dissenting:
On the discrete issue, I agree with the majority's conclusion that Bailey does not announce a “new rule of constitutional law.” However, I dissent from the judgment denying Vial’s motion to file a second motion under 28 U.S.C. § 2255 because I believe that the “successive-motion” provision of the AEDPA cannot constitutionally apply in this case. Inasmuch as this case was selected as the vehicle for announcing this court’s views on how the AEDPA affects successive § 2255 motions raising Bailey claims, we should reach the retroactivity issue rather than merely assuming, as the majority does, ante at 1198 n. 13, that the new statute applies here.
The Supreme Court has recently granted certiorari to consider the retroactive effect of § 104(3) of the AEDPA, which specifies the standards that federal courts should use in § 2254 actions in reviewing the legal determinations of state courts. See Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), petition for cert. granted in part, — U.S. —, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997). Although the Court’s opinion will undoubtedly provide some guidance on the retroactivity issue left unanswered in our ease, it may not be dispositive. The retroac-tivity analysis may well have to be applied separately to discrete parts of the AEDPA. See Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994) (“[Tjhere is no special reason to think that all provisions of the[Civil Rights Act of 1991] must be treated uniformly for [retroactivity] purposes.”). For example, the substitution of the circuit court in place of the district court as the gatekeeper against successive claims would appear to raise no retroactivity concerns; there is no reasonable expectation that a certain tribunal will adjudicate one’s claims. See id. at 274-76, 114 S.Ct. at 1502. Similarly, requiring a court order prior to the filing of a successive § 2255 motion, rather than permitting the filing of the motion and awaiting the inevitable “abuse of the writ” or “successive motion” defense, is not the sort of procedural change that “upsets expectations based in prior law.” Id. at 269, 274-76, 114 S.Ct. at 1499, 1502. However, the higher gate presented by AEDPA’s “new rule of constitutional law” provision has the sort of retroactive effect that Landgraf forbids.
At present, there is no consensus in sight among the federal courts on these retroactivity questions. Compare Lindh, 96 F.3d at 861-67 (new standards of review apply); Drunkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996) (same), cert. denied, — U.S. -, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997); with Boria v. Keane, 90 F.3d 36 (2nd Cir.) (per curiam) (new standards of review do not apply), petition for cert. filed, 65 U.S.L.W. 3342 (Oct. 11, 1996) (No. 96-628); and compare United Stales v. Lopez, 100 F.3d 113 (10th Cir.1996) (certificate of appealability requirement and one-year filing limit do not apply to cases pending on AEDPA’s effective date); with Hunter v. United States, 101 F.3d 1565, 1568-73 (11th Cir.1996) (certificate of appealability requirement applies to § 2254 eases pending on effective date, where no application for a certificate of probable cause had yet been applied for, and in- § 2255 cases, where no notice of appeal had yet been filed), cert. denied, — U.S.-, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997); Lozada v. United States, 107 F.3d 1011 (2nd Cir.1997) (same; § 2255 case). The two courts of appeals that have addressed the successive-motion issue would not apply the AEDPA’s provisions to successive habeas petitions filed prior to its effective date. See Lindh, 96 F.3d at 863 (“[A] second or successive petition already pending on April 24[1996] does not require prior approval of the court of appeals under § 106 [of the AEDPA]”) (dicta); Williams v. Calderon, 83 F.3d 281, 285 (9th Cir.1996) (AEDPA’s successive-petition procedure inapplicable to petitions pending on effective date, and post-AE DPA amendment to pending petition would relate back to filing date). I think that these decisions are correct. Moreover, I would extend this rule to cases such as Vial’s, in which a prisoner has filed his first § 2255 *1200motion before the AEDPA’s effective date and his second thereafter.
Under Landgraf, “the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” 511 U.S. at 270, 114 S.Ct. at 1499. This in turn requires the court to identify the “relevant retroactivity event” to which these consequences attach. Id. at 289-91, 114 S.Ct. at 1524-25. (Scalia, J., concurring in the judgments). Where successive § 2255 motions are involved, the “relevant retroactivity event” is obviously the filing of the earlier motion(s). See Burris v. Parke, 95 F.3d 465, 468 (7th Cir.1996) (“The completed event to which the new statute [§ 106(b)(2) of the AEDPA] attaches new legal consequences is the filing of his first [§ 2254] petition_ ”).* The legal consequence effected by the AEDPA’s successive-motion provisions is to slam the gate shut against claims raising Bailey if the prisoner were relying on the gate remaining open for such claims.
There are, without question, many prisoners serving § 924(c)(1) sentences who could avail themselves of the Bailey decision. Many of them, in reliance on the well-established line of cases in this and other circuits, no doubt directed their initial post-conviction efforts towards other potentially more fruitful areas rather than take up their time (and ours) with a seemingly dead-letter issue. See Bailey, — U.S. at -, 116 S.Ct. at 505 (noting that “§ 924(c)(1) has been the source of much perplexity in the courts.”); United States v. Brockington, 849 F.2d 872, 876 (4th Cir.1988) (stating this circuit’s rule). When they filed their initial § 2255 motions, then, their “settled expectation” was that it was neither pressing nor especially worthwhile that the “use” issue be raised. These prisoners knew that an unforeseen, drastic change in how “use” was defined could be raised by simply filing a second § 2255 motion, negotiating the cause and prejudice hurdles, and obtaining relief. Had the AEDPA been in effect when the prisoners first filed, perhaps they would have included a claim attacking the “use” instruction, as well as any other conceivable claim. Under the AEDPA, prisoners would be well advised to include any claim with even the remotest chance of success. Indeed, one of the purposes of the AEDPA is to cut down on innumerable filings. Applying the successive-motion provision to prisoners like Vial, however, offends the “familiar considerations of notice, reasonable reliance, and settled expectations” that militate against retroactive application of a statute. Landgraf at 270, 114 S.Ct. at 1499.
I would grant the application to file the successive § 2255 motion.
Judge MURNAGHAN and Judge MICHAEL join in this dissenting opinion.
It is no answer to say that we do not need to reach the retroactivity issue because Vial would have ultimately lost under the pre-AEDPA rules anyway. I realize that Vial has an uphill battle once the merits of his claim are considered. Under a cause-and-prejudice standard, see McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991), the intervening decision in Bailey would suffice to clear the cause hurdle. See Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (intervening change in the law may justify the filing of a § 2255 motion on an issue previously decided). On the other hand, Vial would probably be unable to show "actual prejudice” because there is no "substantial likelihood” that a properly instructed jury would have acquitted him of "carrying” the firearm. United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 1596-97, 71 L.Ed.2d 816 (1982).
But Vial’s case is hardly the paradigm. Many persons are in jail today where a pre-Bailey instruction resulted in a conviction on facts such as those in United States v. Smith, 94 F.3d 122, 124 (4th Cir.1996) ("The only testimony regarding the second weapon ... was that it ‘belonged’ to Smith during the time that he was distributing crack cocaine."). These prisoners would have no difficulty establishing “prejudice.” No error is more prejudicial than one that deprives an innocent man of his life or liberty.