Opinion

In Re Avery W. Vial, Movant

  • 115 F.3d 1192
  • 1997 U.S. App. LEXIS 14166
  • 1997 WL 324385
Court
Court of Appeals for the Fourth Circuit
Filed
Jun 16, 1997
Status
Published
Author
Hamilton
On the bench
Wilkinson, Russell, Widener, Hall, Murnaghan, Ervin, Wilkins, Niemeyer, Hamilton, Luttig, Williams, Michael, Motz
Cited by
511 cases

holding that the statutory exception to the bar on successive habeas petitions is generally unavailable to assert sentencing errors, but declining to address "the question of whether, under the AEDPA, an individual subject to a sentence of death may assert the existence of new evidence establishing that the sentence was imposed improperly”

How later courts described this case

  • holding that the statutory exception to the bar on successive habeas petitions is generally unavailable to assert sentencing errors, but declining to address "the question of whether, under the AEDPA, an individual subject to a sentence of death may assert the existence of new evidence establishing that the sentence was imposed improperly”
  • holding that “a new rule of constitutional law has been ‘made retroactive to cases on collateral review by the Supreme Court’ within the meaning of § 2255 only when the Supreme Court declares the collateral availability of the rule in question, either by explicitly so stating or by applying the rule in a collateral proceeding.”
  • explaining that the restrictions on multiple motions for post-conviction relief “amount[] to an entirely proper exercise of Congress’ judgment regarding the proper scope of the writ and [fall] well within the compass of the evolutionary process surrounding the doctrine of abuse of the writ.”
  • explaining that while a federal prisoner may file a petition seeking relief under 28 U.S.C.A. § 2241 if § 2255 is inadequate or ineffective, § 2255 is not inadequate simply because the prisoner is procedurally barred from obtaining relief under § 2255

Written by the judges who cited it.

The opinion

HAMILTON, Circuit Judge,

concurring in the judgment:

I concur in the judgment of the court. I write further only to note that Vial has not requested relief by way of habeas corpus under 28 U.S.C. § 2241 , or by way of an extraordinary writ under the All Writs Act, 28 U.S.C. § 1651 . Because Vial has not pursued all avenues of relief, and been denied such relief, the issue of whether the “gate-keeping” provisions of the AEDPA, as ap *1199 plied to Vial, violate his rights under the Due Process Clause is not properly before us.

Judge MOTZ joins in this opinion concurring in the judgment of the court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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