PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: AVERY W. VIAL,
                                                                         No. 96-614
Movant.

On Motion for Authorization to
File Successive Application.
(CR-92-64)

Argued: December 3, 1996

Decided: June 16, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.

_________________________________________________________________

Motion denied by published opinion. Judge Wilkins wrote the major-
ity opinion, in which Chief Judge Wilkinson and Judges Russell,
Widener, Ervin, Niemeyer, Williams, and Motz join. Judge Hamilton
wrote an opinion concurring in the judgment, in which Judge Motz
joins. Judge Luttig joins in the judgment. Judge Hall wrote a dissent-
ing opinion, in which Judges Murnaghan and Michael join.

_________________________________________________________________

COUNSEL

ARGUED: Lee W. Kilduff, MORCHOWER, LUXTON & WHA-
LEY, Richmond, Virginia, for Movant. Vicki S. Marani, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
United States. ON BRIEF: Michael Morchower, MORCHOWER,
LUXTON & WHALEY, Richmond, Virginia, for Movant. Janice
McKenzie Cole, United States Attorney, John S. Bowler, Assistant
United States Attorney, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for United States.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

We convened en banc to consider Avery W. Vial's request for per-
mission to file a second or successive motion to vacate his sentence.
See 28 U.S.C.A. § 2255 (West 1994), as amended by Antiterrorism
and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-
132, sec. 105, 110 Stat. 1214, 1220.1 Vial contends that the decision
of the Supreme Court in Bailey v. United States , 116 S. Ct. 501
(1995), establishes "a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court" within the mean-
ing of § 2255, thereby entitling him to permission to file a second or
successive motion.2 We disagree and accordingly deny Vial's request.

I.

In 1992, Vial was convicted of conspiracy to possess with the
intent to distribute cocaine, see 21 U.S.C.A. § 846 (West Supp. 1997),
and of using or carrying a firearm during and in relation to a drug traf-
ficking offense, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997); he
was sentenced to 157 months imprisonment. We subsequently
affirmed the judgment on direct appeal. See United States v. Vial, 21
F.3d 426 (4th Cir. 1994) (unpublished table decision) (per curiam).

In 1994, Vial filed a pro se motion to vacate his sentence pursuant
_________________________________________________________________
1 The AEDPA, in pertinent part, also amended 28 U.S.C.A. §§ 2244,
2253, 2254 (West 1994 & Supp. 1997). See AEDPA secs. 101-102, 104,
106. Unless otherwise noted, citations to these provisions are to the
amended versions.
2 Vial also requests permission to present a claim to the district court
based on an alleged sentencing error. We address this claim separately
below.

                    2
to § 2255, challenging, inter alia, the sufficiency of the evidence sup-
porting his § 924(c)(1) conviction. The district court denied the
motion, concluding with respect to the § 924(c)(1) claim that it was
procedurally barred because Vial had made the same argument on
direct appeal and because his § 2255 motion did not allege an inter-
vening change in the law. See Davis v. United States, 417 U.S. 333,
342 (1974). We affirmed. See United States v. Vial, 43 F.3d 1469 (4th
Cir. 1994) (unpublished table decision) (per curiam).

In September 1996, Vial filed another § 2255 motion in federal dis-
trict court, alleging that his § 924(c)(1) conviction was unconstitu-
tional in light of Bailey. The district court dismissed the action
without prejudice to allow Vial to seek permission from this court to
file a second or successive motion as required by§ 2255. Vial subse-
quently moved this court for the appropriate certification. In light of
conflicting rulings within the circuit regarding whether § 2255 allows
us to authorize the filing of a second or successive motion to vacate
sentence that alleges the illegality of a § 924(c)(1) conviction under
Bailey, we elected to consider Vial's request en banc.3

II.

Chapter 153 of Title 28 of the United States Code provides a statu-
tory framework for federal postconviction relief from judgments of
conviction entered in federal and state courts. 4 Under this framework,
individuals convicted of crimes in state courts seek federal habeas
corpus relief through 28 U.S.C.A. § 2254. Those convicted in federal
court are required to bring collateral attacks challenging the validity
of their judgment and sentence by filing a motion to vacate sentence
_________________________________________________________________
3 In doing so, we exceeded the 30-day time limitation established by 28
U.S.C.A. § 2244(b)(3)(D) for decisions on requests for permission to
institute a second or successive § 2255 proceeding. We are convinced,
however, that the importance of the issue presented justified the delay.
4 The AEDPA added new Chapter 154, setting forth special procedures
for § 2254 actions brought by indigent prisoners in state custody subject
to a capital sentence when the state has established a mechanism for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in state postconviction proceedings in
accordance with certain statutory guidelines. See AEDPA sec. 107.

                    3
pursuant to 28 U.S.C.A. § 2255. See Bradshaw v. Story, 86 F.3d 164,
166 (10th Cir. 1996); see also Davis, 417 U.S. at 343 (noting "that
§ 2255 was intended to afford federal prisoners a remedy identical in
scope to federal habeas corpus"); United States v. Hayman, 342 U.S.
205, 219 (1952) ("Nowhere in the history of Section 2255 do we find
any purpose to impinge upon prisoners' rights of collateral attack
upon their convictions. On the contrary, the sole purpose [in enacting
§ 2255] was to minimize the difficulties encountered in habeas corpus
proceedings by affording the same rights in another and more conve-
nient forum."). When, however, § 2255 proves "inadequate or ineffec-
tive to test the legality of ... detention," a federal prisoner may seek
a writ of habeas corpus pursuant to 28 U.S.C.A.§ 2241 (West 1994).5
28 U.S.C.A. § 2255.

The AEDPA effected a number of substantial changes regarding
the availability of federal postconviction relief to individuals con-
victed of crimes in federal and state courts. Of particular importance
here are the provisions of the AEDPA codifying and extending judi-
cially constructed limits on the consideration of second and succes-
sive applications for collateral relief.6 See Felker v. Turpin, 116 S. Ct.
2333, 2340 (1996). Under the AEDPA, an individual may not file a
second or successive § 2254 petition for a writ of habeas corpus or
§ 2255 motion to vacate sentence without first receiving permission
to do so from the appropriate circuit court of appeals. See 28 U.S.C.A.
§§ 2244(b), 2255. As pertinent to this case,§ 2255 provides that a
_________________________________________________________________
5 For example, attacks on the execution of a sentence are properly
raised in a § 2241 petition. See Bradshaw , 86 F.3d at 166; see also
Hanahan v. Luther, 693 F.2d 629, 632 n.1 (7th Cir. 1982) (noting that
a federal prisoner's challenge to parole revocation proceedings is prop-
erly brought under § 2241). However, the remedy afforded by § 2255 is
not rendered inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision, see Tripati v. Henman,
843 F.2d 1160, 1162 (9th Cir. 1988), or because an individual is proce-
durally barred from filing a § 2255 motion, see Garris v. Lindsay, 794
F.2d 722, 726-27 (D.C. Cir. 1986) (per curiam).
6 The parties do not dispute that the meaning of "second or successive"
is the same under the AEDPA as under prior law. See Benton v.
Washington, 106 F.3d 162, 164 (7th Cir. 1996); Camarano v. Irvin, 98
F.3d 44, 46 (2d Cir. 1996) (per curiam).

                    4
court of appeals may authorize the filing of a second or successive
§ 2255 motion only if the movant's application contains a claim based
upon--

           (1) newly discovered evidence that, if proven and viewed
          in light of the evidence as a whole, would be sufficient to
          establish by clear and convincing evidence that no reason-
          able factfinder would have found the movant guilty of the
          offense; or

           (2) 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.A. § 2255.7

Vial principally maintains that his application for permission to file
a second or successive § 2255 motion satisfies the latter criterion. He
asserts that in Bailey the Supreme Court created "a new rule of consti-
tutional law" and that the Supreme Court has made the Bailey rule
available in collateral review proceedings. We disagree with both of
these assertions.

A.

In Bailey, the Supreme Court held that in order to convict a defen-
dant of "using" a firearm within the meaning of § 924(c)(1), the Gov-
ernment must show that the defendant actively employed the weapon.
Bailey, 116 S. Ct. at 505. Vial--whose § 924(c)(1) conviction was
based on a pre-Bailey definition of use--maintains that Bailey
amounts to a new rule of constitutional law and thus may form the
basis for a second or successive § 2255 motion under the AEDPA. In
making this argument, Vial concedes that the Bailey Court clearly
considered itself to be engaged in statutory construction rather than
constitutional rulemaking. See id. (explaining that "[w]e granted cer-
tiorari to clarify the meaning of `use' under§ 924(c)(1)"); id. at 506
_________________________________________________________________
7 The procedures applicable to consideration by a circuit court of
appeals of a request for permission to file a second or successive § 2255
motion are set forth in § 2244(b)(3).

                    5
(noting that "[t]he meaning of statutory language" depends in part on
the context in which the language is used) (internal quotation marks
omitted). Indeed, the Bailey Court neither referred to, nor relied upon,
any provision of the Constitution as support for its holding.

Nevertheless, Vial maintains, Bailey established a rule "of" consti-
tutional law within the meaning of § 2255 in the sense that the hold-
ing in Bailey is derived from constitutional principles. Specifically,
Vial asserts that the Bailey Court relied on the rule of lenity to guide
its construction of the term "uses" in § 924(c)(1). Vial further posits
that the rule of lenity "is anchored in at least four values of constitu-
tional gravity: fair notice, majoritarian policy-making, federalism, and
... the separation of powers." Movant's Br. at 7. Thus, Vial argues,
because Bailey is based on the rule of lenity, which is founded in turn
upon constitutional principles, Bailey is a rule "of" constitutional law.

We need not analyze the constitutional underpinnings of the rule
of lenity in order to reject Vial's argument for the simple reason that
the Bailey Court did not even mention the rule of lenity, much less
rely upon it. Moreover, when, as in Bailey, the meaning of a statute
may be determined from an examination of its "language, context,
and history," Bailey, 116 S. Ct. at 506, application of the rule of lenity
is inappropriate, see Chapman v. United States , 500 U.S. 453, 463
(1991) (explaining that the rule of lenity does not apply unless a stat-
ute remains ambiguous even after a court has considered every source
available to aid in interpretation).

We hold that the decision of the Supreme Court in Bailey did not
announce a new rule of constitutional law and accordingly may not
form the basis for a second or successive motion to vacate sentence
pursuant to 28 U.S.C.A. § 2255. In reaching this conclusion, we join
the other circuit courts of appeals that have considered this question.
See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997)
(per curiam); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.
1997); In re Blackshire, 98 F.3d 1293, 1294 (11th Cir. 1996) (per
curiam); Nunez v. United States, 96 F.3d 990, 992 (7th Cir. 1996).

B.

We also reject Vial's argument that Bailey has been "made retroac-
tive to cases on collateral review by the Supreme Court." 28 U.S.C.A.

                     6
§ 2255. Vial acknowledges that the Supreme Court did not state in
Bailey that its decision applied to cases on collateral review. Based
on this fact and the plain language of the statute, the Government
maintains that Vial is not entitled to file a second or successive
§ 2255 motion because, even if Bailey announced a rule of constitu-
tional law, the Court did not explicitly state that the rule was available
on collateral review. Vial protests such a literal reading of the statute,
arguing that Bailey is available on collateral review pursuant to
Supreme Court precedent. See Sanders v. United States, 373 U.S. 1,
16-17 (1963) (concluding that an intervening change in the law justi-
fies the filing of a § 2255 motion on an issue previously decided); see
also McCleskey v. Zant, 499 U.S. 467, 494 (1991) (noting that "`a
showing that the factual or legal basis for a claim was not reasonably
available'" constitutes cause for failing to raise the claim in a previous
proceeding) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

Essentially, Vial urges us to interpret the phrase"made retroactive
to cases on collateral review by the Supreme Court" to encompass
those situations in which the Supreme Court does not declare the col-
lateral applicability of a rule simultaneously with its announcement,
but in which Supreme Court precedent establishes that the new rule
is of the type available to those proceeding on collateral review.
When a new rule of constitutional law is announced on direct review,
Vial's proposed reading of the statute would spare those prisoners
who have already pursued postconviction remedies the burden of
waiting to institute a second or successive § 2255 proceeding until the
Supreme Court either announces that the rule is available in collateral
proceedings or applies the rule on collateral review.8
_________________________________________________________________

8 Of course, it seems unlikely that the Supreme Court would grant cer-
tiorari to declare the applicability of a rule announced on direct review
to collateral proceedings when--as is the case with Bailey--lower fed-
eral courts uniformly rule in favor of collateral availability. See, e.g.,
Rodgers v. United States, 99 F.3d 1139, 1996 WL 607140, at **1-**2
(6th Cir. 1996) (unpublished table decision); United States v. Barnhardt,
93 F.3d 706, 708-09 (10th Cir. 1996); United States v. Garcia, 77 F.3d
274, 276-77 (9th Cir. 1996) (applying Bailey to conviction on collateral
review); United States v. Cota-Loaiza, 936 F. Supp. 751, 753-54 (D.
Colo. 1996) (noting that "all of the courts ... that have considered it have
held Bailey applies retroactively" and collecting cases).

                     7
As appealing as Vial's position may be, however, it is contrary to
the plain language of the AEDPA. The language of§ 2255 establishes
that a new rule of constitutional law is not available to individuals
seeking to file second or successive motions for postconviction relief
until the Supreme Court declares the applicability of that particular
rule to collateral proceedings. We are without authority to disregard
the plain language of a statute except in the rare circumstances in
which there is "a clearly expressed legislative intent to the contrary,"
Reves v. Ernst & Young, 507 U.S. 170, 177 (1993) (internal quotation
marks omitted), literal application of the statute would frustrate its
purpose, Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 571
(1982), or literal application would lead to an absurd result, United
States v. American Trucking Ass'ns, 310 U.S. 534, 543 (1940). Here,
the sparse legislative history supports the view that, in order to be
available to an individual pursuing a second or successive § 2255
motion, a new rule of constitutional law must itself be declared appli-
cable to cases on collateral review by the Supreme Court. See H.R.
Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996
U.S.C.C.A.N. 924, 944 (noting that second and successive applica-
tions for postconviction relief are permissible under the AEDPA only
if they "involve new constitutional rights that have been retroactively
applied by the Supreme Court"). Moreover, literal application of the
phrase "made retroactive to cases on collateral review by the Supreme
Court" would not thwart Congress' obvious purpose"to curb the
abuse of" avenues for collateral attacks on convictions. Id. Further-
more, literal application of the statutory language does not produce a
result so "inconsistent with [public] policy and abhorrent to the sense
of justice" as to warrant disregarding the plain language of the statute
on the basis of its absurdity. Sorrells v. United States, 287 U.S. 435,
449 (1932).

Accordingly, we conclude that a new rule of constitutional law has
been "made retroactive to cases on collateral review by the Supreme
Court" within the meaning of § 2255 only when the Supreme Court
declares the collateral availability of the rule in question, either by
explicitly so stating or by applying the rule in a collateral proceeding.
Because the Supreme Court has done neither with respect to the rule
announced in Bailey, Vial would not be entitled to file a successive

                     8
§ 2255 motion based on Bailey even if it contained a rule of constitu-
tional law.9

III.

Vial maintains that if § 2255 bars us from granting him permission
to file a second or successive motion to vacate his sentence, the provi-
sion is unconstitutional as a suspension of the writ of habeas corpus.
See U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it."). 10 According to Vial, the
_________________________________________________________________
9 A one-year statute of limitations applies to motions filed pursuant to
§ 2255. Although the timeliness of Vial's motion to institute a second or
successive § 2255 proceeding is not disputed, we nevertheless find it
worthwhile to clarify the precise reason why his motion is timely.

The limitations period imposed by § 2255 begins to run from the latest
of:

           (1) the date on which the judgment of conviction becomes
          final;

           (2) the date on which the impediment to making a motion cre-
          ated by governmental action in violation of the Constitution or
          laws of the United States is removed, if the movant was pre-
          vented from making a motion by such governmental action;

           (3) the date on which the right asserted was initially recog-
          nized by the Supreme Court, if that right has been newly recog-
          nized by the Supreme Court and made retroactively applicable to
          cases on collateral review; or

           (4) the date on which the facts supporting the claim or claims
          presented could have been discovered through the exercise of
          due diligence.

28 U.S.C.A. § 2255. Vial's assertion of a claim based upon a new rule
of law implicates clause (3) of the limitations provision. And, since the
Supreme Court has not yet ruled on the collateral availability of the rule
in Bailey, the limitations period has not yet begun to run. Therefore,
Vial's motion for permission to institute a second or successive § 2255
proceeding is not time barred.
10 Vial presents this issue as a claim that § 2255 abrogates his Fifth
Amendment right to substantive due process. Given that Vial does not

                    9
limitations on second and successive § 2255 motions constitute a sus-
pension of the writ because they deprive him of any means of present-
ing his Bailey claim to the courts.

Vial's constitutional argument is foreclosed by the recent decision
of the Supreme Court in Felker v. Turpin, 116 S. Ct. 2333, 2339-40
(1996). In Felker, the Supreme Court determined that the provision
of the AEDPA limiting second and successive habeas corpus petitions
by persons convicted in state courts does not constitute a suspension
of the writ. See id. Rather, the Court stated that the limitations
imposed by the AEDPA were simply an illustration of the longstand-
ing principle that "`the power to award the writ by any of the courts
of the United States, must be given by written law.'" Id. at 2340
(quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94 (1807)). The
limitations on habeas corpus relief from state-court judgments of con-
viction contained in the AEDPA, the Court reasoned, amounted to an
entirely proper exercise of Congress' judgment regarding the proper
scope of the writ11 and fell"well within the compass of [the] evolu-
tionary process" surrounding the doctrine of abuse of the writ. Id. We
conclude that the reasoning of the Court with respect to limitations on
second and successive habeas petitions pursuant to§ 2254 applies
with equal force to the identical language in § 2255. Accordingly, the
_________________________________________________________________
possess a Fifth Amendment right to attack his sentence in a collateral
proceeding, see United States v. MacCollom, 426 U.S. 317, 323 (1976)
(plurality opinion), this argument is more appropriately considered as a
contention that § 2255 suspends the writ.

11 In reaching this conclusion, the Court "assume[d] ... that the Suspen-
sion Clause of the Constitution refers to the writ as it exists today, rather
than as it existed in 1789." Felker, 116 S. Ct. at 2340. Although we need
not address this issue, we note that the Seventh Circuit has reasoned per-
suasively that the right to collateral review of state-court judgments of
courts possessing jurisdiction is statutory, not constitutional, in nature
and thus may be restricted as Congress sees fit. See Lindh v. Murphy, 96
F.3d 856, 867-68 (7th Cir. 1996) (en banc) ("Any suggestion that the
Suspension Clause forbids every contraction of the powers bestowed by
Congress in 1885, and expanded by the 1948 and 1966 amendments to
§ 2254, is untenable. The Suspension Clause is not a ratchet."), cert.
granted, 117 S. Ct. 726 (1997).

                     10
limitations imposed on second and successive § 2255 motions by the
AEDPA do not constitute a suspension of the writ.

IV.

We also reject Vial's request for permission to challenge the
amount of cocaine attributed to him by the district court for sentenc-
ing purposes. Vial does not argue that this claim, which is based on
our decision in United States v. Irvin, 2 F.3d 72 (4th Cir. 1993), rests
on a new rule of constitutional law. And, Vial cannot pursue this
claim under the "newly discovered evidence" exception to the bar on
second and successive § 2255 proceedings because that exception
applies only to challenges to the underlying conviction; it is not avail-
able to assert sentencing error. 28 U.S.C.A. § 2255 (providing that a
second or successive § 2255 motion must be certified by the appropri-
ate court of appeals to contain "newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be suffi-
cient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense").12

V.

In sum, we hold that the decision of the Supreme Court in Bailey
does not establish "a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court" as required by
28 U.S.C.A. § 2255, as that provision has been amended by the
_________________________________________________________________
12 We need not address the question of whether, under the AEDPA, an
individual subject to a sentence of death may assert the existence of new
evidence establishing that the sentence was imposed improperly, i.e., that
he is "innocent" of the death penalty.

13 We assume without deciding that the limitations on second and suc-
cessive § 2255 motions contained in the AEDPA apply to Vial. Accord-
ingly, we do not address the question of whether application of the
AEDPA to Vial offends the "familiar considerations of fair notice, rea-
sonable reliance, and settled expectations" supporting the presumption
against statutory retroactivity. Landgraf v. USI Film Prods., 511 U.S.
244, 270 (1994). We note, however, that a number of circuit courts of
appeals have grappled with the retroactivity issue. See, e.g., Jeffries v.
Wood, No. 95-99003, 1997 WL 253326 (9th Cir. May 12, 1997) (en
banc); Drinkard v. Johnson, 97 F.3d 751, 765-66 (5th Cir. 1996), cert.

                    11
AEDPA.13 Accordingly, we deny the motion for permission to insti-
tute a second or successive § 2255 proceeding.

DENIED

HAMILTON, Circuit Judge, concurring in the judgment:

I concur in the judgment of the court. I write further only to note
that Vial has not requested relief by way of habeas corpus under 28
U.S.C. § 2241, or by way of an extraordinary writ under the All Writs
Act, 28 U.S.C. § 1651. Because Vial has not pursued all avenues of
relief, and been denied such relief, the issue of whether the "gatekeep-
ing" provisions of the AEDPA, as applied to Vial, violate his rights
under the Due Process Clause is not properly before us.

Judge Motz joins in this opinion concurring in the judgment of the
court.

HALL, Circuit Judge, dissenting:

On the discrete issue, I agree with the majority's conclusion that
Bailey does not announce a "new rule of constitutional law." How-
ever, I dissent from the judgment denying Vial's motion to file a sec-
ond 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 succes-
sive § 2255 motions raising Bailey claims, we should reach the retro-
activity issue rather than merely assuming, as the majority does, ante
at 16 n.13, that the new statute applies here.
_________________________________________________________________
denied, 117 S. Ct. 1114 (1997); Lindh v. Murphy, 96 F.3d 856, 861-67
(7th Cir. 1996) (en banc); United States v. Lopez, 100 F.3d 113, 116-17
(10th Cir. 1996); Hunter v. United States, 101 F.3d 1565, 1568-73 (11th
Cir. 1996) (en banc), cert. denied, 65 U.S.L.W. 3749 (U.S. May 12,
1997) (No. 96-1443). And, the Supreme Court has recently granted cer-
tiorari to consider the application by the Seventh Circuit of the retroac-
tivity jurisprudence of the Court. See Lindh v. Murphy, 117 S. Ct. 726
(1997). Here, the parties have neither briefed nor argued the retroactivity
issue; accordingly, we do not address it.

                    12
The Supreme Court has recently granted certiorari to consider the
retroactive effect of § 104(3) of the AEDPA, which specifies the stan-
dards 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, 117 S. Ct.
726 (1997). Although the Court's opinion will undoubtedly provide
some guidance on the retroactivity issue left unanswered in our case,
it may not be dispositive. The retroactivity analysis may well have to
be applied separately to discrete parts of the AEDPA. See Landgraf
v. USI Film Products, 114 S.Ct. 1483, 1505 (1994) ("[T]here 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 1502. Simi-
larly, 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 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); Drinkard v. Johnson, 97 F.3d 751,
764-66 (5th Cir. 1996) (same), cert. denied, 117 S. Ct. 1114 (1997);
with Boria v. Keane, 90 F.3d 36 (2nd Cir.) (per curiam) (new stan-
dards of review do not apply), petition for cert. filed, 65 U.S.L.W.
3342 (Oct. 11, 1996) (No. 96-628); and compare United States 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 require-
ment applies to § 2254 cases 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), petition for cert. filed, ___ U.S.L.W. ___ (Mar. 10, 1997) (No.
96-1443); Lozada v. United States, No. 96-2887, 1997 WL 99719

                    13
(2nd Cir. Mar. 10, 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 peti-
tions pending on effective date, and post-AEDPA 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 motion 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 enact-
ment." 114 S. Ct. at 1499. This in turn requires the court to identify
the "relevant retroactivity event" to which these consequences attach.
Id. at 1524-25. (Scalia, J., concurring in the judgments). Where suc-
cessive § 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 conse-
quences is the filing of his first [§ 2254] petition . . . . ").* The legal
_________________________________________________________________
*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 (1991), the intervening deci-
sion in Bailey would suffice to clear the cause hurdle. See Sanders v.
United States, 373 U.S. 1, 17 (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 (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

                    14
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, 116 S.
Ct. at 505 (noting that "§ 924(c)(1) has been the source of much per-
plexity 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 1499.

I would grant the application to file the successive§ 2255 motion.

Judge Murnaghan and Judge Michael join in this dissenting opin-
ion.
_________________________________________________________________

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 lib-
erty.

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