In Re Minarik v.

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

2-3-1999

In Re Minarik v.

Precedential or Non-Precedential:

Docket 97-8146

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Filed February 3, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-8146

IN RE: JOHN PAUL MINARIK

Petitioner

On Petition for Leave to file a Second

or Successive Habeas

Petition Pursuant to 28 U.S.C. Section 2244(b)

(Related to Western District of PA Civil No. 97-01832)

District Judge: Honorable Gary L. Lancaster

Argued June 17, 1998

BEFORE: STAPLETON, SCIRICA and MCKEE,

Circuit Judges

(Opinion Filed February 3, 1999)

Vincent R. Baginski (Argued)

430 Boulevard of the Allies

Pittsburgh, PA 15219

Attorney for Petitioner

Russell K. Broman (Argued)

Office of the District Attorney

401 Allegheny County Courthouse

Pittsburgh, PA 15219

Attorney for Respondents

OPINION OF THE COURT

STAPLETON, Circuit Judge:

We have before us John Minarik's second petition for

relief under 28 U.S.C. S 2254. It was tendered to the

District Court after the enactment of the Anti-terrorism and

Effective Death Penalty Act of 1996 ("AEDPA") and

transferred to this Court pursuant to the provisions of that

act. Minarik's first S 2254 petition wasfiled prior to

AEDPA's passage. We must decide whether the gatekeeping

provisions made applicable to "second or successive

petitions" by 28 U.S.C. S 2244 as amended by AEDPA

should be applied in Minarik's case. We conclude that such

application would have no impermissible retroactive effect

and, accordingly, that AEDPA's modified version ofS 2244

requires us to deny him permission to proceed with his

successive petition.

I.

On February 7, 1971, Minarik killed his former fiancee

with an ax. In October 1971, Minarik pleaded guilty to the

murder. The Allegheny County Court of Common Pleas

convicted Minarik of first degree murder and sentenced him

to life imprisonment. Minarik did not pursue a direct

appeal. In 1977, Minarik filed a motion to withdraw his

guilty plea. The Court of Common Pleas granted the

motion. That decision, however, was ultimately overturned

by the Pennsylvania Supreme Court, and Minarik was not

permitted to withdraw his plea. Commonwealth v. Minarik,

427 A.2d 623 (Pa. 1981).

In 1981, Minarik filed his first federal habeas corpus

petition alleging two grounds for relief. First, Minarik

claimed that he had not knowingly, intelligently and

voluntarily entered his guilty plea because (1) th e trial

court failed to explain the requisite mental state required

for first degree murder, and (2) he had no memor y of the

events surrounding the murder. Second, Minarik claimed

that the Pennsylvania Supreme Court's reversal of the

2

Court of Common Pleas' decision allowing Minarik to

withdraw his guilty plea violated his due process and equal

protection rights. An extensive evidentiary hearing was held

to examine the circumstances surrounding Minarik's guilty

plea. Two significant sources of testimony highlighted the

hearing. First, expert witnesses testified about the possible

effects of mixing alcohol and Triavil, an anti-depressant

prescription drug that Minarik had been taking at the time

of the murder. Second, Minarik's trial counsel, Ralph J.

Cappy, testified that he had thoroughly discussed all of the

elements of, and defenses to, the first degree murder charge

with Minarik before he entered his plea. According to

Cappy, Minarik insisted upon pleading guilty against his

advice. The District Court denied Minarik's petition and

this Court affirmed.

On April 24, 1996, President Clinton signed into law the

Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"). 110 Stat. 1214. AEDPA substantially revised the

law governing federal habeas corpus codified in chapters

153 and 154 of Title 28. See 28 U.S.C. SS 2241-66. AEDPA

contains "gatekeeping" provisions that establish new

procedural and substantive standards governing "second or

successive" habeas petitions. Id. S 2244. Procedurally, the

AEDPA amendments require petitioners to file a motion in

the appropriate Court of Appeals requesting an order

authorizing the District Court to consider their"second or

successive" application. Id. S 2244(b)(3)(A). A three judge

panel of the Court of Appeals may grant such a motion only

where the petitioner establishes a prima facie case that the

application satisfies AEDPA's new substantive standards

regarding "second or successive" petitions. Id.

S 2244(b)(3)(C). Notably, the new substantive standards

governing the allowance of second or successive

applications are more rigorous than the pre-AEDPA

standard developed by the courts interpreting the prior

version of S 2244. See James S. Liebman & Randy Hertz,

Federal Habeas Corpus Practice and Procedure S 28.3a, at

271 (Supp. 1997)("[AEDPA] sharply narrow[ed] the (already

extremely narrow) circumstances in which new-claim

successive petitions are permitted").

On October 6, 1997, following another unsuccessful bid

for post conviction relief in state court, Minarikfiled a

3

second federal habeas corpus petition, the subject of this

appeal, stating three grounds for relief. First, Minarik

claims that his trial counsel's failure to discover the

availability of an involuntary intoxication defense deprived

him of effective assistance of counsel. Second, Minarik

repeats his contention that he did not knowingly,

intelligently and voluntarily enter his guilty plea. Third,

Minarik claims that the state court violated his Fourteenth

and Sixth Amendment rights when it refused to hold an

evidentiary hearing regarding his claim that trial counsel

disregarded his request to file a direct appeal.

Because Minarik had filed a previous habeas petition in

1981, the District Court transferred Minarik's second

petition to this Court to permit us to perform our new

gatekeeping function under 28 U.S.C. S 2244(b)(3)(A).

Discerning a possible retroactivity problem, we requested

that the parties brief the issue of whether 28 U.S.C.

S 2244's "second or successive" petition provisions, as

amended by AEDPA, apply in a case where the first petition

was filed prior to AEDPA's enactment.

II.

Two Supreme Court decisions guide our retroactivity

analysis in this case. First, we must consider Landgraf v.

USI Film Products, 511 U.S. 244 (1994), the landmark case

which establishes the analytical framework governing

retroactivity issues. Second, we must consult the Court's

more recent decision in Lindh v. Murphy, 117 S.Ct. 2059

(1997), where it provided additional guidance regarding

Landgraf retroactivity analysis in a case involving AEDPA.

In Landgraf, the Court considered whether provisions of

the Civil Rights Act of 1991 that provided expanded rights

to recover compensatory and punitive damages in Title VII

suits, and the right to a jury trial in cases involving claims

for such damages, could be applied to cases pending when

the Act took effect. Landgraf, 511 U.S. at 247. The Court

found in its case law a strong historical presumption

against the retroactive application of statutes:

[T]he presumption against retroactive legislation is

deeply rooted in our jurisprudence, and embodies a

4

legal doctrine centuries older than our Republic.

Elementary considerations of fairness dictate that

individuals should have an opportunity to know what

the law is and to conform their conduct accordingly;

settled expectations should not be lightly disrupted.

For that reason, the principle that the legal effect of

conduct should ordinarily be assessed under the law

that existed when the conduct took place has timeless

and universal appeal. In a free dynamic society,

creativity in both commercial and artistic endeavors is

fostered by a rule of law that gives people confidence

about the legal consequences of their actions.

Id. at 265-66 (citations omitted). The Court noted that

several constitutional provisions manifest similar anti-

retroactivity principles.1 Recognizing the "limited scope" of

the constitutional restrictions, however, the Court indicated

that, absent a violation of such a constitutional provision,

the traditional anti-retroactivity presumption permits

retroactive application only where "Congressfirst makes its

intention clear [so as to leave no question] that Congress

itself has determined that the benefits of retroactivity

outweigh the potential for disruption or unfairness." Id. at

268. The Court then announced a two part test for

statutory retroactivity problems:

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

_________________________________________________________________

1. Id. at 266. Article I contains two direct prohibitions upon retroactive

application. First, the Ex Post Facto clauses prohibit retroactive

application of criminal laws by state and federal governments. Id. (citing

U.S. Const. art. I, SS 9-10). Second, the Bills of Attainder clauses

forbid

"legislatures from singling out persons and meting out summary

punishment for past conduct." Id. Additionally, the Constitution contains

a number of indirect limitations upon retroactivity (i) States are limited

in their ability to enforce laws "impairing the Obligation of Contracts";

(ii) the Fifth Amendment's Takings Clause preclude s legislatures from

taking private property except where there is a"public purpose" and

"just compensation"; and (iii) the Due Proce ss Clauses "protect the

interests in fair notice and repose that may be compromised by

retroactive application." Id. (citations omitted).

5

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 favoring such

a result.

Id. at 280.

Finally, the Landgraf Court identified three categories in

which "application of new statutes passed after the events

in suit is unquestionably proper" even "absent specific

legislative authorization." Id. at 273. First, "when the

intervening statute authorizes or affects the propriety of

prospective relief, the application of the new provision is

not retroactive." Id. at 273. Second, courts may apply

statutes "conferring or ousting jurisdiction, whether or not

jurisdiction lay when the underlying conduct occurred or

when the suit was filed." Landgraf, 511 U.S. at 274. Third,

"[c]hanges in procedural rules may often be applied in suits

arising before their enactment without raising concerns

about retroactivity." Landgraf, 511 U.S. at 275.

Applying these principles, the Court concluded that the

1991 Act's damages provisions could not be applied to

cases pending at the time of enactment because Congress

failed to provide an "explicit command" regarding

retroactivity and applying the new damages provisions

would have a "genuine retroactive effect" by attaching new

legal consequences to events completed before the Act's

enactment. Id. at 280-84.2

_________________________________________________________________

2. The Court noted that statutory provisions conferring a right to a jury

trial are procedural and ordinarily are applied to pending cases that have

not been tried. Since the Act called for jury trials only in those

situations

where the plaintiff seeks to enforce the newly created right, however, the

jury trial option had to "stand or fall with the attached damages

provisions." Id. at 281.

6

In Lindh, the Court considered whether AEDPA's new

standards for granting habeas petitions in non-capital

cases under 28 U.S.C. S 2254(d) could be applied to cases

pending at the time AEDPA was enacted. 117 S. Ct. at

2059. The District Court had denied Lindh's habeas corpus

application in 1995. Shortly after oral argument in Lindh's

appeal before the Seventh Circuit Court of Appeals, AEDPA

became effective substantially modifying federal habeas

corpus law. After en banc reconsideration, the Court of

Appeals applied Landgraf and concluded that the AEDPA

modified version of S 2254(d) could be applied to Lindh's

case because it did not "attach new legal consequences" to

events completed before enactment, and therefore did not

result in a genuine retroactive effect. The Supreme Court

reversed, holding that Congress did not intend to apply

AEDPA's habeas corpus amendments to non-capital cases

pending when AEDPA became effective.

The Lindh majority began by stating that Landgraf stood

for the proposition that "where a statute [does] not clearly

mandate an application with retroactive effect, a court

[must] determine whether applying it as its terms ostensibly

indicated would have [sic] genuinely retroactive effect; if so,

the judicial presumption against retroactivity would bar its

application." Id. at 2062. The Court rejected, however, the

respondent's contention that "whenever a new statute on

its face could apply to the litigation of events that occurred

before it was enacted, there are only two alternative sources

of rules to determine its ultimate temporal reach: either an

`express command' from Congress or application of our

Landgraf default rule." Id. Instead, the Court stated that:

[i]n determining whether a statute's terms would

produce a retroactive effect . . . and in determining a

statute's temporal reach generally, our normal rules of

construction apply. 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).

Id. at 2063.

7

The Court further stressed that Landgraf's retroactivity

analysis must be case-specific:

In sum, if the application of a [statutory] term would be

retroactive as to [the particular party affected], the

term will not be applied, even if in the absence of

retroactive effect, we might find the term applicable.

Id.

Applying "normal rules of construction" to determine

congressional intent regarding AEDPA's temporal reach, the

Court observed that all of AEDPA's habeas corpus

amendments are found in Title I of the Act, and that Title

I's amendments can be divided into two categories:

(i) amendments to chapter 153 of Title 28 governin g all

federal habeas corpus proceedings found in #8E8E # 101-106 of

the Act, and (ii) amendments establishing a new ch apter

154 of Title 28 governing habeas proceedings against

qualifying states in capital cases found in S 107 of the Act.

See id. (citing 110 Stat. 1217-26). Notably,S 107(c) provides

that "[c]hapter 154 . . . shall apply to cases pending on or

after the date of enactment of this Act." 110 Stat. 1226.

According to the Court, "the negative implication of S 107(c),

is that the new provisions of chapter 153 generally apply

only to cases filed after the Act became effective." Lindh,

117 S.Ct. at 2068. Thus, the AEDPA modified chapter 153

standards for granting applications for habeas relief could

not be applied to Lindh's case because it was "pending" on

appeal when AEDPA became effective.

We read Landgraf and Lindh as establishing the following

principles that we must employ in resolving the issues

before us:

1. There is a strong presumption against applying a

statute in a manner that would attach "new legal

consequences" to events completed before the statute's

enactment, i.e., a manner that would "impair rights a

party possessed when he acted, increase a party's

liability for past conduct, or impose new duties."

Landgraf, 511 U.S. at 280.

2. If Congress has focused on the issue, "has

determined that the benefits of retroactivity outweigh

8

the potential for disruption or unfairness," and has

provided unambiguous evidence of its conclusion by

directing that retroactive effect be given, then, and only

then, will the presumption be overridden.

3. Consistent with these principles, normal rules of

statutory construction "may apply to remove . . . the

possibility of retroactivity." Nothing short of an

unambiguous directive, however, will justify giving a

statute a retroactive effect. Thus, when normal rules of

statutory construction indicate that a statute is

intended to be applied in a manner involving no

retroactive effect, a Court need inquire no further. On

the other hand, if such construction suggests that a

retroactive effect may have been intended, the

traditional presumption nevertheless bars retroactive

application unless an unambiguous congressional

directive is found.3

III.

With these principles in mind we address Minarik's claim

that applying AEDPA's "second or successive application"

procedures and standards to his case would result in an

impermissible retroactive application of the statute.

_________________________________________________________________

3. We recently distilled these principles from Landgraf and Lindh in

Mathews v. Kidder Peabody & Co., Inc., 161 F.3d 156 (3d Cir. 1998). In

Mathews, we employed a three-step analysis that, in the first step, called

for the Court to determine whether Congress had provided an "express

command" regarding the statute's temporal reach and, in the third step,

called for the Court to ascertain whether there was a "clear

[congressional] intent" to apply the statute retroactively. Id. at 161.

Because we found neither an "express command" nor a "clear"

expression of intent, we declined to give the statute retroactive effect.

Our analysis left open the possibility that giving retroactive effect may

be

justified by reference to legislative history and statutory purpose even

in

the absence of an unambiguous directive in the statute's text. Compare

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (requiring

"an intention unmistakably clear in the language of the statute" as

satisfactory evidence that Congress focused on and decided to abrogate

Eleventh Amendment immunity). We have no occasion to resolve that

issue here. As in Mathews, there is nothing in the AEDPA's purpose or

its legislative history that is even arguably sufficient to override the

presumption against retroactive effect.

9

As a threshold matter, we note that the Lindh decision's

construction of AEDPA's temporal reach does not control

the outcome of this case. Lindh held that AEDPA's text,

read in light of normal principles of statutory

905<!>interpretation, evidences a congressional intent that

AEDPA's chapter 153 amendments should generally be

applied to petitions, like Minarik's, filed after April 24,

1996, the effective date of the Act, but not to petitions, like

Lindh's, filed before. This does not resolve the issue before

us, however. The finding of congressional intent in Lindh

was based on the drawing of a negative inference from

Congress's express mandate that AEDPA's new rules

regarding certain death penalty cases apply to pending

cases. Because Congress had expressly provided for

application to pending capital cases, but not to pending

non-capital cases, it was a fair inference that Congress did

not intend retrospective application to the latter. Landgraf

and Lindh make clear, however, that while such an

inference is sufficient to eliminate the possibility of a

retroactivity problem, it is not the kind of unambiguous

statement that will justify overriding the judicial

presumption against retroactivity in a case where a

retroactivity problem exists. See Mathews, 161 F.3d at 166-

68 (rejecting a similar "negative inference" from the

statute's text as evidence of "clear intent" to justify a

statute's retroactive effect).

Landgraf describes the statement of congressional intent

necessary to override the presumption against retroactive

application in terms of "express commands,""unambiguous

directives," and "clear statements." 511 U.S. at 263, 264,

272-73, 286. It specifically teaches that "a statement that

a statute will become effective on a certain date does not

even arguably suggest that it has application to conduct

that occurred at an earlier date." Id. at 257. It necessarily

follows, we believe, that the negative inference drawn in

Lindh -- that the Act's chapter 153 amendments are

applicable to cases filed after its enactment-- does not

constitute an unambiguous directive that those

amendments be applied to all post-enactment filed

petitions, including those in which the first petition was

filed before the Act's passage.

10

Moreover, Lindh counsels that the only cases in which

the Court has "found truly `retroactive' effect adequately

authorized by statute have involved statutory language so

clear that it could sustain only one interpretation." 117 S.

Ct. at 2064 n.4. It was precisely because the negative

inference drawn under normal principles of statutory

construction did not satisfy this requirement that the Lindh

Court discussed at some length the distinction between

express congressional commands and manifestations of

congressional intent gleaned by applying those principles.

In short, it is apparent that the Court in Lindh meticulously

examined the AEDPA and failed to find any express

command from Congress regarding retroactive application

of the AEDPA's chapter 153 amendments. See Liebman &

Hertz, Federal Habeas Corpus S 2.7b, at 29 ("Lindh also

makes clear that [AEDPA's habeas corpus amendments]

nowhere state Congress' intention to cause retroactive

effects . . . ").

Based on our reading of Landgraf and Lindh, we join 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. See In re Green, 144 F.3d

384 (6th Cir. 1998); In re Hanserd, 123 F.3d 922, 924 (6th

Cir. 1997); United States v. Ortiz, 136 F.3d 161, 165 (D.C.

Cir. 1998).

Having concluded that Congress did not clearly express

its intent regarding the retroactivity issue presented in this

case, we now turn to a case-specific analysis of whether

applying AEDPA's S 2244(b) would have a genuine

retroactive effect by "attach[ing] new legal consequences to

events completed before [AEDPA's] enactment." Landgraf,

511 U.S. at 270. If applying the AEDPA's habeas corpus

amendments would produce a genuine retroactive effect in

Minarik's case, then Landgraf's default rule prohibits their

application. If on the other hand, no such retroactive effect

would result, then Lindh requires us to apply the AEDPA

amendments because Minarik's second petition wasfiled

after April 24, 1996. To resolve this issue we treat 2244(b)'s

11

new procedural provisions and substantive standards

separately.4

A. AEDPA's New Procedure

AEDPA established a new procedure governing "second or

successive" petitions for federal habeas corpus relief under

S 2244(b). It provides:

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.

28 U.S.C. S 2244(b)(3)(A). Minarik maintains that subjecting

him to this new procedure is an impermissible retroactive

application of the statute. Section 2244(b)(3)(A), however, is

a change in procedural law which falls within thefirmly

established "procedural change" category described in

Landgraf that may be retrospectively applied. See Landgraf,

511 U.S. at 275 ("Because rules of procedure regulate

secondary rather than primary conduct, the fact that a new

procedural rule was instituted after the conduct giving rise

to the suit does not make application of the rule at trial

retroactive.").

Because AEDPA, as read by the Lindh Court in the light

of normal principles of statutory interpretation, calls for the

_________________________________________________________________

4. We reject appellee's contention that the Supreme Court's recent

decision in Calderon v. Thompson, 118 S.Ct. 1489 (1998) controls the

issue of AEDPA's applicability in this case. In Calderon, the Court of

Appeals had issued a mandate denying the petitioner's pre-AEDPA

petition for habeas relief. Id. at 1496. Shortly before petitioner's

scheduled execution, the petitioner filed a post-AEDPA motion to recall

the mandate, which was granted by the Court of Appeals. Id. The

Supreme Court reversed, holding that the Court of Appeals abused its

discretion in revoking the mandate. Id. at 1506. In the course of its

opinion, the Court rejected an argument that the recall of the mandate

constituted a favorable action on a "second or successive petition" and

was thus barred by S 2244(b)'s new standared. The Court found only

that there had been no action on a "successive petition." The issue of

retroactive effect was not before the Court, and any suggestion that

S 2244(b) is to be applied retroactively would have been dictum.

12

application of S 2244(b)(3)(A) to cases filed after April 24,

1996, and because it is a rule of procedure that does not

"attach new legal consequences to events completed before

its enactment," petitioners in Minarik's position must seek

permission of a Court of Appeals prior to proceeding on a

second petition, even if their first petition wasfiled before

the Act was adopted. See In re Hanserd, 123 F.3d 922, 934

(6th Cir. 1997) ("Inmates who wish to file a second or

successive petition should first file a motion in [the Court

of Appeals] requesting permission under 28 U.S.C.SS 2244,

2255, regardless of when the first motion to vacate

sentence was filed.").

B. AEDPA's New Substantive Standards

We now consider whether applying AEDPA's new

substantive gatekeeping standards would have an

impermissible retroactive effect if applied in Minarik's case.

At all times here relevant, the unsuccessful prosecution of

a S 2254 proceeding has had an adverse impact on the

petitioner's right to prosecute a second or successive S 2254

proceeding. When Minarik filed his first federal habeas

petition, the existing law provided that he could thereafter

prosecute another such petition only if he could (1) show

cause for, and prejudice from, the omission of his new

claim or claims from his earlier petition (i.e., that his

proceeding would not constitute an "abuse of the writ"), or

(2) demonstrate "actual innocence." See 28 U.S.C. S 2244;

McCleskey v. Zant, 499 U.S. 467 (1991); Kuhlman v. Wilson,

477 U.S. 436 (1986).

AEDPA's passage significantly altered the showing that

Minarik was required to make in order to proceed on new

claims in a second petition. Section 2244(b), as amended by

AEDPA, provides in relevant part:

(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--

13

(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 n ot

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.

28 U.S.C. S 2244(b)(2).

These substantive gatekeeping provisions were intended

to reduce the universe of cases in which a habeas petition

may go forward on a second or successive petition. In those

cases where a prisoner in state custody had a right to

prosecute a second or successive petition prior to AEDPA's

passage, but would be deprived of that right by these new

gatekeeping provisions, we conclude that applying the

AEDPA standard would have a "genuine retroactive effect"

because it would attach a new and adverse consequence to

pre-AEDPA conduct -- the prosecution of the original

proceeding.

By its terms, S 2244(b) requires that a claim not meeting

its articulated standards "shall be dismissed" thus

extinguishing any right the petitioner may have to relief. Its

effect is not unlike that of AEDPA's statute of limitations

which we recently declined to apply retroactively in Burns

v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). On September

21, 1995, when Burns exhausted all of his state rights of

direct appeal and collateral review, there was no statute of

limitations applicable to federal habeas petitions under 28

U.S.C. S 2254. AEDPA, however, established a one year

statute of limitations which, by its terms, begins to run as

soon as the petitioner's rights of direct review have been

exhausted or expired. See 28 U.S.C. S 2244(d). If

applicable, AEDPA's limitations period would require Burns

to file his petition on or before September 22, 1996. Burns,

14

however, filed his petition on April 22, 1997. Because

Burns had a right to proceed on his habeas claim prior to

AEDPA's enactment, and because AEDPA's statute of

limitations, if applied to his case, would extinguish his

claim, we held that such an application would

impermissibly attach new legal consequences to events

completed before the statute's enactment. Burns , 134 F.3d

at 111. We see no meaningful distinction between that case

and Minarik's, assuming that Minarik had a right to

proceed on his claim prior to AEDPA.

AEDPA's gatekeeping provisions when applied to cases in

which there was a right to proceed under preexisting law

also operate much like the RICO amendment we considered

in Mathews, 161 F.3d at 163. Prior to the RICO

amendment, securities fraud could serve as a predicate

offense under RICO, thereby entitling a plaintiff to treble

damages. The RICO amendment altered the text of the

statute conferring federal jurisdiction over RICO claims to

exclude jurisdiction over RICO claims predicated on"any

conduct that would have been actionable as fraud in the

purchase or sale of securities." Id. We pointed out that,

while phrased in jurisdictional terms, the amendment's

practical effect was to alter substantive rights because

"prior to the passage of the Act, the [plaintiff] had a RICO

cause of action based upon defendants' alleged actions, but

afterward he would not." Id. Similarly, if a habeas petitioner

had a right to initiate federal proceedings to secure release

from confinement prior to AEDPA, and had no such rights

thereafter, then AEDPA has altered substantive rights and

thereby attached new legal consequences to pre-enactment

conduct.5

We find additional support for our conclusion in cases

from two other circuits. See Ortiz, 136 F.3d 161; In re

Green, 1998 144 F.3d 384; In re Sonshine, 132 F.3d 1133

(6th Cir. 1997); In re Hanserd, 123 F.3d 922. These Courts

have encountered a similar retroactivity issue in cases

_________________________________________________________________

5. In Mathews, we distinguished Salazar-Haro v. I.N.S., 95 F.3d 309 (3d

Cir. 1996), as falling on the other side of the"substantive/jurisdictional

dichotomy." 161 F.3d at 163. We view this case as falling on the same

side of that dichotomy as Mathews and Burns.

15

where petitioners challenged application of AEDPA's new

"gatekeeping" standards governing "second or successive"

S 2255 motions. In these cases, the petitioners filed their

first S 2255 motions before, and their second motions after,

AEDPA's effective date. These Courts have concluded that

the AEDPA standard would have an impermissible

retroactive effect if applied where the petitioner would have

been allowed to file his second S 2255 motion under the

pre-AEDPA standard, but would be precluded from doing so

under the AEDPA standard. See Ortiz, 136 F.3d at 166

("[T]he new standards and procedures under AEDPA for

filing S 2255 motions could only be improperly retroactive

as applied to [the petitioner] if he would have met the

former cause-and-prejudice standard under McCleskey and

previously would have been allowed to file a second motion,

but could not file a second motion under AEDPA."); In re

Hanserd, 123 F.3d at 930 ("When [the movant] filed his

initial S 2255 motion, the law would have allowed him to

raise a Bailey claim in a second motion . . . Under AEDPA,

however, he may not. Applying the new statute would thus

attach a severe new legal consequence to his filing a first

motion . . . Because Congress has not expressed an intent

that the new Act have such a retroactive effect, we could

not apply AEDPA in this way."); Sonshine, 132 F.3d at 1134

(noting that retroactive effect exists only where the

"difference matters" between pre- and post-AEDPA

standards). Conversely, where the two standards lead to the

same outcome, these courts have concluded that there is

no genuine retroactive effect and the AEDPA standard may

be applied. See Sonshine, 132 F.3d at 1135 ("[Petitioner's

claim] would be barred under both AEDPA and the old

abuse-of-writ standard. [Petitioner] would not have

prevailed under pre-AEDPA law, as his petition would have

been denied as an abuse of writ. AEDPA's restrictions thus

do not attach new legal consequences for [petitioner], and

AEDPA has no impermissible retroactive effect on this

case."); Ortiz, 136 F.3d at 167 (applying AEDPA's new

standard to deny the petitioner's second S 2255 motion

carried no impermissible retroactive effect because

petitioner "failed to meet the requirements of the former

`abuse of writ' standard of McCleskey, and the new AEDPA

standards."); see also In re Hanserd, 123 F.3d at 932

16

("Where the old and the new law lead to an identical result,

there is no need to conduct a retroactivity analysis because

the new law has not attached any new consequences to

preenactment conduct or upset settled expectations.");

United States v. Enigwe, 1998 WL 150974 (E.D.Pa. March

30, 1998) (applying AEDPA standards where firstS 2255

motion was filed before AEDPA was not impermissibly

retroactive because there was "no difference in outcome

between pre- and post-AEDPA law"). We agree.

We conclude therefore that if Minarik 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 substantive gatekeeping

provisions to bar his claims. In the absence of such a

showing, however, applying those standards to Minarik

results in no genuine retroactive effect, and the AEDPA

standard must be applied under the Supreme Court's

holding in Lindh that AEDPA's habeas corpus amendments

apply generally to cases filed after its effective date.

1. The Pre-AEDPA Law And Minarik's Second Petition

We first consider whether Minarik's second application is

barred under the pre-AEDPA standard. For the reasons

that follow, we conclude that it is.

Minarik filed his first federal habeas petition on

December 23, 1981, ten years after pleading guilty to his

fiancee's murder. His first petition raised two claims:

(1) the due process clause was violated because hi s guilty

plea was not knowingly, intelligently and voluntarily

entered because (a) his counsel did not explain to him the

mental state which the State would be required to prove

and, (b) he had no recollection of the events surr ounding

the crime, and (2) the equal protection and due pr ocess

clauses were violated when the Supreme Court of

Pennsylvania failed to apply Commonwealth v. Minor, 365

A.2d 346 (Pa. 1976), in his case.

In November of 1982, the District Court held a lengthy

evidentiary hearing concerning the circumstances

surrounding Minarik's guilty plea. Minarik called two expert

witnesses to testify about the effects of alcohol and Triavil,

17

a drug prescribed for Minarik several months before the

murder. While neither knew when Minarik last took Triavil

before the crime or how much alcohol he had consumed,

each expressed the opinion, inter alia, that he was

amnesiac following his arrest. Minarik testified that he had

no memory of the events of the crime, that his attorney had

failed to advise him regarding the intent that would have to

be proved and that counsel, rather than Minarik, made the

decision to plead guilty. The respondent called Minarik's

trial counsel, Ralph J. Cappy, in rebuttal. He confirmed

that Minarik's memory on the night of the murder lapsed

when he was in the bushes outside the house. Counsel also

testified that he reviewed every element of the offense

charged and possible defenses with Minarik, and explained

that Minarik had insisted on pleading guilty against

counsel's advice. Counsel summed up the situation as

follows:

Q. Did you make a recommendation yourself as to

whether or not there should be a guilty plea or you

should go to trial?

A. I know that was one point of disagreement that he

and I always had.

I was always -- my recollection is that I wanted to try

this case. There were a number of reasons why I

wanted to try it. I didn't believe in my heart that a jury

would send a 21-year-old man, with his education, lack

of prior record, to the electric chair.

We had somewhat of an equitable defense, in the

sense that this was a homicide resulting from a lover's

situation, with a very distraught defendant; we had

alcohol involved; we had a potential for drugs and

alcohol involved; we had a potential, as I recall the

Behavior Clinic describing him as having had a

personality disorder. None of these things by

themselves rose to the level of the legitimate defense,

but it was my opinion, taken together with his age, his

family, it was a very good family, hard working good

people, that our equitable defense, in my mind, would

have -- I mean, there's always a chance involved, but

in my mind I didn't believe I would lose the case to the

18

death penalty, therefore the worse I could do was life,

therefore, why not take a chance and see if you could

get a second or voluntary. Voluntary was probably the

most realistic from analyzing it from a legal standpoint.

Quite frankly, John refused all through this. If my

memory serves me correctly, he never wanted to go to

trial. He steadfastly maintained that he was pleading

guilty, period; he was going to take his punishment.

App. III at 526-527a.

Counsel further testified that he had talked with

Minarik's family doctor who had prescribed Triavil for the

depression Minarik experienced after the breakup with his

fiancee. He engaged the services of Dr. Stanger, a

psychiatrist, to secure an opinion regarding a possible

insanity defense, and he reviewed reports supplied by the

state from the Behavioral Clinic on Minarik's mental state.

In connection with the possibility of an intoxication

defense, counsel and the Chief Investigator of the Public

Defender's Office interviewed everyone they couldfind who

was present at the party Minarik attended earlier on the

evening of the crime. They discovered two witnesses who

were prepared to testify that Minarik "had announced his

intended purpose prior to actually going to commit this

act." Id. at 535a.

When asked whether he had investigated and considered

"an intoxication defense" and an "involuntary intoxication

defense," counsel gave the following testimony:

A. My investigation, as I recall it, did reveal th e fact

that at some time during the evening, earlier in the

evening, John had become intoxicated and had placed

himself on a couch and dozed off, or rested for a period

of time. Subsequent to that time he either awoke or got

up and seemed to be, to the witnesses who had talked

with him, coherent, not intoxicated, and to one of those

witnesses he had offered a ring, an engagement ring,

that apparently had been the victim's ring, as I recall,

and had told the witness, "I'll not need this ring after

tonight," or "I'll no longer need this ring," and told this

witness that he was going to, in essence, kill Rosemary.

19

Q. Did you investigate the possibility of defendin g

against these charges on an involuntary intoxication

theory?

A. John had told me that he was taking a medicatio n

-- I had a discussion or discussions with the family

doctor --

* * *

The family physician had prescribed for him a

particular drug. I know that's an issue in this case, but

I'm still not familiar with exactly all the ramifications.

I thought maybe we would have a chance to produce a

defense that would reduce the degree by combining the

alcohol with the drug and I endeavored to do that. I

know I inquired of not only Dr. Stanger, but I even

went down to Dr. Campbell, but I'm not quite sure it

was Dr. Campbell, about what would be the effect of

the drug with alcohol and I believe at the time it was

grain alcohol, I'm not sure about that, but anyway it

was some kind of a college party, could there be a

reason, in combining these two drugs, I mean the drug

and the alcohol, could that have set John off, or could

we connect that with a mental deficiency which would

result in a defense? Maybe not a complete blackout

defense, but some defense which would reduce the

degree from first to second, or even go into voluntary

manslaughter. I remember specifically Dr. Stanger

saying, "No, I believe . . ." -- the problem I'm having

here is, I consulted with a number of people on this,

not only other criminal defense attorneys, but

physicians, some of them psychiatrists, these were

friends of mine who were in a residency program, an

internship program at the University of Pittsburgh, and

I could get from no one any indication that an

accommodation of this drug and alcohol, given the facts

as described by the witnesses at the party, before he

left on his way to Rosemary, no physician or physician

in training could give me any indication that the

alcohol and drug played a part in what he had done.

Id. at 535a-536a; 537a-538a.

20

The District Court credited trial counsel's testimony and

concluded that Minarik's plea was knowingly, intelligently,

and voluntarily entered. While it found that Minarik lacked

memory of the events surrounding the crime at the time of

his plea, the Court concluded that this did not prevent the

plea from being knowing, intelligent and voluntary. Finally,

it rejected the contention that the failure of the

Pennsylvania court to follow the Minor case constituted a

federal constitutional violation. On appeal, this Court

affirmed in all respects.

Following an unsuccessful bid for post-conviction relief in

state court, Minarik filed his second federal habeas petition

on October 3, 1997. He asserted three claims: (1) trial

counsel's failure to discover that he had available a

complete defense of involuntary intoxication induced by

Triavil and alcohol constituted ineffective assistance of

counsel, (2) due process was violated because his guilty

plea was not knowing, intelligent and voluntary, and (3) the

state court's failure to give him an evidentiary hearing on

his claim that trial counsel failed to file a direct appeal as

he instructed violated due process. To support his second

claim, Minarik renews his first petition's allegations of

amnesia and lack of knowledge of the elements of the

offense and adds several new allegations. In the course of

making these three claims, Minarik asserts that he is

actually innocent because he was involuntarily intoxicated

at the time of the crime.

Minarik's second claim is, in substance, the same claim

advanced and rejected in his first habeas proceeding.6

Accordingly, he can go forward on that claim only if he

shows "actual innocence." Kuhlman, 477 U.S. 436. Before

_________________________________________________________________

6. Minarik's second petition alleges two new factual predicates for his

claim that his guilty plea was not knowing, intelligent and voluntary:

(i) trial counsel failed to advise him that a jury verdict would have to

be

unanimous, and (ii) the trial judge had improperly participated in plea

negotiations. His brief in support of his request for an order authorizing

the District Court to entertain his second petition continues to be

premised primarily on his alleged amnesia and lack of knowledge of the

elements of the offense. Minarik offers no argument to excuse the

omission of these claims from his first petition under the cause and

prejudice standard.

21

addressing that issue, we turn to whether Minarik has

shown "cause and prejudice" for failing to include his first

and third claims in his first petition.

"The cause standard requires the petitioner to show that

`some objective factor external to the defense impeded

counsel's efforts to raise the claim in state court."

McCleskey v. Zant, 499 U.S. 467 (1991) (quoting Murray v.

Carrier, 477 U.S. at 488). While a showing that the factual

basis for a claim was unavailable at the time of thefirst

petition may constitute "cause," the fact that the petitioner

was subjectively unaware of that factual basis is

insufficient if the relevant facts were discoverable with due

diligence. McCleskey, 499 U.S. at 497.

We begin with Minarik's first claim: ineffective assistance

of counsel for failing to discover the involuntary intoxication

defense. While Minarik insists that he did not know that he

had a defense of involuntary intoxication until the middle of

the evidentiary hearing on his first petition, his habeas

counsel had obviously discovered the potential effects of

Triavil and alcohol some weeks earlier and no reason is

suggested why a similar investigation at any point during

the ten years preceding the first petition's filing would not

have produced the same information. It follows that the

factual basis for Minarik's first claim was discoverable in

December of 1981, when the first petition wasfiled. Indeed,

we do not understand Minarik to contend otherwise.

The "cause" that Minarik does rely upon before us is the

fact that he had not exhausted his state remedies with

respect to his first claim when he filed hisfirst petition.

This "cause" is legally insufficient, however, because it is

not an "objective factor external to the defense." As we have

explained, Minarik is deemed to have knowledge of all facts

discoverable with reasonable diligence. With that

knowledge, he had the alternative on December 23, 1981,

of delaying the filing of his first federal habeas petition until

he had exhausted what turned out to be the first claim of

his second petition. We hold that his failure to do that and

then litigate all his claims together constituted an abuse of

the writ.

In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme

Court held that a habeas petition containing exhausted and

22

unexhausted claims cannot be entertained by a federal

court unless the petitioner withdraws, and thus

relinquishes, the unexhausted claims. This "total

exhaustion" rule, the Court concluded, would"encourage

state prisoners to seek full relief first from the state courts,

thus giving those courts the first opportunity to review all

claims of error. . . . Equally as important, [under that rule]

federal claims that have been fully exhausted in state

courts will more often be accompanied by a complete

factual record to aid the federal courts in their review." 455

U.S. at 519. Finally, the Court emphasized that"strict

enforcement of the exhaustion requirement will encourage

habeas petitioners to exhaust all of their claims in state

court and to present the federal court with a single habeas

petition. To the extent that the exhaustion requirement

reduces piecemeal litigation, both the courts and the

prisoners should benefit, for as a result the district court

will be more likely to review all of the prisoner's claims in

a single proceeding, thus providing for a more focused and

thorough review." 455 U.S. at 520.

The court went on to spell out what this meant for

petitioning prisoners:

[O]ur interpretation of SS 2254(b), (c) provides a simple

and clear instruction to potential litigants: before you

bring any claims to federal court, be sure that thefirst

have taken each one to state court.. . .Those prisoners

who misunderstand this requirement and submit

mixed petitions nevertheless are entitled to resubmit a

petition with only exhausted claims or to exhaust the

remainder of their claims.

* * *

The prisoner's principal interest, of course, is in

obtaining speedy federal relief on his claims. . . . A total

exhaustion rule will not impair that interest since he

can always amend the petition to delete the

unexhausted claims, rather than returning to state

court to exhaust all of his claims. By invoking this

procedure, however, the prisoner would risk forfeiting

consideration of his unexhausted claims in federal

court. . . .

23

455 U.S. at 520.

While the Supreme Court said that petitioners "would

risk" forfeiture of unexhausted claims rather than that they

"would forfeit" such claims, this choice of wording was

designed to leave room for cases in which there might be a

legitimate justification for proceeding on the exhausted

issues alone and thus no abuse of the writ. The Court's

opinion makes it clear, however, that the prisoner's desire

to get an adjudication of some of his claims earlier rather

than later is not alone a legitimate justification for going

forward on less than all of one's claims. Thus, if"a prisoner

deliberately withholds one of two grounds for federal

collateral relief at the time of filing his first application, in

the hope of being granted two hearings or for some other

such reason, he may be deemed to have waived his right to

a hearing on a second application presenting the withheld

grounds." Id. at 521 (quoting from Sanders v. United States,

373 U.S. 1, 18 (1963).

Rose did not announce a new rule of law. It neither

questioned nor reversed existing precedent. The Court's

holding reflected its "interpretation of a federal statute on

the basis of its language and legislative history, and

consistent with its underlying policies." Rose, 455 U.S. at

519-20. Rose was argued on October 14, 1981, two months

before Minarik filed his first federal habeas petition on

December 23, 1981, and was decided on March 3, 1982, a

little over two months after that filing date. The statute, its

legislative history, and its underlying policies were the same

on those dates as they were when Minarik's first federal

petition was filed. It necessarily follows that the teachings

of Rose were the law of the land at the time Minarik elected

to file a federal habeas petition limited to the two claims

contained in that petition.

Even if we were unpersuaded that Rose represented the

law of the land when Minarik filed his petition, however,

our ultimate conclusion would not differ. Rose

undisputably became the law of the land on March 3, 1982,

and the Federal Magistrate Judge's opinion dated April 23,

1982, expressly called the Rose holding to Minarik and his

counsel's attention. That opinion preceded the District

Court's evidentiary hearing concerning the circumstances

24

surrounding Minarik's guilty plea by more than six months.

The subject matter of that requested hearing included what

he knew and had been told about the elements of the

offense charged and the possible defenses thereto. At some

point well before that hearing, Minarik necessarily must

have known that he was going to call the two expert

witnesses he ultimately called to testify about the effects of

Triavil and alcohol. He likewise was aware that he would

take the stand and testify that his trial counsel did not

explain to him the state of mind required as an element of

the offense. Finally, Minarik obviously knew his trial

counsel was likely to be called to testify concerning his

preparation and pre-plea discussions with Minarik. For that

reason, Minarik took trial counsel's deposition in August of

1982.

In view of the actual knowledge Minarik possessed well

before the evidentiary hearing on his first petition, we

conclude that Minarik had a duty to advise the Court of his

new claims before the hearing. These claims would

obviously have required a second, extensive evidentiary

hearing on essentially the same subject matter. Stated

conversely, we hold that it was an abuse of the writ for

Minarik to go forward without at least advising the Court of

this withheld claim. If he had done so, the District Court

would have been compelled by Rose to dismiss the petition

without prejudice and require Minarik to file a new petition

after exhausting his state remedies on the new claim.

Indeed, this almost came to pass during the November

1982 hearing when Minarik's habeas counsel began to

question Minarik's trial counsel about his investigation of a

possible defense based on intoxication. The Court raised

the issue sua sponte:

THE COURT: Let me interrupt you for one second.

I'm becoming somewhat concerned. It appears to me

that the issue here is the voluntary nature of the guilty

plea. I suspect we are going further afield and raising

other issues, and if we are raising other issues, then

the entire case is subject to immediate dismissal.

So, I want to caution you that I think it's very

inappropriate to be raising other issues. I think that we

25

have been getting into them and I think we have been

getting into them for quite a while now.

MR. POTTER: The issues are as stated in the habeas

corpus petition and I submit that the cross

examination is within the scope of the direct

examination.

THE COURT: Well, I'm not saying one way or the

other, but I'm just saying that I think we are at this

juncture, clearly injecting issues, which if they are

raised in the habeas corpus petition, that the entire

petition is subject to dismissal because they have not

been raised in the State Court.

* * *

THE COURT: . . . I have not in my own mind resolve d

the issue, but clearly the only issue appropriate before

this court is as to the nature of the guilty plea and any

other matters, which might be waived in a collateral

proceeding, I strongly suggest have to be raised in the

State court first and they have not been raised.

MR. POTTER: I understand the Court's position.

Q. All right, Mr. Cappy, I will limit myself. We a re

interested in amnesia. The defendant had it, didn't he?

. . .

App. III at 567a-568a; 568a-569a.

Minarik apparently chose not to call his new claim to the

District Court's attention because he wanted a ruling on his

first petition's claims sooner rather than later. While

understandable, this motivation does not justify the kind of

piecemeal litigation that Minarik seeks to pursue.

A similar analysis leads us to conclude that asserting

Minarik's third claim at this late date also constitutes an

abuse of the writ. On December 23, 1981, Minarik knew

the content of the instructions he gave trial counsel as well

as the fact that counsel filed no direct appeal. With this

knowledge, he was not licensed to withhold this ineffective

assistance of counsel claim for later litigation.

"Because [Minarik] has been unable to show`cause and

prejudice' sufficient to excuse his failure to present his

26

evidence in support of his first federal petition,. . . [he] may

obtain review of his constitutional claims only if he falls

within the `narrow class of cases . . . implicating a

fundamental miscarriage of justice.' " Schlup v. Delo, 513

U.S. 298, 314-15 (1995) (quoting McCleskey v. Zant, 499

U.S. 467 (1991)). This "requires the habeas petitioner to

show that `a constitutional violation has probably resulted

in the conviction of one who is actually innocent'. . . . To

establish the requisite probability, the petitioner must show

that it is more likely than not that no reasonable juror

would have convicted him in light of the new evidence. The

petitioner thus is required to make a stronger showing than

that needed to establish prejudice." Id. at 327 (quoting from

Murray v. Carrier, 477 U.S. 478 (1986)).

Minarik argues that he is actually innocent because he

was involuntarily intoxicated when he committed the crime.

Our task is therefore to look to all of the information

currently available concerning a potential "defense of

involuntary intoxication," including that developed in the

proceedings since Minarik's sentencing, to determine

whether, more likely than not, no reasonable juror exposed

to that information would have convicted him.

It is not clear to us that Pennsylvania law would

characterize intoxication produced by the voluntary

consumption of a prescription drug and alcohol as

"involuntary" even if that consumption was without

knowledge of a synergistic effect. See Commonwealth v.

Todaro, 446 A.2d 1305 (Pa. Super. 1982) (holding such

intoxication to be voluntary). Nothing in our analysis turns

on this point, however. We assume for present purposes

that evidence of involuntary intoxication of a degree that

would have deprived Minarik of the ability to form the

requisite intent, or control his actions, would constitute a

complete defense or reduce what would otherwise befirst

degree murder to some lesser included offense.7 We further

_________________________________________________________________

7. There is no statutory provision in Pennsylvania on involuntary

intoxication, and we have found no Pennsylvania case specifying the

circumstances under which involuntary intoxication constitutes a

defense. Section 2.08 of the ALI Model Penal Code provides in relevant

part:

27

assume that "actual innocence" of the crime charged would

include the situation where the new evidence would show

the petitioner not guilty of first degree murder, though

guilty of some lesser offense. Even under these

assumptions, however, Minarik cannot show "actual

innocence" because he has failed to establish the necessary

factual basis.

In addition to the conclusory statement that he"had

available a complete defense of involuntary intoxication,"

Minarik's petition asserts only that he is "innocent of

crimes charged because he suffered an involuntary

intoxication due to misprescribed Triavil which Public

Defender Cappy missed in 1971." App. IV at 855a-856a.

Minarik's objections to the Magistrate Judge's report in the

District Court adds only that "[i]n 1971, Petitioner suffered

an involuntary intoxication due to `atropenic intoxication'

because of `inappropriately prescribed' Triavil by Dr.

Provan." Obj. Mag. Rep. at 9. Minarik's main brief before us

adds only that he discovered his complete defense"only

while sitting in court during the federal evidentiary hearing

in 1982 and listening to the testimony of Drs. Sadoff and

Himmelhoch." Pet. Br. at 6 n.1. The most specific

information Minarik has provided is that contained in the

following segment of his reply brief:

Triavil contains Elavil, a tricyclic antidepressant, and

Trilafon, a member of the phenothiazine family, an

_________________________________________________________________

(1) Except as provided in Subsection (4) of this S ection,

intoxication of the actor is not a defense unless it negatives an

element of the offense.

* * *

(4) Intoxication that (a) is not self-induced or (b) is

pathological is

an affirmative defense if by reason of such intoxication the actor

at

the time of his conduct lacks substantial capacity either to

appreciate its criminality [wrongfulness] or to conform his conduct

to the requirements of law.

Model Penal Code S 2.08(1) and (4). In this context, "pathological

intoxication" means "intoxication grossly excessive in degree, given the

amount of the intoxicant, to which the actor does not know he is

susceptible." Id. S 2.08(5)(c).

28

antipsychotic agent. After his visit to Dr. Provan, while

taking Triavil, John Minarik's behavior became

increasingly bizarre.

Mr. Minarik spent Saturday afternoon, February 6,

1971, in the company of college friends who were

planning a party. His friends, while at the party that

night, noticed his visible personality change, his red

face, and his dry mouth. Redness of face and dryness

of mouth are two observable undesired side effects

when a person is suffering from atropinic intoxication:

the "class is atropine syndrome" associated with the

misprescription of Triavil. Dr. Himmelhoch testified on

November 18, 1982: "In medical school this syndrome

is summarized as mad as a hatter, red as a beet, and

dry as a bone." Neither Dr. Provan nor the prescription

label identified the drug, and no warnings were given of

side effects or danger associated with alcohol.

Pet. Rep. Br. at. 3-4.

The record before us contains no evidence concerning

when before the crime Minarik last consumed alcohol or

Triavil, nor how much he consumed of each. Nor is there

any evidence that Minarik was observed to have been

behaving in an aberrant manner after waking from his nap,

or after the crime. Absent as well is any expert testimony

supporting the theory that Minarik was out of control at the

time of the crime. We thus have only general claims of

involuntary intoxication against the background of sworn

testimony from an experienced trial attorney that he and

his investigator conducted an extensive investigation and

found no evidentiary support for an intoxication defense,

voluntary or involuntary.

It follows that Minarik has not come close to putting the

integrity of the judgment against him into question. We

cannot excuse his abuse of the writ on the ground that he

has demonstrated actual innocence. Accordingly, we

conclude that Minarik would have been precluded from

filing his second habeas petition under pre-AEDPA law. It

necessarily follows that applying the AEDPA gatekeeping

standard cannot have a genuine retroactive effect upon

Minarik and therefore Lindh requires their application. We

29

now turn to determine whether Minarik may proceed on his

second petition's claims under the new AEDPA standard.8

2. The AEDPA Standard

Minarik's second claim, that his guilty plea was not

knowingly, intelligently and voluntarily entered into, is

repetitive and must be dismissed under S 2244(b)(1)

because it was "presented in a prior application." Minarik's

first and third claims, however, are "new claims" that we

must evaluate under S 2244(b)(2).

Section 2244(b)(2) provides two narrow grounds upon

which a new claim may be pursued in a second petition,

neither of which are present here. First, a petitioner may

make a prima facie showing that his new claim falls within

the ambit of a "new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court." Id. S 2244(b)(2)(A). Neither of Minarik's "new claims"

rely upon such a new rule of constitutional law.

Second, S 2244(b)(2)(B) permits petitioners to proceed on

new claims in certain cases where there is newly discovered

evidence. It has two requirements. Initially, petitioners

must demonstrate that the "factual predicate for the claim

could not have been discovered previously through the

exercise of reasonable diligence." Id.S 2244(b)(2)(B)(i).

Additionally, petitioners must establish that "the facts

_________________________________________________________________

8. If Minarik were correct in his contention that application of

S 2244(b)(3)(C) to his case would have an impermissible effect, the most

to which he would be entitled would be application of the pre-existing

law. Thus, if Minarik conceded that he was barred under AEDPA and his

impermissible retroactivity argument were the only arrow to his bow, our

determination that he is barred by pre-existing law would alone justify

denial of permission to proceed with his second petition. We understand

Minarik to make a two-pronged argument, however: that he does satisfy

AEDPA standards and, in the alternative, that if he does not we are

barred from applying those standards. One approach to resolving these

contentions would be to address the issue of compliance with AEDPA at

the outset. We have focused first on the retroactivity issue, however,

because it is one of first impression in this circuit and because the

Landgraf /Lindh analysis of that issue leads ultimately back to the

AEDPA compliance issue.

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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 fact finder would have found the

applicant guilty of the underlying offense." Id.

S 2244(b)(2)(B)(ii).

Minarik's first "new claim" -- that his trial counsel was

ineffective for failing to discover that Minarik had a

complete involuntary intoxication defense -- does not

satisfy either of S 2244(b)(2)(B)'s conditions. As we

concluded in our analysis of the pre-AEDPA law, this claim

was "discoverable" when Minarik filed hisfirst habeas

application in 1981. In addition, Minarik cannot meet S

2244(b)(2)(b)(ii)'s innocence requirement for the

substantially the same reasons that he cannot establish

"actual innocence" under the pre-AEDPA standard.

Minarik's second "new claim" -- that the state court

committed constitutional error by failing to give him an

evidentiary hearing on his claim that trial counsel ignored

his instruction to file a direct appeal -- also fails to meet

S2244(b)(2)(B)'s requirements. Minarik had actual

knowledge of both his instructions and his attorney's

failure to file such an appeal well before hefiled his first

habeas petition in 1981. Moreover, his counsel's failure to

appeal is not a "fact" relevant to whether Minarik was

"guilty of the underlying offense."

Section 2244(b)(2)(B) thus requires that we deny Minarik

permission to proceed on his second petition.

IV.

We hold that anyone seeking to file a second or

successive petition under 18 U.S.C. S 2254 after April 24,

1996, must move in the appropriate Court of Appeals for an

order authorizing the District Court to consider the

application. When such a motion is filed by a petitioner

whose previous petition was filed before that date, the

Court of Appeals must apply the substantive gatekeeping

standards of 28 U.S.C. S 2244(b) as amended by AEDPA

unless such application would bar a second or successive

petition that could have been considered by the District

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Court under the law existing at the time the previous

petition was filed.

Since Minarik's second petition is barred by both

S 2244(b) as amended by AEDPA and the preexisting law,

we will deny him permission to proceed in the District

Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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