                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0076p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
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 In re: CURTIS JONES,
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                                          Movant.
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                                                            No. 09-1858

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                                 Filed: March 18, 2010
               Before: KEITH, CLAY, and KETHLEDGE, Circuit Judges.

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                                         ORDER
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        Curtis Jones is a Michigan prisoner serving a life sentence for second-degree murder.
He has moved the court for authorization to file a second or successive habeas petition
raising two claims: (1) that changes to Michigan’s parole system since his conviction
constitute an unconstitutional ex post facto law, and (2) that the jury at his trial was not
drawn from a fair cross-section of the community. Because we conclude that the ex post
facto claim may proceed without our authorization, we dismiss the motion as unnecessary
with respect to that claim. We deny the motion as it pertains to the jury-selection claim.

                                             I.

        In 1991, a Michigan jury convicted Jones of second-degree murder and being a felon
in possession of a firearm. He was sentenced to a term of life imprisonment. In 1997, after
pursuing an unsuccessful appeal in state court, Jones filed a petition for a writ of habeas
corpus in federal court. In his petition, Jones raised a double-jeopardy claim, as well as
claims related to the admission of evidence, jury selection, and sentencing. The petition was
dismissed, and Jones did not appeal.




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No. 09-1858          In re Jones                                                        Page 2


        Twice since the dismissal of his initial habeas petition, Jones has unsuccessfully
moved this court under 28 U.S.C. § 2244 for authorization to file a second petition. In his
first such motion, Jones sought to raise a host of new claims: that the prosecutor failed to
disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); that
the prosecutor had committed fraud on the court; that police officers had forged documents
that were introduced into evidence; that trial counsel was ineffective; that the trial court had
violated his due-process rights in various ways; and that he was actually innocent. In his
second motion, Jones sought to raise claims that the trial court had improperly limited his
use of peremptory challenges and had erred by allowing into evidence a previous burglary
conviction.

        Now before the court is Jones’s third motion for authorization to file another habeas
petition, in which he intends to raise two claims. He first contends that the cumulative effect
of changes made to Michigan’s parole-review procedures in 1992 and 1999 has “produce[d]
a sufficient risk of increasing the measure of punishment attached” to his conviction to
constitute a violation of the Constitution’s Ex Post Facto Clause. Cal. Dep’t of Corr. v.
Morales, 514 U.S. 499, 509 (1995). Second, Jones contends that the jury pool at his trial
systematically excluded African-Americans, in violation of the Sixth Amendment’s fair
cross-section requirement.

        The state of Michigan has elected not to respond to Jones’s motion.

                                              II.

        28 U.S.C. § 2244 “establishe[s] a gatekeeping mechanism for the consideration of
second or successive habeas corpus applications” brought in federal court by state prisoners.
Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (internal quotation marks and
citation omitted). That provision was modified by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) to provide that “[a] claim presented in a second or successive
habeas corpus application . . . that was not presented in a prior application shall be
dismissed” unless (1) “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
(2) “the factual predicate for the claim could not have been discovered previously through
the exercise of due diligence” and “the facts underlying the claim . . . would be sufficient to
No. 09-1858          In re Jones                                                         Page 3


establish by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.”
28 U.S.C.§ 2244(b)(2). Before bringing a second or successive petition in the district court,
a prisoner must move the appropriate court of appeals for authorization to file and must make
a “prima facie” showing that his petition satisfies the requirements of either exception. See
id. § 2244(b)(3); see also id. § 2255(h) (imposing similar limitations on second or successive
motions brought by federal prisoners to vacate their sentences under 28 U.S.C. § 2255).

        But not every numerically second habeas petition is subject to these gatekeeping
procedures. Instead, in a series of post-AEDPA cases, the Supreme Court has confirmed that
a numerically second petition is not properly termed “second or successive” to the extent it
asserts claims whose predicates arose after the filing of the original petition. The statutory
phrase “second or successive petition,” the Court has emphasized, is a “term of art given
substance” in the Court’s prior habeas cases. Slack v. McDaniel, 529 U.S. 473, 486 (2000).
So in Stewart v. Martinez-Villareal, 523 U.S. 637, the Court held that a capital prisoner’s
claim that he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399
(1986), was not barred even though a prior petition raising the same claim had been
dismissed because the claim was unripe. See 523 U.S. at 644-45. And in Panetti v.
Quarterman, 551 U.S. 930 (2007), the Court removed any implication that Martinez-
Villareal applied only to a claim raised in a prisoner’s initial petition. There, the prisoner’s
numerically second petition asserted a Ford claim that had been omitted from his initial
petition. The Court held that the claim was not successive, rejecting “[a]n empty formality
requiring prisoners to file unripe Ford claims” in an initial habeas petition in order to be able
to pursue them in a subsequent petition. Id. at 946. In doing so, the Court relied on
pragmatic concerns, observing that “[i]nstructing prisoners to file premature claims,
particularly when many of these claims will not be colorable even at a later date, does not
conserve judicial resources” or vindicate any other policy of federal habeas law. Id.

        The same principles govern Jones’s ex post facto claim, which challenges the
cumulative effect of amendments to Michigan’s parole system, the last of which took effect
in 1999—two years after Jones’s initial habeas petition was filed. Like the Ford claims at
issue in Panetti and Martinez-Villareal, Jones’s ex post facto claim was unripe when his
initial petition was filed—the events giving rise to the claim had not yet occurred. And, as
No. 09-1858          In re Jones                                                        Page 4


in Panetti, no useful purpose would be served by requiring prisoners to file ex post facto
claims in their initial petition as a matter of course, in order to leave open the chance of
reviving their challenges in the event that subsequent changes to the state’s parole system
create an ex post facto violation. As a result, we conclude that Jones’s ex post facto claim
is not properly classified as “second or successive,” and thus does not require our
authorization to go forward in the district court. In so holding, we join several other circuits
that have reached the closely related conclusion that § 2244(b)’s limitations on second or
successive petitions do not apply to a numerically second petition challenging a parole
determination or disciplinary proceeding that occurred after the prisoner’s initial petition was
filed. See In re Cain, 137 F.3d 234, 236-37 (5th Cir. 1998) (challenge to disciplinary
revocation of good-time credits); Crouch v. Norris, 251 F.3d 720, 723-24 (8th Cir. 2001)
(challenge to parole determination); Hill v. Alaska, 297 F.3d 895, 897-99 (9th Cir. 2002)
(challenge to parole determination); see also Benchoff v. Colleran, 404 F.3d 812, 817 (3d
Cir. 2005) (noting that a challenge to a parole determination would not constitute a “second
or successive” petition under § 2244 if “the claim had not arisen or could not have been
raised at the time of the prior petition,” but holding prisoner’s claim barred because the
parole board had rendered an identical determination before his initial petition was filed).

        Jones’s jury-selection claim is more straightforward, as it challenges events that
occurred at his trial. It thus falls squarely within the scope of § 2244(b)’s gatekeeping
requirements, meaning that Jones must show that the claim satisfies one of the two
exceptions to the bar on second or successive petitions.

        He has not done so. The claim does not rely on any new rule of constitutional law
made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C.
§ 2244(b)(2)(A). And although Jones broadly asserts that court officials concealed practices
that systematically excluded African-Americans from the jury pool at his trial, he has not
explained with any detail why the facts underlying the claim could not have been discovered
earlier through due diligence. See id § 2244(b)(2)(B)(i). Furthermore, the facts underlying
Jones’s claim of racial discrimination in jury selection would not be “sufficient to establish
by clear and convincing evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty.” See id § 2244(b)(2)(B)(ii).
No. 09-1858         In re Jones                                                        Page 5


        In closing, we emphasize that our decision here is confined to the narrow question
whether Jones’s contemplated habeas petition is barred by the limitations on second or
successive petitions imposed by § 2244(b). Although we conclude that Jones’s ex post facto
claim may proceed without our authorization, formidable obstacles may await him in the
district court. For one thing, there is the question whether habeas is the proper avenue for
a claim that seeks a modification of parole procedures that would not necessarily result in
the petitioner’s speedier release. See Wilkinson v. Dotson, 544 U.S. 74, 86-87 (2005)
(Scalia, J., concurring). Perhaps of more immediate concern, Jones’s claim may well be
untimely under AEDPA’s one-year statute of limitations, see 28 U.S.C. § 2244(d)(1), given
the dates on which the challenged parole procedures took effect. But that is a question
beyond the scope of our inquiry even when a claim is subject to § 2244(b)’s gatekeeping
procedures. See In re McDonald, 514 F.3d 539, 546-47 (6th Cir. 2008) (when determining
whether a prisoner has made a “prima facie showing” that the requirements for one of the
exceptions to the bar on second or successive petitions have been satisfied, this court does
not “investigat[e] compliance with the one-year statute of limitations outlined in 28 U.S.C.
§ 2244(d)”). Because the gatekeeping rules do not apply to Jones’s ex post facto claim, we
have even less warrant to reach the timeliness question here, and we therefore do not address
it.

        The motion for authorization to file is dismissed as unnecessary as it relates to the
ex post facto claim. The motion is denied as it relates to the jury-selection claim.

                                                ENTERED BY ORDER OF THE COURT

                                                      /s/ Leonard Green
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                                                              Clerk
