Habeas petitioner was not entitled to file successive petition because he failed to exercise due diligence in bringing his claim and his petition did not fall under any available exceptions to AEDPA’s limitations on successive petitions. Gage was convicted in California of child molestation. Prior to sentencing, the state trial court reviewed the complainant’s medical records, which the prosecution had not previously disclosed to the court or the defense. The court thereafter granted Gage’s motion for new trial because it concluded that the testimony of the complainant and her mother was not credible. The state appealed and the conviction was reinstated. Gage then filed several state and federal court habeas petitions, all of which were denied. In September 2013, Gage applied for permission from the Ninth Circuit to file a successive petition to raise a Brady claim as well as an ineffective assistance of counsel claim. Neither of the claims had been included in Gage’s first federal petition. Held: Application denied. AEDPA imposes limitations on “second or successive” habeas petitions (28 U.S.C. § 2244(b)(2)). Gage’s petition was “second or successive” because the factual basis for his claims developed when the state court granted his new trial motion after reviewing the complainant’s medical records and finding her not credible. This was not a case where the basis of Gage’s petition did not exist when the first petition was filed. Additionally, Gage’s petition did not fall under any of the exceptions provided in section 2244. Specifically, he failed to satisfy the due diligence requirement under section 2244(b)(2)(B)(i). Gage did not to show that the factual predicate for the claims could not have been previously discovered through the exercise of due diligence because he knew of the factual basis for his claims prior to filing his first petition in 2005.
The actual innocence exception articulated in Schlup v. Delo (1995) 513 U.S. 298, which excuses certain procedural defaults, does not provide a gateway past section 2244(b)(2). Gage alleged he should be allowed to file his procedurally defaulted petition because it falls within the actual innocence exception set forth in Schlup, which was decided one year before AEDPA was enacted. In a series of cases, the U.S. Supreme Court has held that the Schlup exception survived AEPDA in certain circumstances and provides a gateway past some of the AEDPA limitations. The Supreme Court has not addressed the exception in the context of section 2244(b)(2)’s successive petition restriction, which allows successive petitions provided there is clear and convincing evidence of actual innocence and the petitioner has displayed due diligence. This statutory exception accounts for the equitable principles from which the actual innocence exception arose and Schlup does not abrogate these requirements.