                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-1999

In Re Minarik v.
Precedential or Non-Precedential:

Docket 97-8146




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Filed February 3, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-8146

IN RE: JOHN PAUL MINARIK
       Petitioner

On Petition for Leave to file a Second
or Successive Habeas
Petition Pursuant to 28 U.S.C. Section 2244(b)
(Related to Western District of PA Civil No. 97-01832)
District Judge: Honorable Gary L. Lancaster

Argued June 17, 1998

BEFORE: STAPLETON, SCIRICA and MCKEE,
Circuit Judges

(Opinion Filed February 3, 1999)

       Vincent R. Baginski (Argued)
       430 Boulevard of the Allies
       Pittsburgh, PA 15219
        Attorney for Petitioner

       Russell K. Broman (Argued)
       Office of the District Attorney
       401 Allegheny County Courthouse
       Pittsburgh, PA 15219
        Attorney for Respondents
OPINION OF THE COURT

STAPLETON, Circuit Judge:

We have before us John Minarik's second petition for
relief under 28 U.S.C. S 2254. It was tendered to the
District Court after the enactment of the Anti-terrorism and
Effective Death Penalty Act of 1996 ("AEDPA") and
transferred to this Court pursuant to the provisions of that
act. Minarik's first S 2254 petition wasfiled prior to
AEDPA's passage. We must decide whether the gatekeeping
provisions made applicable to "second or successive
petitions" by 28 U.S.C. S 2244 as amended by AEDPA
should be applied in Minarik's case. We conclude that such
application would have no impermissible retroactive effect
and, accordingly, that AEDPA's modified version ofS 2244
requires us to deny him permission to proceed with his
successive petition.

I.

On February 7, 1971, Minarik killed his former fiancee
with an ax. In October 1971, Minarik pleaded guilty to the
murder. The Allegheny County Court of Common Pleas
convicted Minarik of first degree murder and sentenced him
to life imprisonment. Minarik did not pursue a direct
appeal. In 1977, Minarik filed a motion to withdraw his
guilty plea. The Court of Common Pleas granted the
motion. That decision, however, was ultimately overturned
by the Pennsylvania Supreme Court, and Minarik was not
permitted to withdraw his plea. Commonwealth v. Minarik,
427 A.2d 623 (Pa. 1981).

In 1981, Minarik filed his first federal habeas corpus
petition alleging two grounds for relief. First, Minarik
claimed that he had not knowingly, intelligently and
voluntarily entered his guilty plea because (1) th e trial
court failed to explain the requisite mental state required
for first degree murder, and (2) he had no memor y of the
events surrounding the murder. Second, Minarik claimed
that the Pennsylvania Supreme Court's reversal of the

                                2
Court of Common Pleas' decision allowing Minarik to
withdraw his guilty plea violated his due process and equal
protection rights. An extensive evidentiary hearing was held
to examine the circumstances surrounding Minarik's guilty
plea. Two significant sources of testimony highlighted the
hearing. First, expert witnesses testified about the possible
effects of mixing alcohol and Triavil, an anti-depressant
prescription drug that Minarik had been taking at the time
of the murder. Second, Minarik's trial counsel, Ralph J.
Cappy, testified that he had thoroughly discussed all of the
elements of, and defenses to, the first degree murder charge
with Minarik before he entered his plea. According to
Cappy, Minarik insisted upon pleading guilty against his
advice. The District Court denied Minarik's petition and
this Court affirmed.

On April 24, 1996, President Clinton signed into law the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). 110 Stat. 1214. AEDPA substantially revised the
law governing federal habeas corpus codified in chapters
153 and 154 of Title 28. See 28 U.S.C. SS 2241-66. AEDPA
contains "gatekeeping" provisions that establish new
procedural and substantive standards governing "second or
successive" habeas petitions. Id. S 2244. Procedurally, the
AEDPA amendments require petitioners to file a motion in
the appropriate Court of Appeals requesting an order
authorizing the District Court to consider their"second or
successive" application. Id. S 2244(b)(3)(A). A three judge
panel of the Court of Appeals may grant such a motion only
where the petitioner establishes a prima facie case that the
application satisfies AEDPA's new substantive standards
regarding "second or successive" petitions. Id.
S 2244(b)(3)(C). Notably, the new substantive standards
governing the allowance of second or successive
applications are more rigorous than the pre-AEDPA
standard developed by the courts interpreting the prior
version of S 2244. See James S. Liebman & Randy Hertz,
Federal Habeas Corpus Practice and Procedure S 28.3a, at
271 (Supp. 1997)("[AEDPA] sharply narrow[ed] the (already
extremely narrow) circumstances in which new-claim
successive petitions are permitted").

On October 6, 1997, following another unsuccessful bid
for post conviction relief in state court, Minarikfiled a

                               3
second federal habeas corpus petition, the subject of this
appeal, stating three grounds for relief. First, Minarik
claims that his trial counsel's failure to discover the
availability of an involuntary intoxication defense deprived
him of effective assistance of counsel. Second, Minarik
repeats his contention that he did not knowingly,
intelligently and voluntarily enter his guilty plea. Third,
Minarik claims that the state court violated his Fourteenth
and Sixth Amendment rights when it refused to hold an
evidentiary hearing regarding his claim that trial counsel
disregarded his request to file a direct appeal.

Because Minarik had filed a previous habeas petition in
1981, the District Court transferred Minarik's second
petition to this Court to permit us to perform our new
gatekeeping function under 28 U.S.C. S 2244(b)(3)(A).
Discerning a possible retroactivity problem, we requested
that the parties brief the issue of whether 28 U.S.C.
S 2244's "second or successive" petition provisions, as
amended by AEDPA, apply in a case where the first petition
was filed prior to AEDPA's enactment.

II.

Two Supreme Court decisions guide our retroactivity
analysis in this case. First, we must consider Landgraf v.
USI Film Products, 511 U.S. 244 (1994), the landmark case
which establishes the analytical framework governing
retroactivity issues. Second, we must consult the Court's
more recent decision in Lindh v. Murphy, 117 S.Ct. 2059
(1997), where it provided additional guidance regarding
Landgraf retroactivity analysis in a case involving AEDPA.

In Landgraf, the Court considered whether provisions of
the Civil Rights Act of 1991 that provided expanded rights
to recover compensatory and punitive damages in Title VII
suits, and the right to a jury trial in cases involving claims
for such damages, could be applied to cases pending when
the Act took effect. Landgraf, 511 U.S. at 247. The Court
found in its case law a strong historical presumption
against the retroactive application of statutes:

       [T]he presumption against retroactive legislation is
       deeply rooted in our jurisprudence, and embodies a

                                4
       legal doctrine centuries older than our Republic.
       Elementary considerations of fairness dictate that
       individuals should have an opportunity to know what
       the law is and to conform their conduct accordingly;
       settled expectations should not be lightly disrupted.
       For that reason, the principle that the legal effect of
       conduct should ordinarily be assessed under the law
       that existed when the conduct took place has timeless
       and universal appeal. In a free dynamic society,
       creativity in both commercial and artistic endeavors is
       fostered by a rule of law that gives people confidence
       about the legal consequences of their actions.

Id. at 265-66 (citations omitted). The Court noted that
several constitutional provisions manifest similar anti-
retroactivity principles.1 Recognizing the "limited scope" of
the constitutional restrictions, however, the Court indicated
that, absent a violation of such a constitutional provision,
the traditional anti-retroactivity presumption permits
retroactive application only where "Congressfirst makes its
intention clear [so as to leave no question] that Congress
itself has determined that the benefits of retroactivity
outweigh the potential for disruption or unfairness." Id. at
268. The Court then announced a two part test for
statutory retroactivity problems:

       When a case implicates a federal statute enacted after
       the events in suit, the court's first task is to determine
       whether Congress has expressly prescribed the
       statute's proper reach. If Congress has done so, of
_________________________________________________________________

1. Id. at 266. Article I contains two direct prohibitions upon retroactive
application. First, the Ex Post Facto clauses prohibit retroactive
application of criminal laws by state and federal governments. Id. (citing
U.S. Const. art. I, SS 9-10). Second, the Bills of Attainder clauses
forbid
"legislatures from singling out persons and meting out summary
punishment for past conduct." Id. Additionally, the Constitution contains
a number of indirect limitations upon retroactivity (i) States are limited
in their ability to enforce laws "impairing the Obligation of Contracts";
(ii) the Fifth Amendment's Takings Clause preclude s legislatures from
taking private property except where there is a"public purpose" and
"just compensation"; and (iii) the Due Proce ss Clauses "protect the
interests in fair notice and repose that may be compromised by
retroactive application." Id. (citations omitted).

                               5
       course, there is no need to resort to judicial default
       rules. When, however, the statute contains no such
       express command, the court must determine whether
       the new statute would have retroactive effect, i.e.,
       whether it would impair rights a party possessed when
       he acted, increase a party's liability for past conduct or
       impose new duties with respect to transactions already
       completed. If the statute would operate retroactively,
       our traditional presumption teaches that it does not
       govern absent clear congressional intent favoring such
       a result.

Id. at 280.

Finally, the Landgraf Court identified three categories in
which "application of new statutes passed after the events
in suit is unquestionably proper" even "absent specific
legislative authorization." Id. at 273. First, "when the
intervening statute authorizes or affects the propriety of
prospective relief, the application of the new provision is
not retroactive." Id. at 273. Second, courts may apply
statutes "conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred or
when the suit was filed." Landgraf, 511 U.S. at 274. Third,
"[c]hanges in procedural rules may often be applied in suits
arising before their enactment without raising concerns
about retroactivity." Landgraf, 511 U.S. at 275.

Applying these principles, the Court concluded that the
1991 Act's damages provisions could not be applied to
cases pending at the time of enactment because Congress
failed to provide an "explicit command" regarding
retroactivity and applying the new damages provisions
would have a "genuine retroactive effect" by attaching new
legal consequences to events completed before the Act's
enactment. Id. at 280-84.2
_________________________________________________________________

2. The Court noted that statutory provisions conferring a right to a jury
trial are procedural and ordinarily are applied to pending cases that have
not been tried. Since the Act called for jury trials only in those
situations
where the plaintiff seeks to enforce the newly created right, however, the
jury trial option had to "stand or fall with the attached damages
provisions." Id. at 281.

                               6
In Lindh, the Court considered whether AEDPA's new
standards for granting habeas petitions in non-capital
cases under 28 U.S.C. S 2254(d) could be applied to cases
pending at the time AEDPA was enacted. 117 S. Ct. at
2059. The District Court had denied Lindh's habeas corpus
application in 1995. Shortly after oral argument in Lindh's
appeal before the Seventh Circuit Court of Appeals, AEDPA
became effective substantially modifying federal habeas
corpus law. After en banc reconsideration, the Court of
Appeals applied Landgraf and concluded that the AEDPA
modified version of S 2254(d) could be applied to Lindh's
case because it did not "attach new legal consequences" to
events completed before enactment, and therefore did not
result in a genuine retroactive effect. The Supreme Court
reversed, holding that Congress did not intend to apply
AEDPA's habeas corpus amendments to non-capital cases
pending when AEDPA became effective.

The Lindh majority began by stating that Landgraf stood
for the proposition that "where a statute [does] not clearly
mandate an application with retroactive effect, a court
[must] determine whether applying it as its terms ostensibly
indicated would have [sic] genuinely retroactive effect; if so,
the judicial presumption against retroactivity would bar its
application." Id. at 2062. The Court rejected, however, the
respondent's contention that "whenever a new statute on
its face could apply to the litigation of events that occurred
before it was enacted, there are only two alternative sources
of rules to determine its ultimate temporal reach: either an
`express command' from Congress or application of our
Landgraf default rule." Id. Instead, the Court stated that:

       [i]n determining whether a statute's terms would
       produce a retroactive effect . . . and in determining a
       statute's temporal reach generally, our normal rules of
       construction apply. Although Landgraf's default rule
       would deny application when a retroactive effect would
       otherwise result, other construction rules may apply to
       remove even the possibility of retroactivity (as by
       rendering the statutory provision wholly inapplicable to
       a particular case).

Id. at 2063.

                               7
The Court further stressed that Landgraf's retroactivity
analysis must be case-specific:

       In sum, if the application of a [statutory] term would be
       retroactive as to [the particular party affected], the
       term will not be applied, even if in the absence of
       retroactive effect, we might find the term applicable.

Id.

Applying "normal rules of construction" to determine
congressional intent regarding AEDPA's temporal reach, the
Court observed that all of AEDPA's habeas corpus
amendments are found in Title I of the Act, and that Title
I's amendments can be divided into two categories:
(i) amendments to chapter 153 of Title 28 governin g all
federal habeas corpus proceedings found in #8E8E # 101-106 of
the Act, and (ii) amendments establishing a new ch apter
154 of Title 28 governing habeas proceedings against
qualifying states in capital cases found in S 107 of the Act.
See id. (citing 110 Stat. 1217-26). Notably,S 107(c) provides
that "[c]hapter 154 . . . shall apply to cases pending on or
after the date of enactment of this Act." 110 Stat. 1226.
According to the Court, "the negative implication of S 107(c),
is that the new provisions of chapter 153 generally apply
only to cases filed after the Act became effective." Lindh,
117 S.Ct. at 2068. Thus, the AEDPA modified chapter 153
standards for granting applications for habeas relief could
not be applied to Lindh's case because it was "pending" on
appeal when AEDPA became effective.

We read Landgraf and Lindh as establishing the following
principles that we must employ in resolving the issues
before us:

       1. There is a strong presumption against applying a
       statute in a manner that would attach "new legal
       consequences" to events completed before the statute's
       enactment, i.e., a manner that would "impair rights a
       party possessed when he acted, increase a party's
       liability for past conduct, or impose new duties."
       Landgraf, 511 U.S. at 280.

       2. If Congress has focused on the issue, "has
       determined that the benefits of retroactivity outweigh

                               8
       the potential for disruption or unfairness," and has
       provided unambiguous evidence of its conclusion by
       directing that retroactive effect be given, then, and only
       then, will the presumption be overridden.

       3. Consistent with these principles, normal rules of
       statutory construction "may apply to remove . . . the
       possibility of retroactivity." Nothing short of an
       unambiguous directive, however, will justify giving a
       statute a retroactive effect. Thus, when normal rules of
       statutory construction indicate that a statute is
       intended to be applied in a manner involving no
       retroactive effect, a Court need inquire no further. On
       the other hand, if such construction suggests that a
       retroactive effect may have been intended, the
       traditional presumption nevertheless bars retroactive
       application unless an unambiguous congressional
       directive is found.3

III.

With these principles in mind we address Minarik's claim
that applying AEDPA's "second or successive application"
procedures and standards to his case would result in an
impermissible retroactive application of the statute.
_________________________________________________________________

3. We recently distilled these principles from Landgraf and Lindh in
Mathews v. Kidder Peabody & Co., Inc., 161 F.3d 156 (3d Cir. 1998). In
Mathews, we employed a three-step analysis that, in the first step, called
for the Court to determine whether Congress had provided an "express
command" regarding the statute's temporal reach and, in the third step,
called for the Court to ascertain whether there was a "clear
[congressional] intent" to apply the statute retroactively. Id. at 161.
Because we found neither an "express command" nor a "clear"
expression of intent, we declined to give the statute retroactive effect.
Our analysis left open the possibility that giving retroactive effect may
be
justified by reference to legislative history and statutory purpose even
in
the absence of an unambiguous directive in the statute's text. Compare
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (requiring
"an intention unmistakably clear in the language of the statute" as
satisfactory evidence that Congress focused on and decided to abrogate
Eleventh Amendment immunity). We have no occasion to resolve that
issue here. As in Mathews, there is nothing in the AEDPA's purpose or
its legislative history that is even arguably sufficient to override the
presumption against retroactive effect.

                               9
As a threshold matter, we note that the Lindh decision's
construction of AEDPA's temporal reach does not control
the outcome of this case. Lindh held that AEDPA's text,
read in light of normal principles of statutory
 905<!>interpretation, evidences a congressional intent that

AEDPA's chapter 153 amendments should generally be
applied to petitions, like Minarik's, filed after April 24,
1996, the effective date of the Act, but not to petitions, like
Lindh's, filed before. This does not resolve the issue before
us, however. The finding of congressional intent in Lindh
was based on the drawing of a negative inference from
Congress's express mandate that AEDPA's new rules
regarding certain death penalty cases apply to pending
cases. Because Congress had expressly provided for
application to pending capital cases, but not to pending
non-capital cases, it was a fair inference that Congress did
not intend retrospective application to the latter. Landgraf
and Lindh make clear, however, that while such an
inference is sufficient to eliminate the possibility of a
retroactivity problem, it is not the kind of unambiguous
statement that will justify overriding the judicial
presumption against retroactivity in a case where a
retroactivity problem exists. See Mathews, 161 F.3d at 166-
68 (rejecting a similar "negative inference" from the
statute's text as evidence of "clear intent" to justify a
statute's retroactive effect).

Landgraf describes the statement of congressional intent
necessary to override the presumption against retroactive
application in terms of "express commands,""unambiguous
directives," and "clear statements." 511 U.S. at 263, 264,
272-73, 286. It specifically teaches that "a statement that
a statute will become effective on a certain date does not
even arguably suggest that it has application to conduct
that occurred at an earlier date." Id. at 257. It necessarily
follows, we believe, that the negative inference drawn in
Lindh -- that the Act's chapter 153 amendments are
applicable to cases filed after its enactment-- does not
constitute an unambiguous directive that those
amendments be applied to all post-enactment filed
petitions, including those in which the first petition was
filed before the Act's passage.

                               10
Moreover, Lindh counsels that the only cases in which
the Court has "found truly `retroactive' effect adequately
authorized by statute have involved statutory language so
clear that it could sustain only one interpretation." 117 S.
Ct. at 2064 n.4. It was precisely because the negative
inference drawn under normal principles of statutory
construction did not satisfy this requirement that the Lindh
Court discussed at some length the distinction between
express congressional commands and manifestations of
congressional intent gleaned by applying those principles.
In short, it is apparent that the Court in Lindh meticulously
examined the AEDPA and failed to find any express
command from Congress regarding retroactive application
of the AEDPA's chapter 153 amendments. See Liebman &
Hertz, Federal Habeas Corpus S 2.7b, at 29 ("Lindh also
makes clear that [AEDPA's habeas corpus amendments]
nowhere state Congress' intention to cause retroactive
effects . . . ").

Based on our reading of Landgraf and Lindh, we join two
other courts of appeals in holding that AEDPA contains no
unambiguous guidance regarding retroactive application of
AEDPA's new "second or successive" petition standards and
procedures to cases in which the first habeas petition was
filed before AEDPA's enactment. See In re Green, 144 F.3d
384 (6th Cir. 1998); In re Hanserd, 123 F.3d 922, 924 (6th
Cir. 1997); United States v. Ortiz, 136 F.3d 161, 165 (D.C.
Cir. 1998).

Having concluded that Congress did not clearly express
its intent regarding the retroactivity issue presented in this
case, we now turn to a case-specific analysis of whether
applying AEDPA's S 2244(b) would have a genuine
retroactive effect by "attach[ing] new legal consequences to
events completed before [AEDPA's] enactment." Landgraf,
511 U.S. at 270. If applying the AEDPA's habeas corpus
amendments would produce a genuine retroactive effect in
Minarik's case, then Landgraf's default rule prohibits their
application. If on the other hand, no such retroactive effect
would result, then Lindh requires us to apply the AEDPA
amendments because Minarik's second petition wasfiled
after April 24, 1996. To resolve this issue we treat 2244(b)'s

                               11
new procedural provisions and substantive standards
separately.4

A. AEDPA's New Procedure

AEDPA established a new procedure governing "second or
successive" petitions for federal habeas corpus relief under
S 2244(b). It provides:

       Before a second or successive application permitted by
       this section is filed in the district court, the applicant
       shall move in the appropriate court of appeals for an
       order authorizing the district court to consider the
       application.

28 U.S.C. S 2244(b)(3)(A). Minarik maintains that subjecting
him to this new procedure is an impermissible retroactive
application of the statute. Section 2244(b)(3)(A), however, is
a change in procedural law which falls within thefirmly
established "procedural change" category described in
Landgraf that may be retrospectively applied. See Landgraf,
511 U.S. at 275 ("Because rules of procedure regulate
secondary rather than primary conduct, the fact that a new
procedural rule was instituted after the conduct giving rise
to the suit does not make application of the rule at trial
retroactive.").

Because AEDPA, as read by the Lindh Court in the light
of normal principles of statutory interpretation, calls for the
_________________________________________________________________

4. We reject appellee's contention that the Supreme Court's recent
decision in Calderon v. Thompson, 118 S.Ct. 1489 (1998) controls the
issue of AEDPA's applicability in this case. In Calderon, the Court of
Appeals had issued a mandate denying the petitioner's pre-AEDPA
petition for habeas relief. Id. at 1496. Shortly before petitioner's
scheduled execution, the petitioner filed a post-AEDPA motion to recall
the mandate, which was granted by the Court of Appeals. Id. The
Supreme Court reversed, holding that the Court of Appeals abused its
discretion in revoking the mandate. Id. at 1506. In the course of its
opinion, the Court rejected an argument that the recall of the mandate
constituted a favorable action on a "second or successive petition" and
was thus barred by S 2244(b)'s new standared. The Court found only
that there had been no action on a "successive petition." The issue of
retroactive effect was not before the Court, and any suggestion that
S 2244(b) is to be applied retroactively would have been dictum.

                               12
application of S 2244(b)(3)(A) to cases filed after April 24,
1996, and because it is a rule of procedure that does not
"attach new legal consequences to events completed before
its enactment," petitioners in Minarik's position must seek
permission of a Court of Appeals prior to proceeding on a
second petition, even if their first petition wasfiled before
the Act was adopted. See In re Hanserd, 123 F.3d 922, 934
(6th Cir. 1997) ("Inmates who wish to file a second or
successive petition should first file a motion in [the Court
of Appeals] requesting permission under 28 U.S.C.SS 2244,
2255, regardless of when the first motion to vacate
sentence was filed.").

B. AEDPA's New Substantive Standards

We now consider whether applying AEDPA's new
substantive gatekeeping standards would have an
impermissible retroactive effect if applied in Minarik's case.
At all times here relevant, the unsuccessful prosecution of
a S 2254 proceeding has had an adverse impact on the
petitioner's right to prosecute a second or successive S 2254
proceeding. When Minarik filed his first federal habeas
petition, the existing law provided that he could thereafter
prosecute another such petition only if he could (1) show
cause for, and prejudice from, the omission of his new
claim or claims from his earlier petition (i.e., that his
proceeding would not constitute an "abuse of the writ"), or
(2) demonstrate "actual innocence." See 28 U.S.C. S 2244;
McCleskey v. Zant, 499 U.S. 467 (1991); Kuhlman v. Wilson,
477 U.S. 436 (1986).

AEDPA's passage significantly altered the showing that
Minarik was required to make in order to proceed on new
claims in a second petition. Section 2244(b), as amended by
AEDPA, provides in relevant part:

       (1) A claim presented in a second or successive
       habeas corpus application under section 2254 that was
       presented in a prior application shall be dismissed.

       (2) A claim presented in a second or successive
       habeas corpus application under section 2254 that was
       not presented in a prior application shall be dismissed
       unless--

                               13
       (A) the applicant shows that 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

       (B)(i) the factual predicate for the claim could n ot
       have been discovered previously through the exercise of
       due diligence; and

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

28 U.S.C. S 2244(b)(2).

These substantive gatekeeping provisions were intended
to reduce the universe of cases in which a habeas petition
may go forward on a second or successive petition. In those
cases where a prisoner in state custody had a right to
prosecute a second or successive petition prior to AEDPA's
passage, but would be deprived of that right by these new
gatekeeping provisions, we conclude that applying the
AEDPA standard would have a "genuine retroactive effect"
because it would attach a new and adverse consequence to
pre-AEDPA conduct -- the prosecution of the original
proceeding.

By its terms, S 2244(b) requires that a claim not meeting
its articulated standards "shall be dismissed" thus
extinguishing any right the petitioner may have to relief. Its
effect is not unlike that of AEDPA's statute of limitations
which we recently declined to apply retroactively in Burns
v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). On September
21, 1995, when Burns exhausted all of his state rights of
direct appeal and collateral review, there was no statute of
limitations applicable to federal habeas petitions under 28
U.S.C. S 2254. AEDPA, however, established a one year
statute of limitations which, by its terms, begins to run as
soon as the petitioner's rights of direct review have been
exhausted or expired. See 28 U.S.C. S 2244(d). If
applicable, AEDPA's limitations period would require Burns
to file his petition on or before September 22, 1996. Burns,

                               14
however, filed his petition on April 22, 1997. Because
Burns had a right to proceed on his habeas claim prior to
AEDPA's enactment, and because AEDPA's statute of
limitations, if applied to his case, would extinguish his
claim, we held that such an application would
impermissibly attach new legal consequences to events
completed before the statute's enactment. Burns , 134 F.3d
at 111. We see no meaningful distinction between that case
and Minarik's, assuming that Minarik had a right to
proceed on his claim prior to AEDPA.

AEDPA's gatekeeping provisions when applied to cases in
which there was a right to proceed under preexisting law
also operate much like the RICO amendment we considered
in Mathews, 161 F.3d at 163. Prior to the RICO
amendment, securities fraud could serve as a predicate
offense under RICO, thereby entitling a plaintiff to treble
damages. The RICO amendment altered the text of the
statute conferring federal jurisdiction over RICO claims to
exclude jurisdiction over RICO claims predicated on"any
conduct that would have been actionable as fraud in the
purchase or sale of securities." Id. We pointed out that,
while phrased in jurisdictional terms, the amendment's
practical effect was to alter substantive rights because
"prior to the passage of the Act, the [plaintiff] had a RICO
cause of action based upon defendants' alleged actions, but
afterward he would not." Id. Similarly, if a habeas petitioner
had a right to initiate federal proceedings to secure release
from confinement prior to AEDPA, and had no such rights
thereafter, then AEDPA has altered substantive rights and
thereby attached new legal consequences to pre-enactment
conduct.5

We find additional support for our conclusion in cases
from two other circuits. See Ortiz, 136 F.3d 161; In re
Green, 1998 144 F.3d 384; In re Sonshine, 132 F.3d 1133
(6th Cir. 1997); In re Hanserd, 123 F.3d 922. These Courts
have encountered a similar retroactivity issue in cases
_________________________________________________________________

5. In Mathews, we distinguished Salazar-Haro v. I.N.S., 95 F.3d 309 (3d
Cir. 1996), as falling on the other side of the"substantive/jurisdictional
dichotomy." 161 F.3d at 163. We view this case as falling on the same
side of that dichotomy as Mathews and Burns.

                                15
where petitioners challenged application of AEDPA's new
"gatekeeping" standards governing "second or successive"
S 2255 motions. In these cases, the petitioners filed their
first S 2255 motions before, and their second motions after,
AEDPA's effective date. These Courts have concluded that
the AEDPA standard would have an impermissible
retroactive effect if applied where the petitioner would have
been allowed to file his second S 2255 motion under the
pre-AEDPA standard, but would be precluded from doing so
under the AEDPA standard. See Ortiz, 136 F.3d at 166
("[T]he new standards and procedures under AEDPA for
filing S 2255 motions could only be improperly retroactive
as applied to [the petitioner] if he would have met the
former cause-and-prejudice standard under McCleskey and
previously would have been allowed to file a second motion,
but could not file a second motion under AEDPA."); In re
Hanserd, 123 F.3d at 930 ("When [the movant] filed his
initial S 2255 motion, the law would have allowed him to
raise a Bailey claim in a second motion . . . Under AEDPA,
however, he may not. Applying the new statute would thus
attach a severe new legal consequence to his filing a first
motion . . . Because Congress has not expressed an intent
that the new Act have such a retroactive effect, we could
not apply AEDPA in this way."); Sonshine, 132 F.3d at 1134
(noting that retroactive effect exists only where the
"difference matters" between pre- and post-AEDPA
standards). Conversely, where the two standards lead to the
same outcome, these courts have concluded that there is
no genuine retroactive effect and the AEDPA standard may
be applied. See Sonshine, 132 F.3d at 1135 ("[Petitioner's
claim] would be barred under both AEDPA and the old
abuse-of-writ standard. [Petitioner] would not have
prevailed under pre-AEDPA law, as his petition would have
been denied as an abuse of writ. AEDPA's restrictions thus
do not attach new legal consequences for [petitioner], and
AEDPA has no impermissible retroactive effect on this
case."); Ortiz, 136 F.3d at 167 (applying AEDPA's new
standard to deny the petitioner's second S 2255 motion
carried no impermissible retroactive effect because
petitioner "failed to meet the requirements of the former
`abuse of writ' standard of McCleskey, and the new AEDPA
standards."); see also In re Hanserd, 123 F.3d at 932

                               16
("Where the old and the new law lead to an identical result,
there is no need to conduct a retroactivity analysis because
the new law has not attached any new consequences to
preenactment conduct or upset settled expectations.");
United States v. Enigwe, 1998 WL 150974 (E.D.Pa. March
30, 1998) (applying AEDPA standards where firstS 2255
motion was filed before AEDPA was not impermissibly
retroactive because there was "no difference in outcome
between pre- and post-AEDPA law"). We agree.

We conclude therefore that if Minarik can show that he
would have been entitled to pursue his second petition
under pre-AEDPA law, then the Landgraf default rule
prohibits applying AEDPA's new substantive gatekeeping
provisions to bar his claims. In the absence of such a
showing, however, applying those standards to Minarik
results in no genuine retroactive effect, and the AEDPA
standard must be applied under the Supreme Court's
holding in Lindh that AEDPA's habeas corpus amendments
apply generally to cases filed after its effective date.

1. The Pre-AEDPA Law And Minarik's Second Petition

We first consider whether Minarik's second application is
barred under the pre-AEDPA standard. For the reasons
that follow, we conclude that it is.

Minarik filed his first federal habeas petition on
December 23, 1981, ten years after pleading guilty to his
fiancee's murder. His first petition raised two claims:
(1) the due process clause was violated because hi s guilty
plea was not knowingly, intelligently and voluntarily
entered because (a) his counsel did not explain to him the
mental state which the State would be required to prove
and, (b) he had no recollection of the events surr ounding
the crime, and (2) the equal protection and due pr ocess
clauses were violated when the Supreme Court of
Pennsylvania failed to apply Commonwealth v. Minor, 365
A.2d 346 (Pa. 1976), in his case.

In November of 1982, the District Court held a lengthy
evidentiary hearing concerning the circumstances
surrounding Minarik's guilty plea. Minarik called two expert
witnesses to testify about the effects of alcohol and Triavil,

                               17
a drug prescribed for Minarik several months before the
murder. While neither knew when Minarik last took Triavil
before the crime or how much alcohol he had consumed,
each expressed the opinion, inter alia, that he was
amnesiac following his arrest. Minarik testified that he had
no memory of the events of the crime, that his attorney had
failed to advise him regarding the intent that would have to
be proved and that counsel, rather than Minarik, made the
decision to plead guilty. The respondent called Minarik's
trial counsel, Ralph J. Cappy, in rebuttal. He confirmed
that Minarik's memory on the night of the murder lapsed
when he was in the bushes outside the house. Counsel also
testified that he reviewed every element of the offense
charged and possible defenses with Minarik, and explained
that Minarik had insisted on pleading guilty against
counsel's advice. Counsel summed up the situation as
follows:

       Q. Did you make a recommendation yourself as to
       whether or not there should be a guilty plea or you
       should go to trial?

       A. I know that was one point of disagreement that he
       and I always had.

       I was always -- my recollection is that I wanted to try
       this case. There were a number of reasons why I
       wanted to try it. I didn't believe in my heart that a jury
       would send a 21-year-old man, with his education, lack
       of prior record, to the electric chair.

       We had somewhat of an equitable defense, in the
       sense that this was a homicide resulting from a lover's
       situation, with a very distraught defendant; we had
       alcohol involved; we had a potential for drugs and
       alcohol involved; we had a potential, as I recall the
       Behavior Clinic describing him as having had a
       personality disorder. None of these things by
       themselves rose to the level of the legitimate defense,
       but it was my opinion, taken together with his age, his
       family, it was a very good family, hard working good
       people, that our equitable defense, in my mind, would
       have -- I mean, there's always a chance involved, but
       in my mind I didn't believe I would lose the case to the

                               18
       death penalty, therefore the worse I could do was life,
       therefore, why not take a chance and see if you could
       get a second or voluntary. Voluntary was probably the
       most realistic from analyzing it from a legal standpoint.

       Quite frankly, John refused all through this. If my
       memory serves me correctly, he never wanted to go to
       trial. He steadfastly maintained that he was pleading
       guilty, period; he was going to take his punishment.

App. III at 526-527a.

Counsel further testified that he had talked with
Minarik's family doctor who had prescribed Triavil for the
depression Minarik experienced after the breakup with his
fiancee. He engaged the services of Dr. Stanger, a
psychiatrist, to secure an opinion regarding a possible
insanity defense, and he reviewed reports supplied by the
state from the Behavioral Clinic on Minarik's mental state.
In connection with the possibility of an intoxication
defense, counsel and the Chief Investigator of the Public
Defender's Office interviewed everyone they couldfind who
was present at the party Minarik attended earlier on the
evening of the crime. They discovered two witnesses who
were prepared to testify that Minarik "had announced his
intended purpose prior to actually going to commit this
act." Id. at 535a.

When asked whether he had investigated and considered
"an intoxication defense" and an "involuntary intoxication
defense," counsel gave the following testimony:

       A. My investigation, as I recall it, did reveal th e fact
       that at some time during the evening, earlier in the
       evening, John had become intoxicated and had placed
       himself on a couch and dozed off, or rested for a period
       of time. Subsequent to that time he either awoke or got
       up and seemed to be, to the witnesses who had talked
       with him, coherent, not intoxicated, and to one of those
       witnesses he had offered a ring, an engagement ring,
       that apparently had been the victim's ring, as I recall,
       and had told the witness, "I'll not need this ring after
       tonight," or "I'll no longer need this ring," and told this
       witness that he was going to, in essence, kill Rosemary.

                                19
        Q. Did you investigate the possibility of defendin g
        against these charges on an involuntary intoxication
        theory?

        A. John had told me that he was taking a medicatio n
        -- I had a discussion or discussions with the family
        doctor --

* * *

        The family physician had prescribed for him a
        particular drug. I know that's an issue in this case, but
        I'm still not familiar with exactly all the ramifications.
        I thought maybe we would have a chance to produce a
        defense that would reduce the degree by combining the
        alcohol with the drug and I endeavored to do that. I
        know I inquired of not only Dr. Stanger, but I even
        went down to Dr. Campbell, but I'm not quite sure it
        was Dr. Campbell, about what would be the effect of
        the drug with alcohol and I believe at the time it was
        grain alcohol, I'm not sure about that, but anyway it
        was some kind of a college party, could there be a
        reason, in combining these two drugs, I mean the drug
        and the alcohol, could that have set John off, or could
        we connect that with a mental deficiency which would
        result in a defense? Maybe not a complete blackout
        defense, but some defense which would reduce the
        degree from first to second, or even go into voluntary
        manslaughter. I remember specifically Dr. Stanger
        saying, "No, I believe . . ." -- the problem I'm having
        here is, I consulted with a number of people on this,
        not only other criminal defense attorneys, but
        physicians, some of them psychiatrists, these were
        friends of mine who were in a residency program, an
        internship program at the University of Pittsburgh, and
        I could get from no one any indication that an
        accommodation of this drug and alcohol, given the facts
        as described by the witnesses at the party, before he
        left on his way to Rosemary, no physician or physician
        in training could give me any indication that the
        alcohol and drug played a part in what he had done.

Id. at 535a-536a; 537a-538a.

                                20
The District Court credited trial counsel's testimony and
concluded that Minarik's plea was knowingly, intelligently,
and voluntarily entered. While it found that Minarik lacked
memory of the events surrounding the crime at the time of
his plea, the Court concluded that this did not prevent the
plea from being knowing, intelligent and voluntary. Finally,
it rejected the contention that the failure of the
Pennsylvania court to follow the Minor case constituted a
federal constitutional violation. On appeal, this Court
affirmed in all respects.

Following an unsuccessful bid for post-conviction relief in
state court, Minarik filed his second federal habeas petition
on October 3, 1997. He asserted three claims: (1) trial
counsel's failure to discover that he had available a
complete defense of involuntary intoxication induced by
Triavil and alcohol constituted ineffective assistance of
counsel, (2) due process was violated because his guilty
plea was not knowing, intelligent and voluntary, and (3) the
state court's failure to give him an evidentiary hearing on
his claim that trial counsel failed to file a direct appeal as
he instructed violated due process. To support his second
claim, Minarik renews his first petition's allegations of
amnesia and lack of knowledge of the elements of the
offense and adds several new allegations. In the course of
making these three claims, Minarik asserts that he is
actually innocent because he was involuntarily intoxicated
at the time of the crime.

Minarik's second claim is, in substance, the same claim
advanced and rejected in his first habeas proceeding.6
Accordingly, he can go forward on that claim only if he
shows "actual innocence." Kuhlman, 477 U.S. 436. Before
_________________________________________________________________

6. Minarik's second petition alleges two new factual predicates for his
claim that his guilty plea was not knowing, intelligent and voluntary:
(i) trial counsel failed to advise him that a jury verdict would have to
be
unanimous, and (ii) the trial judge had improperly participated in plea
negotiations. His brief in support of his request for an order authorizing
the District Court to entertain his second petition continues to be
premised primarily on his alleged amnesia and lack of knowledge of the
elements of the offense. Minarik offers no argument to excuse the
omission of these claims from his first petition under the cause and
prejudice standard.

                               21
addressing that issue, we turn to whether Minarik has
shown "cause and prejudice" for failing to include his first
and third claims in his first petition.

"The cause standard requires the petitioner to show that
`some objective factor external to the defense impeded
counsel's efforts to raise the claim in state court."
McCleskey v. Zant, 499 U.S. 467 (1991) (quoting Murray v.
Carrier, 477 U.S. at 488). While a showing that the factual
basis for a claim was unavailable at the time of thefirst
petition may constitute "cause," the fact that the petitioner
was subjectively unaware of that factual basis is
insufficient if the relevant facts were discoverable with due
diligence. McCleskey, 499 U.S. at 497.

We begin with Minarik's first claim: ineffective assistance
of counsel for failing to discover the involuntary intoxication
defense. While Minarik insists that he did not know that he
had a defense of involuntary intoxication until the middle of
the evidentiary hearing on his first petition, his habeas
counsel had obviously discovered the potential effects of
Triavil and alcohol some weeks earlier and no reason is
suggested why a similar investigation at any point during
the ten years preceding the first petition's filing would not
have produced the same information. It follows that the
factual basis for Minarik's first claim was discoverable in
December of 1981, when the first petition wasfiled. Indeed,
we do not understand Minarik to contend otherwise.

The "cause" that Minarik does rely upon before us is the
fact that he had not exhausted his state remedies with
respect to his first claim when he filed hisfirst petition.
This "cause" is legally insufficient, however, because it is
not an "objective factor external to the defense." As we have
explained, Minarik is deemed to have knowledge of all facts
discoverable with reasonable diligence. With that
knowledge, he had the alternative on December 23, 1981,
of delaying the filing of his first federal habeas petition until
he had exhausted what turned out to be the first claim of
his second petition. We hold that his failure to do that and
then litigate all his claims together constituted an abuse of
the writ.

In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme
Court held that a habeas petition containing exhausted and

                                22
unexhausted claims cannot be entertained by a federal
court unless the petitioner withdraws, and thus
relinquishes, the unexhausted claims. This "total

exhaustion" rule, the Court concluded, would"encourage
state prisoners to seek full relief first from the state courts,
thus giving those courts the first opportunity to review all
claims of error. . . . Equally as important, [under that rule]
federal claims that have been fully exhausted in state
courts will more often be accompanied by a complete
factual record to aid the federal courts in their review." 455
U.S. at 519. Finally, the Court emphasized that"strict
enforcement of the exhaustion requirement will encourage
habeas petitioners to exhaust all of their claims in state
court and to present the federal court with a single habeas
petition. To the extent that the exhaustion requirement
reduces piecemeal litigation, both the courts and the
prisoners should benefit, for as a result the district court
will be more likely to review all of the prisoner's claims in
a single proceeding, thus providing for a more focused and
thorough review." 455 U.S. at 520.

The court went on to spell out what this meant for
petitioning prisoners:

        [O]ur interpretation of SS 2254(b), (c) provides a simple
        and clear instruction to potential litigants: before you
        bring any claims to federal court, be sure that thefirst
        have taken each one to state court.. . .Those prisoners
        who misunderstand this requirement and submit
        mixed petitions nevertheless are entitled to resubmit a
        petition with only exhausted claims or to exhaust the
        remainder of their claims.

* * *

        The prisoner's principal interest, of course, is in
        obtaining speedy federal relief on his claims. . . . A total
        exhaustion rule will not impair that interest since he
        can always amend the petition to delete the
        unexhausted claims, rather than returning to state
        court to exhaust all of his claims. By invoking this
        procedure, however, the prisoner would risk forfeiting
        consideration of his unexhausted claims in federal
        court. . . .

                                23
455 U.S. at 520.

While the Supreme Court said that petitioners "would
risk" forfeiture of unexhausted claims rather than that they
"would forfeit" such claims, this choice of wording was
designed to leave room for cases in which there might be a
legitimate justification for proceeding on the exhausted
issues alone and thus no abuse of the writ. The Court's
opinion makes it clear, however, that the prisoner's desire
to get an adjudication of some of his claims earlier rather
than later is not alone a legitimate justification for going
forward on less than all of one's claims. Thus, if"a prisoner
deliberately withholds one of two grounds for federal
collateral relief at the time of filing his first application, in
the hope of being granted two hearings or for some other
such reason, he may be deemed to have waived his right to
a hearing on a second application presenting the withheld
grounds." Id. at 521 (quoting from Sanders v. United States,
373 U.S. 1, 18 (1963).

Rose did not announce a new rule of law. It neither
questioned nor reversed existing precedent. The Court's
holding reflected its "interpretation of a federal statute on
the basis of its language and legislative history, and
consistent with its underlying policies." Rose, 455 U.S. at
519-20. Rose was argued on October 14, 1981, two months
before Minarik filed his first federal habeas petition on
December 23, 1981, and was decided on March 3, 1982, a
little over two months after that filing date. The statute, its
legislative history, and its underlying policies were the same
on those dates as they were when Minarik's first federal
petition was filed. It necessarily follows that the teachings
of Rose were the law of the land at the time Minarik elected
to file a federal habeas petition limited to the two claims
contained in that petition.

Even if we were unpersuaded that Rose represented the
law of the land when Minarik filed his petition, however,
our ultimate conclusion would not differ. Rose
undisputably became the law of the land on March 3, 1982,
and the Federal Magistrate Judge's opinion dated April 23,
1982, expressly called the Rose holding to Minarik and his
counsel's attention. That opinion preceded the District
Court's evidentiary hearing concerning the circumstances

                                24
surrounding Minarik's guilty plea by more than six months.
The subject matter of that requested hearing included what
he knew and had been told about the elements of the
offense charged and the possible defenses thereto. At some
point well before that hearing, Minarik necessarily must
have known that he was going to call the two expert
witnesses he ultimately called to testify about the effects of
Triavil and alcohol. He likewise was aware that he would
take the stand and testify that his trial counsel did not
explain to him the state of mind required as an element of
the offense. Finally, Minarik obviously knew his trial
counsel was likely to be called to testify concerning his
preparation and pre-plea discussions with Minarik. For that
reason, Minarik took trial counsel's deposition in August of
1982.

In view of the actual knowledge Minarik possessed well
before the evidentiary hearing on his first petition, we
conclude that Minarik had a duty to advise the Court of his
new claims before the hearing. These claims would
obviously have required a second, extensive evidentiary
hearing on essentially the same subject matter. Stated
conversely, we hold that it was an abuse of the writ for
Minarik to go forward without at least advising the Court of
this withheld claim. If he had done so, the District Court
would have been compelled by Rose to dismiss the petition
without prejudice and require Minarik to file a new petition
after exhausting his state remedies on the new claim.
Indeed, this almost came to pass during the November
1982 hearing when Minarik's habeas counsel began to
question Minarik's trial counsel about his investigation of a
possible defense based on intoxication. The Court raised
the issue sua sponte:

       THE COURT: Let me interrupt you for one second.
       I'm becoming somewhat concerned. It appears to me
       that the issue here is the voluntary nature of the guilty
       plea. I suspect we are going further afield and raising
       other issues, and if we are raising other issues, then
       the entire case is subject to immediate dismissal.

       So, I want to caution you that I think it's very
       inappropriate to be raising other issues. I think that we

                               25
        have been getting into them and I think we have been
        getting into them for quite a while now.

        MR. POTTER: The issues are as stated in the habeas
        corpus petition and I submit that the cross
        examination is within the scope of the direct
        examination.

        THE COURT: Well, I'm not saying one way or the
        other, but I'm just saying that I think we are at this
        juncture, clearly injecting issues, which if they are
        raised in the habeas corpus petition, that the entire
        petition is subject to dismissal because they have not
        been raised in the State Court.

* * *

        THE COURT: . . . I have not in my own mind resolve d
        the issue, but clearly the only issue appropriate before
        this court is as to the nature of the guilty plea and any
        other matters, which might be waived in a collateral
        proceeding, I strongly suggest have to be raised in the
        State court first and they have not been raised.

        MR. POTTER: I understand the Court's position.

        Q. All right, Mr. Cappy, I will limit myself. We a re
        interested in amnesia. The defendant had it, didn't he?
        . . .

App. III at 567a-568a; 568a-569a.

Minarik apparently chose not to call his new claim to the
District Court's attention because he wanted a ruling on his
first petition's claims sooner rather than later. While
understandable, this motivation does not justify the kind of
piecemeal litigation that Minarik seeks to pursue.

A similar analysis leads us to conclude that asserting
Minarik's third claim at this late date also constitutes an
abuse of the writ. On December 23, 1981, Minarik knew
the content of the instructions he gave trial counsel as well
as the fact that counsel filed no direct appeal. With this
knowledge, he was not licensed to withhold this ineffective
assistance of counsel claim for later litigation.

"Because [Minarik] has been unable to show`cause and
prejudice' sufficient to excuse his failure to present his

                                26
evidence in support of his first federal petition,. . . [he] may
obtain review of his constitutional claims only if he falls
within the `narrow class of cases . . . implicating a
fundamental miscarriage of justice.' " Schlup v. Delo, 513
U.S. 298, 314-15 (1995) (quoting McCleskey v. Zant, 499
U.S. 467 (1991)). This "requires the habeas petitioner to
show that `a constitutional violation has probably resulted
in the conviction of one who is actually innocent'. . . . To
establish the requisite probability, the petitioner must show
that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence. The
petitioner thus is required to make a stronger showing than
that needed to establish prejudice." Id. at 327 (quoting from
Murray v. Carrier, 477 U.S. 478 (1986)).

Minarik argues that he is actually innocent because he
was involuntarily intoxicated when he committed the crime.
Our task is therefore to look to all of the information
currently available concerning a potential "defense of
involuntary intoxication," including that developed in the
proceedings since Minarik's sentencing, to determine
whether, more likely than not, no reasonable juror exposed
to that information would have convicted him.

It is not clear to us that Pennsylvania law would
characterize intoxication produced by the voluntary
consumption of a prescription drug and alcohol as
"involuntary" even if that consumption was without
knowledge of a synergistic effect. See Commonwealth v.
Todaro, 446 A.2d 1305 (Pa. Super. 1982) (holding such
intoxication to be voluntary). Nothing in our analysis turns
on this point, however. We assume for present purposes
that evidence of involuntary intoxication of a degree that
would have deprived Minarik of the ability to form the
requisite intent, or control his actions, would constitute a
complete defense or reduce what would otherwise befirst
degree murder to some lesser included offense.7 We further
_________________________________________________________________

7. There is no statutory provision in Pennsylvania on involuntary
intoxication, and we have found no Pennsylvania case specifying the
circumstances under which involuntary intoxication constitutes a
defense. Section 2.08 of the ALI Model Penal Code provides in relevant
part:

                                27
assume that "actual innocence" of the crime charged would
include the situation where the new evidence would show
the petitioner not guilty of first degree murder, though
guilty of some lesser offense. Even under these
assumptions, however, Minarik cannot show "actual
innocence" because he has failed to establish the necessary
factual basis.

In addition to the conclusory statement that he"had
available a complete defense of involuntary intoxication,"
Minarik's petition asserts only that he is "innocent of
crimes charged because he suffered an involuntary
intoxication due to misprescribed Triavil which Public
Defender Cappy missed in 1971." App. IV at 855a-856a.
Minarik's objections to the Magistrate Judge's report in the
District Court adds only that "[i]n 1971, Petitioner suffered
an involuntary intoxication due to `atropenic intoxication'
because of `inappropriately prescribed' Triavil by Dr.
Provan." Obj. Mag. Rep. at 9. Minarik's main brief before us
adds only that he discovered his complete defense"only
while sitting in court during the federal evidentiary hearing
in 1982 and listening to the testimony of Drs. Sadoff and
Himmelhoch." Pet. Br. at 6 n.1. The most specific
information Minarik has provided is that contained in the
following segment of his reply brief:

       Triavil contains Elavil, a tricyclic antidepressant, and
       Trilafon, a member of the phenothiazine family, an
_________________________________________________________________

        (1) Except as provided in Subsection (4) of this S ection,
        intoxication of the actor is not a defense unless it negatives an
        element of the offense.

* * *

       (4) Intoxication that (a) is not self-induced or (b) is
pathological is
       an affirmative defense if by reason of such intoxication the actor
at
       the time of his conduct lacks substantial capacity either to
       appreciate its criminality [wrongfulness] or to conform his conduct
       to the requirements of law.

Model Penal Code S 2.08(1) and (4). In this context, "pathological
intoxication" means "intoxication grossly excessive in degree, given the
amount of the intoxicant, to which the actor does not know he is
susceptible." Id. S 2.08(5)(c).

                                28
       antipsychotic agent. After his visit to Dr. Provan, while
       taking Triavil, John Minarik's behavior became
       increasingly bizarre.

       Mr. Minarik spent Saturday afternoon, February 6,
       1971, in the company of college friends who were
       planning a party. His friends, while at the party that
       night, noticed his visible personality change, his red
       face, and his dry mouth. Redness of face and dryness
       of mouth are two observable undesired side effects
       when a person is suffering from atropinic intoxication:
       the "class is atropine syndrome" associated with the
       misprescription of Triavil. Dr. Himmelhoch testified on
       November 18, 1982: "In medical school this syndrome
       is summarized as mad as a hatter, red as a beet, and
       dry as a bone." Neither Dr. Provan nor the prescription
       label identified the drug, and no warnings were given of
       side effects or danger associated with alcohol.

Pet. Rep. Br. at. 3-4.

The record before us contains no evidence concerning
when before the crime Minarik last consumed alcohol or
Triavil, nor how much he consumed of each. Nor is there
any evidence that Minarik was observed to have been
behaving in an aberrant manner after waking from his nap,
or after the crime. Absent as well is any expert testimony
supporting the theory that Minarik was out of control at the
time of the crime. We thus have only general claims of
involuntary intoxication against the background of sworn
testimony from an experienced trial attorney that he and
his investigator conducted an extensive investigation and
found no evidentiary support for an intoxication defense,
voluntary or involuntary.

It follows that Minarik has not come close to putting the
integrity of the judgment against him into question. We
cannot excuse his abuse of the writ on the ground that he
has demonstrated actual innocence. Accordingly, we
conclude that Minarik would have been precluded from
filing his second habeas petition under pre-AEDPA law. It
necessarily follows that applying the AEDPA gatekeeping
standard cannot have a genuine retroactive effect upon
Minarik and therefore Lindh requires their application. We

                                29
now turn to determine whether Minarik may proceed on his
second petition's claims under the new AEDPA standard.8

2. The AEDPA Standard

Minarik's second claim, that his guilty plea was not
knowingly, intelligently and voluntarily entered into, is
repetitive and must be dismissed under S 2244(b)(1)
because it was "presented in a prior application." Minarik's
first and third claims, however, are "new claims" that we
must evaluate under S 2244(b)(2).

Section 2244(b)(2) provides two narrow grounds upon
which a new claim may be pursued in a second petition,
neither of which are present here. First, a petitioner may
make a prima facie showing that his new claim falls within
the ambit of a "new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court." Id. S 2244(b)(2)(A). Neither of Minarik's "new claims"
rely upon such a new rule of constitutional law.

Second, S 2244(b)(2)(B) permits petitioners to proceed on
new claims in certain cases where there is newly discovered
evidence. It has two requirements. Initially, petitioners
must demonstrate that the "factual predicate for the claim
could not have been discovered previously through the
exercise of reasonable diligence." Id.S 2244(b)(2)(B)(i).
Additionally, petitioners must establish that "the facts
_________________________________________________________________

8. If Minarik were correct in his contention that application of
S 2244(b)(3)(C) to his case would have an impermissible effect, the most
to which he would be entitled would be application of the pre-existing
law. Thus, if Minarik conceded that he was barred under AEDPA and his
impermissible retroactivity argument were the only arrow to his bow, our
determination that he is barred by pre-existing law would alone justify
denial of permission to proceed with his second petition. We understand
Minarik to make a two-pronged argument, however: that he does satisfy
AEDPA standards and, in the alternative, that if he does not we are
barred from applying those standards. One approach to resolving these
contentions would be to address the issue of compliance with AEDPA at
the outset. We have focused first on the retroactivity issue, however,
because it is one of first impression in this circuit and because the
Landgraf /Lindh analysis of that issue leads ultimately back to the
AEDPA compliance issue.

                               30
underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional
error, no reasonable fact finder would have found the
applicant guilty of the underlying offense." Id.
S 2244(b)(2)(B)(ii).

Minarik's first "new claim" -- that his trial counsel was
ineffective for failing to discover that Minarik had a
complete involuntary intoxication defense -- does not
satisfy either of S 2244(b)(2)(B)'s conditions. As we
concluded in our analysis of the pre-AEDPA law, this claim
was "discoverable" when Minarik filed hisfirst habeas
application in 1981. In addition, Minarik cannot meet S
2244(b)(2)(b)(ii)'s innocence requirement for the
substantially the same reasons that he cannot establish
"actual innocence" under the pre-AEDPA standard.

Minarik's second "new claim" -- that the state court
committed constitutional error by failing to give him an
evidentiary hearing on his claim that trial counsel ignored
his instruction to file a direct appeal -- also fails to meet
S2244(b)(2)(B)'s requirements. Minarik had actual
knowledge of both his instructions and his attorney's
failure to file such an appeal well before hefiled his first
habeas petition in 1981. Moreover, his counsel's failure to
appeal is not a "fact" relevant to whether Minarik was
"guilty of the underlying offense."

Section 2244(b)(2)(B) thus requires that we deny Minarik
permission to proceed on his second petition.

IV.

We hold that anyone seeking to file a second or
successive petition under 18 U.S.C. S 2254 after April 24,
1996, must move in the appropriate Court of Appeals for an
order authorizing the District Court to consider the
application. When such a motion is filed by a petitioner
whose previous petition was filed before that date, the
Court of Appeals must apply the substantive gatekeeping
standards of 28 U.S.C. S 2244(b) as amended by AEDPA
unless such application would bar a second or successive
petition that could have been considered by the District

                                31
Court under the law existing at the time the previous
petition was filed.

Since Minarik's second petition is barred by both
S 2244(b) as amended by AEDPA and the preexisting law,
we will deny him permission to proceed in the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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