In Re: Williams v.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

In Re: BILLY WILLIAMS,  No. 03-210
Movant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.

Argued: December 5, 2003

Decided: March 26, 2004

Before WILKINS, Chief Judge, and WILKINSON and
MOTZ, Circuit Judges.

Motion denied by published opinion. Chief Judge Wilkins wrote the
opinion, in which Judge Wilkinson and Judge Motz joined.

COUNSEL

ARGUED: Justin Sanjeeve Antonipillai, ARNOLD & PORTER,
Washington, D.C., for Movant. Steven Andrew Witmer, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Respondent. ON BRIEF: Jerry W. Kilgore,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Respondent.

OPINION

WILKINS, Chief Judge:

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

I.

Williams 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 (2002).

Since his first § 2254 application was denied, Williams has filed
three motions pursuant to § 2244(b) seeking authorization to file suc-
cessive 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 testi-
mony 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Williams, No. 02-176 (4th Cir. June 18, 2002) (unpublished order).

Williams 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 Wil-
liams’ 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.

Williams has now filed a third PFA motion, which expands his pre-
vious description of the trial evidence and the new evidence he has
allegedly obtained. In particular, the new motion alleges that Wil-
liams was tried twice on charges relating 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
 IN RE: WILLIAMS 3
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.

II.

The 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 (1991) (discuss-
ing 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, 124
S. Ct. 496 (2003).

Under § 2244(b)(2), a claim presented for the first time in a succes-
sive § 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 col-
lateral 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 dili-
gence; 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 con-
4 IN RE: WILLIAMS
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

28 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 pro-
cess previously performed by the district court." In re King, 190 F.3d
479, 482 (6th Cir. 1999) (en banc).

In 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 appli-
cations for collateral review. We implicitly acknowledged this con-
cern 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.

A.

We begin our analysis of § 2244(b) by examining the language of
the statute. See 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.

In order to satisfy the requirements of § 2244(b)(2), a prisoner fil-
ing a PFA motion must cite a legal rule that was "previously unavail-
able," 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 indi-
cates what the availability of a new rule or the discovery of new evi-
dence 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. Conse-
quently, constitutional rules that were established at the time of the
 IN RE: WILLIAMS 5
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

Our conclusion is based on longstanding principles of habeas prac-
tice 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. This doctrine
generally precluded a federal court from considering claims presented
in a successive application unless the applicant could demonstrate
cause and prejudice.2 See 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 fac-
tual basis for the claim, . . . [that] prevented petitioner from raising
the claim." Id. at 586 (internal quotation marks omitted). Signifi-
cantly, the cause inquiry focused on whether the applicant was pre-
vented from including a particular claim in his most recent
application. See id. (holding that the claims presented in the appli-
cant’s third habeas petition were barred by the abuse of the writ doc-
trine 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 habeas corpus" (emphasis added)).
1
Although this opinion generally speaks in terms of review of the PFA
motion, our focus is properly directed to the proposed successive appli-
cation that the prisoner wishes to file. See 28 U.S.C.A. § 2244(b)(3)(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 subsec-
tion." (emphasis added)); see also 4th Cir. R. 22(d) (requiring that
motion for pre-filing authorization be accompanied by proposed applica-
tion). For convenience, we will use the term "PFA motion" to refer to
both the motion for pre-filing authorization and the proposed application
appended to it.
2
A second exception to the abuse of the writ doctrine permitted review
in "cases . . . implicating a fundamental miscarriage of justice."
McCleskey, 499 U.S. at 494. That exception is not relevant to the issues
before us.
6 IN RE: WILLIAMS
The word "previously," as used in § 2244(b)(2), codifies the cause
requirement associated with the abuse of the writ doctrine. See Dan-
iels v. United States, 254 F.3d 1180, 1198 (10th Cir. 2001) (en banc).
For this reason, previousness inquiries under § 2244(b)(2) should fol-
low the same path as pre-AEDPA cause inquiries. Because pre-
AEDPA courts evaluating cause considered whether the applicant’s
new claims were available at the time of the most recent federal pro-
ceeding, 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

B.

As noted in Williams I, two other courts have already issued opin-
ions addressing the proper treatment of successive PFA motions. See
Williams I, 330 F.3d at 282 n.2 (citing Bennett and Bell v. United
3
We have not found any case directly on point other than Bennett. Our
holding is, however, consistent with other decisions looking to the most
recent federal collateral challenge as the "coign of vantage" for assessing
previousness. Rodriguez v. Superintendent, 139 F.3d 270, 274 (1st Cir.
1998); see Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.) (rejecting
PFA motion on ground that factual predicate for claim was discoverable
before prisoner filed first habeas application), cert. denied, 536 U.S. 978
(2002); McDonald v. Bowersox, 125 F.3d 1183, 1186 (8th Cir. 1997)
(per curiam) (same). Other courts have used events that preceded the
most recent federal collateral challenge as their reference points for pre-
viousness determinations, but their holdings would not preclude them
from adopting the rule we have announced today. See In re Provenzano,
215 F.3d 1233, 1236 (11th Cir. 2000) (per curiam) (holding, in the con-
text of a successive PFA motion, that "the question for
§ 2244(b)(2)(B)(ii) purposes is . . . whether [new evidence] could have
been discovered ‘previously,’ which means at least as late as the time
of the filing of the first federal habeas petition" (emphasis added));
United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998) ("The tradi-
tional definition of newly discovered evidence is evidence discovered
since the trial, at least with respect to motions for a new trial . . . ." (inter-
nal quotation marks omitted)).
 IN RE: WILLIAMS 7
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.

1.

In 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’ tes-
timony 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.

Relying 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 respect-
fully 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 ear-
lier motion.

We are not persuaded, however, that Bell announces a general pol-
icy allowing successive PFA motions to be filed and considered with-
out 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; indeed, we did so ourselves with respect to Williams’ first
PFA motion, which was filed without the attachments required by our
local rule, see 4th Cir. R. 22(d).4 On this understanding of Bell, that
4
When an applicant’s PFA motion is denied without prejudice, then
any previousness inquiry relating to his next PFA motion will focus on
the last federal collateral challenge prior to the PFA motion that was
8 IN RE: WILLIAMS
decision neither conflicts with our holding nor supports Williams’
argument for open-ended review of successive PFA motions.

2.

Whereas Williams maintains that this court should adopt his inter-
pretation 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 (1992). See Bennett, 119 F.3d at 471. The Seventh Cir-
cuit 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 dis-
cussed above in Part II.A of this opinion.

denied without prejudice. Cf. Dunn v. Singletary, 168 F.3d 440, 441
(11th Cir. 1999) (per curiam) (holding that second habeas application is
not successive and is not subject to § 2244(b) if first application was
properly dismissed without prejudice).
We note incidentally that denials for failure to comply with Rule 22(d)
have become somewhat more common in this circuit since our decision
in Winestock, which held that appellate briefs should be construed as
PFA motions in certain circumstances. See Winestock, 340 F.3d at 208.
In order to avoid a potential injustice arising from this practice, we hold
that denials of "Winestock motions" are without prejudice unless the
opinion or order denying the motion expressly states otherwise. Cf. Cas-
tro v. United States, ___ U.S. ___, 2003 WL 22938448, at *6 (Dec. 15,
2003) (holding that current § 2255 application is not successive if prior
application was originally filed as Fed. R. Crim. P. 33 motion and district
court converted it without notice to applicant). Thus, if a prisoner has an
appellate brief converted into a PFA motion and then files an actual PFA
motion raising the same issues, our previousness inquiry will ordinarily
focus on the last federal collateral challenge prior to the conversion of
the appellate brief (which would be the proceeding that gave rise to the
appeal in which the Winestock conversion took place, if that proceeding
resulted in a determination on the merits).
 IN RE: WILLIAMS 9
The 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 pre-
sented 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 Rig-
gins claim in the second PFA motion was the same as the claim pre-
sented 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.

We respectfully disagree with this analysis. By its terms,
§ 2244(b)(1) applies only 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 2254" (emphasis added)). In con-
trast, a motion for leave to file such an application is called a "mo-
tion." 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.6 Bennett, 119 F.3d at
471.

Notwithstanding this natural reading, the Seventh Circuit held that
5
The applicant in Bennett sought permission to file a successive § 2255
application, rather than a "successive habeas corpus application under
section 2254," but the Seventh Circuit has held that § 2244(b)(1) applies
to both types of applications. See Taylor v. Gilkey, 314 F.3d 832, 836
(7th Cir. 2002). This court has not resolved that question. See Winestock,
340 F.3d at 205.
6
Williams maintains that the same logic applies to § 2244(b)(2)—that
is, that the word "previously" should be construed to refer to the last
application for collateral review rather than the last PFA motion. As we
have explained, we disagree. There is a critical difference in the relevant
language, in that § 2244(b)(1) expressly refers to "a prior application,"
while § 2244(b)(2) uses the word "previously" without identifying any
reference point for application of that requirement.
10 IN RE: WILLIAMS
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 pris-
oner 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.

With 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 justi-
fications for claims based on facts alleged in previous PFA motions,
this approach would have no impact on motions relying on new evi-
dence, as the presentation of new evidence alters the "set of facts giv-
ing 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 previ-
ousness 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.

III.

Application of the rule we 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.
 IN RE: WILLIAMS 11
We note that we would deny Williams’ motion even if he could
satisfy the previousness requirement. Although the new facts alleged
in the current PFA motion highlight the significance of Teach’s testi-
mony 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).

IV.

For 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.

MOTION DENIED