UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-30668

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Barry Williams,

Petitioner-Appellant,

versus

Burl Cain, Warden, Louisiana State Penit entiary; Richard P.

Ieyoub, Attorney General, State of Louisiana,

Respondents-Appellees.

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Appeal from the United States District Court for the

Eastern District of Louisiana

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July 15, 1997

Before GARWOOD, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal addresses whether th e new prior certification

requirement of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA” or “the Act”), Pub. L. No. 104-132, 110 Stat. 1214

(1996), applies to habeas corpus petitions that were filed in noncapital cases and were pending on the day the statute was enacted.

See 28 U.S.C. § 2244(b)(3). Concluding that § 2244(b)(3) of the

AEDPA appli ed to pending petitions, the district court dismissed

the subject petition without prejudice in order for the petitioner

to comply with the Act’s prior certification requirement. For the2

reasons that follow, we hold that § 2244(b)(3) of the Act does not

apply to petitions filed in non-capital cases before the AEDPA was

enacted. Accordingly, the judgment of the district court is

vacated and the case is remanded for further proceedings consistent

with this opinion.

I. Background

In 1978, the petitioner, Barry Williams, was convicte d by a

Louisiana jury of second-degree murder. Williams was sentenced to

life imprisonment, without the possibility of parole or probation

for forty years. The Louisiana Supreme Court affirmed his

conviction and sentence on direct appeal.

In 1989, Williams filed an application for a writ of habeas

corpus in federal district court raising the same claims that he

raised on direct review in state court. That petition was denied

in April 1990. In 1991, Williams again sought post conviction

relief in state court. Williams claimed that the trial court

erroneously charged the jury and that he was denied his

constitutional right to be present during all stages of the trial.

After an evidentiary hearing, the state trial court denied relief.

The Louisiana Supreme Court denied a supervisory writ.

Williams then filed the subject petition for habeas relief in

federal district court. Although the district court received the

petition on November 1, 1994, it was not stamped “filed” until

April 22, 1996. In the petition, Williams argued that the trial

court issued an erroneous jury instruction and that he was denied

the right to be present at all stages of his trial.1 The prior certification requirement of the AEDPA provides:

(3)(A) Before a second or successive application permitted by this

section is filed in district court, the applicant shall move in the

appropriate court of appeals for an order authorizing the district

court to consider the application.

(B) A motion in the court of appeals for an order authorizing the

district court to consider a second or successive application shall

be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a sec ond or

successive a p plication only if it determines that the application

makes a prima facie showing that the application satisfies the

requirements of this subsection.

28 U.S.C. § 2244(b)(3).

2 Alternatively, the magistrate recommended that the district

court dismiss Williams’s petition for failure to exhaust his claims

3 After discovering that Williams’s petition was successive, a

magistrate judge issued a report and recommendation concluding that

the petition should be dismissed. The magistrate noted that under

the AEDPA, which was enacted on April 24, 1996, Williams was

required to obtain a certificate from this court before filing a

successive petition. 1 Therefore, the magistrate recommended that

Williams’s petition be dismissed without prejudice “pending

appropriate certification by the Court of Appeals.”

Williams responded that “at the time of the filing of the

first federal habeas petition, [he] did not possess [n]or could he

have reasonably obtained the relevant evidence to the claims as

presented in the instant petition.” Williams also objected to the

magistrate’s report and recommendat ion and argued that the new

provisions of the AEDPA did not apply to his petition. The

district court overruled Williams’s objections, adopted the

magistrate’s report, and dismissed Williams’s petition without

prejudice. 2 On June 18, 1996, Williams timely filed his notice ofin state court. Williams argued in his objections to the

magistrate’s report and recommendation that his cla ims were

exhausted, and provided appropriate citations to the state court

record. Nonetheless, the district court overruled Williams’s

objection s and adopted the magistrate’s report in its entirety.

Because our own indepen dent review of the state court record

establishes that Williams’s claim s were indeed exhausted, this

basis for the district court’s decision is vacated.

4 app eal. The district court denied Williams’s application for a

certificate of appealability (“COA”) under the AEDPA.

On Dece mber 27, 1996, this court granted Williams’s request

for COA “as to the district court’s application of the successivepetition provision of the AEDPA to his pending § 2255 motion.” The

parties were directed to brief the issue, and this appeal followed.

II. Discussion

In Lindh v. Murphy

, — S. Ct. —, 1997 WL 338568 (June 23,

1997), the Supreme Court clarified the analysis governing the

temporal reach of newly enacted legislation. First, a court must

ask whether n ew legislation contains a clear and unambiguous

statement of Congress’s intent to apply a new statutory provision

to conduct that occurred before the statu te was enacted. Only a

plain statement to this effect will defeat the traditional

presumption against retroactive application of a statute. S ee id.

at **3-4 & n.4.

In the absence of a plain statement of the legisl ature’s

intent that a statute be applied retroactively, a court must ask

whether normal rules of statutory construction suggest that a new

provision app lies to the case before it. I d. at *4. If normal

rules of statutory construction suggest that a new provision does3 S ee id. (“Although Lan dgraf ’ s default rule would deny

application when a retroactive effect would otherwise result, other

construction rules may apply to remove even the possibility of

retroactivity (as by rendering the statutory provision wholly

inapplicable to a particular case)”); id. at *11 (Rehnquist, C.J.,

dissenting) (noting that the majority’s ana lysis stops after

concluding that traditional canons of statutory interpretation

suggest that the new provisions do not apply).

4 S ee Landgraf v. USI Film Products

, 511 U.S. 244, 257-64, 280-93,

114 S. Ct. 1483, 128 L.Ed.2d 229 (1994) (acknowledging that the

petitioner’s textual argument in favor of application of the new

statutory provisions at issue carried “some force” before declining

to apply the provisions because of the retroactive effect that

would result).

5 not apply to a particular case, the new provision is inapplicable. 3

Only where traditional canons of interpretation suggest that

a new statutory provision applies to a pending case is it necessary

for a court to determine whether such application would have a

retroactive effect. 4 Because of the unfairness of imposing new

burdens on people “after the fact,” a statute that has a

retroactive effect should not be applied to conduct that occurred

before the statute was enacted. L andgraf

, 511 U.S. at 265-73. On

the other hand, if a new statu te does not have the disfavored

retroactive effect, a court should apply the law in effect when its

decision is r endered, even though the applicable statute was

enacted after the events that gave rise to the suit. Id. at 273.

Purs uant to the preceding analysis, the L indh Court applied

the normal rules of statutory interpretation to determine whether

§ 2254(d) of the AEDPA applied to the petitioner’s case. 1997 WL

338568 at **4-8. The Court noted that sections 101-106 of the

AEDPA amend sections 2244 and 2253-2255 of chapter 153 of Title 286

of the United States Code, governing all habeas corpus proceedings

in federal courts. I d. at *4 (citing 110 Stat. 121 7-21). The

Court also poi nted out that section 107 of the AEDPA creates an

ent irely new chapter 154, which enacts special rules governing

collateral challenges to state capital proceedings that apply when

states meet certain conditions. I d. (citing 110 Stat. 1221-26).

Finally, the Court recognized that section 107(c) of the AEDPA

explicitly provides that “Chapter 154

... shall apply to cases

pending on or after the date of enactment of this Act .” Id.

(quoting 110 Stat. 1226).

The negative implication of section 107( c) led the Court to

concl ude that “the new provisions of chapter 153 generally apply

only to cases filed after the Act became effective.” I d. at *8.

The only exceptions to the general rule articulated by the Court

were those situat ions “where chapter 154 otherwise makes select

provisions of chapter 153 applicable to pending cases.” I d. at *4.

Because the petitioner’s case did not implicate an exception to the

general rule announced by the Court, § 2254(d) was held

inapplicable. Id. at *8.

The instant case falls squarely within the general rule

articulat ed in L indh

. The new successive petition provisions of

the AEDPA are contained in section 106 of the Act, which amends

chapter 153 of Title 28 of the United States Code. See 28 U.S.C.

§ 2244(b)(3) (quoted in note 1). Moreover, the subject petition

cannot implicate section 154 because it does not present a5 We do not reach whether the prior certification requirement

applies to successive petitions filed pri or to the AEDPA’s

enactment in cases otherwise governed by section 107. S ee 28

U.S.C. § 2262(c) (providing that if a stay of execution expires

under certain articulated circumstances, “no Federal court

thereafter shall have the authority to enter a stay of execution in

the case, unless the court of app eals approves the filing of a

second or successive application under section 2244(b)”).

7 collateral challenge to a capital conviction in state court. 5

Accordingly, we hold that the prior certification requirement of

the Act does not apply because the petitioner’s application for a

writ of habeas corpus was pending on April 24, 1996, the date the

AEDPA was enacted.

III.

For the foregoing reasons, the judgment of the district court

is VACATED an d this case is REMANDED for further proceedings

consistent with this opinion.