                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                        No. 17-7


In re: TIMOTHY RICHARDSON,

                    Movant.



Argued: December 10, 2019                                    Decided: February 11, 2020


Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Motion for authorization to file successive habeas petition denied by unpublished per
curiam opinion.


ARGUED: Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER, LLP, High
Point, North Carolina, for Movant. Jonathan Porter Babb, Sr., NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent. ON BRIEF:
Kenneth J. Rose, Durham, North Carolina, for Movant. Joshua H. Stein, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Timothy Richardson filed a motion under 28 U.S.C. § 2244(b)(3)(A), seeking

authorization from this court to file a second or successive application for a writ of habeas

corpus in order to challenge his capital sentence in North Carolina. He contends that he is

intellectually disabled and, therefore, ineligible for a capital sentence under the Eighth

Amendment to the United States Constitution. We deny the motion.

                                              I.

       Richardson was convicted and sentenced to death in 1995 for the kidnapping and

murder of Tracy Marie Rich. His convictions and sentences were affirmed on direct appeal,

State v. Richardson, 488 S.E.2d 148 (N.C. 1997), and the United States Supreme Court

denied certiorari, Richardson v. North Carolina, 522 U.S. 1056 (1998). The underlying

facts and procedural history of his case are exhaustively set forth in the state court

decisions, as well as in this court’s prior decisions in Richardson v. Thomas, 930 F.3d 587

(4th Cir. 2019), Richardson v. Thomas, 718 F. App’x 192 (4th Cir. 2018), and Richardson

v. Branker, 668 F.3d 128 (4th Cir. 2012). 1

       Richardson then sought post-conviction relief from his death sentence via a motion

for appropriate relief (MAR) in North Carolina state court, alleging that he is intellectually

disabled and, therefore, ineligible to be sentenced to the death penalty under Atkins v.

Virginia, 536 U.S. 304 (2002). In Atkins, the United States Supreme Court held that the



       1
        Over the years, Richardson has raised numerous state and federal habeas claims
seeking relief from his death sentence. In this opinion, we only address Richardson’s prior
claim that he is intellectually disabled.
                                              2
execution of an intellectually disabled individual violates the Eighth Amendment’s ban on

cruel and unusual punishments, id. at 321, but left “to the States the task of developing

appropriate ways to enforce that constitutional restriction upon their execution of

sentences,” id. at 317 (internal quotation marks and alterations omitted).

       Under North Carolina’s intellectual disability statute, Richardson was required to

demonstrate that he had (1) “[s]ignificantly subaverage general intellectual functioning,”

defined as “[a]n intelligence quotient of 70 or below on an individually administered,

scientifically recognized standardized intelligence quotient test administered by a licensed

psychiatrist or psychologist,” and (2) “[s]ignificant limitations in adaptive functioning,”

defined as “[s]ignificant limitations in two or more of [ten] adaptive skill areas.” N.C. Gen.

Stat. § 15A-2005(a)(1), (2) (2001).

       The MAR court held an evidentiary hearing to consider the claim. The court

considered Richardson’s IQ scores, expert testimony regarding the standard error of

measurement (SEM) generally recognized in such scores, and lay and expert testimony

about Richardson’s limitations in adaptive functioning. The court found that Richardson

had failed to prove that he was intellectually disabled and denied the claim on the merits.

       In his petition seeking certiorari review by the Supreme Court of North Carolina,

Richardson argued that the lower court had “employed an overly restrictive construction

of § 15A-2005, one that is contrary to the Eighth Amendment as interpreted by the United

States Supreme Court’s decision in Atkins v. Virginia.” Richardson, 930 F.3d at 590

(internal quotation marks and alteration omitted). Among other things, Richardson argued

that the court had considered only the numerical scores on his qualifying IQ tests, failed to

                                              3
consider the SEM, and erred in the assessment of his adaptive limitations. See id. The

Supreme Court of North Carolina denied review. See State v. Richardson, 667 S.E.2d 272

(N.C. 2008).

       In November 2008, Richardson filed his first petition for a writ of habeas corpus in

federal district court under 28 U.S.C. § 2254(d), challenging the reasonableness of North

Carolina’s adjudication of his Atkins claim. Richardson again argued that the state court

had employed an overly restrictive construction of § 15A-2005, in violation of Atkins; gave

weight only to the raw IQ test scores; and failed to use the SEM to adjust the scores.

Richardson also argued that the state court’s findings regarding his adaptive limitations

were unreasonable. The district court denied Richardson’s intellectual disability claim on

the merits. We affirmed the intellectual disability ruling, and the United States Supreme

Court denied certiorari review. 2

       In May of 2014, the United States Supreme Court issued its decision in Hall v.

Florida, 572 U.S. 701 (2014), which considered a state prisoner’s appeal from the Florida

Supreme Court’s rejection of his Atkins claim. Hall argued that the Florida Supreme Court

had interpreted Florida’s intellectual disability statute too rigidly to comply with Atkins’

prohibition of the execution of the intellectually disabled, because it imposed a strict, cutoff

IQ score of 70 or less. Id. at 704. The Court agreed, holding that this “rigid rule,” which

foreclosed “all further exploration of intellectual disability, . . . . create[d] an unacceptable



       2
        See Richardson v. Branker, 769 F. Supp. 2d 896, 926-27 (E.D.N.C. 2011);
Richardson v. Branker, 668 F.3d 128, 151 (4th Cir. 2012), cert. denied, Richardson v.
Branker, 568 U.S. 948 (2012).
                                               4
risk that persons with intellectual disability [would] be executed, and thus [was]

unconstitutional.” Id. More specifically, the “Court agree[d] with the medical experts that

when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin

of error, the defendant must be able to present additional evidence of intellectual disability,

including testimony regarding adaptive deficits.” Id. at 723.

       In 2015, Richardson filed an amended MAR in North Carolina state court seeking

to overturn his death sentence in light of Hall. Richardson argued that the North Carolina

courts had similarly applied a rigid, cutoff score of 70 when it considered his claim and

had failed to consider the SEM and clinically-appropriate assessment measures of adaptive

deficits. The state MAR court denied Richardson’s motion. Of relevance here, the court

held that North Carolina had not “interpreted North Carolina’s statute to preclude

consideration of the [SEM] or to limit the introduction of evidence if the threshold showing

of an IQ score of 70 has not been met.” J.A. 1234. Accordingly, North Carolina’s statute,

unlike that in Florida, had been “interpreted consistently with Atkins.” Id. Second, the

court noted that Richardson had been “allowed to present evidence of his alleged deficits

in adaptive functioning in a full evidentiary hearing without restriction,” as well as

evidence “on the standard error of measurement,” id., and that the court had “considered

all of Richardson’s IQ test scores, without limitation, as well as evidence of his alleged

limitations in adaptive functioning,” id. at 1234-35. “Thus, Hall “ha[d] no effect on [the

court’s] prior determination that Richardson is not intellectually disabled,” id. at 1234, and

the court had, “[i]n effect, . . . already interpreted North Carolina’s law consistently with

Hall,” id. at 1235. Nevertheless, the state MAR court also considered Richardson’s

                                              5
amended claim on the merits, including supplemental affidavits from the state’s expert

regarding Richardson’s intellectual-disability evaluation, and found that Richardson had

still failed to provide evidence sufficient to support a finding that he is intellectually

disabled. The North Carolina Supreme Court denied review, see State v. Richardson, 782

S.E.2d 736 (N.C. 2016), as did the United States Supreme Court, see Richardson v. North

Carolina, 137 S. Ct. 337 (2016).

       Richardson then returned to federal district court, seeking to reopen the final

judgment on his original habeas petition under Rule 60(b)(6) of the Federal Rules of Civil

Procedure in light of the Hall decision. Richardson again argued that the North Carolina

state court had imposed a bright-line, cutoff IQ score of 70 or below when it adjudicated

his claim and had failed to consider the SEM and his adaptive deficits. The district court

granted the motion, but certified an interlocutory appeal to this court.          Because

Richardson’s Rule 60 motion was the functional equivalent of a § 2254 petition that could

not be filed absent prior authorization from this court, we vacated the order.         See

Richardson, 930 F.3d at 589. In the interim, Richardson filed the present motion for an

order authorizing him to file a second or successive habeas application under 28 U.S.C. §

2244(b)(3), to which we now turn.

                                            II.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “greatly

restricts the power of federal courts to award relief to state prisoners who file second or

successive habeas corpus applications. If the prisoner asserts a claim that he has already

presented in a previous federal habeas petition, the claim must be dismissed in all cases.”

                                            6
Tyler v. Cain, 533 U.S. 656, 661 (2001); see 28 U.S.C. § 2244(b)(1). If the claim “was not

presented in a previous petition, the claim must be dismissed unless it falls within one of

two narrow exceptions.” Id. The first exception is for certain claims that rely on “a new

rule of constitutional law,” that has been “made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable” to the petitioner. 28 U.S.C. §

2244(b)(2)(A). The second exception is for claims that are based on a “factual predicate

[that] could not have been discovered previously through the exercise of due diligence,”

and which, “if proven and viewed in the 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. § 2244(b)(2)(B). In order to obtain authorization to file a second or successive

habeas application, Richardson must make a prima facie showing that he satisfies these

requirements. See 28 U.S.C. § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 530

(2005) (“[B]efore the district court may accept a successive petition for filing, the court of

appeals must determine that it presents a claim not previously raised that is sufficient to

meet § 2244(b)(2)’s new-rule or actual-innocence provisions.”).

                                             A.

       As noted above, the Supreme Court held in Atkins that the Constitution prohibits the

execution of intellectually disabled persons, but left “to the States the task of developing

appropriate ways to enforce the constitutional restriction.” Atkins, 536 U.S. at 317 (internal

quotation marks and alteration omitted). Richardson raised a claim of intellectual disability

under Atkins in his first federal habeas petition, challenging the state court’s adjudication

                                              7
of his claim under N.C. Gen. Stat. § 15A-2005 and the Eighth Amendment, and the

judgment denying that claim is final.

       Since then, the Supreme Court has expounded on the Atkins ruling in two cases,

making it clear that the state’s discretion in this area is not without limits. In Hall, the

Court held that a state cannot impose an IQ cutoff score of 70, which prohibits

consideration of the SEM and evidence of adaptive deficits. See 572 U.S. at 704, 723. And

in Moore v. Texas, 137 S. Ct. 1039 (2017), the Court held that the state court’s intellectual

disability determination, including the evaluation of adaptive deficits, must be informed by

the medical community’s current diagnostic criteria. Id. at 1048. This requirement that

the state be “informed by the medical community does not demand adherence to everything

stated in the latest medical guide. But neither does our precedent license disregard of

current medical standards.” Id. at 1049.

       In his § 2244 motion, Richardson argues that the Supreme Court’s decisions in Hall

and Moore announced new rules of constitutional law that should be applied retroactively

to cases on collateral review under the Teague framework. See Teague v. Lane, 489 U.S.

288 (1989). “Under Teague, as a general matter, ‘new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the new

rules are announced.’” Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (quoting

Teague, 489 U.S. at 310); see also Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016).

There are two exceptions to this “general bar on retroactivity.” Welch, 136 S. Ct. at 1264.

“First, new substantive rules generally apply retroactively. Second, new watershed rules

of criminal procedure, which are procedural rules implicating the fundamental fairness and

                                             8
accuracy of the criminal proceeding, will also have retroactive effect.” Id. (internal

citations, quotations marks, and alteration omitted).

       Richardson spends a great deal of time arguing that, in light of these Supreme Court

rulings, we should find that Hall and Moore announced new substantive rules of

constitutional law and, therefore, should be applied to cases on collateral review under the

Teague analysis. But in order to receive authorization to file a second or successive § 2254

petition, Richardson must do more than convince this court that Hall and/or Moore

announced new substantive rules that should be applied retroactively to cases on collateral

review. He must show that his claim “relies on a new rule of constitutional law” that has

already been “made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A) (emphasis added).

       The Supreme Court has adopted a narrow view of the plain language in §

2244(b)(2)(A). See Tyler, 533 U.S. at 662. The Court explained that the term “‘made’

means ‘held’ and, thus, the requirement is satisfied only if [the Supreme] Court has held

that the new rule is retroactively applicable to cases on collateral review.” Id. “Quite

significantly, under this provision, the Supreme Court is the only entity that can ‘make’ a

new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower

court or by the combined action of the Supreme Court and the lower courts, but simply by

the action of the Supreme Court.” Id. at 663 (alteration omitted). Thus, a “new rule is not

‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be

retroactive.” Id. The only exception to this requirement of an explicit holding is if we

must say that a combination of Supreme Court holdings “necessarily dictate retroactivity

                                             9
of the new rule.” Id. at 666. “The relationship between the conclusion that a new rule is

retroactive and the holdings that ‘make’ this rule retroactive . . . must be strictly logical—

i.e., the holdings must dictate the conclusion and not merely provide principles from which

one may conclude that the rule applies retroactively.” Id. at 669 (O’Connor, J., concurring)

(alteration omitted). The holdings must “permit no other conclusion than that the rule is

retroactive.” Id.; cf. United States v. Mathur, 685 F.3d 396, 401 (4th Cir. 2012) (We are

“not authorize[d] to read between the lines of a prior opinion to discern whether that

opinion, by implication, made a new rule retroactively applicable on collateral review. The

only way to make a new rule retroactive ‘is through a ‘holding,’ not through dictum.”)

(quoting Tyler, 533 U.S. at 663-64).

       Hall and Moore do not address retroactivity, and no subsequent Supreme Court case

has held that Hall or Moore apply retroactively to cases on collateral review. Richardson’s

reliance upon Welch and Montgomery for his argument that we must conclude that the

Supreme Court has “made” Hall and Moore retroactively applicable to cases on collateral

review falls well short of Tyler’s narrow exception, and Richardson has pointed us to no

other combination of Supreme Court holdings that “logically dictate . . . no other

conclusion than that the rule is retroactive.” Tyler, 533 U.S. at 669 (O’Connor, J.,

concurring). Rather, the most that Richardson “can claim is that, based on the principles

outlined in Teague, [the Supreme] Court should make [Hall and Moore] retroactive to

cases on collateral review.” Tyler, 533 U.S. at 666. That is not sufficient. See, e.g., In re

Bowles, 935 F.3d 1210, 1219 (11th Cir. 2019) (“Hall did announce a new rule of

constitutional law, but the Supreme Court has not made that new rule retroactive to cases

                                             10
on collateral review.”); In re Payne, 722 F. App’x. 534, 539 (6th Cir. 2018) (rejecting

petitioner’s claim that various Supreme Court decisions and orders “dictate that the

decisions in Moore and Hall are to be applied retroactively”); In re Henry, 757 F.3d 1151,

1159, 1161 (11th Cir. 2014) (holding that “Hall made no mention of retroactivity,” no

“subsequent Supreme Court case [has] addressed the issue, much less made Hall

retroactive,” and “[n]o combination of Supreme Court holdings compels the conclusion

that Hall is retroactive to cases on collateral review”); Goodwin v. Steele, 814 F.3d 901,

904 (8th Cir. 2014) (denying motion for authorization to file a second or successive

application based upon Hall because, “[u]nder Tyler, [petitioner] has not made a prima

facie showing that the Supreme Court has held that Hall is retroactive”).

                                            B.

       In supplemental briefing, Richardson argues that we should also authorize him to

refile his intellectual disability claim based upon the Supreme Court’s decision in Atkins –

which has been made retroactively applicable to cases on collateral review by the Supreme

Court. We reject this claim as well.

       Richardson’s attempt to raise a second intellectual disability claim based upon the

rule announced in Atkins is plainly barred by 28 U.S.C. § 2244(b)(1). To circumvent this

bar, Richardson advances a creative, but meritless, argument that the Atkins claim that he

previously presented was not really “available” until the Supreme Court decided Hall and

the North Carolina legislature amended its intellectual disability statute after the Hall

decision was issued. At the outset, we note the obvious, logical problem with Richardson’s

argument that the Atkins claim he presented in his prior § 2254 application was previously

                                            11
unavailable. This is because the argument is a transparent attempt on the part of Richardson

to circumvent § 2244(b)(2)(A)’s requirement that the “new rules” announced by the

Supreme Court in Hall and Moore must have been “made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.” Id.

        Richardson’s intellectual disability claim based upon the Supreme Court’s decision

in Atkins was presented in his prior § 2254 application, and it is barred by § 2244(b)(1).

And his attempt to dress up his Hall claim as an Atkins claim fails under § 2244(b)(2)(A).

See, e.g., In re Bowles, 935 F.3d at 1216 (rejecting similar claim that Atkins only “became

available to [petitioner] when the Supreme Court struck down Florida’s rigid cutoff as

unconstitutional in Hall”); In re Bourgeois, 902 F.3d 446 (5th Cir. 2018) (rejecting federal

prisoner’s argument that he should be allowed to file another Atkins claim, notwithstanding

§ 2244(b)(1) bar, because the Supreme Court’s decision in Moore “now makes his claim

viable”). 3


       3
         Richardson’s reliance upon the Fifth Circuit Court of Appeals’ decisions in In re
Johnson, 935 F.3d 284 (5th Cir. 2019) and In re Cathey, 857 F.3d 221 (5th Cir. 2017), do
not avail him. Cathey and Johnson involved states that applied a strict cutoff score of 70,
and habeas petitioners that had never presented an intellectual disability claim in a § 2254
petition, presumably because they had no score below the cutoff when they filed their first
habeas petition. Accordingly, the petitioners in Cathey and Johnson did not face the §
2244(b)(1) bar. The Fifth Circuit held that such a first-time Atkins claim could be brought
in a second or successive petition. The Eleventh Circuit, in contrast, rejected a similar
argument that Atkins was “previously unavailable” to a petitioner when he filed his first
habeas petition because then-existing state law would have doomed his petition, holding
that “[t]here is no futility exception to the AEDPA’s restrictions on second and successive
petitions.” In re Bowles, 935 F.3d 1210, 1217 (11th Cir. 2019). We need not decide this
issue, however, because Richardson did file an Atkins claim in his first federal habeas
application, and he was granted the unfettered ability to present evidence of the SEM and
his adaptive deficits when his intellectual disability claim was adjudicated by the state
court.
                                            12
       Richardson’s argument that he should be allowed to file a second or successive,

intellectual disability claim under Atkins because it was not “available” to him until the

North Carolina legislature amended its intellectual disability statute in 2015 fares no better.

Section 15A-2005 of the North Carolina Code implemented Atkins’ directive that states

develop the framework to enforce its constitutional prohibition against the execution of the

intellectually disabled. See N.C. Gen. Stat. § 15A-2005 (2001). Neither that statute, nor

any application of it, has been declared unconstitutional. See Hall, 572 U.S. at 715 (noting

that North Carolina’s statute could be, but has not been, interpreted as applying a bright-

line cutoff score). And the North Carolina court did not apply a bright-line cutoff score to

Richardson’s claim. Nevertheless, in the wake of Hall, the North Carolina state legislature

amended § 15A-2005 to clarify that intellectual-disability determinations include

consideration of the SEM and the defendant’s adaptive limitations under accepted clinical

standards. See N.C. Gen. Stat. § 15A-2005 (2015).

       To file a second or successive claim of intellectual disability, however, Richardson

must make a prima facie case that he can rely upon a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court. Changes in state law do

not authorize the filing of a second or successive federal habeas petition under §

2244(b)(2)(A). Cf. In re Bowles, 935 F.3d at 1217-18 (“Congress did not say that the claim

could proceed if it relied on any other type of change in case law. Congress knew how to

say that if it had wanted to.”). And when “conducting habeas review, a federal court is

limited to deciding whether a [state] conviction [or sentence] violated the Constitution,



                                              13
laws, or treaties of the United States,” not whether there was an “error[] of state law.”

Estelle v. McGuire, 502 U.S. 62, 67, 68 (1991). 4

                                            C.

       Richardson next seeks to file a second or successive claim on the ground that he is

actually innocent of the death penalty. See 28 U.S.C. § 2244(b)(3)(B). We deny this

motion as well.

       To file a second or successive habeas claim under § 2244(b)(2)(B), Richardson must

make a prima facie showing of (1) a “factual predicate for the claim [that] could not have

been discovered previously through the exercise of due diligence,” and (2) that the new

factual predicate, “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.”

Id. (emphasis added).

       Here, Richardson seeks only to challenge his eligibility for the death sentence, not

the determination that he is guilty of the underlying offense of murder. Thus, he “does not

fall within the narrow statutory exception in § 2244(b)(2)(B)(ii).” In re Bowles, 935 F.3d

at 1220 (internal quotation marks omitted). Richardson’s reliance upon Sawyer v. Whitley,



       4
          We note that the state has argued that Richardson’s attempt to file a second or
successive claim under Hall and Moore, like his claim under Atkins, is also barred under
28 U.S.C. § 2244(b)(1). We need not decide the precise scope of the term “claim” for
purposes of § 2244(b)(1) and (b)(2) in this decision because, even if we were to hold that
Richardson’s present-day Hall and Moore claims were not squarely “presented” in his prior
habeas application, Richardson has failed to make a prima facie showing that he satisfies
the requirements of § 2244(b)(2).
                                            14
505 U.S. 333 (1992), provides him no avenue to file this claim. In Sawyer, the Supreme

Court held that “actual innocence” for purposes of the “fundamental miscarriage of justice”

exception to the procedural default of constitutional claims extends to claims that a

petitioner is “actually innocent” of the death penalty. See id. at 336. However, this “judge-

fashioned” exception in Sawyer did not survive Congressional enactment of AEDPA.

Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997). “The ‘actual innocence’

exception of the prior law was judge-made, and so its contours were appropriately judge-

fashioned and permissibly judge-expanded. The exception in [AEDPA] is graven in

statutory language that could not be any clearer.” Id.; see also Bowles v. Sec., 935 F.3d

1176, 1182 (11th Cir. 2019) (“AEDPA forecloses the Sawyer exception in all

circumstances, including § 2254 challenges to state death sentences.”); cf. Wright v.

Angelone, 151 F.3d 151, 164 n.8 (4th Cir. 1998) (noting “that other circuit courts narrowly

have interpreted the . . . language in § 2244(b)(2) to require that habeas petitioners

demonstrate actual innocence of the underlying crime to file a successive habeas petition

on the basis of newly discovered evidence. A claim of ‘innocence of the death penalty’

only is no longer sufficient to warrant review.”).

       Richardson has also failed to make a prima facie showing that his claim otherwise

satisfies § 2244(b)(2)’s requirements. Richardson seeks to present a claim that he is

“actually innocent” of the death sentence, based upon a supplemental affidavit procured

from the state’s expert in 2014 and the American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). Even if Richardson could

demonstrate that the substance of the expert’s affidavit could not have been discovered by

                                             15
due diligence at the time he filed his motion, he has failed to make the requisite showing

that the expert’s opinion “would be sufficient to establish by clear and convincing evidence

that . . . no reasonable factfinder would have found” him to be eligible for the death penalty

under the standards in existence at the time the state court adjudicated his claim. 28 U.S.C.

§ 2244(b)(2)(B). In addition, the state’s expert’s opinion was unchanged. “[N]othing from

Hall v. Florida, or developments in the field of mental health, [had] affected his

conclusion” that “Richardson is not intellectually disabled.” J.A. 104. 5

                                             D.

       The balance of Richardson’s motion raises various constitutional challenges to §

2244’s limitations on the filing of second or successive federal habeas petitions. Among

other things, Richardson argues that our denying him the right to file a second or successive

intellectual disability claim based upon Hall, Moore, and the amended version of the North

Carolina statute, would violate several provisions of the United States Constitution,

including Article I, Article III, the Due Process Clause, the Eighth Amendment, and the

Equal Protection Clause. We have considered all of Richardson’s arguments and find them

to be without merit.



       5
          To the extent Richardson argues that he should be given the opportunity to prove
that he is intellectually disabled under the DSM-5, this argument also seeks to circumvent
28 U.S.C. § 2244(b)(2)(A). In Moore, the Supreme Court referenced the DSM-5, which
was the medical standard in place when the state court considered the defendant’s claim of
intellectual disability. The Supreme Court in no way indicated that a state court’s
determination could be overturned based upon subsequently-issued medical standards, nor
has it made Moore retroactively applicable to cases on collateral review. Rather, the Court
held only that the state court’s determination must be informed by current diagnostic
criteria. See Moore, 137 S. Ct. at 1049.
                                             16
       The matter for decision today is whether Richardson’s motion for an order

authorizing the district court to consider a second or successive challenge to the state

court’s imposition of his death sentence satisfies the requirements set forth by Congress in

§ 2244(b). He has not done so. Moreover, Richardson has cited no authority to support

his claim that § 2244(b) is an unconstitutional exercise of Congressional power or that our

application of it would violate his constitutional rights. On the contrary, the Supreme Court

and this court have rejected similar challenges to the constitutionality of AEDPA’s

limitations on federal habeas relief. See Felker v. Turpin, 518 U.S. 651, 664 (1996)

(holding that AEDPA’s restrictions on successive habeas petitions do not amount to an

unconstitutional suspension of the writ of habeas corpus, but rather “constitute a modified

res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the

writ.’”); In re Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997) (explaining that the restrictions

on multiple motions for post-conviction relief “amount[] to an entirely proper exercise of

Congress’ judgment regarding the proper scope of the writ and [fall] well within the

compass of the evolutionary process surrounding the doctrine of abuse of the writ.”)

(internal quotation marks omitted); Bowles, 935 F.3d at 1182 (rejecting petitioner’s claim

that “any procedural obstacle to the consideration of a claim of intellectual disability must

cede to the categorical protections of the Eighth Amendment” and, thereby, his “invitation

to effectively declare part of AEDPA unconstitutional.”).

                                             IV.

       For the foregoing reasons, we deny Richardson’s motion for leave to file a second

or successive habeas petition.

                                             17
     MOTION DENIED




18
