
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                                <br>                 United States Court of Appeals<br>                     For the First Circuit<br><br><br><br><br><br>No. 98-1067<br><br>                        JEFFREY L. LIBBY,<br>                      Petitioner, Appellant,<br><br>                                v.<br><br>   MARTIN MAGNUSSON, COMMISSIONER, MAINE DEP'T OF CORRECTIONS,<br>                      Respondent, Appellee.<br><br><br><br>           APPEAL FROM THE UNITED STATES DISTRICT COURT<br><br>                    FOR THE DISTRICT OF MAINE<br><br>             [Hon. Gene Carter, U.S. District Judge]<br><br><br><br>                              Before<br><br>                      Selya, Circuit Judge,<br>                                <br>                 Coffin, Senior Circuit Judge,<br>                                <br>              and Pollak,* Senior District Judge.<br>                                <br>                                <br>                                <br>                                <br>     Schuyler G. Steele for appellant.<br>     Charles K. Leadbetter,   Assistant Attorney General, State of<br>Maine, with whom Andrew Ketterer, Attorney General, and Nancy<br>Torresen, Assistant Attorney General, were on brief, for appellee.<br><br><br><br><br><br>May 24, 1999<br><br><br><br>                                <br>                                <br><br>__________<br>*Of the Eastern District of Pennsylvania, sitting by designation.

  SELYA, Circuit Judge.  Over a decade ago, a Maine jury<br>found petitioner-appellant Jeffrey L. Libby guilty of murdering his<br>grandfather, and a state trial judge sentenced him to serve sixty<br>years in prison.  Since then, Libby has attempted on several<br>occasions to mount collateral attacks on his conviction.  The<br>latest in this series of attempts took place against the backdrop<br>of the Antiterrorism and Effective Death Penalty Act of 1996<br>(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)<br>(codified in scattered sections of 28 U.S.C.), and gave rise to the<br>instant appeal.  We retrace the pertinent portions of the case's<br>chronology.<br>  The petitioner filed his first federal habeas petition on<br>December 8, 1993.   See 28 U.S.C.  2254 (pre-AEDPA version).  The<br>district court dismissed it, and the petitioner did not appeal.  He<br>filed another pre-AEDPA section 2254 petition on October 11, 1995. <br>This petition addressed only Eighth Amendment issues anent the<br>conditions of his confinement.  It, too, was dismissed.  The<br>petitioner subsequently filed the underlying habeas corpus<br>application   his third petition under 28 U.S.C.  2254, but only<br>the second such petition that attacked his conviction   on October<br>27, 1997 (some 18 months after Congress enacted the AEDPA).  The<br>district court, acting upon the recommendation of a magistrate<br>judge, dismissed this petition on two grounds:  first, that it was<br>untimely under the AEDPA; and second, that it did not meet the<br>requirements for consideration of a second or successive habeas<br>petition.  This appeal followed.<br>                                I<br>  The AEDPA provides that "[b]efore a second or successive<br>application permitted by this section is filed in the district<br>court, the applicant shall move in the appropriate court of appeals<br>for an order authorizing the district court to consider the<br>application."  28 U.S.C.  2244(b)(3)(A).  Under this paradigm, a<br>second or successive habeas petition is not a matter of right   and<br>the gatekeeping function belongs to the court of appeals, not to<br>the district court.  See Felker v. Turpin, 518 U.S. 651, 661<br>(1996); Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997),<br>cert. denied, 118 S. Ct. 1807 (1998).  Thus, if the AEDPA applied<br>to Libby's 1997 offering, he was required to ask this court for<br>prior authorization to proceed in the district court.  He did not<br>do so.  Instead, he took the position that the AEDPA did not apply<br>at all, and filed his 1997 petition directly in the district court.<br>  The district court accepted jurisdiction to review<br>Libby's petition on this basis, but determined that the AEDPA did<br>apply and that, under it, Libby's petition was time-barred. <br>Technically, the district court, after determining that the AEDPA<br>applied, might have dismissed the petition for want of an<br>authorizing order, or, alternatively, transferred the matter to<br>this court.  When the AEDPA is in play, the district court may not,<br>in the absence of proper authorization from the court of appeals,<br>consider a second or successive habeas application.  See Graham v.<br>Johnson, 168 F.3d 762, 772 (5th Cir. 1999); Lopez v. Douglas, 141<br>F.3d 974, 975-76 (10th Cir.) (per curiam), cert. denied, 119 S. Ct.<br>556 (1998); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.) (per<br>curiam), cert. denied, 520 U.S. 1203 (1997).  Here, however, no<br>useful purpose would be served by forcing the petitioner to retreat<br>to square one and wend his way anew through the jurisdictional<br>maze.  We have the power, in the exercise of our informed<br>discretion, to treat this appeal as if it were, in whole or in<br>part, a motion for authority to proceed under section<br>2244(b)(3)(A), see Lopez, 141 F.3d at 976; Pratt, 129 F.3d at 58,<br>and we will do so.<br>                                II<br>  We turn now to the threshold question of whether the<br>AEDPA applies to the underlying habeas application.  To support his<br>contention that it does not, the petitioner offers the by-now-<br>familiar argument that the AEDPA, as a general matter, has an<br>impermissible retroactive effect.  Just eight days after the<br>magistrate judge filed his report and recommendation in this case,<br>we directly confronted   and squarely rebuffed   this very<br>proposition in much the same context as here presented.  See Pratt,<br>129 F.3d at 58 (holding that the AEDPA applies to a second habeas<br>petition filed after the new law's effective date, even though the<br>petitioner had filed his first petition before that date).  Other<br>courts of appeals have joined us in so holding.  See Vancleave v.<br>Norris, 150 F.3d 926, 927 (8th Cir. 1998); In re Davenport, 147<br>F.3d 605, 608 (7th Cir. 1998).  Because the petitioner's arguments,<br>for the most part, are not qualitatively different from those that<br>we found wanting in Pratt, we reject them out of hand.  We add only<br>a decurtate comment, necessitated by the fact that here, unlike in<br>Pratt, the petitioner musters an ex post facto challenge.<br>  History teaches that the Ex Post Facto Clauses, U.S.<br>Const. art. 1,  9, cl. 3, and art. 1,  10, cl. 1, should be<br>construed narrowly.  See Collins v. Youngblood, 497 U.S. 37, 41-52<br>(1990).  Thus, an ex post facto law is one that punishes, as a<br>crime, an act which was innocent when committed; or which, after a<br>crime has been perpetrated, changes the punishment and renders it<br>more onerous; or which strips away a defense that was available at<br>the time when the defendant committed the crime.  See Lynce v.<br>Mathis, 519 U.S. 433, 440-41 (1997); California Dep't of<br>Corrections v. Morales, 514 U.S. 499, 504-06 & n.3 (1995); Beazell<br>v. Ohio, 269 U.S. 167, 169-70 (1925); Hamm v. Latessa, 72 F.3d 947,<br>956-57 (1st Cir. 1995).<br>  The AEDPA's standards governing the filing of second or<br>successive habeas petitions do not, retrospectively or otherwise,<br>criminalize past actions that were considered innocent when<br>performed by one in the petitioner's situation, render such an<br>individual's punishment more oppressive, or deprive him of any<br>previously available legal defense.  To the contrary, these<br>provisions simply limit the circumstances under which the<br>petitioner (or one similarly situated) may collaterally attack his<br>conviction.  It is, therefore, pellucid that application of the<br>AEDPA's requirements to the instant petition cannot work an ex post<br>facto violation.  Accord Hatch v. Oklahoma, 92 F.3d 1012, 1014<br>(10th Cir. 1996) (concluding that the AEDPA's provisions addressing<br>second or successive petitions do not infract the Ex Post Facto<br>Clause contained in art. 1,  9).<br>                               III<br>  Having determined that the AEDPA controls in this case,<br>we treat what remains of the appeal as a motion for leave to<br>proceed with the prosecution of a second or successive habeas<br>petition.  From that coign of vantage, we consider whether Libby<br>satisfies the strictures that the AEDPA imposes.<br>  The respondent, Maine's Commissioner of Corrections,<br>maintains that authorization to proceed should be refused because<br>the proposed petition is out of time.  As framed, this thesis<br>posits that the limitation period for filing a habeas petition<br>under the AEDPA is one year, see 28 U.S.C.  2244(d); that where,<br>as here, this period expired prior to AEDPA's effective date,<br>potential applicants have a one-year "grace period" within which to<br>file; that Libby, whose conviction became final sometime in 1988,<br>had only one year after April 24, 1996, within which to seek<br>authorization to proceed with a neoteric habeas petition; and that,<br>because he filed nothing until October 27, 1997, he should not be<br>allowed to go forward.  The lower court adopted this rationale and<br>dismissed the petition.<br>  We agree that section 2244(d) imposes a general one-year<br>limitation period for filing habeas petitions, and   although this<br>court has not yet spoken directly to the point   that federal<br>courts generally have recognized a one-year grace period following<br>the AEDPA's enactment in order to allay retroactivity concerns<br>associated with certain habeas applications arising out of<br>preexisting convictions.  See, e.g., Nichols v. Bowersox, ___ F.3d<br>___, ___ (8th Cir. 1999) (en banc) [1999 WL 203482, at * 4]; Wilcox<br>v. Florida Dep't of Corrections, 158 F.3d 1209, 1211 (11th Cir.<br>1998); see also Flanagan v. Johnson, 154 F.3d 196, 199-200 (5th<br>Cir. 1998) (collecting cases).  But this limitation period works<br>differently in respect to second or successive petitions, and the<br>respondent's thesis mis-identifies the correct triggering date for<br>such petitions.  That bevue, in turn, defeats the respondent's<br>contention that the instant petition was barred automatically one<br>year after the AEDPA became law.  We explain briefly.<br>  Section 2244(d) provides four different end points for<br>measuring the AEDPA's one-year limitation period.  The first is<br>"the date on which the judgment [in the underlying criminal case]<br>became final by the conclusion of direct review or the expiration<br>of the time for seeking such review."  28 U.S.C.  2244(d)(1)(A). <br>Because strict application of this one-year rule would have<br>extinguished the rights of many state prisoners to file even their<br>first habeas petitions, federal courts generally have construed the<br>statute, with respect to persons in state custody whose convictions<br>had become final more than one year before AEDPA's date of<br>enactment, to mean that the one-year limitation period runs from<br>that (enactment) date.  See Flanagan, 154 F.3d at 199-200<br>(collecting cases); Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th<br>Cir. 1998) (same).<br>  Although this grace period is a logical solution to the<br>retroactivity problem that would be raised by mechanical<br>application of a one-year limitation period to convictions that had<br>long before become final, indiscriminate application of the grace<br>period construct to second or successive petitions would contravene<br>both the letter and the spirit of the statute.  After all, the time<br>when a conviction becomes final is only one of four triggering<br>events that Congress described in section 2244(d)(1).  A second end<br>point   not at issue here   involves the date on which "the<br>impediment to filing an application created by State action in<br>violation of the Constitution or laws of the United States is<br>removed, if the applicant was prevented from filing by such State<br>action."  28 U.S.C.  2244(d)(1)(B).  The last two end points<br>comprise the date on which a new, retroactively applicable<br>constitutional right was initially recognized by the Supreme Court,<br>see 28 U.S.C.  2244(d)(1)(C), and "the date on which the factual<br>predicate of the claim or claims presented could have been<br>discovered through the exercise of reasonable diligence,"  id.  at<br> 2244(d)(1)(D).  In our view, the respondent's single-minded<br>emphasis on the one-year grace period impermissibly overlooks the<br>import of these last two end points as a means of measuring the<br>applicable limitation period.<br>  The text and structure of section 2244 make manifest the<br>significance of these end points.  There are two ways in which a<br>habeas petitioner can prevail on a second or successive petition. <br>One is by showing that his claim "relies on a new rule of<br>constitutional law, made retroactive to cases on collateral review<br>by the Supreme Court."  See id. at  2244(b)(2)(A); see also<br>Rodriguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d<br>270, 275-76 (1st Cir. 1998).  The other is by demonstrating that<br>the factual predicate of his newly asserted claim was not readily<br>discoverable at an earlier date and that, if proven, these new<br>facts will suffice "to establish by clear and convincing evidence"<br>that, but for the constitutional error, no reasonable factfinder<br>would have found the petitioner guilty of the charged crime.  See<br>28 U.S.C.  2244(b)(2)(B).  The precise textual correspondence<br>between the requirements for the substantive showing necessary to<br>sustain a second or successive petition and the AEDPA's temporal<br>end points sends a strong signal that the limitation period for a<br>second or successive petition almost always will be triggered by<br>the occurrence of one of the two events (the most prominent<br>exception being if the triggering event occurred prior to the<br>AEDPA's effective date).<br>  That this is the proper interpretation of the statute is<br>made evident by the anomalies that would result were we to adopt<br>the respondent's reading.  Take the example of a state prisoner<br>(whom we shall call "A") whose conviction was final in 1994 and who<br>had unsuccessfully sought habeas relief in 1995.  If, in 1998, the<br>Supreme Court recognized a new and retroactively applicable<br>constitutional right, A, under the respondent's construction, would<br>be barred from prosecuting a second habeas application even if he<br>acted on the very day that the Supreme Court announced its<br>decision.  This result would make a mockery of Congress's manifest<br>intent to provide relief in such circumstances   an intent evinced<br>not only by the explicit language of section 2244(b)(2)(A), but<br>also by the directive that the limitation period "shall run from<br>the latest of" the four triggering events limned in the statute. <br>See 28 U.S.C.  2244(d)(1).  In other words, the respondent's gloss<br>subtracts from what little Congress has given to state prisoners<br>who aspire to file second or successive habeas petitions and<br>thereby undercuts subsections 2244(d)(1)(C)-(D).  We ordinarily<br>read statutes in a manner that gives meaning to every word.  See<br>Walters v. Metropolitan Educ. Enterps., Inc., 117 S. Ct. 660, 664<br>(1997); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st<br>Cir. 1985).  Because the respondent's reading of the AEDPA renders<br>entire subsections nugatory, it cannot be countenanced.<br>  Under the AEDPA, then, the rule is as follows.  A state<br>prisoner ordinarily must bring his first federal habeas petition<br>within one year of the date on which his conviction became final<br>(or, if the grace period applies, within that period).  But, this<br>time frame often will prove irrelevant for the purpose of measuring<br>the timeliness of a second or successive habeas petition.  Such a<br>petition will be deemed timely if filed within one year of the<br>occurrence of any of the triggering events described in section<br>2244(d)(1).  It follows, therefore, that if a one-year grace period<br>applies at all to a second or successive petition, it does so only<br>in cases in which the year extends, rather than truncates, the<br>limitation period.  See 28 U.S.C.  2244(d)(1).<br><br><br>                                IV<br>  Having fashioned a yardstick by which to measure the<br>appropriate triggering date for prescriptive purposes vis--vis<br>second or successive habeas petitions, we shift directions.  In<br>most settings, litigants invoke the statute of limitations as an<br>affirmative defense, see, e.g., Fed. R. Civ. P. 8(c), and this<br>principle functions much the same way in habeas corpus<br>jurisprudence.  Consequently, there is no need to consider the<br>viability of a limitations defense unless and until the habeas<br>petitioner has demonstrated that he has met the stringent criteria<br>outlined in section 2244(b)(2) for authorization to proceed with a<br>second or successive petition.  Libby's application, on its face,<br>fails to achieve those benchmarks.<br>  The AEDPA provides that courts of appeals "may authorize<br>the filing of a second or successive [habeas] application" if   but<br>only if   the application "makes a prima facie showing" that<br>satisfies the requirements of section 2244(b).  See 28 U.S.C. <br>2244(b)(3)(C).  These requirements effectuate a "modified res<br>judicata rule," Felker, 518 U.S. at 664, under which a habeas<br>petitioner, as a general matter, may neither resurrect claims<br>vetted in a previous application nor prosecute claims that<br>reasonably could have been raised in, but were omitted from, a<br>prior application.  The only two exceptions to this regime are<br>those to which we adverted earlier:  a repeat habeas applicant may<br>proceed on a previously unasserted claim that is based on either<br>(a) the announcement by the Supreme Court of a new, retroactively<br>applicable principle of constitutional law, see 28 U.S.C. <br>2244(b)(2)(A), or (b) some recently unearthed exculpatory evidence<br>that previously could not have been discovered through the exercise<br>of due diligence, see id. at  2244(b)(2)(B).  If an applicant<br>brings his petition within the narrow confines of one of these<br>exceptions, he is entitled to have a timely second or successive<br>petition considered by the district court; otherwise, he is not.<br>  Libby's petition wilts in the hot glare of this legal<br>regime.  He attempts to advance eight separate claims.  Four of<br>these are taken verbatim, or nearly so, from his initial habeas<br>application, filed on December 8, 1993, and dismissed on November<br>7, 1994.  These claims fall squarely within the prohibition of<br>section 2244(b)(1) (stating that "[a] claim presented in a second<br>or successive habeas corpus application . . . that was presented in<br>a prior application shall be dismissed"), and therefore need not be<br>discussed.<br>  Of the remaining four claims, three consist entirely of<br>allegations of trial error:  that the trial court improperly<br>admitted evidence of "habit or routine practice," that the jury<br>instructions were problematic, and that the evidence was inadequate<br>to sustain a conviction.  Although these assertions did not appear<br>in Libby's first habeas petition, they do not justify a second or<br>successive petition because they do not satisfy the requirements of<br>section 2244(b)(2).  As framed, the alleged errors have nothing to<br>do with freshly discovered evidence, and the petitioner does not<br>direct us to any new, retroactively applicable rule of<br>constitutional law that might cast any or all of these theories in<br>a materially different light.<br>  The last of the petitioner's claims is, on the surface,<br>a different breed of cat.  He contends that the state trial court<br>"ignor[ed] due process [and] refused to allow new evidence which<br>had not been discoverable prior to trial and which was highly<br>material as to key trial issues."  Closer perscrutation of the<br>accompanying factual allegations, however, shows that this claim,<br>too, is deficient.<br>  The "new evidence" that Libby cites is testimony by a<br>certain Edmund Winslow who, according to the petition, was ready to<br>"provide crucial alibi evidence" that would have placed Libby "in<br>a different location at the time of the homicide."  This witness,<br>the petition asserts, "only became known to [Libby] after trial and<br>by a lucky circumstance."  The petition further states that "the<br>[state trial] court refused a new trial based upon this witness's<br>crucial and previously undiscoverable testimony."  We learn from<br>the record that this last reference is to Libby's motion for new<br>trial, filed in the Kennebec County Superior Court on March 21,<br>1989 (in which he noted that he had a new alibi witness).<br>  The first question that the AEDPA directs us to ask when<br>a habeas petitioner makes a claim of newly discovered evidence on<br>a second or successive petition is whether the "factual predicate<br>for the claim could . . . have been discovered previously through<br>the exercise of due diligence" such that it could have been<br>included in the first habeas application.  28 U.S.C. <br>2244(b)(2)(B)(i).  Plainly, Libby knew that Winslow was a potential<br>alibi witness by March 1989   some four years before he submitted<br>his original application for federal habeas relief.  Since the<br>evidence already had been discovered, the claim should have been<br>brought the first time around.<br>  The petitioner strives to avoid this conclusion by<br>asseverating that the shortcomings in his initial application are<br>the product of the restrictive conditions of confinement which he<br>claims prevailed for many years.  Insofar as this argument is<br>tailored to justify the filing of his application after the one-<br>year grace period, it is irrelevant because it incorrectly<br>presupposes that he has made the requisite prima facie case for<br>proceeding with a second or successive habeas petition.  And even<br>if we treat the argument more broadly, it fails to furnish a basis<br>for relief.<br>  The eight alleged errors that the petitioner now seeks to<br>pursue were known to him (or, at least, knowable by him) before he<br>filed his first section 2254 petition.  Indeed, most of them are<br>apparent from the face of the trial record   and the one exception<br>is apparent from the face of the petitioner's 1989 motion.  As<br>previously mentioned, four of the eight alleged errors were<br>presented in Libby's initial habeas petition   and it is<br>surpassingly difficult to conceive of a reason why we should excuse<br>his failure to proffer the other four.  The presumption behind the<br>AEDPA appears to be that if a convict is able to file a habeas<br>corpus application, then he is able to include in it all claims<br>that are within his ken at the time of filing.  While this<br>presumption is rebuttable, the petitioner points to no statutory<br>provision that would permit him the leniency that he seeks in the<br>circumstances of this case.  Moreover, even were we to recognize an<br>exception, we certainly could not invoke it to benefit a state<br>prisoner who, like Libby, fails to identify any fact-specific<br>causal nexus between the peculiarities of his confinement and his<br>omitted claims.<br>                                V<br>  There is one further matter.  In Pratt, we held that the<br>AEDPA's requirements governing second or successive petitions do<br>not, as a general matter, violate non-retroactivity tenets when<br>applied to persons whose convictions were final before the AEDPA's<br>effective date.  See Pratt, 129 F.3d at 58.  We recognized,<br>however, that in a given case a habeas petitioner might be able to<br>show that these provisions have an impermissible retroactive impact<br>on one or more of his claims.  See id. at 58-60 (discussing<br>possibility of "mousetrapping").<br>  Libby tries to embrace this exception, but the<br>circumstances place it well beyond his grasp.  The sine qua non for<br>the exception is a showing that the petitioner detrimentally relied<br>on the legal status quo ante.  See id. at 59.  In this context, an<br>assertion of reliance must be objectively reasonable   and one easy<br>way to test the objective reasonableness of a particular assertion<br>is to determine whether the proponent would have prevailed on a<br>second or successive petition under the former regime.  See id. <br>Libby can make no such showing.<br>  But for the enactment of the AEDPA, Libby's case would be<br>governed by the abuse of the writ doctrine described in McCleskey<br>v. Zant, 499 U.S. 467 (1991).  See Pratt, 129 F.3d at 59.  That<br>doctrine compels a habeas petitioner to show both cause and<br>prejudice.  See McCleskey, 499 U.S. at 497; Pratt, 129 F.3d at 59-<br>60.  The petitioner cannot clear even the first of these hurdles. <br>Four of his claims were raised unsuccessfully in his 1993 habeas<br>petition, and he had no reasonable excuse for failing to raise then<br>and there the other four claims that he advanced in his 1997<br>petition; he has long been aware of the factual predicate<br>undergirding each such claim.  This concatenation of events,<br>without more, dooms the petitioner's quest.  See McCleskey, 499<br>U.S. at 497-502 (holding that a habeas petitioner cannot satisfy<br>the "cause" requirement where the evidence upon which he relies<br>would have been available through the exercise of reasonably<br>diligent fact gathering).<br>  The only remaining possibility for relief is if the newly<br>presented claims persuasively suggest a fundamental miscarriage of<br>justice.  See id. at 502.  This exception is rarely found<br>applicable, and neither the factual allegations in Libby's petition<br>nor the arguments in his brief give any indication that we are<br>confronted with such an extraordinary situation.<br>  We need go no further.  There is no basis under the AEDPA<br>for allowing Libby to file a further habeas petition.<br><br>  We affirm the district court's dismissal of the<br>petitioner's application for habeas corpus relief.  Additionally,<br>we treat this appeal, in part, as a motion for permission to file<br>a second or successive habeas petition.  So viewed, we deny the<br>motion.</pre>

</body>

</html>

