United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
Thomas Tully, a Virginia inmate proceeding pro se, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 to challenge his criminal judgment entered by the
Circuit Court of Frederick County. This matter is before the
court on respondent's motion to dismiss. After reviewing
the record, the court concludes that respondent's motion
to dismiss must be granted and Tully's petition must be
dismissed without prejudice as successive.
2007, the Circuit Court of Frederick County convicted Tully
of breaking and entering with the intent to commit assault
and battery, malicious wounding, misdemeanor assault and
battery, and two counts of maliciously causing bodily injury
by a caustic substance. The court sentenced him to
twenty-five years of incarceration. Tully appealed, and the
Court of Appeals of Virginia and the Supreme Court of
Virginia both denied his petitions. Tully filed two petitions
for writs of habeas corpus, and the Supreme Court of Virginia
denied both petitions, as well as a petition for a rehearing.
Tully then filed a federal habeas petition in the United
States District Court for the Eastern District of Virginia,
which the court denied in 2011. See Tully v.
Johnson, No. 3:10cv299 (E.D. Va. Feb. 23, 2011).
2015, Tully filed a third state habeas petition in the
Circuit Court of Frederick County, claiming that the
Commonwealth withheld exculpatory evidence and knowingly
presented false testimony. The Circuit Court found the claims
defaulted and without merit. The Supreme Court of Virginia
refused his appeal.
2016, Tully filed a second federal habeas petition, raising
the same claims as in his 2015 state habeas petition. See
Tully v. Clarke, 7:16cv296 (W.D. Va. May 8, 2017).
The court determined that his petition was successive and
that his claims were procedurally defaulted and without merit
and, thus, dismissed the action. Id. Tully has now
filed his third federal habeas petition which the court will
dismiss as an unauthorized, successive
the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), the court may
consider a second or successive § 2254 petition only
upon specific authorization from the United States Court of
Appeals for the Fourth Circuit that the claims in the
petition meet certain criteria. 28 U.S.C. § 2244(b).
"In the absence of pre-filing authorization [from the
Fourth Circuit], the district court lacks jurisdiction to
consider a [successive] application." United States
v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003); see
also Burton v. Stewart, 549 U.S. 147, 153 (2007).
Tully already filed a § 2254 petition challenging the
same convictions and sentence, and he has not submitted any
evidence that he has obtained authorization from the Fourth
Circuit to file a successive petition.
"it is settled law that not every numerically second
petition is a 'second or successive' petition within
the meaning of the AEDPA." In re Williams, 444
F.3d 233, 235 (4th Cir. 2006) (quoting 28 U.S.C. §
2244). A numerically second collateral attack petition should
not be considered second or successive where: a first
petition is dismissed without prejudice for procedural
reasons, such as failure to exhaust state court remedies,
Id. at 235 (citing Slack v. McDaniel, 529
U.S. 473, 485-89 (2000); there is a "new judgment
intervening between the two habeas petitions,"
Magwood v. Patterson, 561 U.S. 320, 341-42 (2010),
In re Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999);
or "the facts relied on by the movant seeking
resentencing did not exist when the numerically first
[petition] was filed and adjudicated," United States
v. Hairston, 754 F.3d 258, 262 (4th Cir.
2014). None of these circumstances apply to the
instant § 2254 petition because Tully's first §
2254 petition was adjudicated on its merits and not dismissed
for procedural reasons, there has been no new judgment
intervening his original and current § 2254 petitions,
and the underlying facts on which Tully now relies existed
when he filed his first § 2254 petition. Accordingly,
the court will grant respondent's motion to dismiss
Tully's petition without prejudice as successive. The
court notes that Tully may seek certification from the United
States Court of Appeals for the Fourth Circuit to have this
court review a successive § 2254 motion. Tully must
submit a copy of the successive § 2254 motion to the
Fourth Circuit, along with a motion requesting a three-judge
panel certification that the district court may review the
successive § 2254 motion. See 28 U.S.C. §
2244. A Fourth Circuit form and instructions for filing this
motion have already been provided to Tully by counsel for
respondent and are also available from the Fourth Circuit at
the following address: Office of the Clerk, United States
Court of Appeals for the Fourth Circuit, 900 E. Main St,
Richmond, VA 23219.
 Tully raises many claims, including
multiple instances of ineffective assistance of counsel,
prosecutorial misconduct, court error, and a due process
violation based on an affidavit provided by one victim
indicating that although she testified at trial that Tully
did not live with her, in fact, he did live with her.
 Tully's argument that the court
should entertain his petition based on McOuiggin v.
Perkins,569 U.S. 383 (2013), is misplaced. The Supreme
Court in McOuiggin determined that a viable claim of
actual innocence could, in some circumstances, excuse
procedural default and allow otherwise barred claims to be
heard in a federal habeas petition. 569 U.S. at 392. However,
the court expressly confined its holding to first habeas
petitions. Id. at 396-97; In re Bolin, 811