# In Re Avery W. Vial, Movant

> Court of Appeals for the Fourth Circuit · June 16, 1997 · 115 F.3d 1192

URL: https://www.frixlaw.com/law-library/cases/9490371

## Case

- **Full name:** In Re Avery W. VIAL, Movant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 16, 1997
- **Citations:** 115 F.3d 1192; 1997 U.S. App. LEXIS 14166; 1997 WL 324385
- **Precedential status:** Published
- **Opinion:** Concurrence by Hamilton
- **Judges:** Wilkinson, Russell, Widener, Hall, Murnaghan, Ervin, Wilkins, Niemeyer, Hamilton, Luttig, Williams, Michael, Motz
- **Cited by:** 511 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/9490371

## How later opinions describe it (automated extraction)

- 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…
- 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 …
- 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 abus…
- 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
- holding that “‘newly discovered evidence’ exception to the bar on second and successive § 2255 proceedings . . . applies only to challenges to the underlying conviction; it is not available to assert sentencing error.”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490371. Public record. Not legal advice.