every other context remains an “open question.” Id.

Again, however, there is a general guideline that directs our inquiry.

The burden of showing prejudice is not an easy one. As a rule, the

petitioner “must shoulder the burden of showing, not merely that the errors at his

trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional

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dimensions.” Id. at 170. In other words, it is not enough to assert that an error

“might have changed the outcome of the trial.” Strickler v. Greene, 527 U.S. 263,

289 (1999). Instead, a petitioner “must convince [a court] that ‘there is a

reasonable probability’ that the result of the trial would have been different.” Id.

at 289-91 (explaining lower court wrong to consider “possibility” rather than

“probability”). This “reasonable probability” standard does not require that a

petitioner demonstrate he “would more likely than not have received a different

verdict” without the claimed error. Id. at 289. Rather, the question is whether,

considering the error, “he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” Id. at 290. Applying these standards, we have

concluded a petitioner did not establish prejudice where the jury did not consider

newly required elements of a crime but its verdict “necessarily embraced the

missing elements.” United States v. McDonald, 150 F.3d 1301, 1304 (10th Cir.

1998).

Teague Retroactivity Inquiry

Under the pre-AEDPA standard, a petitioner who manages to surmount the

substantial requirement of cause and prejudice will be allowed to proceed with

raising a new constitutional claim. If that claim is based upon new law decided

after his conviction has become final, however, he faces a second, nearly

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insurmountable, hurdle: as established by the Supreme Court in Teague v. Lane, 5

new constitutional rules of criminal procedure will not be applied retroactively on

collateral review unless they meet one of two narrow exceptions.

The first step in the Teague analysis is to ask whether the holding of a

particular case constitutes a “new rule” for purposes of retroactivity. The Court

has explained that

[i]t is admittedly often difficult to determine when a case announces
a new rule, and we do not attempt to define the spectrum of what
may or may not constitute a new rule for retroactivity purposes. In
general, however, a case announces a new rule when it breaks new
ground or imposes a new obligation on the States or the Federal
Government.

Teague, 489 U.S. at 301. In essence, “a case announces a new rule if the result

was not dictated by precedent existing at the time the defendant’s conviction

became final.” Id. (emphasis in original). We recognized in Browning, 241 F.3d

at 1266, that Apprendi constitutes a new rule of constitutional law.

Teague held that, in general, “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before

the new rules are announced.” 489 U.S. at 310. The new rule of Apprendi then,

is not available for collateral review of Mr. Daniels’ case unless it fits one of two

5
Teague was a plurality opinion, but its conclusions have since been
approved by a majority of the Court. See, e.g., Penry v. Lynaugh, 492 U.S. 302
(1989).

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narrow exceptions to Teague’s general nonretroactivity rule. The first exception

states that “a new rule should be applied retroactively if it places ‘certain kinds of

primary, private individual conduct beyond the power of the criminal law-making

authority to proscribe.’” Id. at 311. Apprendi does not do so. The second

exception allows for retroactive application of “watershed rules of criminal

procedure,” those that “require[] the observance of those procedures that are

implicit in the concept of ordered liberty.” Id. at 311. This exception is further

restricted to “those new procedures without which the likelihood of an accurate

conviction is seriously diminished.” Id. at 313. Not every constitutional error

will serve as sufficient basis for a habeas petition, but the second Teague

exception recognizes that “errors that undermine confidence in the fundamental

fairness of the . . . adjudication certainly justify the issuance of the federal writ.”

Williams v. Taylor, 529 U.S. 362, 375 (2000) (Stevens, J., writing for four

justices) 6.

6
In Williams, Justice Stevens authored the majority opinion for all but the
subsection on Teague discussed here. Justice O’Connor’s concurrence provides
the court’s majority for that subsection. See Williams, 529 U.S. at 402-413. The
only contradiction between Justice Stevens’ and Justice O’Connor’s opinions
relevant to our discussion is Justice O’Connor’s statement observing “[t]hat
Justice Stevens would find the new § 2254(d)(1) to have no effect on the prior
law of habeas corpus is remarkable given his apparent acknowledgment that
Congress wished to bring change to the field.” Id. at 404 (quoting Justice
Stevens’ statement that, in enacting AEDPA, “Congress wished to curb delays, to
prevent ‘retrials’ on federal habeas, and to give effect to state convictions to the
(continued...)

-21-
 Because the second exception, in particular, applies only when a rule is

“central to an accurate determination of innocence or guilt,” the Court has

predicted it is “unlikely that many such components of basic due process have yet

to emerge.” Teague, 489 U.S. at 313. The examples Justice O’Connor gave in

Teague of such “watershed” procedures were those designed to preclude criminal

proceedings “dominated by mob violence” or where “the prosecutor knowingly

made use of perjured testimony” or “the conviction was based on a confession

extorted from the defendant by brutal methods.” Id. We have held that a new

rule fit this exception when it involved “a misdescription of the burden of proof”

in jury instructions. Tillman v. Cook, 215 F.3d 1116, 1122 (10th Cir. 2000). We

noted Teague’s emphasis on the accuracy of convictions and explained that

incorrect standards regarding the burden of proof “vitiate[] all the jury’s

findings.” Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)).

Because this Teague inquiry is applied both pre- and post-AEDPA, as explained

below, its application cannot work retroactive effect in Mr. Daniels’ case.

Therefore, we need not decide at this time whether Apprendi fits the second

Teague exception. 7

6
(...continued)
extent possible under law,” id. at 386).
7
Federal courts considering whether Apprendi meets the second Teague
exception have ruled both ways. See, e.g., United States v. Sanders, No. 00-6281,
(continued...)

-22-
 Mr. Daniels contends Teague is inapplicable to his case because it was

decided in the context of a challenge to state confinement under section 2254 and

neither the Supreme Court nor this court has ever applied Teague’s

antiretroactivity rule to a federal prisoner’s petition under section 2255. See Talk,

158 F.3d at 1071 n.5 (declining to address the question). It is true that the Teague

rule was based in large part upon the need for federal courts to respect the

decisions made by state courts. See Teague, 489 U.S. at 308-10. Nonetheless, the

rule against retroactive application of new laws supports important interests of

finality as well as comity. See id. at 309 (“Without finality, the criminal law is

deprived of much of its deterrent effect.”); see also McCleskey, 499 U.S. at 492

(“Perpetual disrespect for the finality of convictions disparages the entire criminal

justice system.”). “[T]he Federal Government, no less than the States, has an

interest in the finality of its criminal judgments.” Frady, 456 U.S. at 166. In

fact, concerns of finality carry particular weight in the context of a section 2255

7
(...continued)
2001 WL 369719, at *10 (4th Cir. Apr. 13, 2001) (Apprendi does not fit second
exception); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) (same); United
States v. Latney, 131 F.Supp.2d 31, 33 (D. D.C. 2001) (same, adding “the vast
majority of district courts to consider this issue” agree); but see Parise v. United
States, 2001 WL 286766, at *4 (D. Conn. Mar. 22, 2001) (Apprendi a watershed
rule that fits second exception); Jackson v. United States, 129 F.Supp.2d 1053,
1068 (E.D. Mich. 2001) (same); United States v. Murphy, 109 F.Supp.2d, 1059,
1064 (D. Minn. 2000) (same).

-23-
motion, since a “federal prisoner . . . has already had an opportunity to present his

federal claims in federal trial and appellate forums.” Id. at 166.

The Supreme Court has described several practical considerations

supporting the need for finality in federal criminal cases. For instance, “when a

habeas petitioner succeeds in obtaining a new trial, the erosion of memory and

dispersion of witnesses that occur with the passage of time prejudice the

government and diminish the chances of a reliable criminal adjudication.”

McCleskey, 499 U.S. at 491 (citation omitted). Also, “[f]ederal collateral

litigation places a heavy burden on scarce federal judicial resources, and threatens

the capacity of the system to resolve primary disputes.” Id. This is particularly

true in the case of second or successive federal collateral challenges because “[i]f

reexamination of a conviction in the first round of federal habeas stretches

resources, examination of new claims raised in a second or subsequent petition

spreads them thinner still.” Id. at 492.

Those courts of appeals that have addressed the relationship between

Teague and section 2255 articulate further reasons for applying the

nonretroactivity rule to federal petitions. First, although Teague arose in the

context of a section 2254 petition, its analysis relied on earlier opinions by Justice

Harlan that considered “cases presenting collateral challenges to federal

convictions under § 2255" and “did not ‘propose to make any distinction, for

-24-
retroactivity purposes, between state and federal prisoners seeking collateral

relief.’” Van Daalwyk v. United States, 21 F.3d 179, 180-81 (7th Cir. 1994)

(quoting Mackey v. United States, 401 U.S. 667, 681 n.1 (1971) (Harlan, J.

concurring in part and dissenting in part)). Furthermore, on a basic level it would

be “simply inequitable” to allow retroactive application of new rules for federal

prisoners but apply Teague to bar application of the same rules for state prisoners.

Id. at 183. As the Second Circuit has explained:

[T]he reason the Supreme Court expressly clarified the principles
governing retroactivity on collateral review was not to limit the
doctrine to state convictions, but to develop a principle that would
allow more consistency in results. Injecting a federal/state
dichotomy into the picture would defeat rather than further the goal
of consistency.

Gilberti v. United States, 917 F.2d 92, 94-95 (2d Cir. 1990) (citations omitted).

The Fourth Circuit has also held that Teague bars application of new rules in

section 2255 petitions, based upon the same considerations set forth by the

Seventh and Second Circuits. See United States v. Martinez, 139 F.2d 412, 416

(4th Cir. 1998). We agree with these circuits and hold that Teague’s

nonretroactivity doctrine applies equally to habeas petitions brought under

sections 2254 and 2255.

Overlap Between Two Inquiries

As explained above, prior to AEDPA a petitioner like Mr. Daniels who

wished to raise a new rule of constitutional law in a second or successive habeas

-25-
petition first had to overcome the “cause and prejudice” test for abuse of the writ

in order to raise his claim, and then had to show the new rule could be applied

retroactively to that claim under Teague. While we have discussed each test

separately, there is a significant amount of overlap between the two inquiries.

A showing of cause to excuse procedural default requires that a new rule

be so novel that it was not reasonably available for argument in the past. See

Reed, 468 U.S. at 16. In contrast, Teague bars retroactive application of any new

rule “not dictated by prior precedent.” 489 U.S. at 301. Any claim declared

sufficiently novel to meet the cause test, by definition, could not have been

dictated by prior precedent. In other words, if one has cause for not raising a

constitutional claim in earlier petitions because it is sufficiently “novel,” that

same novelty ensures the claim is barred from application on collateral review as

a new rule under Teague (unless one of two exceptions applies). See Hopkinson

v. Shillinger, 888 F.2d 1286, 1290 (10th Cir. 1989) (en banc) (“a holding that a

claim is so novel that there is no reasonably available basis for it, thus

establishing cause, must also mean that the claim was too novel to be dictated by

past precedent”), overruled on other grounds, Sawyer v. Smith, 497 U.S. 227, 245

(1990); see also Selvage v. Collins, 975 F.2d 131, 136 (5th Cir. 1992) (because of

Teague, “a rule found novel for cause purposes . . . will not be [retroactively]

available in a federal habeas proceeding”); Prihoda v. McCaughtry, 910 F.2d

-26-
1379, 1386 (Teague “nullifies” effect of allowing new rules as basis for cause);

Clark v. Dugger, 901 F.2d 908, 912 (11th Cir. 1990) (rule novel for cause but

barred by Teague).

Before AEDPA, therefore, a new rule would be applied collaterally to a

second or successive habeas petition only if it met one of Teague’s two

exceptions. If pre-AEDPA law is applied to Mr. Daniels’ habeas application, he

could succeed in raising his Apprendi claim in only one situation: if the new rule

is novel enough to constitute “cause” under the cause and prejudice test and also

fits one of the two exceptions to Teague’s presumption against retroactivity. In

any other situation, either the claim itself would be procedurally defaulted or the

new rule would be inapplicable as Teague-barred.

IV

POST-AEDPA SUBSTANTIVE REQUIREMENTS

AEDPA’s amendments to 28 U.S.C. § 2244 made no mention of applying

either the cause-and-prejudice test or a Teague analysis to applications to file

second or subsequent federal habeas petitions. Instead, section 2244(b)(2)(A)

now provides that such petitions will not be granted unless they rely upon a “new

rule of constitutional law, made applicable to cases on collateral review by the

Supreme Court, that was previously unavailable.” As explained in Part I, under

-27-
this standard, Mr. Daniels cannot succeed in filing a successive habeas petition

based upon Apprendi. He argues, therefore, that applying the AEDPA standard

takes away his earlier right to raise an Apprendi claim. While we determine here

that the AEDPA standard is indeed a new inquiry, rather than a codification of the

previous two-part test, we conclude this change in substantive requirements works

no impermissible retroactive effect because the result is the same under either

standard.

AEDPA Replaces Both Teague and Cause-and-Prejudice Test

As a rule, “[i]t is not unusual for Congress to codify earlier precedent in

the habeas context.” Williams, 529 U.S. at 380 n.11 (Stevens, J.). Accordingly,

various courts have addressed whether AEDPA codifies the standards set out in

Teague or the cause-and-prejudice test, although no court has considered both.

Those courts that have analyzed whether AEDPA codifies Teague note that

AEDPA “imports an antiretroactivity principle” like that of Teague, but conclude

that the statutory amendments fall short of specifically adopting the Teague

standards. Green v. French, 143 F.3d 865, 873-74 (4th Cir. 1998), overruled on

other grounds by Williams, 529 U.S. 362; see also Larry W. Yackle, A Primer on

the New Habeas Corpus Statute, 44 B UFF . L. R EV . 381, 416-17 (1996) (“It is

accurate only to say that Congress has legislated in the field in which Teague has

-28-
operated and has thus reformulated the way in which the federal habeas courts are

to deal with the question that Teague previously answered”).

On one hand, AEDPA places an emphasis upon nonretroactivity

resembling Teague’s bar on retroactive application. For example, the post-

AEDPA requirements for review of state convictions command reliance upon

“clearly established law,” which Justice Stevens has suggested is the “functional

equivalent” of Teague’s antiretroactivity principle. Williams, 529 U.S. at 379.

Because there is no reason to believe that Congress intended to
require federal courts to ask both whether a rule sought on habeas is
“new” under Teague – which remains the law – and also whether it
is “clearly established” under AEDPA, it seems safe to assume that
Congress had congruent concepts in mind.

Id. at 379-80. Although the “clearly established” language never appeared in the

Teague jurisprudence, Justice Stevens concluded that the invocation of Teague’s

“new rule” phraseology in several other AEDPA subsections supports his

“impression that Congress had Teague . . . specifically in mind in amending the

habeas statute. These provisions, seen together, make it impossible to conclude

that Congress was not fully aware of, and interested in codifying into law, that

aspect of this Court’s habeas doctrine.” Id. at 380 n.12; but see Green, 143 F.3d

at 874 n.1 (fact that Congress used Teague language in some sections strengthens

conclusion that, where Congress chose different language, it did not intend to

codify Teague). Justice O’Connor, writing for the Court, seems to agree with

-29-
Justice Stevens that while Teague did not mention “clearly established federal

law” as such, it established the same principle as the opposite of “new rule.”

Thus, Justice O’Connor said, “[w]hatever would qualify as an old rule under our

Teague jurisprudence will constitute ‘clearly established federal law as

determined by the Supreme Court of the United States’ under § 2254(d)(1).” Id.

at 412.

On the other hand, AEDPA clearly did not adopt the Teague doctrine

wholesale. More specifically, AEDPA tightens application of the presumption

against retroactivity of new constitutional rules by limiting it to situations in

which the Supreme Court itself has declared that the new law should apply. See

28 U.S.C. § 2254(d)(1) (in state context, applying clearly established federal law

“as determined by the Supreme Court of the United States”); 28 U.S.C. § 2255 at

para. 8 (in federal context, requiring that new rules of constitutional law be “made

retroactive to cases on collateral review by the Supreme Court”); see also

Browning, 241 F.3d at 1265. This additional requirement “extends the principle of

Teague by limiting the source of doctrine on which a federal court may rely.”

Williams, 529 U.S. at 381 (Stevens, J.); id. at 412 (O’Connor, J.) (“§ 2254(d)(1)

restricts the source of clearly established law to this Court’s jurisprudence.”); see

also Rodriguez v. Bay State Corr’l Ctr., 139 F.3d 270, 274 (1st Cir. 1998)

(concluding “AEDPA does not codify Teague” because of addition of this

-30-
requirement), abrogated on other grounds by Bousley v. United States, 523 U.S.

614, 622-24 (1998).

Turning to the other of the two pre-AEDPA tests, courts have been quick

to note that AEDPA does not explicitly mention cause and prejudice. The

statute’s silence on cause and prejudice could lead to two very different

conclusions, however: either the earlier test has disappeared completely in light of

AEDPA or it survives AEDPA as an independent doctrine that must be applied in

addition to the AEDPA standard. Those courts that have specifically addressed

the relationship between AEDPA and the cause-and-prejudice test have assumed

that AEDPA replaces the former test. See, e.g., In re Jones, 226 F.3d at 332 n.1

(petitioner must satisfy AEDPA standard “rather than” showing no abuse of writ);

Minarik, 166 F.3d at 595 (cause and prejudice test replaced by “more rigorous”

AEDPA standard). Some have found AEDPA works an impermissibly retroactive

effect where a petitioner could have succeeded under the earlier cause-and-

prejudice test but fails under AEDPA. See, e.g., Minarik, 166 F.3d at 600-01

(holding AEDPA impermissibly retroactive whenever it mandates result different

from that of earlier law); Hanserd, 123 F.3d at 931 (same). This is the argument

made by Mr. Daniels.

After careful consideration of the questions involved, we are persuaded

AEDPA replaces the traditional two-part analysis for second and successive

-31-
motions seeking to raise new constitutional claims with a single, clear

requirement: the motion must rely on “a new rule of constitutional law, made

applicable to cases on collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255 at para. 8. Significantly, we find in 28 U.S.C. §

2244 partial support for the idea that Congress intended to replace the cause-and-

prejudice test with the new requirements of the AEDPA regime. Under the

former test, there may be cause for failure to raise a claim in one of two

situations. The first is a new rule of law. The second is newly discovered

evidence that reasonably could not have been known at the time of the first filing

and that sheds important new light on the petitioner’s case. 8 See McCleskey, 499

U.S. at 494 (cause if “the factual or legal basis for a claim was not reasonably

available” earlier). Compare those two possibilities to the AEDPA standard at 28

U.S.C. § 2244(b)(2), which states the following:

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

8
There is also a narrow catch-all exception which would grant habeas relief
any time “a constitutional violation has probably resulted in the conviction of one
who is actually innocent,” whether or not the cause standard has technically been
met. Murray v. Carrier, 477 U.S. 478, 496 (1986).

-32-
 (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.

This language arguably parallels the two options for establishing cause under the

pre-AEDPA test. Section 2255 is similar, requiring that “a second or successive

motion must be certified as provided in section 2244 by a panel of the appropriate

court of appeals to contain” either newly discovered evidence or new

constitutional law. 28 U.S.C. § 2255 at para. 8. Both sections differ from the

traditional cause standard in that a new law must be both “constitutional” and

“made applicable to cases on collateral review by the Supreme Court.” Still, the

close parallel between the old and the new standards supports the argument that

Congress intended the cause-and-prejudice analysis to be replaced by AEDPA.

Our determination that AEDPA’s new provisions wholly and intentionally

replace the concept of cause is further bolstered by the often-overlooked

requirement that a new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court must have been previously unavailable.

28 U.S.C. § 2255 at para. 8. The “previously unavailable” language is often

dropped from discussions of the section 2255 test, presumably because it appears

to duplicate the “new rule” term. If a rule is “new,” one may generally conclude

that the rule was “previously unavailable.” The duplicate language makes sense,

-33-
however, when considered in light of the theory that Congress intended AEDPA

to replace both Teague and the earlier test for cause. Each phrase has a different

meaning as a term of art under pre-AEDPA law – the “new rule” term implicates

Teague, while the “previously unavailable” term invokes the narrower

requirements of the old test for cause. See, e.g., Reed, 468 U.S. at 16 (cause

present if “a constitutional claim is so novel that its legal basis is not reasonably

available” prior to change in law) (emphasis added).

With respect to the “prejudice” portion of the test, it is fully embodied in

section 2244(b)(2)(B)(ii), which governs newly raised factual claims. As for

section 2244(b)(2)(A), governing new rules of constitutional law, we have already

concluded that AEDPA incorporates a Teague analysis. The second Teague

exception speaks of “watershed” new rules of criminal procedure. This Teague

exception applies to “those new procedures without which the likelihood of an

accurate conviction is seriously diminished.” Teague, 489 U.S. at 313. When an

error seriously affects the accuracy of a conviction, there will be a “reasonable

probability” that results might have been different without the claimed error, thus

meeting the prejudice test.

Despite our conclusion that AEDPA does indeed replace the old cause-and-

prejudice and Teague standards with a new requirement that a rule be made

applicable to cases on collateral review by the Supreme Court, the result for Mr.

-34-
Daniels is the same under either regime. As explained below, there is no actual

retroactive effect in applying the new AEDPA standard to Mr. Daniels.

No Retroactive Effect as Applied

This case involves a federal prisoner seeking to rely upon a

constitutionally based new rule of criminal procedure in a second or successive

habeas petition under section 2255. Our discussion of the pre-AEDPA two-part

test for abuse of the writ and retroactive application of law concluded with the

observation that such petitioners would succeed only if the rule is novel enough to

constitute “cause” and the new law fits the second Teague exception for

“watershed” new rules of criminal procedure that seriously affect the fundamental

accuracy of a proceeding. AEDPA’s new standard undeniably alters the legal

landscape in the sense that only the Supreme Court may now declare a rule of law

applicable to second or successive motions. Teague remains controlling law,

however, see Williams, 529 U.S. at 379, so presumably the Court will reach its

retroactivity decision by applying a Teague analysis. Even after AEDPA, a new

rule of criminal procedure must then meet the second Teague exception before the

Court will declare it retroactively applicable to cases on collateral review. The

-35-
second Teague exception controls the retroactivity analysis under either pre- or

post-AEDPA law. 9

The current showing required to raise a claim based upon a new rule of

criminal procedure thus remains fundamentally unchanged: both before and after

AEDPA, the new rule must meet Teague’s second exception. Because the

question of whether Apprendi fits that exception for successive habeas

applications is left to the exclusive province of the Supreme Court after AEDPA,

we do not attempt to address it here. Instead, we hold that the new AEDPA

substantive standards work no impermissibly retroactive effect as applied to Mr.

Daniels’ application. Therefore, we must apply the post-AEDPA section 2255

standard to his habeas application. Because Apprendi has not yet been made

applicable to cases on collateral review by the Supreme Court as required by

9
The substitution of a single standard under AEDPA in place of the earlier
two-part inquiry raises the possibility that it has become easier for petitioners to
obtain review of second or subsequent habeas applications after AEDPA. That
result would be inconsistent with Congress’ stated intent in enacting AEDPA to
“curb the abuse of the statutory writ of habeas corpus.” Rodriguez v. Bay State
Corr’l Ctr., 139 F.3d 270, 273 (1st Cir. 1998) (quoting H.R. C ONF . R EP . N O . 104-
518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 944), abrogated on other
grounds by Bousley v. United States, 523 U.S. 614, 622-24 (1998). Because we
conclude that a claim must meet the second Teague exception under either regime
and that the exception necessarily encompasses the same standards as cause and
prejudice, there should be no alteration to the difficulty of raising a claim. In
fact, most prisoners would argue they are disadvantaged by the likelihood that it
will take longer for the Supreme Court to determine retroactivity than it might
take a court of appeals – an argument foreclosed by the “procedural exception” to
Landgraf discussed in Part II.

-36-
section 2255, we conclude based upon our holding in Browning that this

application must be dismissed.

V

CONCLUSION

For the foregoing reasons, Mr. Daniels’ request for permission to file a

successive habeas petition under 28 U.S.C. § 2255 is DENIED.

-37-
Daniels v. United States, No. 00-6298

HENRY, J., concurring in part and dissenting in part.

I join the dissent insofar as I, too, adhere to the views expressed in the

dissenting opinion in Browning v. United States, 241 F.3d 1262, 1267 (10th Cir.

2001) (en banc). I recognize that Browning is the law of the circuit, and, given

our precedent, I concur with the majority opinion that AEDPA’s substantive

standards work no impermissibly retroactive effect when applied to Mr. Daniels’

application.
Daniels v. United States, No. 00-6298

MURPHY, Circuit Judge, dissenting.

I respectfully dissent. I continue to adhere to the views expressed in my

dissenting opinion in Browning v. United States, 241 F.3d 1262, 1267 (10th Cir.

2001) (en banc) (Murphy, J., dissenting). To clarify, I agree that only new rules

of constitutional law announced by the Supreme Court, as opposed to such rules

announced by a lower federal court, can support the filing of a second or

successive petition under § 2255 para. 8. See Majority Op. at 30. I continue to

differ with my colleagues in the majority, however, with regard to the question of

whether having announced such a rule, only the Supreme Court can determine

whether the new rule satisfies Teague. See Browning, 241 F.3d at 1267 (Murphy,

J., dissenting). Furthermore, because I continue to believe that § 2255 para. 8

codifies rather than replaces Teague, I also harbor serious doubts as to whether §

2255 para. 8 reworks the pre-AEDPA requirement of cause and prejudice. As I

noted it my dissent in Browning, it appears the Supreme Court will resolve at

least part of this puzzle when it announces its decision in Tyler v. Cain, 121 S. Ct.

654 (2000). See generally Brief for Petitioner, Tyler v. Cain, No. 00-5961, 2001

WL98964 (asserting that § 2244(b)(2)(A), the parallel provision to § 2255 para. 8,

codifies rather than displaces Teague, leaving intact the power of the Circuit

Courts of Appeals to determine whether a new rule of constitutional law

announced by the Supreme Court satisfies Teague).