233 F.3d 453 (7th Cir. 2000)
Johnny A. Outlaw, Applicant,v.Jerry Sternes, Warden,  Dixon Correctional Center, Respondent.
No. 00-3758
In the  United States Court of Appeals  For the Seventh Circuit
Submitted October 23, 2000Decided November 21, 2000

On Application for an Order  Authorizing a Second or Successive  Petition for Collateral ReviewBefore Posner, Easterbrook, and Manion, Circuit  Judges.
Easterbrook, Circuit Judge.


1
Johnny Outlaw was  convicted in Illinois court of murder, armed  robbery, and burglary. After exhausting all state  remedies, Outlaw sought relief under 28 U.S.C.  sec.2254. The district court denied his petition  in 1993, and this court declined to issue a  certificate of probable cause to appeal. Now  Outlaw wants to commence a second federal  collateral attack, which he cannot do without  this court's approval under 28 U.S.C.  sec.2244(b).


2
Outlaw's proposed theory is that he did not  receive due process of law, because Thomas  Maloney, the judge who presided at his trial, was  not impartial. Maloney has been convicted of  taking bribes to rule in defendants' favor in  felony prosecutions. United States v. Maloney, 71  F.3d 645 (7th Cir. 1995). No one believes,  however, that Maloney ever took a bribe to  convict an innocent person, and Outlaw does not  contend that any money changed hands (or even was  solicited) with respect to his case. But he seeks  to employ the theory recognized in Bracy v.  Gramley, 520 U.S. 899 (1997): a judge bribed to  acquit in some cases may lean the prosecution's  way the rest of the time, either to keep a  balanced record of convictions (and thus deflect  suspicion) or to demonstrate to accused persons  what happens if they do not pay.


3
Under sec.2244(b)(2), we may authorize a second  collateral attack only if


4
(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


5
(B) (i)  the factual predicate for the  claim could not have been discovered  previously through the exercise of due  diligence; and (ii) the facts underlying  the claim, if proven and viewed in light  of the evidence as a whole, would be  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.


6
Maloney was indicted in 1991, two years before  Outlaw filed his initial collateral attack, so  the factual predicate of his claim could have  been discovered long ago, and at all events  Outlaw does not contend that clear and convincing  evidence demonstrates his innocence. That knocks  out sec.2244(b)(2)(B) and requires us to decide  whether Bracy establishes a "new rule of  constitutional law, made retroactive to cases on  collateral review by the Supreme Court, that was  previously unavailable". Bracy was itself a  collateral attack, so if the rule articulated  there was a "new rule" then it has necessarily  been "made retroactive to cases on collateral  review by the Supreme Court" as this court  understands that phrase. See Talbott v. Indiana,  226 F.3d 866, 869 (7th Cir. 2000). But did Bracy  establish a "new rule"? At least one district  judge in this circuit has answered "yes," see  Giangrande v. Roth, 1999 U.S. Dist. Lexis 4171  (N.D. Ill. Mar. 26, 1999), but we hold that Bracy  did not establish a new rule of constitutional  law.


7
Nothing in the Court's opinion in Bracy  suggests that the Justices thought that they were  doing anything novel. They applied a long-  established principle--that the due process  clause forbids trial before a biased judge--to a  particular claim. The novelty, if any, lay in the  means by which Bracy proposed to establish  Maloney's bias undertaking discovery to show  that, when Maloney had not been bribed, he unduly  favored the prosecution. This court held that  discovery into Maloney's behavior in other cases  would be unproductive and should not be allowed.  81 F.3d 684 (7th Cir. 1996). The Supreme Court,  by contrast, held that Bracy was entitled to the  discovery he sought. There was no dispute among  the Justices about the principle that decisions  by judges influenced by financial interests do  not provide due process of law; the dispute  concerned how that influence was to be proved.  Disagreement about such procedural issues does  not demonstrate that a new rule of constitutional  law has been created--it does not change any of  the norms that govern how criminal trials should  be conducted--or indeed that Bracy was about the  Constitution in the first place. The Justices did  not hold, for example, that the rules of  discovery in collateral attacks are beyond the  power of Congress to alter. The omission from  Bracy of any discussion of Teague v. Lane, 489  U.S. 288 (1989), is telling. If the Justices had  supposed that they were altering constitutional  standards, they would have discussed Teague's  criteria for the retroactive application of new  rules. The absence of such a discussion implies  that the Court did not see any (constitutional)  novelty in its decision and supports our  conclusion that Bracy was about discovery  procedure rather than constitutional substance.


8
What is more, it seems unlikely that Outlaw's  application is timely, even if Bracy had created  a new rule. Bracy was decided in June 1997, but  Outlaw did not file his application until October  2000, a gap of more than three years. Given  sec.2244(d)(1)(C), he had only one year from "the  date on which the constitutional right asserted  was initially recognized by the Supreme Court, if  the right has been newly recognized by the  Supreme Court and made retroactively applicable  to cases on collateral review". Section  2244(b)(3)(A) requires our leave to file "a  second or successive application permitted by  this section", and an application is not  "permitted by this section" (which is to say, all  of sec.2244) if it is untimely. A prisoner  seeking permission to commence an additional  collateral attack therefore must demonstrate that  the petition is timely, something Outlaw has not  done.


9
Some of the delay since June 1997 may be  excused by sec.2244(d)(2) ("The time during which  a properly filed application for State post-  conviction or other collateral review with  respect to the pertinent judgment or claim is  pending shall not be counted toward any period of  limitation under this subsection."), but Outlaw's  application does not attempt to count excludable  time. Unless two years and four months since  Bracy are excludable, the application is too  late. Outlaw did not seek collateral review on  his judicial-bias theory in state court until  June 6, 1998, so almost a full year passed after  Bracy before he took an initial step. His  application mentions that the state court  dismissed the application (and that appeals  failed to reinstate it), but in contravention of  Circuit Rule 22.2(a)(3) Outlaw did not provide  copies of the state court's decisions, nor did he  tell us the state court's reasoning. If (as is  likely, see 725 ILCS 5/122-1(c)) the state  proceeding was itself dismissed as untimely, then  none of the time is excludable. See Artuz v.  Bennett, 121 S.Ct. 361, Fernandez v. Sternes, 227 F.3d 977  (7th Cir. 2000), and cases cited there.


10
The application for an order authorizing a  second collateral attack is denied.

