George H. Gage v. Kevin Chappell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE H. GAGE,
Petitioner,
v.
KEVIN CHAPPELL,
Respondent.
No. 13-73438
OPINION
Application to File Second or Successive
Petition under 28 U.S.C. § 2254
Argued and Submitted April 7, 2015
Submission Vacated April 7, 2015
Resubmitted July 16, 2015
Pasadena, California
Filed July 20, 2015
Before: Dorothy W. Nelson, A. Wallace Tashima,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Tashima

-- 1 of 20 --

GAGE V. CHAPPELL 2
SUMMARY*
Habeas Corpus
The panel denied California prisoner George Gage’s
application for permission to file a second or successive
habeas petition under 28 U.S.C. § 2254 in a case in which
Gage, who was convicted of sexually assaulting his
stepdaughter, sought to bring a Brady claim and an
ineffective assistance of counsel claim, neither of which was
included in his first federal habeas petition.
The panel held that Gage’s argument that his new petition
is not “second or successive” within the meaning of the
AEDPA is foreclosed by United States v. Buenrostro,
638 F.3d 720 (9th Cir. 2011), because the factual predicates
for his claims existed at the time of his first petition.
The panel held that Gage is barred from bringing a
successive petition under 28 U.S.C. § 2244(b)(2)(B) because
he failed to exercise due diligence by failing to include the
Brady claim in his original petition, and that the actual
innocence exception articulated in Schlup v. Delo, 513 U.S.
298 (1995), does not abrogate § 2244(b)(2)(B).
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 20 --

GAGE V. CHAPPELL 3
COUNSEL
Tony Faryar Farmani (argued), Farmani, APLC, San Diego,
California, for Petitioner.
Kamala D. Harris, Attorney General of California, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, David C. Cook
(argued), Deputy Attorney General, Los Angeles, California,
for Respondent.
OPINION
TASHIMA, Circuit Judge:
California prisoner George Gage applies for permission
to file a second or successive habeas petition under 28 U.S.C.
§ 2254. Gage, who was convicted in California court of
sexually assaulting his stepdaughter, seeks to bring a Brady1
claim and an ineffective assistance of counsel claim, neither
of which was included in his first federal habeas petition. He
asserts actual innocence and argues that his petition thus falls
into the miscarriage of justice exception articulated in Schlup
v. Delo, 513 U.S. 298 (1995), thereby excusing him from the
limitations on second or successive petitions imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(b)(2)(B). We conclude, first,
that Gage is barred from bringing a successive petition under
§ 2244(b)(2)(B) because of his failure to exercise due
1 Brady v. Maryland, 373 U.S. 83 (1963).

-- 3 of 20 --

GAGE V. CHAPPELL 4
diligence, and, second, that the Schlup exception does not
abrogate § 2244(b)(2)(B). We therefore deny the application.
I.
In 1985, while living in Texas, Gage met Wanda, a
mother of two children, Marian and Lionel. Gage and Wanda
moved in together and were married in 1990. Marian was
then nine years old and Lionel was seven. The family moved
to California in 1993.
In April 1995, Wanda learned that Gage had pursued an
affair with another woman that resulted in a child. Gage had
been siphoning money from family funds to pay child
support. These revelations led to the marriage’s acrimonious
collapse. Wanda and the children quickly moved back to
Texas.
Several years after the split, in 1998, Marian told Wanda
that Gage had sexually abused her while they were living in
California. Marian and Wanda reported Gage to Texas
authorities approximately two months later. According to the
initial police report, Marian indicated that Gage engaged in
inappropriate touching but did not have intercourse with her.
Later, however, Marian stated that Gage actually had
intercourse with her on numerous occasions. These
accusations surfaced during a tumultuous time in Marian’s
life. Around the time she reported the abuse, Marian
apparently attempted suicide on several occasions and spent
a significant amount of time hospitalized for mental illness.
In response to Marian’s allegations, the Los Angeles
County District Attorney charged Gage with one count of
continuous sexual abuse of a child (Cal. Penal Code § 288.5),

-- 4 of 20 --

GAGE V. CHAPPELL 5
nine counts of forcible rape (Cal. Penal Code § 261(a)(2)),
and nine counts of lewd acts against a child (Cal. Penal Code
§ 288(a)).
Prior to trial,2 the prosecution sought to exclude Marian’s
medical records as subject to the doctor-patient privilege and
the defense did not object. The trial judge questioned the
prosecution about the content of those records:
I take it that the statements – that any
statement [Marian] might have made to the
psychiatrist would have been turned over, if
they were not – if they were inconsistent.
The prosecutor responded:
I . . . contacted the therapist, communicated
with her directly, and she indicated that the
victim had always been consistent that the
molestation had taken place . . . . And then I
tried to communicate with the hospitals, and
. . . there was nothing that I found, in response
to the court’s inquiry, that would indicate that
there were any inconsistencies that she had
ever said. For example, “no that never
2 California authorities initially offered Gage a plea deal that would have
resulted in a sentence ranging between probation and approximately
sixteen years’ imprisonment. (The court described the likely sentence that
would have resulted from this plea as “about five years, plus.”) Gage
declined the offer.

-- 5 of 20 --

GAGE V. CHAPPELL 6
happened,” or that “I made all that stuff up,”
or anything like that.
No further discussion of the medical records occurred.
At Gage’s first trial, Marian did not testify and the jury
hung. At Gage’s second trial, Marian’s testimony provided
the core of the case against Gage. According to Marian,
Gage began abusing her when the family moved to
California. The abuse typically occurred once and later twice
a week. Marian testified that Gage told her the incidents were
a secret and threatened to hurt her, her mother, or her brother
if she reported it. Wanda also testified that on one occasion
Gage hit her in front of the children, and that he demeaned
her and encouraged the children to call her names. However,
Wanda observed no indications of sexual abuse while living
with Gage. A physical exam of Marian did not show signs of
abuse.
The defense’s theory at the second trial was that either
Marian or Wanda had manufactured the allegations against
Gage in retribution for his extramarital affair. Gage took the
stand and denied the allegations. A defense expert witness
also testified that, based on an interview, Gage “did not meet
the diagnostic criteria for pedophilia.” The second trial
resulted in Gage’s conviction on all counts contained in the
indictment.
At the beginning of the sentencing phase, the trial judge
requested the prosecution provide Marian’s medical and
psychiatric records. When the prosecution protested, the
judge indicated that if the state did not comply, she would set
aside the verdict. The prosecution subsequently turned the
medical records over to the court for in camera review and

-- 6 of 20 --

GAGE V. CHAPPELL 7
Gage filed a motion for a new trial on the ground that
insufficient evidence supported the jury’s verdict.
After reviewing the medical records in camera, the court
granted the motion for a new trial and vacated Gage’s
convictions. The trial court concluded that the testimony of
the victim and her mother was not credible, leaving
insufficient evidence to support the jury’s verdict. The court
explained that it had harbored doubts about the veracity of
Marian’s testimony during trial because it “appeared to be
contrived.” The court then concluded that evidence in the
medical records rendered Marian’s testimony an insufficient
basis for conviction as a matter of law. Several items in the
medical records grounded this conclusion: (1) Wanda
apparently described Marian to a mental health professional
as “a pathological liar [who] lives her lies”; (2) Marian’s
accusations followed a large fight with her mother after
Wanda caused Marian’s then-boyfriend to be sent to prison;
and (3) Marian made only fleeting references to having been
sexually abused during the course of her psychological
treatment.
The State appealed to the California Court of Appeal,
which reinstated the conviction. It held that the trial court
improperly relied on the medical records, which were never
before the jury, in granting the new trial. The Court of
Appeal also directed that the matter be reassigned. A new
judge sentenced Gage to 70 years’ imprisonment.
Since his conviction, Gage has filed or attempted to file
three petitions. Gage first petitioned the California Court of
Appeal for the disclosure of Marian’s medical records on the
ground that those records constituted Brady material. In a
short opinion, the Court of Appeal denied the petition. In so

-- 7 of 20 --

GAGE V. CHAPPELL 8
doing, it noted that “[t]here is nothing in [the] records which
could be of assistance to defendant,” and concluded that
Gage “failed to demonstrate that there is any merit to any of
[his] constitutional contentions . . . .” The Court of Appeal,
however, did not explain why the contents of the medical
records failed to meet the Brady standard and did not
elaborate on the records’ content. The California Supreme
Court summarily denied a hearing of Gage’s appeal. Since
that time, the State has refused to turn over Marian’s medical
records to Gage, his counsel, or the court.
In 2005, Gage filed a pro se habeas petition in the U.S.
District Court for the Central District of California. Although
Gage mentioned the possibility of a Brady claim in this
petition, it focused on unrelated procedural defects in Gage’s
trial and conviction. Without addressing the possibility of a
Brady claim, the district court adopted a magistrate judge’s
findings and recommendations and denied the petition. In
April 2014, the Ninth Circuit denied Gage’s request for a
certificate of appealability, and in August 2014, it denied his
motion for reconsideration of that denial. In his motion for
reconsideration, Gage did not argue that he had, in fact, raised
the Brady claim in his first petition.
In September 2013, Gage filed a pro se application before
this court for leave to file a second or successive habeas
petition under 28 U.S.C. § 2254, including a Brady claim
relating to the State’s failure to produce Marian’s medical
records and an ineffective assistance of counsel claim. We
appointed counsel and ordered supplemental briefing.

-- 8 of 20 --

GAGE V. CHAPPELL 9
II.
The AEDPA places significant limitations on the ability
of petitioners to bring second-in-time habeas petitions:
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 retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; 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 reasonable
factfinder would have found the
applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2). Additionally, before a federal district
court may entertain a second or successive petition, the
appropriate circuit court must issue an order authorizing the

-- 9 of 20 --

GAGE V. CHAPPELL 10
district court to consider the petition. 28 U.S.C. § 2244(b)(3).
We will issue such an order and grant an application for a
second or successive petition if the would-be petitioner makes
a “prima facie showing” that his petition would meet the
requirements of § 2244(b)(2). Woratzeck v. Stewart,
118 F.3d 648, 650 (9th Cir. 1997) (per curiam) (quoting
28 U.S.C. § 2244(b)(3)).
Gage argues first that he need not satisfy § 2244(b)(2)
because his new petition is not a “second or successive”
petition within the meaning of the AEDPA. The Supreme
Court has indicated that “second or successive” is “a habeas
‘term of art’ that incorporates the pre-AEDPA abuse-of-the-
writ doctrine.” United States v. Buenrostro, 638 F.3d 720,
724 (9th Cir. 2011) (per curiam) (quoting Maywood v.
Patterson 561 U.S. 320, 332–33, 344–45 (2010)).
Depending on the substance of the underlying constitutional
claim, a second-in-time petition may or may not be
considered second or successive under § 2244(b)(2). In
Panetti v. Quarterman, for example, the Supreme Court
considered a second-in-time petition that argued carrying out
the petitioner’s capital sentence would be unconstitutional
under Ford v. Wainwright because the petitioner had
developed a mental illness rendering him insane.3 551 U.S.
930, 934–35, 946–47 (2007). The Court concluded that the
petition was not second or successive, because the factual
predicate for the Ford claim did not exist at the time the
petitioner filed his first petition – because at that time the
petitioner was not yet insane. See id. at 946–47. According
to the Court, this interpretation of § 2244(b)(2) made sense
3 See Ford v. Wainwright, 477 U.S. 399, 410 (1986) (holding that the
Eighth Amendment prohibits states from executing legally insane
prisoners).

-- 10 of 20 --

GAGE V. CHAPPELL 11
because “[a]n empty formality requiring prisoners to file
unripe . . . claims neither respects the limited legal resources
available to the States nor encourages the exhaustion of state
remedies.” Id. at 946.
Gage contends that his new petition falls into the Panetti
exception and does not qualify as a second or successive
petition. In Buenrostro, however, we adopted a constrained
reading of Panetti’s reach. See 638 F.3d at 721. Buenrostro
involved a would-be petitioner seeking to bring a second-in-
time habeas petition alleging ineffective assistance of counsel
based on newly discovered evidence. Id. In considering
whether such a petition would be subject to the second-or-
successive bar under 28 U.S.C. § 2255(h),4 we distinguished
between petitions containing claims, the factual predicate of
which came into being after the first habeas petition – such as
the mental incompetency claim in Panetti – and those
containing “claims that were ripe at the conclusion of a first
[habeas] proceeding but were not discovered until afterward”
– such as the ineffective assistance of counsel claim in
Buenrostro. Id. at 725 (emphasis omitted). We held that the
second category of claims, those in which the factual
predicate existed at the time of the first habeas petition,
indeed qualify as second or successive under the AEDPA. Id.
at 725–26; accord United States v. Obeid, 707 F.3d 898,
902–03 (7th Cir. 2013); Tompkins v. Sec’y, Dep’t of Corr.,
557 F.3d 1257, 1259–60 (11th Cir. 2009) (per curiam).
4 28 U.S.C. § 2255(h) sets forth the second or successive bar for federal,
as opposed to state, habeas petitions. It is analogous to § 2244(b)(2)(B),
the statute that governs successive habeas petitions challenging state
convictions, at issue here. See Buenrostro, 638 F.3d at 723–24.

-- 11 of 20 --

GAGE V. CHAPPELL 12
Buenrostro forecloses Gage’s argument. The factual
predicate for Gage’s Brady claim developed, at the latest,
when the state trial judge commented on the contents of
Marian’s medical records. The predicate for the ineffective
assistance of counsel claim matured at trial.5 This is not a
case where the basis for the would-be petitioner’s second
petition did not exist or was unripe when the first petition was
filed. Thus, the Panetti exception to § 2244(b)(2)’s plain text
does not apply.
We acknowledge that Gage’s argument for exempting his
Brady claim from the § 2244(b)(2) requirements has some
merit. Under our precedents as they currently stand,
prosecutors may have an incentive to refrain from disclosing
Brady violations related to prisoners who have not yet sought
collateral review. See United States v. Lopez, 577 F.3d 1053,
1064–65 (9th Cir. 2009). But as a three-judge panel, we are
bound to follow the teaching of Buenrostro. See Miller v.
Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
III.
Because Gage’s new petition qualifies as a second-or-
successive petition, we turn to whether Gage has established
a prima facie case that would meet the requirements of
§ 2244(b)(2). Gage has not argued that his claim relies on a
new rule of constitutional law, so we ask (i) whether the
5 Gage’s ineffective assistance of counsel claims all relate to his former
counsel’s performance before the trial court. They include: (1) counsel’s
failure properly to impeach Marian; (2) counsel’s failure to investigate
Marian’s medical records; and (3) counsel’s failure to present additional
evidence that Gage was not a pedophile. Gage does not allege any
ineffective assistance of counsel occurring after he filed his first habeas
petition.

-- 12 of 20 --

GAGE V. CHAPPELL 13
factual predicate for Gage’s claim could have been
discovered previously through the exercise of due diligence,
and (ii) whether the facts underlying Gage’s claim would be
sufficient to establish that, but for constitutional error, no
reasonable factfinder would have found Gage guilty. See
28 U.S.C. § 2244(b)(2)(B).
We note the difficulty in attempting to evaluate whether
Gage has satisfied the actual innocence standard under
§ 2244(b)(2)(B)(ii) because the State has refused to provide
access to the potential Brady material – Marian’s medical
records. Although we are disturbed by this refusal, we do not
confront whether the State should have disclosed the medical
records because Gage cannot satisfy the due diligence
requirement under § 2244(b)(2)(B)(i).
Under § 2244(b)(2)(B)(i), a petitioner fails to show due
diligence regarding a claim by omitting that claim from his
initial habeas petition, provided the claim’s factual predicate
was known or reasonably discoverable at the time. See
Babbitt v. Woodford, 177 F.3d 744, 746–47 (9th Cir. 1999)
(per curiam). The factual predicate for Gage’s Brady claim
became known to him, at the latest, when the state trial judge
granted his motion for a new trial on the basis of the medical
records. That occurred in 2000, long before Gage filed his
first habeas petition in 2005. Although Gage mentioned the
possibility of a Brady claim and the medical records in
passing in his first petition, he has never argued, either on
appeal of the denial of that petition or in his application to file
a second-or-successive petition, that he actually raised the
Brady claim in that petition. Thus, Gage failed to show due
diligence by failing to include the Brady claim in his original
petition. See Woratzeck, 118 F.3d at 652 (concluding that a
successive petitioner raising a claim for unconstitutional

-- 13 of 20 --

GAGE V. CHAPPELL 14
destruction of exculpatory evidence did not exercise due
diligence because “he [had] known about its (possible)
destruction for several years”); Johnson v. Dretke, 442 F.3d
901, 910–11 (5th Cir. 2006) (noting that a default under
§ 2244(b)(2)(B)(i) may occur “where the record demonstrates
that the defendant . . . was aware of the potential Brady
material but failed to pursue investigation of that ultimate
claim”).6 Gage cannot make out a prima facie case of
satisfying § 2244(b)(2).
IV.
Last, Gage contends that notwithstanding his default
under § 2244(b)(2), he should be allowed to file his second
petition because his claim falls into the actual innocence
exception articulated in Schlup. Decided one year before
AEDPA’s enactment, Schlup identified a narrow exception
allowing federal courts to consider the merits of certain
procedurally defaulted habeas petitions asserting
constitutional violations, if those petitions also include
compelling showings of actual innocence. Schlup, 513 U.S.
at 326–27. We assume without deciding that Gage’s Brady
claim, paired with his assertion of actual innocence, would
satisfy Schlup. The question, then, is whether Schlup
provides a gateway past the procedural requirements imposed
by AEDPA, § 2244(b)(2)(B).
6 Gage’s ineffective assistance of counsel claims relate to his former
counsel’s performance before the trial court. All of the alleged
deficiencies should have been known to Gage, at the latest, when the state
trial judge overturned his conviction based on Marian’s medical records.
Thus, Gage also did not exercise due diligence in failing to bring these
claims in his first habeas petition.

-- 14 of 20 --

GAGE V. CHAPPELL 15
Dualisms define habeas corpus. Habeas is a “vital
instrument for the protection of individual liberty” against
government power. Boumediene v. Bush, 553 U.S. 723, 743
(2008). But the reexamination of state convictions that the
modern writ entails implicates values of finality and comity
that are important to federalism and our system of criminal
justice. See Coleman v. Thompson, 501 U.S. 722, 731
(1991); McCleskey v. Zant, 499 U.S. 467, 491 (1991);
Kuhlmann v. Wilson, 477 U.S. 436, 453 n.16 (1986).
Likewise, habeas corpus is “at its core, an equitable remedy,”
that is sensitive to the ends of justice. Schlup, 513 U.S. at
319. Yet Congress has placed limits on the substantive scope
of habeas for over a century. See Felker v. Turpin, 518 U.S.
651, 659–60 (1996); Kuhlmann, 477 U.S. at 446; Note,
Powers of Congress and the Court Regarding the Availability
and Scope of Review, 114 Harv. L. Rev. 1551, 1551–53
(2001).
From these competing principles emerged the
fundamental miscarriage of justice exception. The exception
“seeks to balance the societal interests in finality, comity, and
conservation of scarce judicial resources with the individual
interest in justice that arises in the extraordinary case.”
Schlup, 513 U.S. at 324. As a general matter, the exception
allows federal courts to excuse procedural default in the
“truly deserving” habeas petition where there is a showing of
actual innocence. Id. at 321; see Sawyer v. Whitley, 505 U.S.
333, 336 (1992). Furthermore, under Schlup, where the
petitioner’s assertion of actual innocence is accompanied by
an assertion of constitutional error at trial, the likelihood of
innocence required to excuse procedural default is lower than
if the trial had been error free. Schlup, 513 U.S. at 316. In
these cases, procedural default may be excused if “it is more

-- 15 of 20 --

GAGE V. CHAPPELL 16
likely than not that no reasonable juror would have convicted
[the petitioner] in the light of the new evidence.” Id. at 327.
When Congress enacted the AEDPA, it altered, and in
many respects strengthened, the rules governing procedurally
defaulted habeas petitions. See Jones v. Ryan, 733 F.3d 825,
841–42 (9th Cir. 2013). The question thus arose whether and
in what circumstances the Schlup exception, which developed
under the pre-AEDPA regime, remains viable and provides a
gateway past the AEDPA’s new procedural default rules. In
a series of cases, the Supreme Court has held that the actual
innocence exception survives the enactment of the AEDPA
in certain instances and provides a gateway past some of the
AEDPA’s procedural restrictions. See McQuiggin v. Perkins,
133 S. Ct. 1924, 1935–38 (2013) (holding that a Schlup actual
innocence showing provides a gateway past the AEDPA
statute of limitations); House v. Bell, 547 U.S. 518, 537–38
(2006) (indicating that the Schlup actual innocence exception
permits a federal court to reach the merits of a petition that
was procedurally defaulted in state court); Calderon v.
Thompson, 523 U.S 538, 558 (1998) (indicating that a federal
court may, consistent with the AEDPA, recall its mandate if
there is a showing of a miscarriage of justice).
The Supreme Court has not explicitly determined whether
the Schlup exception provides a gateway past § 2244(b)(2)’s
successive petition restrictions. At least one of our sister
circuits has indicated that Schlup does not bypass
§ 2244(b)(2). See Jordan v. Sec’y, Dep’t of Corr., 485 F.3d
1351, 1359 (11th Cir. 2007). In Cooper v. Woodford, we
considered the issue but declined to resolve it. 358 F.3d
1117, 1119 (9th Cir. 2004) (en banc); see also Jones,
733 F.3d at 841 n.5.

-- 16 of 20 --

GAGE V. CHAPPELL 17
In answering this question, we recognize that although
habeas remains an equitable writ, we generally are bound to
observe the limits on its scope established by Congress. See
Felker v. Turpin, 518 U.S. 651, 663–64 (1996) (rejecting a
challenge to § 2244(b) under the Suspension Clause, U.S.
Const., art. I, § 9, cl. 2, because “[t]he power to award the
writ by any of the courts of the United States, must be given
by written law” (quoting Ex Parte Bollman, 8 U.S. (4 Cranch)
75, 94 (1807))).
In each of the cases where the Supreme Court has held
that the actual innocence exception may excuse procedural
default, the procedural bar at issue did not itself provide
guidance on when its strictures could be overcome. The
default at issue in House occurred under a state statute that
provided only “that claims not raised in prior postconviction
proceedings are presumptively waived” and did not directly
implicate any of the AEDPA’s provisions. House, 547 U.S.
at 534. Similarly, in McQuiggin, the default came under the
AEDPA statute of limitations, which simply identifies a rule
for when habeas petitions must be filed and does not lay out
equitable exceptions to that rule. See McQuiggin, 133 S. Ct.
at 1929.
Unlike those cases, the provision Gage seeks to bypass
through the Schlup gateway explicitly identifies equitable
exceptions to the procedural bar it sets out. Under
§ 2244(b)(2)(B), successive petitions are allowed, provided
that actual innocence can be shown by clear and convincing
evidence and the petitioner displayed due diligence. Thus, it
appears that in enacting § 2244(b)(2)(B), Congress accounted
for the equitable principles from which the actual innocence
exception arose. Congress provided a safety valve for
petitioners with compelling claims of actual innocence, but

-- 17 of 20 --

GAGE V. CHAPPELL 18
cabined its scope by instituting the due diligence requirement.
See Felker, 518 U.S. at 664 (explaining that § 2244(b)’s
requirements are “well within the compass” of the evolving
equitable principles that have traditionally informed when
courts may entertain successive petitions).
Reading Schlup to bypass that scheme entirely proves too
much. Under Schlup, a procedural default is excused if the
facts underlying the petitioner’s claim, more likely than not,
would have resulted in any reasonable jury being unable to
convict the petitioner. Section 2244(b)(2)(B)(ii) provides the
same thing but raises the petitioner’s burden of proof,
requiring clear and convincing evidence of innocence instead
of a preponderance of the evidence. See Schlup, 513 U.S. at
323–27. Were Schlup to provide a gateway past
§ 2244(b)(2)(B), the due diligence requirement in
§ 2244(b)(2)(B)(i) would lose all effect. The only cases in
which petitioners would be subject to the due diligence bar
would be those where they failed to establish actual
innocence by a preponderance of the evidence. But because
the preponderance is a less exacting standard than clear and
convincing evidence, those petitioners invariably would be
barred under § 2244(b)(2)(B)(ii). Under this reading, the due
diligence requirement would be surplusage. Familiar
principles of statutory interpretation direct that we give
independent meaning to each provision in a statute. See
United States v. 144,774 Pounds of Blue King Crab, 410 F.3d
1131, 1134–35 (9th Cir. 2005).
The Supreme Court’s recent decision in McQuiggin
confirms our conclusion. In that case, the petitioner did not
file his habeas petition within one year of “the date on which
the factual predicate of [his] claim . . . could have been
discovered through the exercise of due diligence,” as required

-- 18 of 20 --

GAGE V. CHAPPELL 19
under § 2244(d)(1)(D). McQuiggin, 133 S. Ct. at 1929
(quoting 28 U.S.C. § 2244(a)(1)(D)). The Supreme Court
ultimately held that a valid Schlup claim abrogated that
requirement, but it did so by distinguishing § 2244(d)(1)(D)
from § 2244(b)(2)(B), at issue here. The Court explained
that, in contrast to § 2244(d)(1)(D), in § 2244(b)(2)(B),
“Congress constrained the application of the [actual
innocence] exception. . . . Congress . . . required second-or-
successive habeas petitioners attempting to benefit from the
miscarriage of justice exception to meet a higher level of
proof (‘clear and convincing evidence’) and to satisfy a
diligence requirement that did not exist prior to AEDPA’s
passage.” Id. at 1933 (quoting 28 U.S.C. § 2244(b)(2)(B)).
Accordingly, the Court concluded, “[i]n a case not governed
by [§ 2244(b)(2)(B)] . . . the miscarriage of justice exception
survived AEDPA’s passage intact and unrestricted.” Id. at
1934 (emphasis added). The negative implication is that in
a case that is governed by § 2244(b)(2)(B), the exception did
not survive enactment of the AEDPA intact. We cannot
ignore the Supreme Court’s clear teaching. We hold that
Schlup does not abrogate § 2244(b)(2)(B).7
Accordingly, Gage cannot take advantage of the Schlup
gateway; thus, his second petition is barred under
§ 2244(b)(2)(B)(i) for lack of due diligence.
7 Our holding is confined to the context of gateway claims relying on
Schlup. We do not decide whether freestanding claims of actual
innocence, see Herrera v. Collins, 506 U.S. 390, 417 (1993), may excuse
procedural default under § 2244(b)(2)(B). Nor do we address the effect
of Schlup on AEDPA provisions other than § 2244(b)(2)(B).

-- 19 of 20 --

GAGE V. CHAPPELL 20
V.
We conclude that Gage’s application is subject to the
requirements of § 2244(b)(2)(B). Gage cannot satisfy those
requirements because he did not exercise due diligence by
failing to raise his Brady or ineffective assistance of counsel
claims in his first habeas petition. Gage’s application for
leave to file a second or successive petition is DENIED.

-- 20 of 20 --