# In re Byrd

> Court of Appeals for the Sixth Circuit · September 21, 2001 · 269 F.3d 561

URL: https://www.frixlaw.com/law-library/cases/7006748

## Case

- **Full name:** In re John W. BYRD, Jr., Movant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 21, 2001
- **Citations:** 269 F.3d 561; 2001 WL 1230313
- **Precedential status:** Published
- **Opinion:** Concurrence by Batchelder
- **Judges:** Batchelder, Jones, Suhrheinrich
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7006748

## How later opinions describe it (automated extraction)

- finding petitioner did not satisfy the miscarriage-of-justice exception necessary to reach the merits of a successive habeas petition where the evidence of actual innocence was an affidavit from a codefendant which was made six years after the codefendant had been convicted an…
- holding that petitioner’s “renewed attacks on [a] trial witness[’s] . . . credibility . . . do not provide proof of ‘actual innocence’ sufficient to excuse an abuse of the writ
- holding that petitioner’s “renewed attacks on [a] trial witness [‘s] ... credibility ... do not provide proof of ‘actual innocence’”
- finding that an attack on a trial witness’s credibility did not provide proof of actual innocence

## Opinion text

BATCHELDER, Circuit Judge,
separate concurrence.
I concur entirely in Judge Suhrhein-rich’s opinion. I write separately to point out that there is no legal basis whatsoever for the stay of execution purportedly granted by a majority of the en banc court, apparently on an oral motion and with notice to only some of the members of this court.
Understanding the procedural posture of this matter is critical to an understanding of why there is no legal basis upon which a stay of execution and a continuation of this matter may be granted. Byrd concedes that the initial determination of .whether the AEDPA applies to this case must be made by this court, and not the district court. The vehicle for obtaining that determination is a motion under 28 U.S.C. 2244(b)(3) for an order authorizing the filing of a successive petition. Had Byrd simply filed his petition in the district court, that court would have been required under our precedent to transfer the matter here for our determination of whether to authorize the filing. See In re Sims, 111 F.3d 45, 47 (6th Cir.1997). In short, all roads lead to the requirement that Byrd specifically move for authority to file a successive petition.
Having been constrained to treat Byrd’s motion as a motion under 28 U.S.C. § 2244 (b)(3)(A), a majority of this panel has concluded that the motion must be denied because the AEDPA does apply to Byrd’s attempt to obtain habeas relief, and that Byrd cannot satisfy the requirements imposed by the AEDPA on the filing of a successive habeas petition. See 28 U.S.C. § 2244 (b)(2) and (b)(3)(C). And that conclusion is neither appealable nor is it permitted to be the subject of a petition for rehearing or a petition for certiorari. See 28 U.S.C. § 2244 (b)(3)(E).
Because the conclusions of the majority of this panel are final and not appealable, there is simply no basis for granting a stay of execution or a continuance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7006748. Public record. Not legal advice.