In re: John Earl McFadden, A Blow for Inmates Seeking Successive Habeas Petitions, No. 15-206 (4th Cir. 2016).

Today Judges King, Gregory and Wynn denied McFadden’s request to file a successive habeas petition pursuant to 28 U.S.C. 2244(b). McFadden had been attempting to obtain his trial and appellate files for years (he was convicted in December 2006).  He received them in May 2014.  At that time, he found a document—a proposed plea agreement, signed by his then lawyer but not signed by the Government.  Based on this, McFadden made the claim that his trial counsel failed to communicate this supposed offer, and that he would have accepted it had he known of it.

The Fourth Circuit Court of Appeals must grant an inmates permission before he or she is allowed to pursue a successive habeas petition.  The Court can only authorize the petition if “the application makes a prima facie showing that [it] satisfies the requirements” of the statute.  McFadden must have shown either that his claim relies on a new, retroactive, and previously unavailable rule of constitutional law, 28 U.S.C. §2244(b)(2)(A) or that:

(i)         the factual predicate for the claim could not 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.

Id. §2244(b)(2)(B) (newly discovered facts section).

Here, the Court found that this evidence—the purported plea offer—would simply have no bearing on the deliberations of a reasonable factfinder” regarding McFadden’s innocence or guilt.  See Calderon v. Thompson, 523 U.S. 538, 58 (1998) (characterizing section 2244(b)(2)(B) as requiring a “prisoner [to] show[], among other things, that the facts underlying [his] claim establish his innocence by clear and convincing evidence).

In other words, to get a shot at a successive habeas petition, you need either new constitutional law, or some pretty significant evidence tending to show that you’re not guilty of the crime for which you have been convicted.  Unfortunately, for McFadden, he did not make this prima facie showing.