                  Rehearing granted, January 10, 2006




                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


In Re: RICHARD EDWARD CABEY,                      No. 04-277
                         Movant.
                                         
   On Motion for Authorization to File Successive Application.

                      Argued: May 24, 2005

                   Decided: November 15, 2005

          Before LUTTIG and DUNCAN, Circuit Judges,
          and Eugene E. SILER, Jr., Senior Circuit Judge
    of the United States Court of Appeals for the Sixth Circuit,
                       sitting by designation.



Authorization denied by published opinion. Judge Duncan wrote the
majority opinion, in which Senior Judge Siler joined. Judge Luttig
wrote a dissenting opinion.



                            COUNSEL

ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Movant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Respondent. ON BRIEF: Roy Cooper, Attorney Gen-
eral, Raleigh, North Carolina, for Respondent.
2                             IN RE CABEY
                              OPINION

DUNCAN, Circuit Judge:

   Richard Cabey, a North Carolina inmate, moves for authorization,
pursuant to 28 U.S.C. § 2244, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No.
104-132, sec. 105, 110 Stat. 1214, 1221, to file a successive habeas
corpus application challenging North Carolina’s application of its
parole statutes to him. Because Cabey seeks to raise only issues
related to his parole that he could not have raised at the time of his
prior habeas applications, we hold that he is not required to obtain
pre-filing authorization under § 2244(b) before filing the instant peti-
tion. Accordingly, we deny authorization to file a successive habeas
application as unnecessary and transfer Cabey’s application to the dis-
trict court for further proceedings.

                                   I.

   In 1982, a jury in North Carolina convicted Cabey of five counts
of armed robbery. See State v. Cabey, 299 S.E.2d 194 (N.C. 1983).
The trial court sentenced Cabey to life in prison on the first count fol-
lowed by concurrent terms of incarceration of not less than twenty
years nor more than twenty-five years on the remaining counts. After
exhausting his state remedies, Cabey challenged his convictions and
sentence in a federal habeas application under 28 U.S.C. § 2254. His
challenge was denied on the merits in 1987. In 1996, Cabey filed a
second unsuccessful habeas application, in which he asserted that the
North Carolina Parole Commission had miscalculated the amount of
good time credits to which he was entitled.1

   In 1992, the Parole Commission "paper paroled" Cabey from his
life sentence, and Cabey began discharging his remaining concurrent
sentences.2 Although a North Carolina court concluded that the Parole
    1
   Cabey unsuccessfully appealed both the 1987 and 1996 denials.
    2
   Although the parties have not clarified the term "paper parole," it
appears from the documents before the court that a paper parole "re-
leases" an inmate from a particular sentence, but the inmate remains in
custody in order to discharge time remaining on another sentence.
                               IN RE CABEY                               3
Commission lacked the authority to issue "paper paroles" in August
1997, see Robbins v. Freeman, 487 S.E.2d 771 (N.C. Ct. App. 1997),
the Parole Commission granted Cabey an unconditional discharge
from his life sentence three months later. When the North Carolina
Supreme Court affirmed Robbins without discussion in 1998, see
Robbins v. Freeman, 496 S.E.2d 375 (N.C. 1998), the Parole Com-
mission reinstated Cabey’s life sentence.

   Cabey challenged the reinstitution of his life sentence by initiating
a third round of habeas proceedings in state court. After again
exhausting his state remedies, Cabey filed a habeas application under
28 U.S.C. § 2254. The district court concluded that Cabey’s latest
application constituted an unauthorized successive application under
§ 2254 and dismissed it without prejudice. Cabey now seeks authori-
zation under § 2244(b) to file a successive habeas application.

                                    II.

                                    A.

   Under the AEDPA amendments to the habeas corpus statutes, an
inmate challenging his confinement in state custody under 28 U.S.C.
§ 2254 must satisfy specific statutory conditions whenever he files a
"second or successive" petition. 28 U.S.C. § 2244(b).3 This case pre-
  3
   Specifically, under § 2244(b)(2), a prospective habeas applicant must
obtain authorization from a court of appeals before filing "a second or
successive habeas application" in the district court. Felker v. Turpin, 518
U.S. 651, 657 (1996). An inmate may not receive authorization to file an
application deemed "second or successive" unless the claim presented
    (A) . . . relies on a new rule of constitutional law, made retro-
          active to cases on collateral 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 diligence; and
          (ii) the facts underlying the claim, if proven and viewed
                in light of the evidence as a whole, would be suffi-
                cient to establish by clear and convincing evidence
                that, but for constitutional error, no reasonable fact-
                finder would have found the applicant guilty of the
                underlying offense.
28 U.S.C. § 2244(b)(2).
4                              IN RE CABEY
sents us with the question of what "second or successive" means in
the specific context of Section 2244. Consistent with our precedent
and the overwhelming weight of authority, we hold that Cabey’s peti-
tion, which challenges North Carolina’s application of its parole stat-
utes to him and raises only new issues that did not exist and therefore
could not have been raised at the time he filed his initial Section 2254
petition, is not a "second or successive" habeas petition under Section
2244(b). Accordingly, we remand the petition to the district court
with instructions to accept it as an initial Section 2254 petition for
habeas corpus.

                                    B.

   In considering the meaning of "second or successive" in In Re:
Taylor, 171 F.3d 185 (4th Cir. 1999), we noted that "Congress did
‘not write upon a clean slate’ when it enacted the AEDPA." Id. at 187
(quoting United States v. Texas, 507 U.S. 529, 534 (1993)).4 Instead,
"AEDPA ‘codified and extended judicially constructed limits on the
consideration of second and successive applications for collateral
relief.’" Id. (quoting In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997)(en banc)). Specifically, as we have opined in the context of a
Section 2244(b) motion seeking authorization to file a successive
application, AEDPA incorporated longstanding habeas practice such
as the "abuse of the writ" doctrine. In Re: Williams, 364 F.3d 235,
239 (4th Cir. 2004). The abuse of the writ "doctrine generally pre-
cluded a federal court from considering claims presented in a succes-
sive application unless the applicant could demonstrate cause and
prejudice." Id. Under the doctrine, codified by AEDPA, "a claim
which did not arise until after a prior petition was filed would not be
barred as ‘second or successive.’" Taylor, 171 F.3d at 187. We have
therefore concluded in prior cases that a petition which "expressly
seeks to raise only those issues that originated . . . after [petitioner’s]
first § 2255 petition had been granted" is not "second or successive"
for purposes of AEDPA. Id. at 187-88; see also Slack v. McDaniel,
    4
   Taylor involved a petition brought under 28 U.S.C. § 2255. Taylor’s
discussion concerning the meaning of "second or successive," however,
applies to the instant petition filed under Section 2254 because Sections
2254 and 2255 share the same statutory codification of the "second or
successive" rule. 28 U.S.C. §§ 2244(b), 2254, 2255.
                              IN RE CABEY                               5
529 U.S. 473, 486-87 (2000) (noting that pre-AEDPA law, including
the abuse of the writ doctrine, should be used in interpreting the
meaning of the term of art "second or successive" in AEDPA); Felker
v. Turpin, 518 U.S. 651, 664 (1996) (noting that AEDPA’s restric-
tions on second or successive petitions "are well within the compass"
of the evolution of the abuse of the writ doctrine).

   Other circuits that have examined this issue since our decision in
Taylor have uniformly agreed with our conclusion. The Eighth Cir-
cuit, for example, noting Supreme Court precedent suggesting that
"‘second or successive’ remains a term of art that must be given
meaning by reference both to the body of case law that developed
before the enactment of AEDPA and the policies that prompted
AEDPA’s enactment," held that a subsequent Section 2254 petition
that raised claims which could not have been brought in the petition-
er’s first petition was not "second or successive" for AEDPA pur-
poses. Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001). Such
petitions do not abuse the habeas process, the court noted, because the
petitioner, by definition, could not have raised the claims in his first
habeas petition. Id. at 724. In addition, the court noted that public pol-
icy concerns about undue delay and the finality of state court convic-
tions motivated Congress when it passed AEDPA. Id. at 724. An
inmate challenging, at the first possible instance, the application of
state parole proceedings against him does not offend these public pol-
icy concerns. The petition does not implicate the finality of the con-
viction and sentence, nor does it cause any undue delay because the
inmate could not have raised the challenge any earlier. See id.
Accordingly, reading "second or successive" to include such petitions
would not further the purposes behind AEDPA.

   Upon reviewing the case law and legislative history of AEDPA, the
Third Circuit similarly concluded that "a subsequent petition that
challenges the administration of a sentence is clearly not a ‘second or
successive’ petition within the meaning of § 2244 if the claim had not
arisen or could not have been raised at the time of the prior petition."
Benchoff v. Colleran, 404 F.3d 812, 817 (3rd Cir. 2005) (emphasis in
original) (citing Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.
2003)("[A] habeas petition raising a claim that had not arisen at the
time of a previous petition is not barred by § 2244(b) . . . ."); Med-
berry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003)("[A] petition
6                              IN RE CABEY
challenging [prison] disciplinary proceedings would not be second or
successive where the claim could not have been raised in an earlier
petition and does not otherwise constitute an abuse of the writ."); Hill
v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002)(noting that § 2244(b) is
a modified form of res judicata and, therefore, that a subsequent
habeas petition should not be barred as "second or successive" if it
raises only claims that could not have been raised in an initial peti-
tion) ; In re Cain, 137 F.3d 234, 236 (5th Cir. 1998) (applying com-
mon law principles to AEDPA and holding that petitions that "do not
present claims that were or could have been raised in . . . earlier peti-
tions" are not "second or successive" petitions)). The court noted that
"the abuse of the writ doctrine’s ongoing validity as a means of inter-
preting ‘second and successive’ has been strongly suggested by the
Supreme Court, which has implied that § 2244 is a statutory extension
and codification of the equitable principles of the doctrine." Benchoff,
404 F.3d at 817 (citing Slack, 529 U.S. at 486; Felker, 518 U.S. at
664).

                                    C.

   In response to our precedent in Taylor and the supporting case law
from other circuits, the Attorney General rather confusingly argues
that "there is no per se or categorical rule which mandates that all
[subsequent] petitions are, or are not, second or successive." Respon-
dent’s Brief at 4. According to the Attorney General, whenever the
factual predicate for a new habeas petition arises after the dismissal
of a prior petition, the movant will have to satisfy the substantive
requirement of Subsection 2244(b)(2)(B)(ii) that "the facts underlying
the claim . . . would be sufficient to establish by clear and convincing
evidence that, but for the constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense."5
    5
   The dissent argues that Taylor is distinguishable because "Taylor held
only that when a prisoner has been resentenced after a successful first
habeas petition and then challenges the new sentence via another habeas
petition, the subsequent petition is not a ‘second or successive petition’
under AEDPA." Post at 15 (emphasis in original). The dissent draws a
factual distinction which makes no difference to the analysis. Nothing in
Taylor, or the precedent from other circuits, suggests that the interpreta-
tion of "second or successive" depends on the manner in which the previ-
                                IN RE CABEY                                7
   This argument assumes away the issue before us. We do not reach
the "actual innocence" requirement of Subsection 2244(b)(2)(B)(ii)
unless the petition at issue is "second or successive." 28 U.S.C.
§ 2244(b)(2). The Attorney General glosses over this crucial first step
apparently by assuming that Cabey’s petition is "second or succes-
sive" simply because it occurred later in time than a previous petition.
As explained above, however, courts have almost uniformly rejected
that literal reading of "second or successive." This circuit and others
have held instead that it is a term of art. Indeed, in many of the cases
cited above, the petitioner concedes that he cannot meet the substan-
tive requirements of Subsections 2244(b)(2)(A) and 2244(b)(2)(B).
See Taylor, 171 F.3d at 187 ("Taylor concedes that he is unable to sat-
isfy either of the[ ] criteria to obtain permission to file a "second or
successive" [habeas] motion."); Crouch, 251 F.3d at 724 ("Although
Crouch’s proposed petition neither relies on a new rule of constitu-
tional law nor identifies newly-discovered facts that establish his
innocence of the underlying sex offenses, Crouch may nevertheless be
free to file his proposed petition in the district court if it is not ‘second
or successive.’"); Singleton, 319 F.3d at 1023 ("As Singleton con-
cedes, he satisfies neither [Section 2244] exception"); see also Bench-
off, 404 F.3d at 817 ("Section 2244’s strict procedural regime and
substantive standards only apply if Benchoff’s current petition is ‘sec-
ond or successive’ within the meaning of the statute."). In other
words, a court must determine whether a petition is "second or suc-
cessive" before it examines whether that petition meets the substan-
tive requirements of Section 2244. If a petition is not "second or
successive," then the substantive requirements of Section 2244 do not
come into play.

  By attempting to conflate the meaning of "second or successive"
with the substantive requirements of Subsection 2244, the Attorney

ous petition was resolved. To the contrary, the operative question in
Taylor was, as it is here, whether the petitioner’s claim "originated . . .
after his first [habeas] petition." Taylor, 171 F.3d at 187. In concluding
that Cabey’s challenge to North Carolina’s application of its parole stat-
utes to him, which did not occur until after his prior petitions, is not sec-
ond or successive under Section 2244, we have chosen to apply the
analyses adopted by every circuit to have considered the issue—
including our own.
8                             IN RE CABEY
General misses this crucial point. At this juncture, the question before
us is simply whether Cabey’s petition is "second or successive" for
purposes of requiring pre-filing authorization under Section 2244(b)
—not an examination of the merits of that petition.

                                   D.

   Applying the holding in Taylor and the well-settled meaning of
"second or successive" to the facts of this case, we conclude that
Cabey’s petition is not "second or successive" as that term is used in
Section 2244. Previous to the instant petition, Cabey had last filed a
habeas petition in 1996. The parole issues of which Cabey complains
in the instant petition occurred in 1998. Cabey, therefore, could not
have raised these issues related to the administration of his sentence
in a previous petition. The current petition, therefore, is not "second
or successive."

                                  III.

   In light of the foregoing, we conclude that Cabey’s most recent
application for habeas corpus relief is not "second or successive" as
that phrase is used in § 2244(b). Accordingly, we deny Cabey’s
motion as unnecessary and direct that the § 2254 application
appended to Cabey’s motion be transferred to the district court to be
treated as an initial application. Muniz v. United States, 236 F.3d 122,
123 (2d Cir. 2001) (citing 28 U.S.C. § 1631).

                                          AUTHORIZATION DENIED

LUTTIG, Circuit Judge, dissenting:

   The majority holds today that a second or successive habeas peti-
tion is not a "second or successive" petition within the meaning of 28
U.S.C. § 2244 if it is based on "new issues that did not exist and
therefore could not have been raised" in a previous section 2254 peti-
tion. Created out of whole cloth as it has been, this exception is irrec-
oncilable with both the plain meaning of the phrase "second or
successive" in AEDPA and even with the understanding of that
phrase as it was used in habeas corpus jurisprudence prior to
                              IN RE CABEY                              9
AEDPA’s enactment. Needless to say, this wholesale exception for
any "new issue" of law or fact that did not exist at the time of a previ-
ous petition overrides the carefully-crafted and narrow limitations that
Congress imposed on the filing of second or successive petitions in
section 2244.

   I would dismiss the petition before us as a second and successive
petition that does not fall within the statute’s circumscribed excep-
tions. Accordingly, I dissent.

   Because of the significance of the majority’s holding to our court’s
habeas jurisprudence, I believe that our court should rehear this case
en banc upon a petition for rehearing filed by either of the parties.
Indeed, I believe the case sufficiently important for our habeas juris-
prudence that we should rehear the case even if no petition for rehear-
ing is filed.

                                   I.

                                   A.

   Congress, in the Anti-Terrorism and Effective Death Penalty Act
(AEDPA), permitted the consideration of second or successive habeas
petitions in two circumstances only: where the petitioner relies on a
new rule of constitutional law made retroactive by the Supreme
Court, id. § 2244(b)(2)(A), or where the petitioner relies on facts that
could not have been previously discovered through due diligence and
that would, if proven, clearly establish that the petitioner was innocent
of the underlying offense, id. § 2244(b)(2)(B). Cabey’s instant habeas
petition meets neither of these two statutory exceptions, and neither
the majority nor Cabey contends otherwise.

   A federal court, consequently, is authorized to hear Cabey’s peti-
tion only if it is not a "second or successive" petition within the mean-
ing of the statute. Obviously, the plain meaning of the phrase "second
or successive" forecloses such a conclusion. The phrase "second or
successive" qualifies the phrase "habeas corpus applications under
section 2254," see id. § 2244(b)(2). Applications in turn are chal-
lenges to one’s "custody pursuant to the judgment of a State court,"
10                             IN RE CABEY
id. § 2254(a)(emphasis added). As this is Cabey’s third habeas peti-
tion challenging his continuous custody pursuant to the same state
court judgment of conviction and sentence (in 1982), it is a second or
successive petition barred by AEDPA.

   The majority concludes that Cabey’s petition is not "second or suc-
cessive," holding that a petition that "raises only new issues that did
not exist and therefore could not have been raised at the time [peti-
tioner] filed his initial Section 2254 petition[ ] is not a ‘second or suc-
cessive’ habeas petition." See ante at 4. It reasons as follows for this
breathtaking expansion of federal habeas review. First, it notes that
both the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000),
and this court in In re Taylor, 171 F.3d 185 (4th Cir. 1999), have
stated that the definition of "second or successive" should be under-
stood in light of pre-AEDPA jurisprudence governing such petitions.
See Slack, 529 U.S. at 486 (stating that "‘second or successive peti-
tion’ is a term of art given substance in our prior habeas corpus cases"
and that the Court did not "suggest the definition of second or succes-
sive would be different under AEDPA"); Taylor, 171 F.3d at 187. It
next explains that a subsequent petition based upon new issues that
did not exist at the time of the first petition would not have been dis-
missed pre-AEDPA under the "abuse of the writ" doctrine, see Tay-
lor, 171 F.3d at 187. It then concludes that, because a petition based
upon new issues that did not exist at the time of a previous petition
would not have been dismissed, such a petition would not have been
defined as a "second or successive" petition pre-AEDPA. Finally,
from the fact that such a subsequent petition would not have been
defined as a "second or successive" petition pre-AEDPA, the majority
concludes that it is not a "second or successive" petition under
AEDPA. See ante at 4-5 (citing Taylor, 171 F.3d at 187).

   The central premise of the majority’s holding is that any subse-
quent petition that would not have been dismissed pre-AEDPA, would
not have been defined as "second or successive" during that same time
period. This critical premise to the majority’s holding is simply false.
The version of Rule 9(b) of the Rules Governing Section 2254 cases
that was in effect pre-AEDPA stated as follows: "A second or succes-
sive petition may be dismissed . . . if new and different grounds are
alleged, [if] the judge finds that the failure of the petitioner to assert
those grounds in a prior petition constituted an abuse of the writ." 28
                             IN RE CABEY                            11
U.S.C. § 2254 Rule 9(b) (1976) (cited in McCleskey v. Zant, 499 U.S.
467, 487 (1991)). The negative inference from Rule 9(b) is that if a
second or successive petition was not an "abuse of the writ," it would
not have been dismissed. Standing alone, this indisputable inference
demonstrates the error in the majority’s fundamental premise: in fact,
there were second or successive petitions pre-AEDPA that would not
have been dismissed. Indeed, so numerous were such cases pre-
AEDPA that their citation is not even necessary.

   The majority, of course, has asked and answered the wrong ques-
tion. The relevant question to be answered is not whether a subse-
quent petition raising new issues would have been dismissed but,
rather, whether such a petition would have been defined as "second
or successive" pre-AEDPA. The Court in Slack said it is "the defini-
tion of second or successive" that would not be different under
AEDPA, see 529 U.S. at 486 (emphasis added); the Court did not say,
nor would it have ever said, that AEDPA did not alter the circum-
stances under which second or successive petitions can be heard by
the federal courts. The very purpose of AEDPA was to change and
limit the circumstances under which successive petitions could be
considered. As this court has recognized, "AEDPA codif[ied] and
extend[ed] judicially constructed limits on the consideration of sec-
ond and successive applications for collateral relief." In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997) (en banc) (emphases added). For
example, under AEDPA, a new rule of constitutional law may be
relied upon in a second or successive petition only if it has been made
retroactive by the Supreme Court, see 28 U.S.C. § 2244(b)(2)(A), and
claims in a second or successive petition based on newly discovered
facts must prove actual innocence, see id. § 2244(b)(2)(B). Because
neither the "by the Supreme Court" requirement nor the "actual inno-
cence" requirement was part of pre-AEDPA "abuse of the writ" doc-
trine, see McCleskey, 499 U.S. at 487-88, these added restrictions
result in the dismissal of second or successive petitions today that
would not have been dismissed pre-AEDPA.

   In sum, that the majority establishes that the petition before us
would not have been dismissed as "an abuse of the writ" pre-AEDPA
proves nothing as to whether the petition would have been defined as
"second or successive" — pre-AEDPA or post-AEDPA. The majority
must prove not that the petition would not have been dismissed pre-
12                           IN RE CABEY
AEDPA but, rather, that a petition based on issues that did not exist
at the time of the initial petition would not have been considered "sec-
ond or successive." This, it does not even attempt to do. Nor have any
of the other courts upon which the majority relies for its analysis. And
the reason is obvious. A subsequent petition that raises issues that did
not exist at the time of the previous petition has always been consid-
ered second or successive.

                                  B.

   The exceptions to section 2244’s bar on federal habeas review
included by Congress in section 2244(b)(2) highlight both the gravity
and the sweep of the majority’s misinterpretation. Under today’s
holding, AEDPA’s restrictions on the filing of second or successive
habeas petitions simply do not apply to any petition that raises "new
issues that did not exist" at the time of the first application because
such petitions are not second or successive at all. Yet AEDPA’s bar
on consideration of second or successive petitions operates precisely
in these circumstances — when the subsequent petition is based on
"new issues" of law or fact — permitting review in an exceedingly
narrow subset of such petitions.

   Thus, turning to section 2244’s limitations on the reviewability of
new issues of law, whereas AEDPA permits consideration of a second
or successive petition raising a new rule of law only if the new rule
is constitutional in nature, was previously unavailable, and has been
made retroactive by the Supreme Court, see 28 U.S.C.
§ 2244(b)(2)(A), under today’s holding petitions raising claims that
rely on "new issues" of law that did not exist need not satisfy the
requirements of section 2244(b)(2)(A) at all because they are not even
"second or successive" petitions. The "new issue" of law need not
arise from an interpretation of the Constitution; it may come in the
form of a new regulation or statute, or even a new interpretation of
such by any court or any interpretive body. And neither must the new
law have been made retroactive by the Supreme Court. AEDPA’s
limited exception for the presentation of a new issue of law is effec-
tively rendered a nullity.

   Because of the almost-incomprehensible reach of the court’s hold-
ing, the temptation will be to try to read the opinion as encompassing
                              IN RE CABEY                             13
only subsequent petitions based on new issues of fact that did not
exist, and not (as the opinion reads) "new issues" of law or fact that
did not exist. But such a reading of the opinion would be not only
indefensibly disingenuous because that is not what it says, but also
demonstrably at odds with the opinion’s own reasoning. For claims
predicated upon new issues of law that did not exist at the time of a
previous petition could not have been raised any more than claims
predicated upon new issues of fact that did not exist at that time. In
other words, not only by its terms but also by its own reasoning, there
is no basis for reading the majority’s opinion as distinguishing
between a subsequent petition raising a claim based upon a new issue
of law that did not previously exist and a subsequent petition raising
a new issue of fact that did not previously exist. Neither claim, in the
words of the majority, "could have been raised" in the prior petition.

   The majority’s holding, therefore, is, and can only be, properly
understood to authorize federal habeas review over second or succes-
sive petitions raising new issues of fact and law that did not exist at
the time of a previous petition. Indeed, that the majority refuses to
recognize that the phrase "second or successive" in AEDPA would
even admit of a distinction between fact and law in this regard is per-
haps the only aspect of the opinion that is textually or otherwise ana-
lytically defensible.

   Turning to the majority’s holding with respect to section 2244’s
limitations on the reviewability of new issues of fact, just as it autho-
rizes habeas review in federal court of vastly more claims based on
new issues of law than does AEDPA, so also does it authorize review
of vastly more claims presenting new issues of fact than does
AEDPA.

   AEDPA permits consideration of a second or successive petition
based on new facts only when those facts could not have been previ-
ously discovered through the exercise of due diligence, and then only
if those facts would clearly establish actual innocence. See 28 U.S.C.
§ 2244(b)(2)(B). By contrast, the majority holds that a petition raising
any "new issue" of fact that did not exist is not a second or successive
petition at all and thus does not have to satisfy any of the require-
ments of section 2244(b)(2).
14                             IN RE CABEY
   Under this holding, federal courts in our circuit are now authorized
to review countless petitions the review of which is expressly forbid-
den by AEDPA. Under AEDPA, second or successive petitions that
either rely on facts that were already extant but that could have been
discovered with due diligence or that do not show actual innocence
are barred. Under the majority’s holding, however, a petition will be
cognizable if it raises even a new issue of fact; in other words, a peti-
tion will be cognizable if it raises a new issue as to a fact that was
extant at the time of a previous petition. The fact need not have arisen
since the filing of the subsequent petition. And a petition raising such
a claim will be cognizable whether or not the new issue of fact proves
that the petitioner is actually innocent. For example, if, after a peti-
tioner files his first habeas petition, he files a subsequent petition
alleging that a new witness has come forward and proffered testimony
that tends to exculpate the petitioner or that a witness who testified
at trial has changed his testimony in a way that tends to exculpate the
petitioner, the petition in many instances, even if not in every
instance, will have presented a "new issue" of fact that did not previ-
ously exist, even though the facts that gave rise to that new issue were
in existence before the first petition was filed. And such a petition
would be cognizable in federal court on habeas, contrary to section
2244(b)(2)(B), even if the facts underlying the new testimony could
have been discovered with due diligence and even if they do not
clearly establish actual innocence.

   Even if the majority had narrowed its holding merely to claims
based on facts arising after the filing of the first petition, rather than
to new issues of fact that did not exist at the time of the first petition,
the holding would be no more reconcilable with the statute, or even
more analytically satisfying. Such a narrower holding would ensure
that petitions based on facts that had already arisen would be consid-
ered second or successive, as obviously contemplated by section
2244(b)(2). But it would leave unexplained (and unexplainable) why
a claim that could not have been brought because the predicate facts
had not come into existence at the time of the first petition is not "sec-
ond or successive" but a claim that could not have been brought
because the predicate facts had come into existence but were not dis-
coverable is a "second or successive" petition. The claims in the latter
petition could no more have been raised than those in the former, but
under the majority’s holding, the latter petition would remain subject
                              IN RE CABEY                              15
to section 2244(b)(2)(B)’s actual innocence requirement while the
former would not.

   The reason for this seemingly inexplicable consequence is, it bears
repeating, easily explained: The majority has completely misinter-
preted AEDPA’s phrase "second or successive" petition to mean any
petition that could not have been considered pre-AEDPA.

                                   C.

   Though the majority thinks otherwise, Taylor is plainly insufficient
authority upon which to ground its extraordinary decision. To be sure,
Taylor relied upon the same flawed premise that the majority invokes
here, namely, that if a new petition would not have been barred pre-
AEDPA, it is not second or successive under AEDPA. And Taylor is
almost surely wrong for this reason. But Taylor held only that when
a prisoner has been resentenced after a successful first habeas petition
and then challenges the new sentence via another habeas petition, the
subsequent petition is not a "second or successive petition" under
AEDPA. 171 F.3d at 187-88. Such a holding does not dictate the con-
clusion reached by the majority in this case. Reasonable minds could
differ over whether a successive petition filed after an appeals-court-
ordered resentencing is a challenge to a different judgment, namely,
a judgment comprising the old conviction and the new sentence.
However, where, as here, the subsequent petition challenges the very
same conviction and the very same sentence originally challenged, it
is not even arguable that a different judgment is being challenged.
Taylor should never be extended to such a case, and that is unques-
tionably what the majority has done, albeit unwittingly.

                                   II.

   It would be difficult to overstate the significance of today’s holding
for our court’s habeas jurisprudence. The majority vastly expands the
number of second or successive petitions that federal courts will now
be authorized to entertain. Under the majority’s holding, habeas peti-
tioners filing subsequent applications can now rely on any "new
issue[ ] that did not exist" at the time of the first application, whether
based upon new rules of regulatory, statutory, or constitutional law,
and whether or not such rules have been made retroactive by the
16                          IN RE CABEY
Supreme Court. As well, they may now rely upon new facts that could
have been discovered with due diligence, and new facts that do not
clearly establish actual innocence.

   As such, today’s holding is not an interpretation of AEDPA. It is
a wholesale rewriting of that legislation that does not merely embark
the federal courts upon a return to pre-AEDPA habeas jurisprudence,
it returns us to that jurisprudence fully.

   I dissent. The instant petition satisfies neither of AEDPA’s
congressionally-imposed exceptions. I would dismiss the petition as
a second or successive petition — as AEDPA, by its terms, requires.
