In re Williams, 02-196.

• Decision Date: 27 May 2003
• Docket Number: No. 02-196.,02-196.
• Citation: 330 F.3d 277
• Parties: In Re: Billy WILLIAMS, Movant.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.3d 277

In Re: Billy WILLIAMS, Movant.

No. 02-196.

United States Court of Appeals, Fourth Circuit.

Argued: February 26, 2003.

Decided: May 27, 2003.

ARGUED:

Brian Marc Feldman, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for Movant. Steven Andrew Witmer, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Respondent.

ON BRIEF:

Neal L. Walters, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for Movant. Jerry W. Kilgore, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Respondent.

Before WILKINS, Chief Judge, and WILKINSON and MOTZ, Circuit Judges.

Motion denied by published opinion. Chief Judge WILKINS wrote the opinion, which Judge WILKINSON and Judge DIANA GRIBBON MOTZ joined.

OPINION

WILKINS, Chief Judge:

Billy Williams moves for authorization to file a successive habeas corpus application pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp.2002). See 28 U.S.C.A. § 2244(b) (West Supp.2002). We deny this motion.

I.

According to his motion for pre-filing authorization (PFA motion), Williams is presently serving a twenty-five year sentence for second degree murder and related offenses, for which he was convicted in 1997 in Virginia state court. He alleges that the primary evidence against him came from two eyewitnesses, Torrey Wright and Richard Teach. These witnesses testified that they were riding in a vehicle with Wright's daughter when Teach saw Williams and called out to him; Williams then began shooting at the vehicle, injuring Wright and killing his daughter. Two defense witnesses countered that Williams was with them in another part of town at the time of the shooting.

The jury, apparently deeming the prosecution's evidence more credible than Williams' alibi witnesses, found Williams guilty as charged. After an unsuccessful direct appeal, Williams filed a § 2254 petition in United States District Court. The petition was denied on November 15, 2001, and this court dismissed Williams' ensuing appeal, see Williams v. Angelone, 26 Fed. Appx. 373 (4th Cir.) (per curiam), cert denied, ___ U.S. ___, 123 S.Ct. 177, 154 L.Ed.2d 70 (2002).

While his § 2254 petition was pending in the district court, Williams encountered Richard Teach at the Richmond City Jail. Teach allegedly told Williams that his testimony against Williams was perjured, that he testified as he did because criminal charges were pending against him at the time of Williams' trial, and that those charges were later dropped. Williams claims that the prosecutor never disclosed any of these facts, even after Teach testified that he had no charges pending against him.

Acting on this information, Williams filed a habeas corpus petition in state court, which was denied. Williams then filed his PFA motion in this court. Attached to this motion is the § 2254 application that Williams wishes to file ("Proposed Application"). The Proposed Application reiterates two claims from Williams' first § 2254 application — ineffective assistance of counsel and denial of the right to appeal — and presents the following new claim:

On June 27, 2001 Petitioner learned through Prosecutor witness in this Case (Richard Teach) that his testimony was perjury in that he testified he wasn't charged with any crimes, at Petitioner trial, however on June 27, 2001 he admitted to Petitioner that Prior to his trial he was charged with crimes in order to testify[.]

Proposed Application at 6.

II.

As modified by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 2244(b) imposes the following limits on review of successive § 2254 applications:

(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 —

(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 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.

In addition, § 2244(b)(3)(A) provides that a successive application may not be filed in the district court without authorization from the relevant court of appeals. "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C.A. § 2244(b)(3)(C). Section 2244(b)(3)(D) requires the court to "grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion."

Williams contends that his PFA motion must be granted because it has been pending for more than 30 days. In the alternative, Williams asserts that his proposed application meets the standard for prefiling authorization. We disagree with both of these arguments.

A.

Williams initially maintains that the 30-day deadline established by § 2244(b)(3)(D) may not be extended and that the appropriate remedy for a violation of this deadline is to grant the PFA motion. This argument founders on circuit precedent. In In re Vial, 115 F.3d 1192 (4th Cir.1997) (en banc), the deadline passed before the court ruled on a PFA motion, but we indicated that extended consideration was appropriate because "the importance of the issue presented justified the delay." Id. at 1194 n. 3. This statement defeats Williams' claim that this court may not extend the 30-day deadline.

The other courts of appeals to consider this question have likewise concluded that the § 2244(b)(3)(D) deadline is "precatory, not mandatory." United States v. Barrett, 178 F.3d 34, 42 n. 2 (1st Cir.1999) (internal quotation marks omitted); accord Browning v. United States, 241 F.3d 1262, 1263 (10th Cir.2001) (en banc); Gray-Bey v. United States, 201 F.3d 866, 867 (7th Cir.2000); In re Siggers, 132 F.3d 333, 336 (6th Cir.1997); Galtieri v. United States, 128 F.3d 33, 36-37 (2d Cir.1997). But cf. Gray-Bey, 201 F.3d at 871-75 (Easterbrook, J., dissenting) (criticizing decisions — including Vial — that allow courts of appeals to extend the 30-day deadline). The Sixth Circuit has offered a particularly persuasive explanation for this position, premised on the general rule that a "statutory time period is not mandatory unless it both expressly requires [action] within a particular time period and specifies a consequence for failure to comply with the provision." Siggers, 132 F.3d at 336 (internal quotation marks omitted); accord Holland v. Pardee Coal Co., 269 F.3d 424, 432 (4th Cir.2001) (noting, with citation to Siggers, the "recognized canon of construction which instructs against treating statutory timing provisions as jurisdictional, unless such a consequence is clearly indicated"), cert. denied, ___ U.S. ___, 123 S.Ct. 986, 154 L.Ed.2d 892 (2003). The Sixth Circuit concluded that because Congress prescribed no consequence for noncompliance with § 2244(b)(3)(D), the provision is merely "hortatory or advisory." Siggers, 132 F.3d at 336.

Williams asserts that these decisions must be reexamined in light of Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In Tyler, the Supreme Court held that a PFA motion may be granted under § 2244(b)(2)(A) only if the Supreme Court has held that a particular rule of constitutional law applies retroactively to cases on collateral review. See id. at 663, 121 S.Ct. 2478. In reaching this holding, the Court relied in part on § 2244(b)(3)(D):

The court of appeals must make a decision on [a PFA motion] within 30 days.... It is unlikely that a court of appeals could make [the necessary] determination in the allotted time if it had to do more than simply rely on Supreme Court holdings on retroactivity. The stringent time limit thus suggests that the courts of appeals do not have to engage in the difficult legal analysis that can be required to determine questions of retroactivity in the first instance.

Id. at 664, 121 S.Ct. 2478.

Nothing in Tyler suggests that § 2244(b)(3)(D) is mandatory (let alone that the remedy for failure to comply with the 30-day deadline is to grant pre-filing authorization). In Tyler, the Supreme Court fashioned a rule that would enable courts of appeals to comply with § 2244(b)(3)(D) in the vast majority of cases. This is not inconsistent, however, with our prior determination that we may exceed the 30-day limitation in the exceptional cases that cannot be resolved more quickly. Cf. Galtieri, 128 F.3d at 37 (stating that PFA motions usually present relatively simple questions but, when they do not, "we do not think that Congress wanted courts to forgo reasoned adjudication"). Accordingly, we adhere to our determination in Vial that we may consider a PFA motion for longer than 30 days if the importance and complexity of the issues presented justify such extended consideration.¹

B.

Because § 2244(b)(3)(D) does not compel us to grant Williams' PFA motion, we must determine whether the motion makes "a prima facie showing" that Williams can satisfy the requirements of § 2244(b). 28 U.S.C.A. § 2244(b)(3)(C). To make this determination, we will examine each of the claims in the Proposed Application; if any claim meets the statutory threshold, we will grant the PFA motion and allow Williams to file the Proposed Application in its...