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Revised March 31, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20014
_____________________
GARY GRAHAM, now known as
SHAKA SANKOFA,
Petitioner-Appellant,
v.
GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
February 25, 1999
Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
KING, Chief Judge:
Gary Graham, now known as Shaka Sankofa,1 a Texas death row
inmate, appeals the district court's dismissal of his fourth
habeas corpus application under 28 U.S.C. § 2254. Alternatively,
he moves for the recall of the mandate in one of his prior habeas
cases or for an order pursuant to 28 U.S.C. § 2244(b)(3)(C)
authorizing the district court to consider a successive habeas
1 For the sake of consistency, we refer to Graham by the
name under which he was convicted and sentenced.

corpus petition. We previously denied this last motion in an
order entered February 8, 1999, in which we noted that we would
rule on the other two pleadings and issue a full opinion
explaining our decision in all three matters as soon as possible.
We now do so.
Graham's current application for a writ of habeas corpus is
successive to a previous petition he filed in 1988 that was fully
litigated on the merits and, in fact, was twice considered by the
Supreme Court. In 1996, more than two years before Graham
brought this application, Congress passed a new law, the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
that was specifically designed to limit and, in some cases,
completely bar successive applications such as Graham's. Not
only did AEDPA itself impose stringent restrictions on successive
habeas applications, but the House Conference Report accompanying
it explicitly stated that it incorporated "reforms to curb the
abuse of the statutory writ of habeas corpus, and to address the
acute problems of unnecessary delay and abuse in capital cases."
Graham concedes that all of the claims he makes today could have
been raised in 1988 and that if AEDPA governs his current
application, he is entitled to no relief whatsoever. Thus, our
task is to determine whether AEDPA applies to him. We conclude
that it does. Accordingly, we must affirm the judgment of the
district court dismissing Graham's fourth federal habeas
2

application and deny his motion for recall of the mandate in his
previous habeas case.
I. FACTUAL AND PROCEDURAL HISTORY
This appeal and the accompanying alternative motions are the
latest installments of a story that began nearly eighteen years
ago. About 9:30 p.m. on May 13, 1981, in the parking lot of a
Safeway Food Store in Houston, Texas, Bobby Lambert, a customer
at the store, was shot and killed by a lone black male who
apparently was trying to rob him. The perpetrator left the scene
without being apprehended. After his arrest for another offense
about a week later, Gary Graham, then seventeen years old, was
charged with the capital murder of Lambert.
At trial in the 182nd Judicial District of Harris County,
Texas, Bernadine Skillern was the only witness to identify Graham
as Lambert's killer; two other eyewitnesses, Wilma Amos and
Daniel Grady, were unable to do so because they did not get a
good enough look at, or did not sufficiently recall, the
perpetrator's face. Immediately before Skillern testified that
Graham was the shooter, the trial judge conducted a hearing
outside the presence of the jury to determine whether her
identification was "tainted by [an] illegal lineup." Gilbert v.
California, 388 U.S. 263, 272 (1967) (citing United States v.
3

Wade, 388 U.S. 218, 240 (1967)). Skillern described in some
detail how she had picked Graham out of a May 26, 1981
photographic display and a May 27, 1981 police station lineup,
and defense counsel raised many of the same issues regarding
suggestive identification procedures that Graham's current
counsel now brings before us. The trial judge concluded that
Skillern's identification was "based solely on [Skillern's]
independent recollection of the facts as they occurred on May 13,
1981" and was "made independently of any conversation or
processes that were performed by members of the Houston Police
Department." The jury then returned, and Skillern testified in
open court that Graham was the person she had seen shoot Lambert.
Defense counsel presented no evidence at the guilt-innocence
stage. The jury convicted Graham of capital murder and answered
the three death penalty special issues2 in the affirmative.3
2 The jury was asked the following questions:
(1) Do you find from the evidence beyond a reasonable
doubt that the conduct of the defendant that caused the
death of the deceased was committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result?
(2) Do you find from the evidence beyond a reasonable
doubt that there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society?
(3) Do you find from the evidence beyond a reasonable
doubt whether [sic] the conduct of the defendant in
killing the deceased was unreasonable in response to
the provocation, if any, by the deceased?
4

Accordingly, the court sentenced Graham to death. On direct
appeal, the Texas Court of Criminal Appeals affirmed Graham's
capital murder conviction and death sentence in an unpublished
opinion. See Graham v. State, No. 68,916 (Tex. Crim. App. June
12, 1984). Graham did not seek certiorari from the United States
Supreme Court.
Instead, represented by new counsel, Graham filed a state
habeas petition in July 1987, contending, inter alia, that he was
incompetent and therefore could not constitutionally be executed,
that the Texas capital punishment scheme was constitutionally
defective for various reasons and did not allow the jury
adequately to consider mitigating evidence, including youth, and
that he received ineffective assistance of counsel. Counsel was
alleged to be ineffective in numerous respects, including failing
The jury answered yes to all three questions. After the verdict
was read, the defense requested that the jury be polled, and each
juror acknowledged that the verdict accurately represented his or
her answers to the special issues.
3 During the punishment phase, the state demonstrated that
from May 14 to May 20, 1981, Graham robbed some thirteen
different victims in nine different locations, in each instance
leveling either a pistol or a sawed-off shotgun at the victim.
Two of the victims were pistol-whipped, one was also shot in the
neck, an elderly man was struck with the vehicle Graham had
stolen from him, and a fifty-seven-year-old woman was kidnapped
and raped. There was also testimony that Graham had a poor
reputation in the community for being a peaceful and law-abiding
citizen. The defense presented only the testimony of Graham's
stepfather and grandmother as to his good and nonviolent
character. After the capital murder conviction, Graham pleaded
guilty to, and was sentenced to twenty-year concurrent prison
terms for, ten aggravated robberies committed on May 14, 15, 16,
18, 19, and 20, 1981.
5

adequately to investigate, interview, and call alibi witnesses
and not allowing Graham to testify. Graham's petition was
supported by an affidavit signed by Dorothy Shields, William
Chambers, Mary Brown, and Loraine Johnson4 asserting that Graham
had been with them continuously during the night of the offense,
that Graham had told them that he had given their names to his
trial counsel, that counsel did not call them to testify, and
that Graham later informed them that counsel not only had refused
to call alibi witnesses but also had prevented him from
testifying on his own behalf. State district judge Donald
Shipley, who had not presided at Graham's trial, held competency
and evidentiary hearings. At the latter, Graham, three alibi
witnesses (William Chambers, Mary Brown, and Dinah Miller), and
Graham's trial counsel (Ronald Mock and Chester Thornton),
testified. On February 9, 1988, Judge Shipley entered findings
of fact and conclusions of law adverse in all respects to Graham.
With respect to the ineffective assistance of counsel claim, he
found:
4.
Prior to trial, counsel [who had been appointed to
represent Graham on June 12, 1981] reviewed the
information in the State's file several times.
5.
On numerous occasions prior to trial, counsel met with
the applicant and attempted to discuss the facts of the
case with him. The applicant stated only that he did
4 Brown is Graham's wife. Chambers and Johnson are his
cousins. Shields is a friend who lived near Graham's paternal
grandmother, with whom Graham sometimes resided, at the time of
the offense.
6

not commit the robbery-murder and that he had spent the
evening with a girlfriend whose name, appearance, and
address the applicant could not remember.
6.
Although defense counsel made numerous inquiries of
applicant, he did not give his defense counsel where he
had been and what he had been doing on the night of the
instant offense, May 13, 1981.
7.
No person ever presented himself to defense counsel as
an alibi witness, either before, during or after trial.
8.
Specifically, the applicant did not furnish his counsel
with the names or addresses of Dorothy Shield [sic],
William Chambers, Mary Brown, or Lorain [sic] Johnson
as potential alibi witnesses.
9.
This court finds that the testimony of William
Chambers, Mary Brown, and Dinah Miller concerning Gary
Graham's whereabouts on May 13, 1981 is not credible
testimony.
10.
Gary Graham was aware that an investigator was working
with defense counsel in connection with the defense of
his case.
11.
Counsel for applicant hired an investigator, Merv West,
who assisted them in investigating and interviewing
possible defense witnesses.
Ex parte Graham, No. 335378-A (182d Dist. Ct., Harris County,
Tex. Feb. 9, 1988). The state habeas trial court concluded that
Graham had received effective assistance of counsel and
recommended that the Texas Court of Criminal Appeals deny habeas
relief. The Court of Criminal Appeals did so in an unpublished
per curiam order with reasons issued February 19, 1988.
Shortly thereafter, Graham, through new counsel, filed a
federal habeas application in the Southern District of Texas. In
addition to challenging the racial and age composition of the
grand jury that indicted him, the constitutionality of the Texas
7

death penalty statute as applied to him, and his own competency
to be executed, Graham asserted that he was denied the effective
assistance of trial counsel. Specifically, he claimed that
counsel failed adequately to investigate his case and introduce
defense witnesses at trial. Although he told them of at least
four alibi witnesses, Graham asserted, counsel neither
interviewed nor called these individuals to testify. Graham also
complained that counsel refused to permit him to testify, failed
to obtain an independent psychiatric evaluation, did not object
to the exclusion of certain jurors, allowed him to be tried in
the same clothes he was wearing when arrested, concealed counsel
Ronald Mock's personal acquaintance with chief prosecution
witness Skillern, neglected adequately to investigate the
extraneous offenses introduced against him at the punishment
phase of his trial, and called only two punishment phase
witnesses on his behalf. Without holding an evidentiary hearing,
the district court denied relief, see Graham v. Lynaugh, No. 88-
563 (S.D. Tex. Feb. 24, 1988), and the Fifth Circuit declined to
issue a certificate of probable cause, see Graham v. Lynaugh, 854
F.2d 715, 723 (5th Cir. 1988). The court of appeals panel
specifically reviewed the ineffective assistance of counsel
allegations and the state habeas court findings in respect
thereto, concluding that "Graham has failed to overcome the
presumption that the state court's findings were correct." Id.
at 722.
8

In a per curiam order, the Supreme Court granted certiorari,
vacated the Fifth Circuit's judgment, and remanded "for further
consideration in light of Penry v. Lynaugh[, 492 U.S. 302
(1989)]." Graham v. Lynaugh, 492 U.S. 915 (1989). On remand,
the same Fifth Circuit panel reinstated, in Part I of its new
opinion, all of its 1988 opinion except Section II.B, which dealt
with whether the Texas capital sentencing scheme allowed adequate
consideration of mitigating evidence, especially youth. See
Graham v. Collins, 896 F.2d 893, 894 (5th Cir. 1990). The panel
went on to hold that the Texas capital sentencing scheme,
contrary to Penry, did not allow adequate consideration of
Graham's youth and accordingly vacated his death sentence. See
id. at 898. The Fifth Circuit then took the case en banc and
ultimately affirmed the denial of habeas relief. See Graham v.
Collins, 950 F.2d 1009, 1034 (5th Cir. 1992). The en banc court
explicitly approved Part I of the 1990 panel opinion, thus
reinstating all of the 1988 panel opinion except Section II.B
thereof, including the earlier panel findings that Graham's
ineffective assistance of counsel claim lacked merit. See id. at
1013 n.4. It reversed the 1990 panel's conclusion that the Texas
capital sentencing scheme did not allow adequate consideration of
Graham's mitigating evidence, particularly his youth. See id. at
1030-34. The Supreme Court affirmed, addressing only the youth-
Penry issue and holding that any claim that the Texas capital
sentencing scheme did not allow adequate consideration of youth
9

was barred under Teague v. Lane, 489 U.S. 288 (1989). See Graham
v. Collins, 506 U.S. 461, 477-78 (1993).
On April 20, 1993, Graham, through counsel, filed his second
state habeas petition. Again, he urged that trial counsel was
ineffective for failing to develop or present defense evidence or
meaningfully test the prosecution's evidence, and that he thus
had been "condemned to die for a crime that he almost certainly
did not commit." Graham also asserted that the trial court's
voir dire erroneously equated "deliberateness," as used in the
first death penalty special issue, with "intent" as relevant to
guilt or innocence. Finally, he contended that the special
issues did not allow adequate consideration of his youth.5 The
ineffective assistance claim was supported by new evidence
purporting to prove that a number of eyewitnesses whom Graham's
counsel had not called during trial would have provided testimony
tending to exonerate Graham. This new evidence consisted of the
following:
1.
A March 31, 1993 affidavit of the investigator, Mervyn
West, retained by Graham's trial counsel, indicating
that he and counsel had assumed Graham was guilty and
therefore gave his case relatively little attention;
5 The apparent basis for making this argument, despite the
Supreme Court's decision in Graham v. Collins, 506 U.S. 461
(1993), was the theory that Graham, by its reliance on Teague v.
Lane, 489 U.S. 288 (1989), did not apply except in federal habeas
actions. On February 19, 1993, the Supreme Court had granted
certiorari in the direct appeal case of Johnson v. Texas, 506
U.S. 1090 (1993), raising the youth-Penry issue.
10

2.
April 17, 1993 affidavits of Malcolm Stephens and his
wife, Lorna Stephens, stating that they had come on the
crime scene just after the shooting and had seen a
young black man run away (not followed in the parking
lot by anyone in a car, as Skillern had testified that
she had done), and that the man was about 5'5" tall (a
lineup chart showed Graham to be 5'9");
3.
An April 15, 1993 affidavit of Wilma Amos, who had been
present at the crime scene, stating that the shooter
was no taller than 5'5", that no one followed him in a
car, that defense counsel never contacted her, and that
she had examined two photographs of Graham as he
appeared in 1981 and was "certain that Gary Graham is
not the man who shot Bobby Lambert";
4.
An April 15, 1993 affidavit of Ronald Hubbard, a
Safeway employee who also had been present at the
scene, describing the shooter as 5'6" and indicating
that no one associated with Graham's defense team ever
contacted him;
5.
An April 18, 1993 affidavit of Mary Brown indicating
that she had been with Graham on the night of the
offense;
6.
An April 18, 1993 affidavit of William Chambers
indicating that he had been with Graham on the night of
the offense;
7.
An April 18, 1993 affidavit of Dorothy Shields
indicating that she had been with Graham for most of
the night of the offense; and
8.
An April 18, 1993 affidavit of Loraine Johnson
indicating that she had been with Graham on the night
of the offense and that she had spoken to trial counsel
about testifying to an alibi defense but had been
rebuffed.
Graham supplemented his petition on April 26, 1993, adding a
claim under Herrera v. Collins, 506 U.S. 390 (1993), that because
he was actually innocent his execution would be unconstitutional.
This supplement was supported by an April 26, 1993 affidavit of
Malcolm Stephens stating that, after seeing news coverage of
11

Graham's case, he had realized that Graham was not the person who
had run in front of his car in the Safeway parking lot and
stating that he saw the true murderer several times in 1982,
1983, and 1985. The state filed a reply, supported by an April
21, 1993 affidavit from trial counsel Ronald Mock, an April 22,
1993 affidavit from Mervyn West, and a March 26, 1993 affidavit
from Bernadine Skillern. Later that same day, the state habeas
trial court, Judge Shipley, without holding an evidentiary
hearing, entered findings and conclusions, plus supplemental
findings, recommending that the Court of Criminal Appeals deny
relief. The trial court adopted its February 9, 1988 findings
and conclusions regarding Graham's first state habeas petition.
In addition, it found that the new 1993 affidavits from Chambers,
Brown, Shields, and Loraine Johnson were "not credible," that in
light of his April 22, 1993 affidavit showing loss of memory,
West's March 31, 1993 affidavit was "not reliable," that Amos's
1993 affidavit was "not credible," that Hubbard and the
Stephenses did not see the actual shooting and that their
affidavits therefore did not undermine Skillern's identification,
and that Skillern's testimony was credible. The court concluded
that Graham's ineffective assistance of counsel claim had been
rejected in the previous state habeas proceeding and hence need
not be considered again. Alternatively, it found that Graham had
shown neither defective performance nor any resultant prejudice.
Finally, the court concluded that a claim of actual innocence
12

independent of constitutional infirmity at trial was not
cognizable in habeas proceedings and that even if it were, Graham
fell far short of the showing necessary to trigger consideration
of such a claim. On April 27, 1993, in a per curiam order, the
Court of Criminal Appeals denied habeas relief. See Ex parte
Graham, 853 S.W.2d 564 (Tex. Crim. App. 1993). Graham filed both
a petition for certiorari in the Supreme Court, which was denied,
see Graham v. Texas, 508 U.S. 945 (1993), and a motion for
reconsideration, which the Court of Criminal Appeals overruled,
see Ex parte Graham, 853 S.W.2d 565, 566 (Tex. Crim. App. 1993).
Nevertheless, the latter ordered Graham's execution stayed for
thirty days pending the Supreme Court's resolution of Johnson v.
Texas, 506 U.S. 1090 (1993) (granting certiorari). See Graham,
853 S.W.2d at 566-67.
On April 28, 1993, immediately after the Texas Court of
Criminal Appeals denied relief on his second state habeas
petition, Graham filed a second federal habeas application in the
Southern District of Texas asserting that he had received
ineffective assistance of counsel at trial. He voluntarily
dismissed it that same day, after Governor Ann Richards granted a
thirty-day stay in connection with executive clemency
proceedings.
On June 24, 1993, the Supreme Court issued its opinion in
Johnson v. Texas, 509 U.S. 350 (1993), holding that the Texas
capital sentencing scheme adequately allowed consideration of the
13

defendant's youth as a mitigating factor. See id. at 353.
Graham then filed in the Court of Criminal Appeals a motion to
continue the stay of execution and for remand to the state trial
court for an evidentiary hearing on his claims of ineffective
assistance of counsel, based on evidence discovered after the
second state habeas proceeding. In a per curiam order issued
July 5, 1993, the Court of Criminal Appeals denied the motion to
continue the stay and the motion for remand without prejudice.
The state then set Graham's execution for August 17, 1993.
On July 21, 1993, Graham filed a civil suit against the
Texas Board of Pardons and Paroles (TBPP) seeking an evidentiary
hearing before that body on his innocence-based clemency request.
After a hearing, the Travis County state district court issued a
temporary injunction requiring the TBPP to hold a hearing on
Graham's claim of innocence by August 10, 1993 or, in lieu
thereof, to reschedule his execution until after such a hearing.
The TBPP did not hold a hearing, but instead filed a notice of
appeal to the state court of appeals in Austin, which operated to
supersede the trial court's order. On August 13, 1993, the
Austin Court of Appeals, on Graham's motion, enjoined his
execution pending resolution of the TBPP's appeal. Three days
later, the Court of Criminal Appeals, on Graham's motion, stayed
his execution "pending further orders by the Court." On the same
day, the Court of Criminal Appeals also denied motions, filed by
the district attorney of Harris County and the TBPP, for leave to
14

file with the Court of Criminal Appeals applications for mandamus
to require the Austin Court of Appeals to vacate its injunction
prohibiting Graham's execution. See State ex rel. Holmes v.
Third Court of Appeals, 860 S.W.2d 873, 873 (Tex. Crim. App.
1993). On November 9, 1993, however, the court sua sponte
reconsidered its denial of leave to file the applications for
mandamus, granted leave, and stayed further proceedings in the
Austin Court of Appeals. See State ex rel. Holmes v. Honorable
Court of Appeals, 885 S.W.2d 386, 386-87 (Tex. Crim. App. 1993).
Graham, through counsel, then appeared before the Court of
Criminal Appeals as the real party in interest. On April 20,
1994, after Graham's appeal of his third federal habeas
application had been briefed and argued, see infra, the court
conditionally granted the writs, holding that the Austin Court of
Appeals had no jurisdiction to enjoin Graham's execution. See
State ex rel. Holmes v. Honorable Court of Appeals, 885 S.W.2d
389, 390 (Tex. Crim. App. 1994). It also addressed the scope of
Graham's available state habeas remedies with respect to his
claim that evidence discovered since his conviction demonstrated
his actual innocence and decided that habeas corpus is an
appropriate vehicle for a prisoner to assert claims of actual
innocence:
[W]e hold an applicant seeking habeas relief based on a
claim of factual innocence must, as a threshold, demonstrate
that the newly discovered evidence, if true, creates a doubt
as to the efficacy of the verdict sufficient to undermine
confidence in the verdict and that it is probable that the
15

verdict would be different. Once that threshold has been
met the habeas court must afford the applicant a forum and
opportunity to present his evidence.
. . . .
This threshold standard and burden of proof will
satisfy the Due Process Clause of the Fourteenth Amendment
and we adopt them in the habeas context. If the applicant
meets the threshold standard announced above the habeas
judge must hold a hearing to determine whether the newly
discovered evidence, when considered in light of the entire
record before the jury that convicted him, shows that no
rational trier of fact could find proof of guilt beyond a
reasonable doubt.
Therefore, we . . . hold that, pursuant to Tex.Code
Crim.Proc.Ann. art. 11.07, Graham may appropriately couch
his claims of factual innocence in the context of a
violation of the Due Process Clause of the Fourteenth
Amendment.
Id. at 398-99. Notwithstanding this conclusion, the court
declined to use the case then before it to resolve Graham's claim
because "there is no [habeas] application presently pending
before this Court, nor has the trial judge been given the
opportunity to prepare findings of fact consistent with art.
11.07 § 3." Id. at 399. It observed, however, that "Graham is
free to pursue his claims through the filing of an application
under Tex.Code Crim.Proc.Ann. art. 11.07." Id.
On June 22, 1994, the Austin Court of Appeals set aside the
Travis County district court's temporary injunction against the
TBPP, but did not rule on the merits of the controversy. In
October, the Travis County district court rendered judgment that
Graham was not entitled to a clemency hearing before the TBPP on
his actual innocence claim. The Austin Court of Appeals
affirmed:
16

[W]e determine that Graham's right to a due course of law
hearing on his claim of actual innocence has been satisfied
by the habeas corpus procedure fashioned for him by the
Court of Criminal Appeals in Holmes. Upon a showing of new
evidence that undermines confidence in the jury verdict,
Graham will be entitled to an evidentiary hearing in
accordance with statutory post-conviction habeas corpus
procedures. . . .
. . . Now that the Court of Criminal Appeals in Holmes
has created a judicial vehicle for testing such a claim of
actual innocence, we hold that the Texas Constitution does
not afford Graham an additional, duplicative hearing within
the executive-clemency process.
Graham v. Texas Bd. of Pardons & Paroles, 913 S.W.2d 745, 751
(Tex. App.--Austin 1996, writ dism'd w.o.j.). Graham was thus
left with recourse only to the courts.
The day after filing the civil suit against the TBPP,
Graham, through counsel, filed a third federal habeas application
in the Southern District of Texas. The application asserted only
two grounds for relief: first, that Graham was actually innocent
of the offense and thus was entitled to relief under the opinions
of five justices in Herrera v. Collins, 506 U.S. 390 (1993),
agreeing that "the execution of an innocent person would violate
the Constitution," and second, that he was denied effective
assistance of counsel in that his attorneys failed to interview
crime scene witnesses named in the police report, investigate and
present an alibi defense, properly question witness Amos, and
call Hubbard to the stand. Graham also moved for an evidentiary
hearing and for leave to undertake discovery.
Graham's application was supported by numerous affidavits
and exhibits, many of which he had obtained after the conclusion
17

of his second state habeas proceeding on April 26, 1993 and never
had submitted to the state courts. This new material included
the following:
1.
A July 10, 1993 affidavit of Sherian Etuk, who had been
working at the Safeway on the evening of May 13, 1981
and had seen the shooting or its immediate aftermath,
describing the perpetrator as a young black man not
taller than 5'6", with a light build and very narrow
face, declaring that Etuk had been shown photographs by
the police and that no one had contacted her on behalf
of Graham, and stating that none of four pictures of
Graham "depict the guy who shot the man out in the
parking lot that night";
2.
A May 25, 1993 affidavit of crime scene witness Leodis
Wilkerson, aged twelve in May 1981, declaring that he
was never contacted by anyone on Graham's behalf,
describing the shooter as a short, young, clean-shaven
black man, and stating that none of three attached
photographs of Graham "to the best of my memory looks
anything like the man who did the shooting at the
Safeway";
3.
A June 1, 1993 affidavit of Loraine Johnson providing
essentially the same information as her April 18, 1993
affidavit but describing in more detail her attempt to
inform Graham's trial counsel of his alibi;
4.
A May 1993 affidavit of Vanessa Ford tending to
corroborate the alibi portions of Loraine Johnson's
June 1, 1993 affidavit;
5.
A June 28, 1993 affidavit of Jo Carolyn Johnson
corroborating Loraine Johnson's affidavits as to
Loraine's informing Graham's trial counsel of Graham's
alibi;
6.
A Houston Police Department offense report indicating
that Lambert was facing federal drug charges in
Oklahoma, was carrying three shotguns and a number of
false identification cards in his van, and had
"fashioned himself as a con man," describing three
other suspects in the Lambert murder, who were not
investigated further after Graham's arrest, and
indicating that there was no evidence except Skillern's
18

identification connecting Graham to the crime, the
Safeway, or its neighborhood;
7.
A July 1993 report by psychologist Elizabeth Loftus
concluding that Skillern's identification was likely
unreliable;
8.
An April 20, 1993 report by another psychologist,
Curtis Wills, asserting that "Bernadine Skillern's
identification is totally unreliable";
9.
A Houston Police Department firearms report dated May
26, 1981, indicating that the .22 caliber pistol Graham
had with him when arrested was not the .22 caliber
pistol with which Lambert was killed.
On August 6, 1993, the state filed its answer and motion for
summary judgment, which waived exhaustion and did not raise the
issue of successive or abusive applications. On August 13, 1993,
the district court, without any evidentiary hearing, denied
Graham's application. See Graham v. Collins, 829 F. Supp. 204,
209-10 (S.D. Tex. 1993).
On appeal, the Fifth Circuit declined to accept the state's
waiver of exhaustion and remanded the case to the district court.
See Graham v. Johnson, 94 F.3d 958, 970-71 (5th Cir. 1996). In
so doing, it concluded that exhaustion would not be futile,
although Texas recently had passed a statute erecting significant
barriers to death row inmates' successive habeas applications:6
6 Before the passage of the 1995 act, the Texas abuse-of-
the-writ doctrine allowed the courts, after finding that a habeas
petitioner had failed without cause to address the same issue on
direct appeal or in a previous petition, to refuse to accept the
habeas petition. See Ex parte Dora, 548 S.W.2d 392, 393-94 (Tex.
Crim. App. 1977). The rule was not regularly applied, however,
see Lowe v. Scott, 48 F.3d 873, 876 (5th Cir. 1995), until 1994,
see Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App.
19

(a) If an initial application for a writ of habeas corpus is
untimely or if a subsequent application is filed after
filing an initial application, a court may not consider the
merits of or grant relief based on the subsequent or
untimely initial application unless the application contains
sufficient specific facts establishing that:
(1) the current claims and issues have not been and
could not have been presented previously in a timely
initial application or in a previously considered
application filed under this article or Article 11.07
because the factual or legal basis for the claim was
unavailable:
(A) on the date the applicant filed the previous
application; or
(B) if the applicant did not file an initial
application, on or before the last date for the
timely filing of an initial application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a
reasonable doubt; or
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no rational
juror would have answered in the state's favor one or
more of the special issues that were submitted to the
jury in the applicant's trial under Article 37.071 or
37.0711.
Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a). Section 5(e)
defines an unavailable factual claim as one "not ascertainable
through the exercise of reasonable diligence on or before that
date." The Fifth Circuit found that these new provisions
"appear[ed]" to afford Graham the right to have his claims heard,
and noted that, in any case, it was unclear whether article
1994) (announcing strict application of abuse-of-the-writ
doctrine).
20

11.071, enacted while Graham's federal habeas appeal was pending,
would apply to him. See Graham, 94 F.3d at 969 n.20. The court
also emphasized that exhaustion was necessary to flesh out the
record:
The issues in this case are almost exclusively factual, and
the relevant factual scenario is complex, highly
controverted, and in many respects unresolved. The district
court denied the petition without an evidentiary hearing.
There is a large body of relevant evidence that has not been
presented to the state court. It is doubtful that the
record before us allows review of the underlying issues on a
fully informed basis.
Id. at 970-71.
On remand, on October 11, 1996, the district court dismissed
Graham's third federal habeas application for failure to exhaust
state remedies. Eighteen months later, on April 27, 1998, Graham
filed a third state habeas application, supported by the evidence
he previously had presented to the courts and three entirely new
affidavits, raising the same two issues as the third federal
habeas application. He also added a claim that Texas violated
his Eighth and Fourteenth Amendment rights by (1) sentencing him
to death for a crime he allegedly committed at the age of
seventeen without a pretrial determination that he was
sufficiently mature and morally responsible to be tried as an
adult and (2) failing to require the full consideration of youth
as a mitigating circumstance. On November 18, 1998, the Court of
Criminal Appeals dismissed his application as an abuse of the
21

writ under the new state habeas law. See Ex parte Graham, No.
17,568-05 (Tex. Crim. App. Nov. 18, 1998).
On December 18, 1998, Graham filed his fourth federal habeas
application in the Southern District of Texas, raising the same
three issues as he had in his third state habeas application.
The district court dismissed for lack of jurisdiction, holding
that the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (1996), required Graham to
obtain permission from the appropriate court of appeals before
filing a "second" or "successive" habeas application. See Graham
v. Johnson, No. H-98-4241 (S.D. Tex. Jan. 7, 1999). Graham filed
motions in the district court for a stay of execution and for a
certificate of probable cause or a certificate of appealability.
The court granted a certificate of appealability but denied the
stay. See Graham v. Johnson, No. H-98-4241 (S.D. Tex. Jan. 8,
1999). Graham then filed in the Fifth Circuit a motion for stay
of execution, a notice of appeal from the district court's
dismissal of his application, and alternative motions to recall
the mandate in the 1996 habeas case or for an order authorizing
the district court to consider a successive habeas corpus
application. On January 10, 1999, we granted a stay to allow
more time to consider the issues presented by the three
pleadings, and on February 8, 1999, in keeping with Congress's
directive that we rule on such a request within thirty days, see
22

28 U.S.C. § 2244(b)(3)(D), we denied Graham's Motion for Order
Authorizing District Court to Consider Successive Habeas
Petition. We now rule on Graham's appeal and Motion to Recall
Mandate in Previous Habeas Case and provide a full opinion
explaining our decision in all three matters.
II. STANDARD OF REVIEW
The only issue raised by Graham's appeal, whether AEDPA
applies to his current habeas application, is an issue of law
that we review de novo. See Kiser v. Johnson, 163 F.3d 326, 326-
27 (5th Cir. 1999). The two alternative pleadings are properly
directed to us, rather than to the district court, in the first
instance: The Motion to Recall Mandate in Previous Habeas Case
asks us to withdraw our own prior decision, see Calderon v.
Thompson, 118 S. Ct. 1489, 1498 (1998) ("[T]he courts of appeals
are recognized to have an inherent power to recall their
mandates, subject to review for an abuse of discretion."), and
the Motion for Order Authorizing District Court to Consider
Successive Habeas Petition must be filed in the appropriate court
of appeals, see 28 U.S.C. § 2244(b)(3)(A).
III. DISCUSSION
A. Appeal of Dismissal
Enacted on April 24, 1996, AEDPA made it significantly
harder for prisoners filing second or successive federal habeas
23

applications under 28 U.S.C. § 2254 to obtain hearings on the
merits of their claims. As amended by AEDPA, 28 U.S.C. § 2244(b)
provides:
(b)(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.
(3)(A) Before a second or successive application permitted
by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.
(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a three-judge
panel of the court of appeals.
(C) 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.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.
24

(E) The grant or denial of an authorization by a court of
appeals to file a second or successive application shall not
be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented in a
second or successive application that the court of appeals
has authorized to be filed unless the applicant shows that
the claim satisfies the requirements of this section.
28 U.S.C. § 2244(b). AEDPA also added a stringent statute of
limitations to the federal habeas statute:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) 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; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(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.
28 U.S.C. § 2244(d).
25

AEDPA's amendments to the federal habeas statute impact
Graham in the following manner. With respect to § 2244(b),
Graham concedes in his brief on appeal that his November 1998
application is second or successive to his 1988 application,
which was fully adjudicated on the merits.7 Thus, if AEDPA
applies to this latest application, he would be required to
obtain an order from this court authorizing the district court to
consider it. Graham admits that he cannot meet § 2244(b)'s
prerequisites for the issuance of such an order. He contends,
however, that he need not obtain authorization from this court
because AEDPA does not apply to his November 1998 application.
This is the crucial issue before us.
1. Is the district court's dismissal of Graham's
application appealable?
Before deciding whether AEDPA does, in fact, apply to
Graham's application, we pause to consider whether the district
7 We are aware that the Supreme Court recently granted
certiorari on the following question: "If a person's petition
for habeas corpus under 28 U.S.C. § 2254 is dismissed for failure
to exhaust state remedies and he subsequently exhausts his state
remedies and refiles the § 2254 petition, are claims included
within that petition that were not included within his initial
§ 2254 filing `second or successive' habeas applications?" Slack
v. McDaniel, No. 98-6322, 1999 WL 80303 (U.S. Feb. 22, 1999)
(granting certiorari). Under current law, however, it is clear
that an application filed after a previous application was fully
adjudicated on the merits is a second or successive application
within the meaning of 28 U.S.C. § 2244(b), even if it contains
claims never before raised. See Felker v. Turpin, 518 U.S. 651,
655-58, 662-63 (1996). Graham's current application is therefore
unquestionably second or successive.
26

court's order dismissing his application for lack of jurisdiction
as a result of his failure to comply with 28 U.S.C.
§ 2244(b)(3)(C) is appealable. Although neither party has
suggested that it is not, we may determine the existence of our
own jurisdiction sua sponte. See Thompson v. Betts, 754 F.2d
1243, 1245 (5th Cir. 1985).
As a general rule, federal law limits our appellate
jurisdiction to reviewing final decisions of the district courts.
See 28 U.S.C. § 1291. Similarly, the federal habeas corpus
statute provides that "[i]n a habeas corpus proceeding . . .
before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in
which the proceeding is held." Id. § 2253. A final judgment is
one that "ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment." Coopers & Lybrand
v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)) (internal quotation marks
omitted). We have taken a practical approach to determining
whether a district court decision meets this standard; a judgment
reflecting an intent to dispose of all issues before the court is
final. See National Ass'n of Gov't Employees v. City Pub. Serv.
Bd., 40 F.3d 698, 705 (5th Cir. 1994); Vaughn v. Mobil Oil
Exploration & Producing Southeast, Inc., 891 F.2d 1195, 1197 (5th
Cir. 1990).
27

Our own court and one of our sister circuits have found
dismissals for failure to move for authorization to file a
successive application to be appealable final orders. In
Spotville v. Cain, 149 F.3d 374, 375 (5th Cir. 1998), we reviewed
such a dismissal without questioning the existence of
jurisdiction. The First Circuit considered an analogous
situation in Pratt v. United States, 129 F.3d 54, 57-58 (1st Cir.
1997), cert. denied, 118 S. Ct. 1807 (1998), and concluded that
it had jurisdiction to consider an appeal from a dismissal of a
federal prisoner's successive 28 U.S.C. § 2255 motion for failure
to obtain the required clearance from the court of appeals.8
Pratt, like Graham, challenged the dismissal on the grounds that
AEDPA did not apply to his successive motion. See id. at 57.
Under such circumstances, the court determined, he could regain
access to the district court and vindicate his theory that AEDPA
8 AEDPA added the following language to § 2255, which
authorizes federal prisoners to seek relief from custody by
filing a motion to vacate, set aside, or correct sentence:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to contain--
(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 would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255.
28

did not apply to him only by an appeal and a subsequent holding
that the district court erred in considering his latest petition
under the new statute. See id. The district court's order was
therefore final "in the relevant sense" and appealable even
though it was without prejudice to Pratt's refiling after
obtaining the necessary authorization from the court of appeals.
Id. at 57-58. We find this reasoning persuasive and conclude
that we have jurisdiction to review the district court's
dismissal of Graham's application.
2. Does AEDPA apply by its terms?
We now turn to the merits of Graham's appeal. It appears to
us that, on its face, AEDPA applies to Graham's application. The
statute was enacted on April 24, 1996, and Graham did not file
his current federal habeas application until November 18, 1998.
In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the Supreme Court
held that "the new provisions of chapter 153 [the chapter of
Title 28 of the United States Code containing § 2244 and §§ 2253-
2255] generally apply only to cases filed after the Act became
effective." We are comforted in our conclusion by the fact that,
in Felker v. Turpin, 518 U.S. 651, 655-58, 665 (1996), the Court
applied AEDPA to a successive application filed after April 24,
1996 where the first application was filed before that date. It
seems equally apparent that § 2244(b)'s restrictions on second or
successive habeas applications govern Graham's current
29

application, which he concedes is second or successive within the
meaning of the statute.
Graham, however, contends that AEDPA does not govern his
most recent federal habeas application. First, he argues that it
is not a new application but a continuation of his third
application for federal habeas relief, which he filed in July
1993 and which was dismissed without prejudice in October 1996
for failure to exhaust state remedies.9 Because this earlier
application was pending on appeal on the date of AEDPA's
enactment, he claims, the statute does not apply to it under
Lindh. In the alternative, he asserts that there is no
indication that Congress intended AEDPA to govern applications in
the procedural posture of his own--specifically, where one or
more habeas applications were filed before the enactment of the
statute and a successive application was filed afterward--and to
apply the Act to him would be impermissibly retroactive. We
address each of these arguments in turn.
9 We point out that Graham's third claim--that he was
unconstitutionally tried as an adult and that the Texas death
penalty statute in effect at the time of his trial did not permit
adequate consideration of youth as a mitigating factor--was not
raised in his third federal habeas application and cannot
properly be considered a continuation of that application.
Otherwise, a prisoner whose habeas application, pending on the
date of AEDPA's enactment, was later dismissed without prejudice
could present any number of new claims in a later application
without subjecting them to AEDPA's restrictions. But even if the
pre- and post-AEDPA applications raise identical claims, the
latter cannot, as we demonstrate infra, be considered a
continuation of the former for purposes of determining whether
the statute applies.
30

3. Is Graham's application exempt from AEDPA because it is
a continuation of an application pending on the date
of AEDPA's enactment?
Graham's first argument goes thus: AEDPA does not apply to
habeas applications pending on the date of its enactment. See
Lindh, 521 U.S. at 336. A habeas application filed after a
previous application was dismissed for non-exhaustion is a
"continuation" of the earlier application. In re Gasery, 116
F.3d 1051, 1052 (5th Cir. 1997) (per curiam). Therefore, AEDPA
does not apply to his November 1998 application because, in the
words of Gasery, it is a "continuation" of its 1993 predecessor,
which was pending on appeal on the day AEDPA became law.
We think that Graham reads too much into Gasery. Our
decision in Gasery does not exempt from AEDPA an application in
the same procedural posture as Graham's. Instead, it holds that
an application refiled after an earlier application was dismissed
without prejudice for failure to exhaust state remedies is not
second or successive to that earlier application within the
meaning of § 2244(b) as amended by AEDPA. See id. at 1052. In
doing so, however, it assumes that AEDPA governs the refiled
application.10
10 Gasery was decided before Lindh, at a time when the law
in this circuit was that AEDPA applied to applications pending on
the date of its enactment. See Drinkard v. Johnson, 97 F.3d 751,
766 (5th Cir. 1996). Thus, even if Gasery's first application
had been, like Graham's, pending on the day that AEDPA became
law, we would have assumed that the Act governed the later
application. As we discuss infra, however, the Supreme Court, in
31

Moreover, the Supreme Court's only pronouncement on the
relationship under AEDPA of applications refiled after their
predecessors have been dismissed without prejudice provides
little support for Graham's reading of Gasery. In Stewart v.
Martinez-Villareal, 118 S. Ct. 1618 (1998), the habeas applicant
was convicted in Arizona state court of two counts of first-
degree murder and sentenced to death. See id. at 1619. He filed
three federal habeas applications, all of which were dismissed on
the ground that they contained claims on which state remedies had
not yet been exhausted. See id. at 1620. In March 1993,
Martinez-Villareal filed a fourth federal habeas application
asserting, inter alia, that he was incompetent to be executed
under Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). The
district court dismissed the Ford claim as premature.
Thereafter, the state obtained a warrant for Martinez-Villareal's
a post-Lindh case, has applied AEDPA to a habeas application in
the same procedural posture as Gasery's. See Stewart v.
Martinez-Villareal, 118 S. Ct. 1618, 1620-22 (1998). Two post-
Lindh cases from other circuits have applied AEDPA in the same
way. See Carlson v. Pitcher, 137 F.3d 416, 419 (6th Cir. 1998);
McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997).
Furthermore, our own citations to Gasery understand it as
standing for the proposition that an application filed after a
predecessor is dismissed for failure to exhaust state remedies is
not successive to that earlier petition and not as holding that
the two are in fact the same petition. See Alexander v. Johnson,
163 F.3d 906, 909 (5th Cir. 1998); In re Cain, 137 F.3d 234, 236
(5th Cir. 1998). Tellingly, two circuits have held that
applications in the same procedural posture as Graham's do not
relate back to their predecessors for the purposes of determining
whether the petitioner was in custody at the time of filing. See
Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999); Tinder
v. Paula, 725 F.2d 801, 805-06 (1st Cir. 1984).
32

execution, and the Arizona courts found him competent to be
executed. Martinez-Villareal then moved in federal district
court to reopen his Ford claim, and the district court ruled that
under § 2244(b), it did not have jurisdiction over a "second or
successive" habeas application unless (as Martinez-Villareal had
not) the prisoner obtained permission to file such an application
from the appropriate court of appeals. The Ninth Circuit
reversed, holding that § 2244(b) does not apply to an application
that raises only a competency-to-be-executed claim. See
Martinez-Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir. 1997),
aff'd, 118 S. Ct. 1618 (1998).
In the Supreme Court, the state argued that because
Martinez-Villareal already had had one fully litigated habeas
petition (in which his Ford claim was found to be premature),
§ 2244(b) required his new application11 to be treated as
successive. The Court held that the new application, based on
the Ford claim, was not a "second or successive" application
within the meaning of § 2244(b) because it never had been
adjudicated on its merits. See 118 S. Ct. at 1622. In that way,
11 Both the parties and the Supreme Court treated Martinez-
Villareal's motion to "reopen" his Ford claim as a new
application for habeas corpus. The term suggests, however, that
Martinez-Villareal, at least, viewed the new application as a
continuation of, or motion for permission to continue, the
previously dismissed application.
33

it said, a claim dismissed as premature is analogous to one
dismissed for failure to exhaust state remedies:
But none of our cases expounding [the non-exhaustion]
doctrine have ever suggested that a prisoner whose habeas
petition was dismissed for failure to exhaust state
remedies, and who then did exhaust those remedies and
returned to federal court, was by such action filing a
successive petition. A court where such a petition was
filed could adjudicate these claims under the same standard
as would govern those made in any other first petition.
Id. Graham interprets Martinez-Villareal as holding that the new
application was a continuation of the dismissed petition and thus
not successive. The opinion provides no direct support for this
proposition, however. Rather, the Court held simply that a
habeas claim that has not been adjudicated on the merits is not
"successive" under AEDPA even if it has been brought before the
courts before and dismissed on procedural grounds. Both where a
claim is dismissed as premature and for failure to exhaust state
remedies, "the habeas petitioner does not receive an adjudication
of his claim. To hold otherwise would mean that a dismissal of a
first habeas petition for technical procedural reasons would bar
the prisoner from ever obtaining federal habeas review." Id.
The Court's conclusion provides no indication that the dismissed
application should be treated as a continuation of the first so
as to preclude the application of AEDPA. To the contrary, the
Court applied AEDPA in reaching its result.
Graham could fairly point out that in neither Gasery nor
Martinez-Villareal was the dismissed habeas application pending
34

on the date of AEDPA's enactment. That difference, he would
argue, compels the conclusion that AEDPA does not apply in his
own case even though it did in Gasery and Martinez-Villareal.
See Lindh, 521 U.S. at 323-24, 336 (holding that "the new
provisions of chapter 153 generally apply only to cases filed
after the Act became effective" and refusing to apply AEDPA to
Lindh because his first habeas application was pending in the
court of appeals on the date the statute was enacted). To accept
that conclusion would create a distinction between applications
in an identical procedural posture whose predecessor applications
were dismissed only a few days apart. That is, if a prisoner's
prior application was dismissed on or before April 23, 1996,
AEDPA would govern his "continuation" of this application; if it
was dismissed after April 23, 1996, AEDPA would not apply to the
"continuation" application. We can see no justification for this
disparate result.
As further support for his position that AEDPA does not
apply to his current application, Graham argues that federal
courts retain an interest in unexhausted habeas suits that they
do not in conventional civil suits dismissed without prejudice.12
12 Graham points to the federal courts' "inchoate" interest
in dismissed habeas cases in an effort to refute the state's
observation that habeas applications are a species of civil
action, see Fisher v. Baker, 203 U.S. 174, 181 (1906) (observing
that a federal habeas case is "a civil and not a criminal
proceeding"), and that civil suits dismissed without prejudice
are generally treated as though they had never been filed. For
example, in the limitations context, this circuit does not
35

For this reason, he claims, courts often have held or permitted
habeas cases to be held in abeyance pending the exhaustion of
state remedies, rather than dismissing them outright. As
examples, he points to Burris v. Farley, 51 F.3d 655, 659 (7th
Cir. 1995); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.
1993); Scott v. Dugger, 891 F.2d 800, 802 (11th Cir. 1989);
Giarratano v. Procunier, 891 F.2d 483, 485 (4th Cir. 1989);
Johnson v. Texas, 878 F.2d 904, 906 (5th Cir. 1989); Collins v.
Lockhart, 754 F.2d 258, 260 (8th Cir. 1985); and Chenault v.
Stynchcombe, 581 F.2d 444, 448 (5th Cir. 1978). Furthermore,
Graham insists, we recently made clear in Brewer v. Johnson, 139
F.3d 491, 493 (5th Cir. 1998), that district courts may either
hold an unexhausted federal habeas application in abeyance or
dismiss it without prejudice, subject to review for abuse of
consider a suit filed after a dismissal without prejudice a
continuation of the first suit. See Hawkins v. McHugh, 46 F.3d
10, 12 (5th Cir. 1995) ("A federal court that dismisses without
prejudice a suit arising from a federal statutory cause of action
has not adjudicated the suit on its merits, and leaves the
parties in the same legal position as if no suit had been
filed."); Lambert v. United States, 44 F.3d 296, 298 (5th Cir.
1995) ("[T]he district court's order dismissing the suit without
prejudice left Lambert in the same position as if the first suit
had never been filed."). Other circuits have reached the same
conclusion. See Chico-Velez v. Roche Prods., Inc., 139 F.3d 56,
59 (1st Cir. 1998); Johnson v. Nyack Hosp., 86 F.3d 8, 11 (2d
Cir. 1996); Garfield v. J.C. Nichols Real Estate, 57 F.3d 662,
666 (8th Cir. 1995). The state argues that, consistent with this
view, the dismissal of Graham's third federal habeas application
without prejudice means, in effect, that it was never filed and
was therefore not pending on the date AEDPA became effective for
purposes of deciding whether the statute governs Graham's current
application.
36

discretion. If a federal court can hold an unexhausted habeas
case in abeyance rather than dismiss it outright, Graham
contends, we should view his third habeas application not as
never having been filed, but as stayed pending exhaustion.
Graham misunderstands the law governing unexhausted federal
habeas applications. The Supreme Court has held that "a district
court must dismiss habeas petitions containing both unexhausted
and exhausted claims." Rose v. Lundy, 455 U.S. 509, 522 (1982).
Subsequent opinions have interpreted Lundy as requiring the
dismissal of an application containing any claims that have not
been exhausted in the state courts. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 731 (1991) ("This Court has long held
that a state prisoner's federal habeas petition should be
dismissed if the prisoner has not exhausted available state
remedies as to any of his federal claims."); Castille v. Peoples,
489 U.S. 346, 349 (1989) ("Respondent's habeas petition should
have been dismissed if state remedies had not been exhausted as
to any of the federal claims."); Engle v. Isaac, 456 U.S. 107,
124 n.25 (1982) ("If [an unexhausted due process claim] were
present, Rose v. Lundy, 455 U.S. 509 (1982), would mandate
dismissal of the entire petition."). Of course, because
exhaustion is based on comity rather than jurisdiction, there is
no absolute bar to federal consideration of unexhausted habeas
applications. See Lundy, 455 U.S. at 515; Narvaiz v. Johnson,
134 F.3d 688, 693 n.1 (5th Cir.), cert. denied, 118 S. Ct. 2364
37

(1998); Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir.), cert.
denied, 119 S. Ct. 344 (1998). Thus, under certain
circumstances, a federal court may consider an unexhausted habeas
application. See Granberry v. Greer, 481 U.S. 129, 134-35 (1987)
(concluding that a federal appellate court may consider an
application to which the state raises a non-exhaustion defense
for the first time on appeal). Unless the court decides to
consider an unexhausted application, however, Lundy dictates that
it be dismissed. Indeed, we recognized this principle in Graham,
94 F.3d at 968, when we noted, citing Lundy, that "[t]he
exhaustion doctrine, generally codified in section 2254(b) & (c),
requires that normally a state prisoner's entire federal habeas
petition must be dismissed unless the prisoner's state remedies
have been exhausted as to all claims raised in the federal
petition" and dismissed Graham's petition because he "presented
significant evidentiary support for his claims of actual
innocence and ineffective assistance of counsel that was never
presented to the state courts," id. at 969.
Moreover, neither the cases Graham cites nor the current
practice of the federal courts support the proposition that
abatement of an application containing unexhausted claims is
generally an acceptable substitute for dismissal. We turn first
to Graham's own citations. One of these, Chenault v.
Stynchcombe, 581 F.2d 444 (5th Cir. 1978), predates Lundy.
Burris and Fetterly held fully exhausted habeas applications in
38

abeyance pending exhaustion of other claims that had not yet been
presented to the state courts. See Burris, 51 F.3d at 658-59;
Fetterly, 997 F.2d at 1297-98; see also Calderon v. United States
Dist. Ct., 134 F.3d 981, 987 (9th Cir.) (pointing out that
Fetterly involved an application containing only exhausted
claims), cert. denied, 119 S. Ct. 274 (1998); Greenawalt v.
Stewart, 105 F.3d 1268, 1274 (9th Cir.) (same), cert. denied, 117
S. Ct. 794 (1997). It is not clear that the district courts in
Scott and Giarratano held in abeyance petitions containing
unexhausted claims; at any rate, neither appellant challenged the
legitimacy of such an action. See Scott, 891 F.2d at 802;
Giarratano, 891 F.2d at 485. Lockhart permitted the abatement of
an application containing unexhausted claims, but the Eighth
Circuit has since rejected its reasoning in that case. See
Victor v. Hopkins, 90 F.3d 276, 280-82 (8th Cir. 1996). Our own
court often has dismissed unexhausted habeas applications rather
than hold them in abeyance pending dismissal. See, e.g.,
Sterling v. Scott, 57 F.3d 451, 454 (5th Cir. 1995) (concluding
that the district court was required to dismiss the unexhausted
application and, citing Coleman, that it did not err in refusing
to hold it in abeyance); McGrew v. Texas Bd. of Pardons &
Paroles, 47 F.3d 158, 161 (5th Cir. 1995) ("McGrew's allegations
reflect that he has not exhausted his state remedies and,
therefore, insofar as his complaint can be construed as seeking
39

habeas relief, it must be dismissed for failure to exhaust.");13
Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998) ("A
habeas petition containing both exhausted and unexhausted claims
is a `mixed' petition which should be dismissed without
prejudice."); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.
1998) ("A federal habeas petition should be dismissed if state
remedies have not been exhausted as to all of the federal court
claims."). It is true, as Graham points out, that in Brewer, 139
F.3d at 493 (5th Cir. 1998), we stated, citing Johnson v. Texas,
878 F.2d 904 (5th Cir. 1989), that district courts may either
hold an unexhausted petition in abeyance or dismiss it without
prejudice. In Brewer, however, the prisoner had been appointed
counsel, but had not yet filed a federal habeas application, at
the time he sought to have his federal proceeding held in
abeyance. See 139 F.3d at 492. Thus, despite its citation to
Johnson, the court was not squarely confronted with a situation
in which a prisoner seeks to abate an application containing
unexhausted claims.
Similarly, several other circuits have concluded that
district courts should dismiss without prejudice, and not hold in
13 In the past, we have permitted district courts to abate
a prisoner's § 1983 action that we concluded should be treated as
a habeas corpus application. See Johnson v. Texas, 878 F.2d 904,
906 (5th Cir. 1989). This practice was an attempt to prevent the
§ 1983 statute of limitations from barring the prisoner's refiled
suit upon his post-exhaustion return to federal court. See Serio
v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119 (5th
Cir. 1987); Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983).
40

abeyance, habeas applications containing unexhausted claims. See
Calderon v. United States Dist. Ct., 144 F.3d 618, 620 (9th Cir.
1998) (stating that "a petition with exhausted and unexhausted
claims must be dismissed or the unexhausted claims stricken from
the petition," but permitting amendment of applications to delete
unexhausted claims and holding amended petition containing only
exhausted claims in abeyance pending exhaustion of deleted
claims); Christy v. Horn, 115 F.3d 201, 206-08 (3d Cir. 1997);
Victor, 90 F.3d at 280-83; see also Morris v. Bell, 124 F.3d 198,
No. 96-5510, 1997 WL 560055, *2-*3 (6th Cir. Sept. 5, 1997)
(unpublished table decision) (affirming dismissal of federal
habeas application for failure to exhaust even where prisoner
argued that district court should have abated proceedings so as
to prevent application of AEDPA upon post-exhaustion return to
federal court), cert. denied, 118 S. Ct. 1169 (1998). Thus,
there is no general consensus that dismissing a federal habeas
application for non-exhaustion is the equivalent of holding it in
abeyance pending exhaustion.
Certainly the Texas courts have acknowledged a fundamental
difference between the two. A district court that holds a habeas
petition in abeyance but does not dismiss it retains jurisdiction
over the case. See Ex parte Powers, 487 S.W.2d 101, 102 (Tex.
Crim. App. 1972). Therefore, as a matter of comity, the Texas
courts will not consider a habeas petition while a federal habeas
proceeding concerning the "same matter" or seeking the same
41

relief is presently pending. See May v. Collins, 948 F.2d 162,
169 (5th Cir. 1991); Carter v. Estelle, 677 F.2d 427, 435-36 (5th
Cir. 1982); Ex parte McNeil, 588 S.W.2d 592, 592-93 (Tex. Crim.
App. 1979); Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App.
1977); Powers, 487 S.W.2d at 102. Graham suggests that Texas's
habeas abstention doctrine forced the district court to dismiss
his application, that, but for the doctrine, it would have held
the proceeding in abeyance, and that we should therefore act as
though it did so. But he provides no evidence for his contention
that the lower court would have held his third federal
application in abeyance; indeed, it would not have been justified
in so doing even absent the Texas abstention doctrine.
Furthermore, Texas's refusal to consider a habeas petition
raising the same claims or seeking the same relief as a pending
federal application underscore the fact that dismissal and
abatement are not the same for all purposes.
Indeed, a contrary conclusion would allow a prisoner to
avoid AEDPA (and, inter alia, its statute of limitations) for
many years after the passage of the statute. We note that, when
Gasery himself returned to the district court after we held that
he was not required to seek permission under § 2244(b)(3)(A) to
file a new application when his initial application was dismissed
for failure to exhaust, the district court found it time-barred
under § 2244(d), even though he filed the first, dismissed
petition before Congress enacted AEDPA. See Gasery v. Johnson,
42

No. H-97-1685, slip op. (S.D. Tex. Mar. 5, 1998), appeal
docketed, No. 98-20221 (5th Cir. Mar. 30, 1998). According to
the district court,
if § 2244(d) were interpreted as Petitioner argues, the
result would be impractical. A habeas petitioner could file
a non-exhausted application in federal court within the
limitations period and suffer a dismissal without prejudice.
He could then wait decades to exhaust his state court
remedies and could also wait decades after exhausting his
state remedies before returning to federal court to
"continue" his federal remedy, without running afoul of the
statute of limitations.
Id. at 5-6. Construing an application filed after a previous
application is dismissed without prejudice as a continuation of
the first application for all purposes would eviscerate the AEDPA
limitations period and thwart one of AEDPA's principal purposes.
See 28 U.S.C. § 2244(d); H.R. CONF. REP. NO. 104-518, at 111
(1996), reprinted in 1996 U.S.C.C.A.N. 944, 944 ("[Title I of
AEDPA] incorporates reforms to curb the abuse of the statutory
writ of habeas corpus, and to address the acute problems of
unnecessary delay and abuse in capital cases. It sets a one year
limitation on an application for a habeas writ and revises the
procedures for consideration of a writ in federal court."). We
decline to do so.
Finally, we must address Graham's argument that this court
implicitly held when it dismissed his 1993 application that his
current application would not be subject to AEDPA. In his Motion
to Recall Mandate in Previous Habeas Appeal, Graham asserts:
"The Court's purpose clearly was not to avoid decision of the
43

merits of his claims, to give the new arguments that the merits
of Mr. Sankofa's claims should not be decided, or to foreclose
review of Mr. Sankofa's claims on the merits." Graham elaborates
further in his reply brief:
[The court] viewed [Graham's] case as a pre-AEDPA case, to
which the application of the AEDPA was not a material
question. There had been a ruling on the merits of the
issues in Mr. Sankofa's case in 1993, and the case had been
under submission in this Court since the oral argument in
March, 1994. The state did not want further exhaustion. In
these circumstances, this Court's decision to defer
addressing the merits and to require further exhaustion was
based wholly on its view that its eventual decision of the
merits would be enhanced by any additional resolution of
facts that the state courts might undertake. . . .
In these circumstances, it is not only fair, but
accurate, to infer that this Court viewed the dismissal for
further exhaustion and the eventual return of Mr. Sankofa's
case to the federal courts as a continuation of the 1993
habeas proceeding. . . . Now that the further exhaustion
ordered by this Court has occurred, and the state courts
have again declined to undertake additional factfinding
proceedings, and now that Mr. Sankofa has returned to the
federal courts with the same allegations and claims he had
in 1993, it is time for this Court to declare explicitly
what has been implicit--that the refiling of his federal
habeas case in 1998 "is merely a continuation of
his . . . [1993] collateral attack . . .," In re Gasery, 116
F.3d 1051, 1052 (5th Cir. 1997), for purposes of whether Mr.
Sankofa's 1993 case is still pending and, under Lindh, not
subject to the AEDPA.
As with Gasery, we think Graham reads too much into this court's
1996 decision in Graham v. Johnson, 94 F.3d 958 (5th Cir. 1996).
That opinion declined to accept the state's waiver of exhaustion.
See id. at 970-71. Not once did it mention AEDPA or suggest in
any way that a post-exhaustion application would be considered
under the same standards that prevailed in 1993. While it may be
true, as Graham points out, that at approximately the same time,
44

this court applied AEDPA to proceedings pending on the date of
the statute's enactment, see Moore v. Johnson, 101 F.3d 1069,
1072-74 (5th Cir. 1996); Drinkard v. Johnson, 97 F.3d 751, 764-66
(5th Cir. 1996), our failure to mention AEDPA in Graham's case
cannot be read as implying that it should not apply to him upon
his return to federal court. We had no reason to consider
AEDPA's impact on Graham, we made no pronouncements as to our
views on that topic, and we certainly did not hold that the
statute would not apply to a refiled post-exhaustion application.
4. Is AEDPA impermissibly retroactive as applied to
Graham's application?

Graham next argues that even if his most recent application
is not a continuation of its 1993 predecessor, AEDPA would be
impermissibly retroactive as applied to him. Landgraf v. USI
Film Products, 511 U.S. 244 (1994), and Lindh v. Murphy, 521 U.S.
320 (1997), must guide our inquiry. Under both these cases, we
look first to congressional intent in determining the temporal
reach of a statute. In Landgraf, the Court said:
When a case implicates a federal statute enacted after
the events in suit, the court's first task is to determine
whether Congress has expressly prescribed the statute's
proper reach. If Congress has done so, of course, there is
no need to resort to judicial default rules. When, however,
the statute contains no such express command, the court must
determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party
possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to
transactions already completed. If the statute would
operate retroactively, our traditional presumption teaches
that it does not govern absent clear congressional intent
45

favoring such a result.
511 U.S. at 280; see Kaiser Aluminum & Chem. Corp. v. Bonjorno,
494 U.S. 827, 837 (1990) ("[W]here the congressional intent is
clear, it governs."); cf. Lonchar v. Thomas, 517 U.S. 314, 328
(1996) (criticizing, in a pre-AEDPA regime, the practice of
amending a Federal Habeas Corpus Rule "through an ad hoc judicial
exception, rather than through congressional legislation or
through the formal rulemaking process"). Lindh indicated that
despite Landgraf's language about "express" congressional
commands, "in determining a statute's temporal reach generally,
our normal rules of construction apply." 521 U.S. at 326. Thus,
the Court concluded, congressional intent may be implied as well
as explicit:
Although Landgraf's default rule would deny application when
a retroactive effect would otherwise result, other
construction rules may apply to remove even the possibility
of retroactivity (as by rendering the statutory provision
wholly inapplicable to a particular case), as Lindh argues
the recognition of a negative implication would do here.14
Id.
14 Of course, a court will not apply a statute as Congress
directs if doing so would violate a constitutional provision,
such as the Ex Post Facto Clause or article I, § 10, cl. 1, which
prohibits states from passing laws "impairing the Obligation of
Contracts." See Landgraf, 511 U.S. at 266-67. But "[t]he
Constitution's restrictions . . . are of limited scope," and
"[a]bsent a violation of one of those specific provisions, the
potential unfairness of retroactive civil legislation is not a
sufficient reason for a court to fail to give a statute its
intended scope." Id. at 267.
46

When Congress's intent is not clear, however, we employ the
default rule against retroactivity, using the analysis laid out
in Landgraf to determine whether the statute is genuinely
retroactive. Although the Court did not articulate a bright-line
test for determining a law's temporal reach in the absence of
clear congressional intent, it warned that "[t]he Legislature's
unmatched powers allow it to sweep away settled expectations
suddenly and without individualized consideration," 511 U.S. at
266, and observed:
A statute does not operate "retrospectively" merely
because it is applied in a case arising from conduct
antedating the statute's enactment or upsets expectations
based in prior law. Rather, the court must ask whether the
new provision attaches new legal consequences to events
completed before its enactment. The conclusion that a
particular rule operates "retroactively" comes at the end of
a process of judgment concerning the nature and extent of
the change in the law and the degree of connection between
the operation of the new rule and a relevant past event.
Any test of retroactivity will leave room for disagreement
in hard cases, and is unlikely to classify the enormous
variety of legal changes with perfect philosophical clarity.
However, retroactivity is a matter on which judges tend to
have "sound . . . instinct[s]," and familiar considerations
of fair notice, reasonable reliance, and settled
expectations offer sound guidance.
Id. at 269-70 (emphasis added) (citations and footnote omitted).
With these principles in mind, we turn to the question we face
today.
a. Congressional Intent
As we observed above, it appears to us that Congress fully
intended that AEDPA govern applications such as Graham's. The
47

Second Circuit agrees with us. See Mancuso v. Herbert, 166 F.3d
97, 101 (2d Cir. 1999) ("We conclude that the AEDPA applies to a
habeas petition filed after the AEDPA's effective date,
regardless of when the petitioner filed his or her initial habeas
petition and regardless of the grounds for dismissal of such
earlier petition. . . . [T]his holding comports both with the
statute's plain meaning and with congressional intent.").
Several circuits, while not explicitly holding that AEDPA applies
to an application such as Graham's, have evaluated applications
in the same procedural posture with reference to AEDPA. See
Vancleave v. Norris, 150 F.3d 926, 927 (8th Cir. 1998) ("AEDPA's
restrictions on successive habeas petitions govern this petition
because it was filed two months after the statute's effective
date."); Hatch v. Oklahoma, 92 F.3d 1012, 1014 (10th Cir. 1996)
("Because the 1996 Act was already in place at the time of
Hatch's filing with this Court, the application of the 1996 Act
to his case is not retroactive, and thus does not implicate the
Ex Post Facto Clause."); cf. Pratt, 129 F.3d at 58 ("Congress
intended that AEDPA apply to all section 2255 petitions filed
after its effective date (April 24, 1996)."); In re Vial, 115
F.3d 1192, 1198 n.13 (4th Cir. 1997) (en banc) (assuming without
deciding that AEDPA applies to prisoner who filed his first
§ 2255 motion before and his second motion after AEDPA's
effective date). But see In re Minarik, 166 F.3d 591, 599 (3d
Cir. 1999) ("Based on our reading of Landgraf and Lindh, we join
48

two other courts of appeals in holding that AEDPA contains no
unambiguous guidance regarding retroactive application of AEDPA's
new `second or successive' petition standards and procedures to
cases in which the first habeas petition was filed before AEDPA's
enactment."); cf. United States v. Ortiz, 136 F.3d 161, 165 (D.C.
Cir. 1998) ("Congress did not expressly indicate whether the
AEDPA amendments to the procedures and standards for filing
second § 2255 motions are to be applied in cases where the first
§ 2255 motion was filed before the enactment of AEDPA."); In re
Hanserd, 123 F.3d 922, 924 (6th Cir. 1997) (same). Nevertheless,
even if Congress's intent on this score is not clear, § 2244(b)
is not impermissibly retroactive as applied to Graham.
b. AEDPA's New Procedural Requirements

Under Landgraf, the retroactivity analysis may have to be
applied separately to discrete parts of AEDPA. See 511 U.S. at
280 ("[T]here is no special reason to think that all the diverse
provisions of the [Civil Rights Act of 1991] must be treated
uniformly for [retroactivity] purposes."). Therefore, we first
consider AEDPA's new procedural requirement that before filing a
second or successive application, the prisoner must move in the
appropriate court of appeals for an order authorizing the
district court to consider the application. See 28 U.S.C.
§ 2244(b)(3)(A). Substituting the court of appeals for the
district court as the gatekeeper against abusive or procedurally
49

defaulted claims would seem to raise no retroactivity concerns.
A litigant has no reasonable expectation that a particular
tribunal will adjudicate his claims. See Landgraf, 511 U.S. at
274; Vial, 115 F.3d at 1199 (Hall, J., dissenting). Moreover,
§ 2244(b)(3)(A)'s requirement that a prisoner desiring to file a
second or successive habeas application first approach the court
of appeals is a purely procedural change that rarely raises
retroactivity concerns. See Landgraf, 511 U.S. at 275; Minarik,
166 F.3d at 599-600. Thus, we conclude that the district court
did not err in concluding that Graham was required to obtain an
order from us authorizing the district court to consider his
current habeas application. See Minarik, 166 F.3d at 599-600;
Hanserd, 123 F.3d at 934.
c. AEDPA's New Substantive Standards
We now consider whether applying AEDPA's new substantive
standards would have an impermissibly retroactive effect in
Graham's case. As a preliminary matter, we note that Graham's
situation does not present the typical retroactivity problem
because he filed his current application well after AEDPA became
law. Nevertheless, Graham contends that § 2244(b) would unfairly
devastate his settled expectations and attach new legal
consequences to an event--the filing of an unexhausted federal
habeas application in 1993--completed before its enactment. In
his reply brief, he argues that he relied on pre-AEDPA law in
50

deciding in 1993 to proceed to federal court without having
exhausted state remedies:
Mr. Sankofa "relied to . . . [a significant] extent on
the . . . [then existing] federal standards of habeas review
[of successive petitions in] making [his] strategic . . .
decision[] during the [1993 state and federal
habeas] . . . litigation," Drinkard, 97 F.3d at 766, to
forego further exhaustion of state remedies. In short, he
"relied to his detriment upon the pre-amendment versions of
[§ 2244] . . . ." Hunter, 101 F.3d at 1572. Had he known
in 1993 when he made this decision that, because of an
intervening and wholly unpredictable change in federal law,
he would not be able to have his constitutional claims heard
at all in federal court in 1998 if the federal courts
ordered him to re-exhaust state remedies, indisputably he
would not have taken the risk in 1993 that he might be
dismissed from federal court for non-exhaustion. Clearly,
"he would have proceeded . . . differently . . . ."
Drinkard, 97 F.3d at 766, by going through what appeared in
1993 to be a futile attempt to obtain relief in state court,
if for no other reason than to preserve the right to go back
to federal court after the state courts refused to hear his
case, which is what eventually happened.
Graham claims to have reasoned that if he was unable to convince
the federal courts that exhaustion was futile and the federal
court therefore dismissed his application, he would simply would
have exhausted his state remedies and, if unsuccessful in state
court, would have returned to federal court under the same law as
governed his dismissed application. But through no fault of his,
he asserts, resolution of his application was delayed for several
years. First, the state waived exhaustion; then the Fifth
Circuit waited three years before declining to accept the waiver
and ordering the dismissal of the application. By this time, a
new Texas statute made it considerably more difficult for
condemned prisoners to obtain a hearing on the merits of a
51

successive habeas application, and AEDPA created similar hurdles
in federal court. Thus, Graham argues, applying AEDPA in this
case would attach legal consequences to an act completed before
its enactment, as it was wholly unforeseeable in 1993 that the
filing of an unexhausted application later would subject Graham
to AEDPA's strict limitations on successive applications.
In evaluating Graham's argument, we turn first to Supreme
Court case law. As we said above, the Landgraf retroactivity
analysis focuses on "familiar considerations of fair notice,
reasonable reliance, and settled expectations." 511 U.S. at 270.
The Court noted, for example, that it often had applied a
presumption against statutory retroactivity in cases involving
contractual or property rights, "matters in which predictability
and stability are of prime importance," id. at 271, and observed
further that changes in procedural rules rarely raise
retroactivity problems because of "the diminished reliance
interests in matters of procedure," id. at 275.
A number of our fellow courts of appeals, following the high
Court's guidance, have analyzed this issue in terms of whether
AEDPA bars the successive habeas application of a prisoner who
relied on pre-AEDPA law in filing a previous application. We
find this approach sensible and correct given that retroactivity
is disfavored precisely because it upsets settled expectations;
if a litigant in no way relies on existing law, then a change in
that law cannot fairly be said to harm him. In Burris v. Parke,
52

95 F.3d 465 (7th Cir. 1996) (en banc), the Seventh Circuit
considered whether applying AEDPA to a successive application
filed after April 24, 1996 where the prisoner had filed a
previous application before that date was impermissibly
retroactive. The court concluded that AEDPA did not apply to the
second petition because the statute, if applied to the refiled
application, would attach a new legal consequence, namely that
Burris could not file a second application, to a completed event,
the filing of the first petition:
Had Burris foreseen the new law he would in all likelihood
have waited, as most prisoners do, until his second sentence
was affirmed and then filed a single petition for habeas
corpus consolidating his attacks on both the conviction and
the sentence. He made a deliberate choice to file two
petitions, having no way of knowing (unless gifted with
prevision) that the second petition would be subject to a
far more stringent test than the test in the existing law,
the test of abuse.
Id. at 468 (emphasis added).15 Later court of appeals opinions
distinguish Burris on the ground that the prisoners in their own
cases had not shown detrimental reliance on pre-AEDPA law. See
In re Magwood, 113 F.3d 1544, 1552 (11th Cir. 1997) ("The present
case, however, is distinguishable from Burris because Petitioner
has not relied to his detriment upon pre-AEDPA law."); In re
15 Under Lindh, of course, AEDPA would not apply to
Burris's second petition because it was pending on the date the
statute became law; indeed, the Seventh Circuit decided Burris
against the backdrop of its own opinion in Lindh v. Murphy, 96
F.3d 856 (7th Cir. 1996) (en banc), which the Supreme Court later
reversed. As we explain infra, however, Lindh does not overrule
Burris.
53

Medina, 109 F.3d 1556, 1563 (11th Cir. 1997) (applying AEDPA to a
successive habeas application even though a first application had
been filed before April 24, 1996 because the prisoner had not
shown detrimental reliance on pre-AEDPA law); Roldan v. United
States, 96 F.3d 1013, 1014 (7th Cir. 1996) (holding in § 2255
case that Burris did not apply because prisoner did not "contend
that he withheld issues from his first collateral attack in the
belief that the doctrine of abuse of the writ permitted such a
step").16
Lindh, which simply concludes that there was clear
congressional intent that AEDPA apply only to habeas cases filed
after its enactment, overrules neither the result nor the
analysis of Burris and its progeny. Indeed, several post-Lindh
courts have reaffirmed the detrimental reliance approach to
16 Before Lindh, our own court used detrimental reliance
analysis to decide whether AEDPA's increased deference to state
court factfindings, see 28 U.S.C. § 2254(d), applied to a case
pending on appeal on April 24, 1996. See Drinkard, 97 F.3d at
764-66. In Drinkard, we concluded that AEDPA applied to a
prisoner's habeas application because he could not "argue
credibly" that he would have proceeded any differently during his
state post-conviction proceedings had he known at the time of
those proceedings that the federal courts would not review claims
adjudicated on the merits in the state court proceedings de novo.
The Eleventh Circuit employed a similar mode of analysis. See
Hunter v. United States, 101 F.3d 1565, 1573 (11th Cir. 1996)
(discussing application of amended § 2253(c) and Federal Rule of
Appellate Procedure 22(b) to pending cases). Although Lindh
overruled Drinkard's holding, it did not discredit our analysis;
rather, it merely concluded that there was clear congressional
intent that AEDPA apply only to cases filed after the Act became
effective, and that further retroactivity analysis was therefore
unnecessary.
54

retroactivity problems where two habeas applications straddle the
Act's effective date. In Alexander v. United States, 121 F.3d
312 (7th Cir. 1997), the Seventh Circuit applied AEDPA to a
§ 2255 motion in the same procedural posture as Graham's current
habeas application because the prisoner could not show that he
had relied on pre-AEDPA law in litigating his previous § 2255
motions. Anthony Alexander filed his first collateral attack on
his criminal conviction before AEDPA became law. See id. at 313.
He then filed at least two additional motions after April 24,
1996; despite this, he claimed that AEDPA did not apply to him.
See id. at 313-14. The Seventh Circuit noted that "Alexander
made that contention in his last application, and we rejected
it." Id. at 314. It then quoted from a previous unpublished
order:
Alexander argues that, under Burris v. Parke, 95 F.3d 465
(7th Cir. 1996) (en banc), he need not satisfy the statutory
standard, because his first collateral attack predated the
AEDPA. This contention was resolved adversely to him when
he filed his second collateral attack. We observed then,
and reiterate now, that the new law applies because
Alexander has not furnished any evidence that, when omitting
issues from his first collateral attack, [begun] in 1995,
Alexander relied on a plausible belief that the approach
then governing--the "abuse of the writ" doctrine detailed in
McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed.
2d 517 (1991)--would have permitted a successive collateral
attack.
Id. (quoting Alexander v. United States, No. 96-9063 (7th Cir.
June 4, 1997) (unpublished order)). Moreover, the First Circuit
has concluded that even when a prisoner subjectively relies to
his detriment on pre-AEDPA law, he is exempt from the new statute
55

only if his reliance was reasonable. See Pratt, 129 F.3d at 59
(noting that "reliance upon pre-AEDPA law as a basis for
permitting a second petition rarely will [be objectively
reasonable]" because "[t]he `cause and prejudice' test that
McCleskey imposed to screen out abusive deployments of the writ
is notoriously difficult to pass" and "Pratt cannot satisfy its
rigors").
The Sixth Circuit is the only court of appeals that has
explicitly rejected a detrimental reliance analysis. See
Hanserd, 123 F.3d at 931. In Hanserd, the state argued that
because the prisoner did not "consciously" or "for strategic
reasons" omit an issue from his first habeas application, he
could not be said to have relied on the pre-AEDPA rule and would
have to proceed under AEDPA, if at all. See id. The court held
that where AEDPA bars a claim that could have been raised under
pre-AEDPA law, it attaches a new adverse legal consequence to an
event completed before its enactment and is therefore
impermissibly retroactive. See id. According to Hanserd, the
detrimental reliance approach is based on an incorrect reading of
Landgraf:
The central question in [Landgraf] was whether the 1991
Amendments to Title VII of the Civil Rights Act, which
provided for compensatory damages in hostile-work-
environment suits, should be applied to misconduct that
antedated the new law. The Court held that it did not
apply, even though the conduct at issue had been unlawful
for thirty years before the new law's enactment and could
previously have supported an award of damages. The Court
56

did not speculate as to whether the employer had consciously
relied on the old law in allowing discrimination
against the plaintiff.
Id. (citations and footnote omitted). In the same breath,
however, the court said: "Instead, the Court held that the new
provision should not be applied because doing so would attach a
significant new adverse legal consequence to the conduct such
that the defendant might have acted differently had he known of
that new consequence." Id. (emphasis added). Applying this
analysis to the case at hand, the court opined that "[u]nder the
old law, inmates were supposed to file § 2255 motions promptly.
Had Hanserd known that AEDPA would change this, and that his
initial § 2255 motion would bar a later motion based on a new
Supreme Court interpretation of § 924(c), he might well have
waited to file that initial motion." Id. (citations omitted).
But this approach--that a retroactive legal change is one such
that a party might have acted differently had he known of it--
amounts to the detrimental reliance rule that Hanserd purports to
reject. The only difference between the standard detrimental
reliance approach and Hanserd's formulation is that the former
requires a showing of actual reliance, while Hanserd demands
merely that the litigant might have relied on the superseded
legal regime.17
17 In addition to the Sixth Circuit, the Third Circuit has
held that if a prisoner "can show that he would have been
entitled to pursue his second petition under pre-AEDPA law, then
the Landgraf default rule prohibits applying AEDPA's new
57

Thus, the Supreme Court, many of the circuit courts, and
Graham's own briefs agree that the focus of our retroactivity
inquiry should be on the detrimental reliance he placed on pre-
AEDPA law and the extent to which the statutory changes upset his
settled expectations. Graham cannot show that he might have
reasonably relied on pre-AEDPA law in filing any of his federal
previous habeas applications.
As a preliminary matter, we note that it is the 1988
application, not the 1993 application, that makes Graham's
current application successive and potentially subject to
§ 2244(b). The relevant time frame for retroactivity analysis is
thus 1988, not 1993, because the current application is
successive to the one filed in the former year, not the latter.
That is, when the cases speak of AEDPA attaching new legal
consequences to an application filed before its effective date,
they mean that because the prisoner filed that pre-AEDPA
substantive gatekeeping provisions to bar his claims." Minarik,
166 F.3d at 602. Similarly, the District of Columbia Circuit has
held that "the new standards and procedures under AEDPA for
filing § 2255 motions could only be improperly retroactive as
applied to [the prisoner] if he would have met the former cause-
and-prejudice standard under McCleskey and previously would have
been allowed to file a second § 2255 motion, but could not file a
second motion under AEDPA." Ortiz, 136 F.3d at 166. Both of
these courts concluded that pre-AEDPA law would have barred the
prisoner's successive application and did not consider a
situation in which pre- and post-AEDPA law would have led to
different results but there was no detrimental reliance. A
number of other courts, as we noted above in Subsection
III.A.4.a, have applied AEDPA to applications in the same
procedural posture as Graham's without explicitly considering the
retroactivity issue.
58

application, he becomes subject to § 2244(b), which in turn
effectively bars a post-AEDPA application. In Graham's case,
AEDPA does not attach new legal consequences in this sense to the
1993 application, but to the 1988 one. Graham has not alleged
detrimental reliance on pre-AEDPA law in 1988, and he cannot even
plausibly claim that he might have acted differently had he known
that AEDPA later would bar his claims. Even under pre-AEDPA law,
a prisoner was required to present all his claims in his first
application, see McCleskey, 499 U.S. at 494-95 (holding that a
prisoner wishing to bring a new claim in a second or successive
habeas application had to show either that the application did
not constitute an "abuse of the writ" or that he had made "a
colorable showing of innocence"), and it would not have been
reasonable for Graham consciously to hold back claims that he has
conceded, see infra Section III.C, he could have included in the
1988 application. Thus, unlike the prisoner in Hanserd, who
filed his § 2255 motion promptly in obedience to the statute in
effect at the time, Graham defied pre-AEDPA law by neglecting to
include claims and evidence that he could have discovered in 1988
in his first application. Accordingly, AEDPA is not retroactive
with respect to Graham's 1988 application under any detrimental
reliance approach.
Graham, however, argues that AEDPA attaches new legal
consequences to his 1993 application: namely, that when he filed
it, he thought that he would be able to return to federal court
59

under existing (pre-AEDPA) law, but if the new statute applies,
he cannot. But AEDPA does not "attach new legal consequences" to
the 1993 application in the sense that his current application is
barred because he filed the unexhausted application. Rather, the
1993 application has legal consequences only insofar as filing
the unexhausted application delayed the third federal habeas
proceeding so long that state and federal statutes modifying the
scope of habeas relief were enacted during its pendency.18 Even
putting aside the argument that such delay may have been Graham's
goal, he had no right to place any reliance on the filing of an
unexhausted application. Under Keeney v. Tamayo-Reyes, 504 U.S.
1, 5-12 (1992), he was required to present his new evidence to
the state courts before bringing it to federal court. Although
the state waived the exhaustion requirement, it did so after
Graham decided to file his unexhausted application and could have
played no role in his initial decision to file.19 Thus, Graham's
18 In addition, the 1993 application could have affected
Graham adversely only if, had he exhausted state remedies before
filing his federal application, he would have reached federal
court before the passage of AEDPA.
19 Fifth Circuit case law suggested that the federal courts
typically would honor such a waiver. In McGee v. Estelle, 722
F.2d 1206, 1211 (5th Cir. 1984), we held:
If, out of respect, the federal courts defer to the state so
that its courts can first pass on claims that the state has
denied a person his constitutional rights, it is a corollary
that they should defer equally to the state's desire that
federal courts not abide a state court ruling. The
supremacy of the federal constitution and the laws made
pursuant to it do not convert the fifty states into
60

reliance argument boils down to this: He deliberately flouted
federal law by filing an unexhausted application, expecting that
if it were dismissed without prejudice, he could return to state
court and then, perhaps, to federal court under the same law that
had been in effect when he filed the unexhausted application. We
find such reliance patently unreasonable.20
5. Does applying AEDPA to Graham's application constitute
an unconstitutional suspension of the writ of habeas
corpus and violate the Fifth, Eighth, and Fourteenth
Amendments?
dependencies. Respect should not turn into a fetish for
non-precedence with the federal Alphonse endlessly insisting
that the state Gaston pass first through the doorway without
regard for Gaston's wishes.
The McGee court also asserted, "In the usual case . . .
federalism, expense to litigants, and the conservation of
judicial resources are all served by honoring the waiver and
deciding the merits." Id. at 1214. But none of the applicable
case law requires a federal court to accept a state's waiver of
exhaustion. Indeed, McGee said: "A finding of waiver does not
conclude our consideration, for a district court or a panel of
this court may consider that it should not accept a waiver,
express or implied." Id. Thus, while Graham may have hoped that
the federal courts would accept the state's waiver, it was not
reasonable for him to rely on such an acceptance.
20 The state urged both in its briefs and in oral argument
that we should deny Graham's Motion for Order Authorizing
District Court to Consider Successive Habeas Petition because his
current application is time-barred under 28 U.S.C. § 2244(d). We
need not reach the limitations question, however, because Graham
concedes, see infra Section III.C, that he cannot meet the
requirements for the issuance of such an order. We express no
opinion as to whether a court of appeals should consider the
timeliness of a habeas application in deciding a prisoner's
motion for authorization to file it.
61

Finally, Graham presents a sketchy argument that AEDPA cuts
off federal court review of a constitutional violation that
resulted in a conviction and death sentence for a factually
innocent person and, as such, constitutes an unconstitutional
suspension of the writ of habeas corpus and a violation of the
Fifth, Eighth, and Fourteenth Amendments.
We accept Graham's concession that AEDPA would preclude his
application, see infra, but we do not agree that the statute is
therefore unconstitutional. The Supreme Court has rejected the
argument that AEDPA's new restrictions on successive habeas
petitions are a "suspension" of the writ of habeas corpus
contrary to article I, § 9, clause 2 of the federal Constitution.
See Felker, 518 U.S. at 663-64.
Nor do AEDPA's amendments to § 2244(b) violate the Fifth,
Eighth, and Fourteenth Amendments. We have found no support for
Graham's argument that denying federal court review of a
successive habeas application alleging that constitutional
violations resulted in the conviction of an innocent person
contravenes due process and constitutes cruel and unusual
punishment. The Supreme Court has stated that a procedural
limitation "is not subject to proscription under the Due Process
Clause unless it offends some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental." Medina v. California, 505 U.S. 437, 445 (1992)
(quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977))
62

(citations and internal quotation marks omitted). As Felker
pointed out, the first Congress made the writ of habeas corpus
available only to federal, not state, prisoners. See 518 U.S. at
663. Thus, the Framers could not have viewed the availability of
habeas relief to inmates such as Graham as "so rooted in the
traditions and conscience of our people as to be ranked as
fundamental." Even assuming, as Felker did, see id. at 663-64,
that state prisoners' right to petition federal courts for writs
of habeas corpus has become such a fundamental prerogative over
the years, AEDPA's restrictions on successive applications fall
within Congress and the courts' traditional power to limit abuses
of the writ. "[T]he doctrine of abuse of the writ refers to a
complex and evolving body of equitable principles informed and
controlled by historical usage, statutory developments, and
judicial decisions. The added restrictions which the Act places
on second habeas petitions are well within the compass of this
evolutionary process . . . ." See id. at 664 (citations and
internal quotation marks omitted). As such, we do not see how
the pre-AEDPA abuse-of-the-writ standards can be fundamental to
our notions of due process. Similarly, a punishment is not cruel
and unusual so as to violate the Eighth Amendment unless it is
inhuman and barbarous, see In re Kemmler, 136 U.S. 436, 447
(1890), or, in a more modern formulation, "shocks the conscience
and sense of justice of the people," Furman v. Georgia, 408 U.S.
238, 360 (1972) (Marshall, J., concurring). Given that AEDPA's
63

successive application rules are, in the words of the Supreme
Court, "well within" the traditional authority of Congress and
the courts to curb abuses of the writ, we do not see how they can
"shock the conscience."
Finally, assuming for the purpose of argument only that
Graham is actually innocent, this court has rejected a claim such
as that made by Graham that the execution of an innocent person,
even where no constitutional violation has taken place,
contravenes the Fifth, Eighth, and Fourteenth Amendments. While
the Supreme Court assumed arguendo that in a capital case a
"truly persuasive" demonstration of actual innocence made after
trial would render the execution of a defendant unconstitutional
and warrant federal habeas relief if there were no state avenue
open to process such a claim, Herrera, 506 U.S. at 417, we have
rejected that theory, see Lucas v. Johnson, 132 F.3d 1069, 1074-
76 (5th Cir.), cert. dism'd, 1998 WL 313489 (1998). Moreover,
there is a state avenue open to Graham: He retains his right to
petition the Texas Board of Pardons and Paroles for clemency.
In summary, we find that AEDPA, as construed by the Court in
Lindh, applies by its terms to Graham's fourth federal habeas
application. We reject Graham's contention that this application
is a continuation of the application dismissed in 1996 for
failure to exhaust state remedies for purposes of determining
whether AEDPA applies. If we are wrong in concluding that
Congress clearly evinced an intent that AEDPA should govern
64

applications such as Graham's, we nevertheless find that the
statute is not impermissibly retroactive as applied to Graham's
fourth application. Finally, we hold that applying AEDPA to
Graham's current application does not violate the Constitution.
In this case, Congress has spoken, and we are compelled to
listen.
B. Motion to Recall Mandate in Previous Habeas Case
As an alternative to finding that § 2244(b) does not apply
to his application, Graham urges us to recall the mandate in his
third federal habeas proceeding, Graham v. Johnson, 94 F.3d 958
(5th Cir. 1996), ordering the district court to dismiss the
application in that case for failure to exhaust state remedies.
Citing Thompson, 118 S. Ct. at 1498, he asserts that the courts
of appeals have an inherent power, to be used as a last resort
against "grave, unforeseen contingencies," id., to recall their
mandates and that they may revisit the merits of an earlier
decision denying habeas corpus relief to a state prisoner if they
act to "avoid a miscarriage of justice as defined by our habeas
corpus jurisprudence," id. at 1502. A prisoner meets this
standard, Graham says, if he demonstrates that "it is more likely
than not that no reasonable juror would have convicted him in
light of the new evidence presented in his habeas petition." Id.
at 1503. Applying these principles to his own case, Graham
contends that the 1996 dismissal without prejudice was not meant
65

to cause harm to his legal rights and interests and that the
court's intentions were thwarted by a grave, unforeseen
contingency--namely, the passage of the 1995 Texas habeas statute
and AEDPA. Because he can show that recalling the 1996 mandate
would avert a miscarriage of justice, he argues, he is entitled
to such relief. But Thompson held that if a court of appeals
recalls a pre-AEDPA mandate as a result of a post-AEDPA motion,
AEDPA applies to the motion, although this is not true if the
court recalls its mandate of its own accord. See id. at 1499-
1500. Our consideration of Graham's argument is, quite
obviously, not a sua sponte decision but a response to his
request that we do so. AEDPA therefore applies to Graham's Motion
to Recall Mandate in Previous Habeas Case; because he concedes,
see infra, that he cannot meet AEDPA's substantive requirements,
we must deny that motion.
C. Motion for Order Authorizing District Court to Consider
Successive Habeas Petition
Under AEDPA, a court of appeals may authorize a district
court to consider a second or successive habeas application only
if it determines that the application makes a prima facie showing
that the application satisfies the requirements of § 2244(b).
See 28 U.S.C. § 2244(b)(3)(C). Graham concedes that he cannot
make any such showing, either with respect to the claims he
brought in his earlier application or those never before
presented. He admits that § 2244(b)(1)'s absolute bar against
66

re-raising "in a second or successive habeas corpus application
under section 2254" a claim "that was presented in a prior
application" precludes the alibi defense aspect of his
ineffective assistance and actual innocence claims, which he
raised in his first federal habeas proceeding in 1988. Graham
also acknowledges that AEDPA bars his previously unpresented
claims. According to his Motion for Order Authorizing District
Court to Consider Successive Habeas Corpus Petition, his current
application "relies on his actual innocence, not on `a new rule
of constitutional law,' to satisfy the criteria of § 2244(b)."
Thus, under § 2244(b)(2)(B), he must show that (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 him guilty of the
underlying offense. These requirements, Graham admits, foreclose
67

his application.21 In his Motion for Order Authorizing District
Court to Consider Successive Habeas Petition, he states:
The AEDPA's addition of another requirement, in
addition to the actual innocence requirement, for the
presentation of a previously-unpresented claim in a
successive habeas petition--"the factual predicate for the
claim could not have been discovered previously through the
exercise of due diligence," 28 U.S.C. §§ [sic]
2244(b)(2)(B)(i)--has a preclusive effect in Mr. Sankofa's
case. The information that allowed Mr. Sankofa to present
his multi-faceted claims of ineffective assistance and
innocence in 1993 was the offense report in the district
attorney's file, Appendix 17 to the 1998 federal habeas
petition. This report was obtained through a state open
records act request that could as readily have been made in
connection with the first habeas proceeding in 1988 as it
was in connection with second habeas proceeding in 1993.
Thus, Mr. Sankofa will not be able to show that "the factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence," 28 U.S.C.
§§ [sic] 2244(b)(2)(B)(i). Under the law that applied to
Mr. Sankofa's petition in 1993, he is entitled to have his
ineffective assistance and actual innocence claims
considered on the merits. Under the AEDPA, he will not be.
Graham's habeas counsel also conceded at oral argument: "We
acknowledge that we cannot show that these claims could not have
been raised in 1988." The following colloquy with the court
ensued:
21 Graham's briefs do not explicitly address whether the
third claim in his current habeas application--namely, that he
was unconstitutionally tried as an adult and that the Texas death
penalty statute does not permit adequate consideration of youth
as a mitigating factor--meets § 2244(b)'s requirements. The
former claim apparently has not been raised before and is
governed by § 2244(b)(2). Graham does not contend that it is
based on a new rule of constitutional law or that he could not
have discovered the factual basis for it in 1988, when he filed
his first federal habeas application. The latter claim was
thoroughly litigated in his first federal habeas proceeding, see
supra Part I, and is barred under § 2244(b)(1).
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THE COURT: So your view is, then, that if the AEDPA applies
to this petition, then you don't have a case.
COUNSEL: If the AEDPA applies in every way that it is
written, that's right. We are precluded. And there is--
there is--
THE COURT: This is really, in a basic sense, a one-issue
case. I mean, you have all of this, uh, evidence that
you've brought forward, but it all comes down to the
question of, a legal question, which is, does the AEDPA
apply to the habeas petition that's pending in front of us?
COUNSEL: That's exactly right.
THE COURT: If it does, you don't have a case; if it
doesn't, then you think that you do.
COUNSEL: I mean, we certainly think we have at least the
case that we had in 1993.
AEDPA does apply to Graham's application. He concedes that he
cannot meet its requirements for filing a second or successive
habeas application. Under these circumstances, we are compelled
to deny his motion for an order authorizing the district court to
consider such an application.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court and DENY Graham's Motion to Recall the Mandate in
Previous Habeas Case. As stated in our order of February 8,
1999, Graham's Motion for Order Authorizing District Court to
Consider Successive Habeas Petition is likewise DENIED.
69