                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 15-206


In re:    JOHN EARL MCFADDEN,

                       Movant.



On Motion for Authorization to File Successive § 2254 Petition
in the United States District Court for the Eastern District of
Virginia, at Richmond.


Argued:    January 27, 2016                  Decided:   June 20, 2016


Before KING, GREGORY, AND WYNN, Circuit Judges.


Motion denied by published opinion. Judge Wynn wrote             the
opinion, in which Judge King and Judge Gregory joined.


ARGUED: Anatoly Smolkin, GALLAGHER EVELIUS & JONES LLP,
Baltimore, Maryland, for Movant.      Rosemary Virginia Bourne,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Respondent.   ON BRIEF: Paul S. Caiola, GALLAGHER EVELIUS &
JONES LLP, Baltimore, Maryland, for Movant.    Mark R. Herring,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Respondent.
WYNN, Circuit Judge:

         John    Earl    McFadden     moves        for    authorization        to    file    a

successive        habeas     corpus    application 1           pursuant   to    28    U.S.C.

§ 2254.         His claim is based on newly discovered facts suggesting

that his trial counsel did not communicate to him a favorable

plea     offer.         However,    the   claim          does   not   fall     within       the

exceptions to the bar on successive habeas applications under 28

U.S.C.      § 2244(b)        because      it       neither       arises   from       a      new

constitutional rule of law, nor introduces evidence relevant to

an evaluation of McFadden’s guilt.                        Accordingly, we deny the

motion.

                                           I.

         In December 2006, a Virginia state jury convicted McFadden

of eleven offenses, including multiple counts of robbery and use

of   a    firearm       in   the   commission       of     a    felony.      McFadden       is

currently serving an 88-year sentence for those convictions in a

Virginia prison.             Over the years, McFadden has filed a direct

appeal, multiple state habeas petitions, 2 and a federal habeas


1 Although “it is settled law that not every numerically second
petition is a ‘second or successive’ petition,” In re Williams,
444 F.3d 233, 235 (4th Cir. 2006), McFadden presents his
petition as successive, so we have no occasion to question that
characterization.
2 Most recently, in May 2015, McFadden filed a fourth state

habeas petition, which was dismissed as time barred under Va.
Code § 8.01-654(A)(2).    Because that provision “contains no
exception allowing a petition to be filed after” the limitations
period has expired, Hines v. Kuplinski, 591 S.E.2d 692, 693 (Va.
                                               2
application    challenging       his   conviction          and      sentence,       none    of

which have been successful.

     McFadden     now    alleges       in       a    proposed       successive        habeas

application that despite multiple attempts over the years to

obtain   his    entire    case    file      from       his    trial     and        appellate

counsel, it was not until May 2014 that he was provided with a

particular     document     suggesting              that     his     counsel        provided

constitutionally    ineffective         assistance.              That   document       is    a

proposed plea agreement, signed by McFadden’s trial counsel but

not by the government, stipulating that McFadden would plead

guilty to one count of robbery and one related count, and would

be sentenced to no more than ten years of active incarceration.

McFadden   claims   that    his    counsel           failed    to     communicate       this

supposed   offer,   that    McFadden        would      have        accepted    it    had    he

known about it, and that he was prejudiced as a result.

     McFadden has filed a motion for pre-filing authorization

with this Court, a procedural prerequisite for the filing of a

successive      federal      habeas             application.                  28      U.S.C.

§ 2244(b)(3)(A).

                                         II.

2004), McFadden’s claim may be treated as exhausted, regardless
of whether McFadden is pursuing an appeal in Virginia state
court,   Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997)
(“[T]he exhaustion requirement for claims not fairly presented
to the state’s highest court is technically met . . . when a
state procedural rule would bar consideration [of] the claim
. . . .” (citations omitted)).
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       We    may   grant    McFadden’s    pre-filing      authorization   motion

“only if . . . the application makes a prima facie showing that

[it]   satisfies     the     requirements”     outlined    below.    28   U.S.C.

§ 2244(b)(3)(C).       A prima facie showing is “simply a sufficient

showing of possible merit to warrant a fuller exploration by the

district court.”           In re Williams, 330 F.3d 277, 281 (4th Cir.

2003) (quoting Bennett v. United States, 118 F.3d 468, 469–70

(7th Cir. 1997)).

       McFadden’s claim was not previously presented in a federal

habeas application.           See 28 U.S.C. § 2244(b)(1).           However, he

must nevertheless make a prima facie showing either that his

claim relies on a new, retroactive, and previously unavailable

rule of constitutional law, 28 U.S.C. § 2244(b)(2)(A), or that

       (i) the factual predicate for the claim could not have
       been discovered previously through the exercise of due
       diligence; and

       (ii) the facts underlying the claim, if proven and
       viewed in light of the evidence as a whole, would be
       sufficient to establish by clear and convincing
       evidence that, but for constitutional error, no
       reasonable factfinder would have found the applicant
       guilty of the underlying offense.

Id. § 2244(b)(2)(B).

       McFadden concedes that his claim does not depend on a new

constitutional rule of law.            Rather, he seeks to ground his pre-

filing      authorization     motion     in   Section   2244(b)(2)(B)’s    newly

discovered facts exception.


                                          4
       However,      even    assuming       a   prima      facie    showing     that      “the

factual predicate for [McFadden’s] claim could not have been

discovered previously through the exercise of due diligence,”

id. § 2244(b)(2)(B)(i), the newly discovered facts McFadden puts

forth are not “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,” id. § 2244(b)(2)(B)(ii).

       On the contrary, the evidence McFadden offers, a supposed

plea offer, would simply have no bearing on the deliberations of

a   “reasonable       factfinder”          regarding       McFadden’s      innocence        or

guilt.     Id.; see Calderon v. Thompson, 523 U.S. 538, 558 (1998)

(characterizing Section 2244(b)(2)(B) as requiring a “prisoner

[to] show[], among other things, that the facts underlying [his]

claim     establish         his     innocence         by      clear     and     convincing

evidence”); Outlaw v. Sternes, 233 F.3d 453, 454–55 (7th Cir.

2000) (concluding that evidence of judicial bias did not satisfy

Section 2244(b)(2)(B) in part because it was not relevant to the

prisoner’s innocence); In re Bryan, 244 F.3d 803, 805 (11th Cir.

2000)    (deeming       Section      2244(b)(2)(B)            not     satisfied     because

evidence that defense counsel was an active alcoholic did not

call     into     question         the     jury’s      determination           of   guilt);

Villafuerte     v.    Stewart,       142    F.3d      1124,    1126    (9th    Cir.      1998)

(holding that evidence of judicial bias does not satisfy Section

                                                5
2244(b)(2)(B) because it “does not add to or subtract from the

evidence of . . . guilt”); cf. United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003) (concluding that newly discovered

evidence   that    a   prisoner’s   appellate   attorney   was    disbarred

could not permit the filing of a federal prisoner’s successive

application       under   28   U.S.C.      § 2255   because      it   merely

“contest[ed] the fairness of the criminal proceedings” without

touching upon the applicant’s guilt).

     Newly discovered evidence that a defendant may have lost

out on a favorable plea offer fits neither of Section 2244(b)’s

exceptions.       McFadden’s   pre-filing    authorization     motion   must

therefore be denied.

                                    III.

     Because McFadden has failed to make a prima facie showing

that his application meets the requirements of Section 2244(b),

we deny his motion to file a successive habeas application.



                                                              MOTION DENIED




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