In re: Larry Donnell Fowlkes

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: LARRY DONNELL FOWLKES,
Movant.
No. 02-140  INNOCENCE PROJECT OF THE NATIONAL
CAPITAL REGION,
Amicus Curiae. 
On Motion for Authorization to
File Successive Application.
Argued: January 21, 2003
Decided: April 18, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Authorization denied by published opinion. Judge Luttig wrote the
opinion, in which Judge Williams joined. Judge Gregory wrote an
opinion concurring in the judgment.
COUNSEL
ARGUED: Jennifer M. Rubin, SIDLEY, AUSTIN, BROWN &
WOOD, L.L.P., Washington, D.C., for Movant. Hazel Elizabeth Shaf-
fer, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Respondent. ON BRIEF: Kim
L. Simmons, Kevin M. Henry, SIDLEY, AUSTIN, BROWN &
WOOD, L.L.P., Washington, D.C.; Julia E. Sullivan, Crownsville,
Maryland, for Movant. Jerry W. Kilgore, Attorney General of Vir-
ginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-

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ginia, for Respondent. Barry J. Pollack, James P. Ellison, NIXON
PEABODY, L.L.P., Washington, D.C., for Amicus Curiae.
OPINION
LUTTIG, Circuit Judge:
In this motion filed pursuant to 28 U.S.C. § 2244, Larry Donnell
Fowlkes seeks authorization to file a successive habeas corpus peti-
tion pursuant to 28 U.S.C. § 2254. In his proposed successive petition,
Fowlkes seeks to raise an ineffective assistance of counsel claim, a
claim under Brady v. Maryland, 373 U.S. 83 (1963), and an impartial
jury claim. We conclude that all of Fowlkes’ claims have been previ-
ously presented in his initial section 2254 application. Thus, all his
claims are barred under section 2244(b)(1). Even were the claims
novel, they would fail the requirements of section 2244(b)(2).
Because Fowlkes has failed to make a prima facie showing of merit
as required by section 2244(b)(3)(C), we deny his request for authori-
zation to file a successive section 2254 motion.
I.
On October 18, 1995, Bruce Allen and another man forcibly
entered the home of Albert and Ida Bowlin. The men stabbed Albert
in the neck eight times. He passed out, but was later taken to the hos-
pital where he recovered. Ida Bowlin bled to death on the floor of her
kitchen after her throat was cut and she was stabbed in the neck at
least five times. The men robbed the couple and left.
In October 1996, a Virginia jury convicted Larry Fowlkes of being,
it appears, an accessory before the fact to first degree murder,
attempted capital murder, and robbery in connection with the Bowlin
incident. The key witness for the prosecution at trial was Sheila
Stokes ("Stokes").1 She testified that she overheard a conversation
between Fowlkes, Bruce Allen, and Shardi Moore at her brother’s
1At the time of trial, her name was Sheila Barbour. We refer to her
throughout simply as "Stokes" for clarity.
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house. According to Stokes, Shardi Moore said he wanted some
money, and "he said, ‘[w]ell, I know where we can get some money
from.’ And he said — he was talking about some guy over in Amelia
County." S.A. 57. Fowlkes replied, "[w]ell, I will take you, but I’m
not going to do nothing." S.A. 58. Stokes further testified that she saw
Fowlkes the day after the crime and helped him clean blood out of his
car. She also stated that Fowlkes later admitted "[t]hey done it, but he
didn’t have anything to do with it," S.A. 61, and that they had thrown
the knife over by the stadium, S.A. 61-62. The jury sentenced
Fowlkes to forty-five years imprisonment.
Fowlkes pursued a direct appeal and, later, a state habeas petition,
both of which were unsuccessful. In December 1999, Fowlkes filed
a federal habeas petition pursuant to 28 U.S.C. § 2254. In his section
2254 motion, Fowlkes presented ineffective assistance of counsel and
Brady claims;2 he also argued, based on new affidavits that supported
his alibi,3 that he was actually innocent and thus that the procedural
bars applicable to his claims should be excused. The district court dis-
missed the petition as untimely under section 2244(d)(1)(A) and
rejected Fowlkes’ actual innocence claim.
On appeal, Fowlkes successfully moved to permit supplemental
briefing or to remand the case to the district court for additional fac-
tual and legal development. In his supplemental briefs, Fowlkes pre-
sented, inter alia, two new pieces of evidence that are pertinent to the
instant motion for authorization. The first was an affidavit of Robert
Barbour ("Barbour")4 dated June 28, 2001, which implicated two dif-
ferent and previously unsuspected men in the Bowlin murder. More-
over, Barbour claimed that the murderer was related to the foreman
of Fowlkes’ jury and that Stokes had lied in her trial testimony. The
second new piece of evidence was an affidavit by Stokes dated July
18, 2001. In her affidavit, Stokes recants all of her trial testimony and
states that she had cut a deal with the prosecution whereby the prose-
2Fowlkes’ Brady claim was based on the alleged failure of the prosecu-
tion to disclose that Stokes had agreed to testify at Fowlkes’ trial in
exchange for leniency from the prosecution in an unrelated matter.
3Fowlkes’ alibi was that he was at church at the time of the assault and
murder.
4Robert Barbour is the son of Sheila Stokes.
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cution agreed to drop certain charges against her if she testified in
Fowlkes’ trial. Fowlkes argued that this new evidence supported his
actual innocence claim and his Brady claim. Fowlkes also argued that
it supported an impartial jury claim, which he raised for the first time
in his supplemental briefs. In an unpublished decision, the Fourth Cir-
cuit found "no reversible error" and denied a certificate of appeala-
bility. Fowlkes v. Angelone, 2001 WL 1545484, *1 (4th Cir.)
(unpublished) ("Fowlkes I"). The court also stated
We grant Fowlkes’ motion for supplemental briefing and
have considered the issues raised in his supplemental brief;
we find those claims meritless. We deny his request for
remand to the district court.
Id.
Fowlkes now seeks this court’s authorization, under section 2244,
to file a successive section 2254 application. In his successive section
2254 motion, Fowlkes presents his ineffective assistance of counsel
claim, his Brady claim, and his impartial jury claim. And, once again,
Fowlkes advances the Stokes and Barbour affidavits as proof of his
actual innocence. In response to Fowlkes’ section 2244 application,
Virginia has submitted a June 18, 2002 affidavit by Stokes wherein
she recants her statements made in the July 18, 2001 affidavit submit-
ted by Fowlkes. She claims she was tricked into signing the other affi-
davit and that "[a]ll of the testimony I gave at the trial of Larry
Fowlkes was true." S.A. 2. Virginia has also presented an affidavit by
Officer Scruggs, the officer in charge of the Fowlkes case, who says
that Stokes called him and told him that she had been tricked into
signing a paper that said she lied in the Fowlkes trial.
II.
Since Fowlkes has previously filed a section 2254 motion, he may
only file a successive section 2254 motion if he receives authorization
from this court under the standard established in section
2244(b)(3)(C). See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or
successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the application.").
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According to section 2244(b)(3)(C), "[t]he court of appeals may
authorize the filing of a second or successive application only if it
determines that the application makes a prima facie showing that the
application satisfies the requirements of this subsection." Id.
§ 2244(b)(3)(C). Section 2244 provides the following requirements
with respect to a successive petition:
(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless —
(A) the applicant shows that the claim relies on
a new rule of constitutional law, made retro-
active to cases on collateral review by the
Supreme Court, that was previously unavail-
able; or
(B)(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 reason-
able factfinder would have found the
applicant guilty of the underlying
offense.
28 U.S.C. § 2244.
Fowlkes seeks to raise three constitutional claims in his successive
petition: (1) that he was convicted only due to ineffective assistance
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of counsel; (2) that the prosecution violated Brady v. Maryland when
it failed to disclose an alleged deal between Stokes and the Common-
wealth’s attorney for leniency on a criminal charge in exchange for
her testimony against Fowlkes; and (3) that Fowlkes was denied his
Sixth Amendment right to an impartial jury when the foreman of his
jury was the brother-in-law of the man Barbour claimed was the true
murderer.
A.
All of these claims fail under section 2244(b)(1), as they were
raised in Fowlkes’ original section 2254 motion. As recounted above,
Fowlkes raised his ineffective assistance claim and his Brady claim
before the district court in his original motion. On appeal, Fowlkes
added the Stokes and Barbour affidavits. He used those affidavits to
argue in support of his actual innocence and Brady claims, in addition
to his newly added impartial jury claim. Thus, on appeal, Fowlkes
presented the same evidence and claims that he now seeks to present
in his successive 2254 motion. Considering the additional evidence
and claims, the court in Fowlkes I stated, "we find those claims merit-
less." Fowlkes, 2001 WL 1545484, *1. Because the evidence and
claims now pressed by Fowlkes have already been raised, considered,
and rejected on the merits by this court, Fowlkes’ attempt to resurrect
those claims fails under section 2244(b)(1).5
Fowlkes argues that the court in Fowlkes I did not actually reach
the merits of those claims; rather it affirmed the district court on the
ground that the additional evidence and claims in his supplemental
briefs were not presented at the district court level. It is true that the
decision of the court in Fowlkes I appears incongruous since it passed
on the merits of the claims while at the same time dismissing the
5Indeed, if anything, Fowlkes’ assertion of actual innocence has
decreased in merit since the appeal from the dismissal of his original
petition. The affidavits adduced by Virginia, which were not before the
Fowlkes I court, cast into serious doubt the evidence Fowlkes proffered
in his original section 2254 motion to support his claim of actual inno-
cence. Thus, even were we inclined to revisit the merits of Fowlkes’
actual innocence claim, we would certainly have no basis on which to
reach a result contrary to that of the Fowlkes I panel.
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appeal on a predicate procedural ground, i.e., failure to meet the cer-
tificate of appealability requirements. However strange, we are bound
by the words of the Fowlkes I opinion, for that is the law. While it
is undeniably true that, given the court’s decision to deny a certificate
of appealability, the court should not have reached the merits of the
claims, it is nevertheless apodictic that the court did in fact address
and decide the merits of Fowlkes’ claims. We are accordingly bound
by its determination.
We express some surprise at our concurring colleague’s assertion
that we did not reject Fowlkes’ claims as meritless on their merits,
but, rather, held only that Fowlkes did not make a substantial showing
of the denial of a constitutional right — an assertion, he argues, that
is confirmed by the fact that a holding on the merits of those claims
would have been contrary to the mandates of AEDPA. As he puts it
variously, the problem is either with our "attribution [of] unwarranted
clarity" to the panel’s opinion in Fowlkes or with our imputation of
a holding to a portion of the panel’s opinion that in reality was only
dicta.
Judge Gregory’s is a good story ruined by eyewitnesses, so the say-
ing goes, of whom he is one. Indeed, it "might have been," as he pos-
tulates, that the panel was referring to the possibility that Fowlkes’
new evidence raised issues only as to the substantiality of the consti-
tutional questions presented, or even that that portion of the opinion
in which Fowlkes’ claims were rejected as meritless was really only
dicta. But it was not so.
As Judge Gregory knows, since AEDPA was enacted seven years
ago, our circuit has ignored that statute’s mandates that we not pro-
ceed to decide the substantive merits of a habeas petition until and
unless a certificate of appealability issues and that we not issue a cer-
tificate of appealability except upon a substantial showing of the
denial of a constitutional right. We have continued to decide the sub-
stantive merits of claims presented on habeas without regard to the
requirement of a certificate of appealability. And we have declined to
require a certificate of appealability as a precondition to decision of
the merits of the claims presented in a petition for habeas corpus.
Not only have we now openly acknowledged this practice. See
Swisher v. True, No. 02-10 (March 28, 2003). But, that we have so
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proceeded (and incorrectly) has recently been pointed out to us and
for us by the Supreme Court of the United States. See Miller-El v.
Cockrell, 123 S. Ct. 1029 (2003); id. (Scalia, J., concurring).
The problem, then, would not appear to be with either our imputa-
tion of clarity, where such is unwarranted, or our consignment to
holding of that which is only dicta. Rather, the problem would appear
to be with Judge Gregory’s understandable reluctance to acknowledge
that our circuit has been in error for some number of years now,
including the year in which Fowlkes’ appeal was decided, in deciding
the merits of claims as to which no certificate of appealability had
previously issued.
B.
Even assuming, counterfactually, that Fowlkes had not raised these
claims in his prior section 2254 motion, the claims must still be dis-
missed because they do not meet the requirements of section
2244(b)(2)(B).6 Fowlkes’ ineffective assistance claim would fail
under section 2244(b)(2)(B)(i) because the factual predicate for the
claim could have been discovered previously through the exercise of
due diligence. The new evidence adduced by Fowlkes — the Stokes
and Barbour affidavits — goes only to his actual innocence, Brady,
and impartial jury claims; none of the new evidence that Fowlkes
seeks to present supports his ineffective assistance claim. The evi-
dence supporting that claim has been available to Fowlkes at least
since his trial, and indeed he raised the claim in his state habeas peti-
tion and in his first section 2254 petition.
Fowlkes’ Brady and impartial jury claims fail section
2244(b)(2)(B)(ii)’s requirements. The standard under section
2244(b)(2)(B)(ii) is not simply whether the applicant can show a con-
stitutional violation, as Fowlkes seems to think, but rather whether
"but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense." 28 U.S.C.
§ 2244(b)(2)(B)(ii) (emphasis added). Fowlkes’ Brady claim fails
under section 2244(b)(2)(B)(ii) because Fowlkes cannot show that but
6Fowlkes does not argue that any of his claims satisfy section
2244(b)(2)(A).
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for the Brady violation, no reasonable juror would have voted to con-
vict. While the evidence of a deal would impeach Stokes’ testimony
somewhat, a reasonable juror could still have credited it and, on that
basis, voted to convict Fowlkes. Fowlkes’ impartial jury claim would
likewise fail under section 2244(b)(2)(B)(ii) because even if Fowlkes
could show that the jury foreman was biased, a reasonable jury could
still have voted to convict on the evidence before it. Thus, Fowlkes
cannot show that but for the bias, he would not have been convicted.7
For the reasons stated herein, we deny Fowlkes’ motion for autho-
rization under section 2244.
AUTHORIZATION DENIED
GREGORY, Circuit Judge, concurring in the judgment:
I concur with the majority’s denial of Fowlkes’ Motion for Author-
ity, but would do so upon alternative grounds. The majority is correct
in finding that Petitioner’s claims alleging ineffective assistance of
counsel and non-disclosure in contravention of Brady v. Maryland
were raised in his original section 2254 motion before the district
court, and are therefore barred under section 2244(b)(1). However,
the majority unnecessarily relies upon our ambiguous and far from
"apodictic" language in Fowlkes I regarding the "merits" of these
claims. Furthermore, because the impartial jury claim was never pre-
sented before the district court, and because it is hardly clear that we
considered this claim on the merits in Fowlkes I, I would analyze this
claim under section 2244(b)(2)(B).
I.
As the majority notes, Fowlkes’ appeal incorporated the Stokes and
Barbour affidavits, both to supplement his ineffective assistance of
7Our disposition on the merits of Fowlkes’ section 2244 motion ren-
ders it unnecessary for us to address Fowlkes’ arguments regarding the
appropriateness of the successive section 2254 motion that he filed in
district court, even were that issue properly before this court, which it is
not.
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counsel and Brady claims and to add a new impartial jury claim.1
According to the majority, when we denied a certificate of appeala-
bility in Fowlkes I, we also reached the merits of each of the claims
before the Court. The majority reaches this conclusion by citing our
dicta in Fowlkes I, where we noted, "[W]e have considered the issues
raised in [Fowlkes’] supplemental briefing; [and] we find those
claims meritless." As the majority notes, this seemingly gratuitous
finding would appear "strange" and "incongruous," not to mention
incorrect, under the appropriate standard for reviewing an application
for a certificate of appealability. See Miller-El v. Cockrell, 537 U.S.
___, 123 S. Ct. 1029 (2003), Slip Op. at 17-18. It is precisely in light
of these observations by the majority that we should hesitate to attri-
bute unwarranted clarity to this troublesome language. An equally
plausible alternative reading of the text of our decision in Fowlkes I
would follow from a more cautious analysis of the relationship
between the terms "issues" and "claims," particularly as our interpre-
tation of this language should be informed by the procedural context
of the discourse. Thus, given that we were not required to reach the
ultimate "merits" of the legal claims before us in adjudicating the
application, and because the antecedent of the term "claims" is "is-
sues," might we not have simply been referring to the Petitioner’s
claim that his new evidence raised additional issues in furtherance of
his pending application?
Petitioner raised the issues presented in order to strengthen his case
for the issuance of a certificate of appealability, which would allow
subsequent consideration on the merits. Hence, our use of the term
1The treatment by Petitioner of this claim alternately as a generalized
claim of actual innocence, and as the basis for a claim of ineffective
assistance of counsel, is a bit confusing. In the final briefing papers sup-
porting his Motion for Authority, Petitioner treats the claim exclusively
as one of actual innocence. However, in the briefing submitted to the dis-
trict court under § 2254, Petitioner argued that ineffective assistance of
counsel had resulted in the conviction of one who was actually innocent.
This inconsistency probably betrays Petitioner’s awareness of the claim
preclusion effect of § 2244(b)(1), which he attempts to evade by fashion-
ing the claim as one of "actual innocence" under Schlup and its progeny.
For simplicity, from this point forward I shall refer to this hybrid claim
as the "ineffective assistance of counsel claim."
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"meritless" need not implicate substantive review of the merits of the
legal claims presented. Instead, we appear to have been passing upon
the meritoriousness of the issues presented in support of the applica-
tion, and noting that even in light of this new evidence, we were not
convinced that the application warranted revisiting. The majority is
correct that under the law of the case, we are bound by our prior deci-
sion in Fowlkes I. However, where the meaning of that decision is
unclear, and where we can adopt an equally compelling alternative
understanding of the language of that decision, I see no need to
assume the worst and reach our shared conclusion by buttressing a
flawed basis of decision.
A.
AEDPA does not suffer kindly the relitigation of tired claims.
Although we have had little opportunity to interpret the meaning of
the term "claim" under section 2244(b),2 the purpose of AEDPA as
well as Supreme Court pronouncements upon the nature of this sec-
tion allow us to apply modified principles of res judicata to its analy-
sis. See, e.g., Felker v. Turpin, 518 U.S. 651, 664 (1996) ("The new
restrictions on successive petitions constitute a modified res judicata
rule, a restraint on what is called in habeas corpus practice ‘abuse of
the writ.’"). Additionally, our sister circuits have developed varying
approaches to the analysis of this statutory question. See, e.g., Branni-
gan v. United States, 249 F.3d 584 (7th Cir. 2001) (utilizing princi-
ples of claim preclusion to analyze successiveness of claim); Babbitt
v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) ("[A] ground is suc-
cessive if the basic thrust or gravamen of the legal claim is the same,
regardless of whether the basic claim is supported by new and differ-
ent legal arguments . . . Identical grounds may often be proved by dif-
ferent factual allegations." (internal citations and quotation omitted));
Roberts v. Bowersox, 170 F.3d 815, 816 (8th Cir. 1999) (reassertion
of constitutional violations raised in first petition barred); In re:
Medina, 109 F.3d 1556, 1565 (11th Cir. 1997) (appearing to assume
that the presentation of a new legal claim constitutes presentation of
2See, e.g., Harvey v. Horan, 278 F.3d 370, 380 (4th Cir. 2002) ("[A]
second or successive petition may be dismissed if the judge finds that it
fails to allege new or different grounds for relief and the prior determina-
tion was on the merits." (internal quotations and citation omitted)).
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a new claim). Of these varying analytical approaches, that developed
by the Seventh Circuit in Brannigan offers an excellent model for the
matter sub judice. Rather than adopting an excessively restrictive def-
inition of "claim," where any claim arising out of the same constitu-
tional right is precluded, the Brannigan court offers a nuanced
approach concomitant with traditional notions of res judicata.
Writing for the majority, Judge Easterbrook focused the court’s
inquiry upon, "defin[ing] the ‘claim’ as a challenge to a particular
step in the case, such as the introduction of a given piece of evidence,
the text of a given jury instruction, or the performance of counsel."
249 F.3d at 588. The Brannigan majority relied upon this distinction
to reject the petitioner’s challenge under Apprendi v. New Jersey, 530
U.S. 466 (2000), ruling that his weapons enhancement and drug quan-
tity determination challenges presented only one claim. Because the
petitioner had already presented the weapon possession claim under
Apprendi, he was precluded under § 2244(b)(1) from presenting the
drug quantity challenge. The court reasoned that both related to the
same step of the case, to-wit, the sentencing enhancement.
In a separate concurrence, Judge Cudahy took issue with the major-
ity’s approach to claim preclusion, and offered a more fact-intensive
approach. Specifically, Judge Cudahy reasoned, "A claim, specifically
in the context of the federal habeas statute, is a set of facts giving rise
to a right to a legal remedy. A claim is therefore distinguished by its
facts (specifically by its nucleus of operative facts), not just by the
legal principle that it invokes or the body of law from which it
derives." 249 F.3d at 590 (internal quotations omitted). Applying
either of these approaches to the Brady and ineffective assistance of
counsel claims presented to the district court in Fowlkes I, we can dis-
miss the claims before us today as precluded. Under the step theory,
Petitioner’s claims both go to the introduction of damaging testimony
by the Commonwealth at trial. The new affidavits merely fortify
Fowlkes’ challenge to this step of the litigation. However, because
our inquiry should also account for the possibility of meaningful fac-
tual differences between claims, even where the claims concern the
same step, I would adopt Judge Cudahy’s approach.
Under Judge Cudahy’s approach, Fowlkes’ new evidence fails to
extricate him from the bonds of claim preclusion. The essence of his
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claims of ineffective assistance of counsel and of non-disclosure of
the leniency deal under Brady is that the testimony of Sheila Barbour
was perjured. Assuming that this were true, there would be no inde-
pendent corroboration of his conversation regarding driving to the
scene of the crime and no corroboration of the cleaning of blood from
his car. Additionally, Fowlkes offers the testimony of Robert Stokes
that his mother had perjured herself and that another individual had
committed the crime. Here, the "common nucleus of operative fact"
is clearly the assertion that Ms. Barbour perjured her testimony in
exchange for a deal. Without this perjured testimony, the government
may well have failed to convict Fowlkes. However, Fowlkes had
presented this theory of perjury in his prior petition, even though he
supported it with different affidavits. Although he now offers new
evidence in support of the theory, the evidence seeks to establish the
same operative fact, perjury for leniency. The mere offering of new
evidence in support of the same theory cannot relieve Petitioner of the
effects of res judicata. Were we to hold otherwise, habeas petitioners
would earn a new hearing every time they adduced a new affidavit or
piece of evidence in support of a previously litigated theory.
Under this analysis, the new affidavits do not render the claims pre-
viously adjudicated "new" for purposes of claim preclusion. Both
claims can be dismissed therefore upon the basis of their presentation
in the first application.
B.
As the majority notes, Petitioner first raised his impartial jury claim
in his supplemental briefing before this court in Fowlkes I. Even
though we did not reach the merits of this claim, petitioner clearly
"presented" it in a prior petition, so we may again dismiss it under
section 2244(b)(1). However, should we wish to treat the claim as
"new," and thereby avoid the question of whether presentation of the
claim only on the application for a certificate of appealability is tanta-
mount to presentation in the petition ab initio, we can reach dismissal
through application of section 2244(b)(2). Here, I would concur with
the majority’s analysis and the conclusion reached.3
3With respect to this analysis, I would note that the impartial jury
claim is particularly suspect in light of the fact that the Petitioner has not
alleged that the foreman was even aware that his relative may have been
involved with the crime.
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