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In re Vial

June 16, 1997

IN RE: AVERY W. VIAL, MOVANT.


On Motion for Authorization to File Successive Application. (CR-92-64)

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting en banc.

WILKINS, Circuit Judge

Argued: December 3, 1996

Motion denied by published opinion. Judge Wilkins wrote the majority opinion, in which Chief Judge Wilkinson and Judges Russell, Widener, Ervin, Niemeyer, Williams, and Motz join. Judge Hamilton wrote an opinion concurring in the judgment, in which Judge Motz joins. Judge Luttig joins in the judgment. Judge Hall wrote a dissenting opinion, in which Judges Murnaghan and Michael join.

OPINION

We convened en banc to consider Avery W. Vial's request for permission to file a second or successive motion to vacate his sentence. See 28 U.S.C.A. Section(s) 2255 (West 1994), as amended by Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, sec. 105, 110 Stat. 1214, 1220. *fn1 Vial contends that the decision of the Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995), establishes "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" within the meaning of Section(s) 2255, thereby entitling him to permission to file a second or successive motion. *fn2 We disagree and accordingly deny Vial's request.

I.

In 1992, Vial was convicted of conspiracy to possess with the intent to distribute cocaine, see 21 U.S.C.A. Section(s) 846 (West Supp. 1997), and of using or carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C.A. Section(s) 924(c)(1) (West Supp. 1997); he was sentenced to 157 months imprisonment. We subsequently affirmed the judgment on direct appeal. See United States v. Vial, 21 F.3d 426 (4th Cir. 1994) (unpublished table decision) (per curiam).

In 1994, Vial filed a pro se motion to vacate his sentence pursuant to Section(s) 2255, challenging, inter alia, the sufficiency of the evidence supporting his Section(s) 924(c)(1) conviction. The district court denied the motion, concluding with respect to the Section(s) 924(c)(1) claim that it was procedurally barred because Vial had made the same argument on direct appeal and because his Section(s) 2255 motion did not allege an intervening change in the law. See Davis v. United States, 417 U.S. 333, 342 (1974). We affirmed. See United States v. Vial, 43 F.3d 1469 (4th Cir. 1994) (unpublished table decision) (per curiam).

In September 1996, Vial filed another Section(s) 2255 motion in federal district court, alleging that his Section(s) 924(c)(1) conviction was unconstitutional in light of Bailey. The district court dismissed the action without prejudice to allow Vial to seek permission from this court to file a second or successive motion as required bySection(s) 2255. Vial subsequently moved this court for the appropriate certification. In light of conflicting rulings within the circuit regarding whether Section(s) 2255 allows us to authorize the filing of a second or successive motion to vacate sentence that alleges the illegality of a Section(s) 924(c)(1) conviction under Bailey, we elected to consider Vial's request en banc. *fn3

II.

Chapter 153 of Title 28 of the United States Code provides a statutory framework for federal post-conviction relief from judgments of conviction entered in federal and state courts. *fn4 Under this framework, individuals convicted of crimes in state courts seek federal habeas corpus relief through 28 U.S.C.A. Section(s) 2254. Those convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to 28 U.S.C.A. Section(s) 2255. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); see also Davis, 417 U.S. at 343 (noting "that Section(s) 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus"); United States v. Hayman, 342 U.S. 205, 219 (1952) ("Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose [in enacting Section(s) 2255] was to minimize the difficulties encountered in habeas corpus proceedings by affording the same rights in another and more convenient forum."). When, however, Section(s) 2255 proves "inadequate or ineffective to test the legality of ... detention," a federal prisoner may seek a writ of habeas corpus pursuant to 28 U.S.C.A.Section(s) 2241 (West 1994). *fn5 28 U.S.C.A. Section(s) 2255.

The AEDPA effected a number of substantial changes regarding the availability of federal post-conviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. *fn6 See Felker v. Turpin, 116 S. Ct. 2333, 2340 (1996). Under the AEDPA, an individual may not file a second or successive Section(s) 2254 petition for a writ of habeas corpus or Section(s) 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals. See 28 U.S.C.A. Section(s) 2244(b), 2255. As pertinent to this case,Section(s) 2255 provides that a court of appeals may authorize the filing of a second or successive Section(s) 2255 motion only if the movant's application contains a claim based upon --

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder ...


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