UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7

In re: TIMOTHY RICHARDSON,

Movant.

Argued: December 10, 2019 Decided: February 11, 2020

Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Motion for authorization to file successive habeas petition denied by unpublished per 

curiam opinion.

ARGUED: Stanley F. Hammer, WYATT, EARLY, HARRIS & WHEELER, LLP, High 

Point, North Carolina, for Movant. Jonathan Porter Babb, Sr., NORTH CAROLINA 

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Respondent. ON BRIEF:

Kenneth J. Rose, Durham, North Carolina, for Movant. Joshua H. Stein, Attorney General, 

NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for 

Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Timothy Richardson filed a motion under 28 U.S.C. § 2244(b)(3)(A), seeking 

authorization from this court to file a second or successive application for a writ of habeas 

corpus in order to challenge his capital sentence in North Carolina. He contends that he is 

intellectually disabled and, therefore, ineligible for a capital sentence under the Eighth 

Amendment to the United States Constitution. We deny the motion.

I.

Richardson was convicted and sentenced to death in 1995 for the kidnapping and 

murder of Tracy Marie Rich. His convictions and sentences were affirmed on direct appeal, 

State v. Richardson, 488 S.E.2d 148 (N.C. 1997), and the United States Supreme Court 

denied certiorari, Richardson v. North Carolina, 522 U.S. 1056 (1998). The underlying 

facts and procedural history of his case are exhaustively set forth in the state court 

decisions, as well as in this court’s prior decisions in Richardson v. Thomas, 930 F.3d 587 

(4th Cir. 2019), Richardson v. Thomas, 718 F. App’x 192 (4th Cir. 2018), and Richardson 

v. Branker, 668 F.3d 128 (4th Cir. 2012).1

 

Richardson then sought post-conviction relief from his death sentence via a motion 

for appropriate relief (MAR) in North Carolina state court, alleging that he is intellectually 

disabled and, therefore, ineligible to be sentenced to the death penalty under Atkins v. 

Virginia, 536 U.S. 304 (2002). In Atkins, the United States Supreme Court held that the 

 1 Over the years, Richardson has raised numerous state and federal habeas claims 

seeking relief from his death sentence. In this opinion, we only address Richardson’s prior 

claim that he is intellectually disabled. 
3

execution of an intellectually disabled individual violates the Eighth Amendment’s ban on 

cruel and unusual punishments, id. at 321, but left “to the States the task of developing 

appropriate ways to enforce that constitutional restriction upon their execution of 

sentences,” id. at 317 (internal quotation marks and alterations omitted). 

Under North Carolina’s intellectual disability statute, Richardson was required to 

demonstrate that he had (1) “[s]ignificantly subaverage general intellectual functioning,” 

defined as “[a]n intelligence quotient of 70 or below on an individually administered, 

scientifically recognized standardized intelligence quotient test administered by a licensed 

psychiatrist or psychologist,” and (2) “[s]ignificant limitations in adaptive functioning,” 

defined as “[s]ignificant limitations in two or more of [ten] adaptive skill areas.” N.C. Gen. 

Stat. § 15A-2005(a)(1), (2) (2001).

The MAR court held an evidentiary hearing to consider the claim. The court 

considered Richardson’s IQ scores, expert testimony regarding the standard error of 

measurement (SEM) generally recognized in such scores, and lay and expert testimony 

about Richardson’s limitations in adaptive functioning. The court found that Richardson 

had failed to prove that he was intellectually disabled and denied the claim on the merits.

In his petition seeking certiorari review by the Supreme Court of North Carolina, 

Richardson argued that the lower court had “employed an overly restrictive construction 

of § 15A-2005, one that is contrary to the Eighth Amendment as interpreted by the United 

States Supreme Court’s decision in Atkins v. Virginia.” Richardson, 930 F.3d at 590 

(internal quotation marks and alteration omitted). Among other things, Richardson argued 

that the court had considered only the numerical scores on his qualifying IQ tests, failed to 
4

consider the SEM, and erred in the assessment of his adaptive limitations. See id. The 

Supreme Court of North Carolina denied review. See State v. Richardson, 667 S.E.2d 272 

(N.C. 2008).

In November 2008, Richardson filed his first petition for a writ of habeas corpus in 

federal district court under 28 U.S.C. § 2254(d), challenging the reasonableness of North 

Carolina’s adjudication of his Atkins claim. Richardson again argued that the state court 

had employed an overly restrictive construction of § 15A-2005, in violation of Atkins; gave 

weight only to the raw IQ test scores; and failed to use the SEM to adjust the scores. 

Richardson also argued that the state court’s findings regarding his adaptive limitations 

were unreasonable. The district court denied Richardson’s intellectual disability claim on 

the merits. We affirmed the intellectual disability ruling, and the United States Supreme 

Court denied certiorari review.2

In May of 2014, the United States Supreme Court issued its decision in Hall v. 

Florida, 572 U.S. 701 (2014), which considered a state prisoner’s appeal from the Florida 

Supreme Court’s rejection of his Atkins claim. Hall argued that the Florida Supreme Court 

had interpreted Florida’s intellectual disability statute too rigidly to comply with Atkins’

prohibition of the execution of the intellectually disabled, because it imposed a strict, cutoff 

IQ score of 70 or less. Id. at 704. The Court agreed, holding that this “rigid rule,” which 

foreclosed “all further exploration of intellectual disability, . . . . create[d] an unacceptable 

 2 See Richardson v. Branker, 769 F. Supp. 2d 896, 926-27 (E.D.N.C. 2011); 

Richardson v. Branker, 668 F.3d 128, 151 (4th Cir. 2012), cert. denied, Richardson v. 

Branker, 568 U.S. 948 (2012).
5

risk that persons with intellectual disability [would] be executed, and thus [was] 

unconstitutional.” Id. More specifically, the “Court agree[d] with the medical experts that 

when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin 

of error, the defendant must be able to present additional evidence of intellectual disability, 

including testimony regarding adaptive deficits.” Id. at 723.

In 2015, Richardson filed an amended MAR in North Carolina state court seeking 

to overturn his death sentence in light of Hall. Richardson argued that the North Carolina 

courts had similarly applied a rigid, cutoff score of 70 when it considered his claim and 

had failed to consider the SEM and clinically-appropriate assessment measures of adaptive 

deficits. The state MAR court denied Richardson’s motion. Of relevance here, the court 

held that North Carolina had not “interpreted North Carolina’s statute to preclude 

consideration of the [SEM] or to limit the introduction of evidence if the threshold showing 

of an IQ score of 70 has not been met.” J.A. 1234. Accordingly, North Carolina’s statute, 

unlike that in Florida, had been “interpreted consistently with Atkins.” Id. Second, the 

court noted that Richardson had been “allowed to present evidence of his alleged deficits 

in adaptive functioning in a full evidentiary hearing without restriction,” as well as 

evidence “on the standard error of measurement,” id., and that the court had “considered 

all of Richardson’s IQ test scores, without limitation, as well as evidence of his alleged 

limitations in adaptive functioning,” id. at 1234-35. “Thus, Hall “ha[d] no effect on [the 

court’s] prior determination that Richardson is not intellectually disabled,” id. at 1234, and 

the court had, “[i]n effect, . . . already interpreted North Carolina’s law consistently with 

Hall,” id. at 1235. Nevertheless, the state MAR court also considered Richardson’s 
6

amended claim on the merits, including supplemental affidavits from the state’s expert 

regarding Richardson’s intellectual-disability evaluation, and found that Richardson had 

still failed to provide evidence sufficient to support a finding that he is intellectually 

disabled. The North Carolina Supreme Court denied review, see State v. Richardson, 782 

S.E.2d 736 (N.C. 2016), as did the United States Supreme Court, see Richardson v. North 

Carolina, 137 S. Ct. 337 (2016).

Richardson then returned to federal district court, seeking to reopen the final 

judgment on his original habeas petition under Rule 60(b)(6) of the Federal Rules of Civil 

Procedure in light of the Hall decision. Richardson again argued that the North Carolina 

state court had imposed a bright-line, cutoff IQ score of 70 or below when it adjudicated 

his claim and had failed to consider the SEM and his adaptive deficits. The district court 

granted the motion, but certified an interlocutory appeal to this court. Because 

Richardson’s Rule 60 motion was the functional equivalent of a § 2254 petition that could 

not be filed absent prior authorization from this court, we vacated the order. See 

Richardson, 930 F.3d at 589. In the interim, Richardson filed the present motion for an 

order authorizing him to file a second or successive habeas application under 28 U.S.C. § 

2244(b)(3), to which we now turn.

II. 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “greatly 

restricts the power of federal courts to award relief to state prisoners who file second or 

successive habeas corpus applications. If the prisoner asserts a claim that he has already 

presented in a previous federal habeas petition, the claim must be dismissed in all cases.” 
7

Tyler v. Cain, 533 U.S. 656, 661 (2001); see 28 U.S.C. § 2244(b)(1). If the claim “was not 

presented in a previous petition, the claim must be dismissed unless it falls within one of 

two narrow exceptions.” Id. The first exception is for certain claims that rely on “a new 

rule of constitutional law,” that has been “made retroactive to cases on collateral review by 

the Supreme Court, that was previously unavailable” to the petitioner. 28 U.S.C. § 

2244(b)(2)(A). The second exception is for claims that are based on a “factual predicate 

[that] could not have been discovered previously through the exercise of due diligence,” 

and which, “if proven and viewed in the 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)(B). In order to obtain authorization to file a second or successive 

habeas application, Richardson must make a prima facie showing that he satisfies these 

requirements. See 28 U.S.C. § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 530 

(2005) (“[B]efore the district court may accept a successive petition for filing, the court of 

appeals must determine that it presents a claim not previously raised that is sufficient to 

meet § 2244(b)(2)’s new-rule or actual-innocence provisions.”).

A.

As noted above, the Supreme Court held in Atkins that the Constitution prohibits the 

execution of intellectually disabled persons, but left “to the States the task of developing 

appropriate ways to enforce the constitutional restriction.” Atkins, 536 U.S. at 317 (internal 

quotation marks and alteration omitted). Richardson raised a claim of intellectual disability 

under Atkins in his first federal habeas petition, challenging the state court’s adjudication 
8

of his claim under N.C. Gen. Stat. § 15A-2005 and the Eighth Amendment, and the 

judgment denying that claim is final.

Since then, the Supreme Court has expounded on the Atkins ruling in two cases, 

making it clear that the state’s discretion in this area is not without limits. In Hall, the 

Court held that a state cannot impose an IQ cutoff score of 70, which prohibits 

consideration of the SEM and evidence of adaptive deficits. See 572 U.S. at 704, 723. And 

in Moore v. Texas, 137 S. Ct. 1039 (2017), the Court held that the state court’s intellectual 

disability determination, including the evaluation of adaptive deficits, must be informed by 

the medical community’s current diagnostic criteria. Id. at 1048. This requirement that 

the state be “informed by the medical community does not demand adherence to everything 

stated in the latest medical guide. But neither does our precedent license disregard of 

current medical standards.” Id. at 1049.

In his § 2244 motion, Richardson argues that the Supreme Court’s decisions in Hall 

and Moore announced new rules of constitutional law that should be applied retroactively 

to cases on collateral review under the Teague framework. See Teague v. Lane, 489 U.S. 

288 (1989). “Under Teague, as a general matter, ‘new constitutional rules of criminal 

procedure will not be applicable to those cases which have become final before the new 

rules are announced.’” Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (quoting 

Teague, 489 U.S. at 310); see also Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016). 

There are two exceptions to this “general bar on retroactivity.” Welch, 136 S. Ct. at 1264. 

“First, new substantive rules generally apply retroactively. Second, new watershed rules 

of criminal procedure, which are procedural rules implicating the fundamental fairness and 
9

accuracy of the criminal proceeding, will also have retroactive effect.” Id. (internal 

citations, quotations marks, and alteration omitted).

Richardson spends a great deal of time arguing that, in light of these Supreme Court 

rulings, we should find that Hall and Moore announced new substantive rules of 

constitutional law and, therefore, should be applied to cases on collateral review under the 

Teague analysis. But in order to receive authorization to file a second or successive § 2254 

petition, Richardson must do more than convince this court that Hall and/or Moore 

announced new substantive rules that should be applied retroactively to cases on collateral 

review. He must show that his claim “relies on a new rule of constitutional law” that has 

already been “made retroactive to cases on collateral review by the Supreme Court, that 

was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A) (emphasis added).

The Supreme Court has adopted a narrow view of the plain language in § 

2244(b)(2)(A). See Tyler, 533 U.S. at 662. The Court explained that the term “‘made’ 

means ‘held’ and, thus, the requirement is satisfied only if [the Supreme] Court has held 

that the new rule is retroactively applicable to cases on collateral review.” Id. “Quite 

significantly, under this provision, the Supreme Court is the only entity that can ‘make’ a 

new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower 

court or by the combined action of the Supreme Court and the lower courts, but simply by 

the action of the Supreme Court.” Id. at 663 (alteration omitted). Thus, a “new rule is not 

‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be 

retroactive.” Id. The only exception to this requirement of an explicit holding is if we 

must say that a combination of Supreme Court holdings “necessarily dictate retroactivity 
10

of the new rule.” Id. at 666. “The relationship between the conclusion that a new rule is 

retroactive and the holdings that ‘make’ this rule retroactive . . . must be strictly logical—

i.e., the holdings must dictate the conclusion and not merely provide principles from which 

one may conclude that the rule applies retroactively.” Id. at 669 (O’Connor, J., concurring) 

(alteration omitted). The holdings must “permit no other conclusion than that the rule is 

retroactive.” Id.; cf. United States v. Mathur, 685 F.3d 396, 401 (4th Cir. 2012) (We are 

“not authorize[d] to read between the lines of a prior opinion to discern whether that 

opinion, by implication, made a new rule retroactively applicable on collateral review. The 

only way to make a new rule retroactive ‘is through a ‘holding,’ not through dictum.”) 

(quoting Tyler, 533 U.S. at 663-64).

Hall and Moore do not address retroactivity, and no subsequent Supreme Court case 

has held that Hall or Moore apply retroactively to cases on collateral review. Richardson’s 

reliance upon Welch and Montgomery for his argument that we must conclude that the 

Supreme Court has “made” Hall and Moore retroactively applicable to cases on collateral 

review falls well short of Tyler’s narrow exception, and Richardson has pointed us to no 

other combination of Supreme Court holdings that “logically dictate . . . no other 

conclusion than that the rule is retroactive.” Tyler, 533 U.S. at 669 (O’Connor, J., 

concurring). Rather, the most that Richardson “can claim is that, based on the principles 

outlined in Teague, [the Supreme] Court should make [Hall and Moore] retroactive to 

cases on collateral review.” Tyler, 533 U.S. at 666. That is not sufficient. See, e.g., In re 

Bowles, 935 F.3d 1210, 1219 (11th Cir. 2019) (“Hall did announce a new rule of 

constitutional law, but the Supreme Court has not made that new rule retroactive to cases 
11

on collateral review.”); In re Payne, 722 F. App’x. 534, 539 (6th Cir. 2018) (rejecting 

petitioner’s claim that various Supreme Court decisions and orders “dictate that the 

decisions in Moore and Hall are to be applied retroactively”); In re Henry, 757 F.3d 1151, 

1159, 1161 (11th Cir. 2014) (holding that “Hall made no mention of retroactivity,” no 

“subsequent Supreme Court case [has] addressed the issue, much less made Hall 

retroactive,” and “[n]o combination of Supreme Court holdings compels the conclusion 

that Hall is retroactive to cases on collateral review”); Goodwin v. Steele, 814 F.3d 901, 

904 (8th Cir. 2014) (denying motion for authorization to file a second or successive 

application based upon Hall because, “[u]nder Tyler, [petitioner] has not made a prima 

facie showing that the Supreme Court has held that Hall is retroactive”).

B.

In supplemental briefing, Richardson argues that we should also authorize him to 

refile his intellectual disability claim based upon the Supreme Court’s decision in Atkins –

which has been made retroactively applicable to cases on collateral review by the Supreme 

Court. We reject this claim as well.

Richardson’s attempt to raise a second intellectual disability claim based upon the 

rule announced in Atkins is plainly barred by 28 U.S.C. § 2244(b)(1). To circumvent this 

bar, Richardson advances a creative, but meritless, argument that the Atkins claim that he 

previously presented was not really “available” until the Supreme Court decided Hall and 

the North Carolina legislature amended its intellectual disability statute after the Hall 

decision was issued. At the outset, we note the obvious, logical problem with Richardson’s 

argument that the Atkins claim he presented in his prior § 2254 application was previously 
12

unavailable. This is because the argument is a transparent attempt on the part of Richardson 

to circumvent § 2244(b)(2)(A)’s requirement that the “new rules” announced by the 

Supreme Court in Hall and Moore must have been “made retroactive to cases on collateral 

review by the Supreme Court, that was previously unavailable.” Id.

Richardson’s intellectual disability claim based upon the Supreme Court’s decision 

in Atkins was presented in his prior § 2254 application, and it is barred by § 2244(b)(1). 

And his attempt to dress up his Hall claim as an Atkins claim fails under § 2244(b)(2)(A). 

See, e.g., In re Bowles, 935 F.3d at 1216 (rejecting similar claim that Atkins only “became 

available to [petitioner] when the Supreme Court struck down Florida’s rigid cutoff as 

unconstitutional in Hall”); In re Bourgeois, 902 F.3d 446 (5th Cir. 2018) (rejecting federal 

prisoner’s argument that he should be allowed to file another Atkins claim, notwithstanding 

§ 2244(b)(1) bar, because the Supreme Court’s decision in Moore “now makes his claim 

viable”).3

 3 Richardson’s reliance upon the Fifth Circuit Court of Appeals’ decisions in In re 

Johnson, 935 F.3d 284 (5th Cir. 2019) and In re Cathey, 857 F.3d 221 (5th Cir. 2017), do 

not avail him. Cathey and Johnson involved states that applied a strict cutoff score of 70, 

and habeas petitioners that had never presented an intellectual disability claim in a § 2254 

petition, presumably because they had no score below the cutoff when they filed their first 

habeas petition. Accordingly, the petitioners in Cathey and Johnson did not face the § 

2244(b)(1) bar. The Fifth Circuit held that such a first-time Atkins claim could be brought 

in a second or successive petition. The Eleventh Circuit, in contrast, rejected a similar 

argument that Atkins was “previously unavailable” to a petitioner when he filed his first 

habeas petition because then-existing state law would have doomed his petition, holding 

that “[t]here is no futility exception to the AEDPA’s restrictions on second and successive 

petitions.” In re Bowles, 935 F.3d 1210, 1217 (11th Cir. 2019). We need not decide this 

issue, however, because Richardson did file an Atkins claim in his first federal habeas 

application, and he was granted the unfettered ability to present evidence of the SEM and 

his adaptive deficits when his intellectual disability claim was adjudicated by the state 

court.
13

Richardson’s argument that he should be allowed to file a second or successive, 

intellectual disability claim under Atkins because it was not “available” to him until the 

North Carolina legislature amended its intellectual disability statute in 2015 fares no better. 

Section 15A-2005 of the North Carolina Code implemented Atkins’ directive that states 

develop the framework to enforce its constitutional prohibition against the execution of the 

intellectually disabled. See N.C. Gen. Stat. § 15A-2005 (2001). Neither that statute, nor 

any application of it, has been declared unconstitutional. See Hall, 572 U.S. at 715 (noting 

that North Carolina’s statute could be, but has not been, interpreted as applying a brightline cutoff score). And the North Carolina court did not apply a bright-line cutoff score to 

Richardson’s claim. Nevertheless, in the wake of Hall, the North Carolina state legislature 

amended § 15A-2005 to clarify that intellectual-disability determinations include 

consideration of the SEM and the defendant’s adaptive limitations under accepted clinical 

standards. See N.C. Gen. Stat. § 15A-2005 (2015). 

To file a second or successive claim of intellectual disability, however, Richardson 

must make a prima facie case that he can rely upon a new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court. Changes in state law do 

not authorize the filing of a second or successive federal habeas petition under § 

2244(b)(2)(A). Cf. In re Bowles, 935 F.3d at 1217-18 (“Congress did not say that the claim 

could proceed if it relied on any other type of change in case law. Congress knew how to 

say that if it had wanted to.”). And when “conducting habeas review, a federal court is 

limited to deciding whether a [state] conviction [or sentence] violated the Constitution, 
14

laws, or treaties of the United States,” not whether there was an “error[] of state law.” 

Estelle v. McGuire, 502 U.S. 62, 67, 68 (1991).4

C.

Richardson next seeks to file a second or successive claim on the ground that he is 

actually innocent of the death penalty. See 28 U.S.C. § 2244(b)(3)(B). We deny this 

motion as well.

To file a second or successive habeas claim under § 2244(b)(2)(B), Richardson must 

make a prima facie showing of (1) a “factual predicate for the claim [that] could not have 

been discovered previously through the exercise of due diligence,” and (2) that the new 

factual predicate, “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. (emphasis added).

Here, Richardson seeks only to challenge his eligibility for the death sentence, not 

the determination that he is guilty of the underlying offense of murder. Thus, he “does not 

fall within the narrow statutory exception in § 2244(b)(2)(B)(ii).” In re Bowles, 935 F.3d 

at 1220 (internal quotation marks omitted). Richardson’s reliance upon Sawyer v. Whitley, 

 4

 We note that the state has argued that Richardson’s attempt to file a second or 

successive claim under Hall and Moore, like his claim under Atkins, is also barred under 

28 U.S.C. § 2244(b)(1). We need not decide the precise scope of the term “claim” for 

purposes of § 2244(b)(1) and (b)(2) in this decision because, even if we were to hold that 

Richardson’s present-day Hall and Moore claims were not squarely “presented” in his prior 

habeas application, Richardson has failed to make a prima facie showing that he satisfies 

the requirements of § 2244(b)(2).
15

505 U.S. 333 (1992), provides him no avenue to file this claim. In Sawyer, the Supreme 

Court held that “actual innocence” for purposes of the “fundamental miscarriage of justice” 

exception to the procedural default of constitutional claims extends to claims that a 

petitioner is “actually innocent” of the death penalty. See id. at 336. However, this “judgefashioned” exception in Sawyer did not survive Congressional enactment of AEDPA. 

Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997). “The ‘actual innocence’ 

exception of the prior law was judge-made, and so its contours were appropriately judgefashioned and permissibly judge-expanded. The exception in [AEDPA] is graven in 

statutory language that could not be any clearer.” Id.; see also Bowles v. Sec., 935 F.3d 

1176, 1182 (11th Cir. 2019) (“AEDPA forecloses the Sawyer exception in all

circumstances, including § 2254 challenges to state death sentences.”); cf. Wright v. 

Angelone, 151 F.3d 151, 164 n.8 (4th Cir. 1998) (noting “that other circuit courts narrowly 

have interpreted the . . . language in § 2244(b)(2) to require that habeas petitioners 

demonstrate actual innocence of the underlying crime to file a successive habeas petition 

on the basis of newly discovered evidence. A claim of ‘innocence of the death penalty’ 

only is no longer sufficient to warrant review.”).

Richardson has also failed to make a prima facie showing that his claim otherwise 

satisfies § 2244(b)(2)’s requirements. Richardson seeks to present a claim that he is 

“actually innocent” of the death sentence, based upon a supplemental affidavit procured 

from the state’s expert in 2014 and the American Psychiatric Association, Diagnostic and 

Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). Even if Richardson could 

demonstrate that the substance of the expert’s affidavit could not have been discovered by 
16

due diligence at the time he filed his motion, he has failed to make the requisite showing 

that the expert’s opinion “would be sufficient to establish by clear and convincing evidence 

that . . . no reasonable factfinder would have found” him to be eligible for the death penalty 

under the standards in existence at the time the state court adjudicated his claim. 28 U.S.C. 

§ 2244(b)(2)(B). In addition, the state’s expert’s opinion was unchanged. “[N]othing from 

Hall v. Florida, or developments in the field of mental health, [had] affected his 

conclusion” that “Richardson is not intellectually disabled.” J.A. 104.5

D.

The balance of Richardson’s motion raises various constitutional challenges to § 

2244’s limitations on the filing of second or successive federal habeas petitions. Among 

other things, Richardson argues that our denying him the right to file a second or successive 

intellectual disability claim based upon Hall, Moore, and the amended version of the North 

Carolina statute, would violate several provisions of the United States Constitution, 

including Article I, Article III, the Due Process Clause, the Eighth Amendment, and the 

Equal Protection Clause. We have considered all of Richardson’s arguments and find them 

to be without merit. 

 5 To the extent Richardson argues that he should be given the opportunity to prove 

that he is intellectually disabled under the DSM-5, this argument also seeks to circumvent 

28 U.S.C. § 2244(b)(2)(A). In Moore, the Supreme Court referenced the DSM-5, which 

was the medical standard in place when the state court considered the defendant’s claim of 

intellectual disability. The Supreme Court in no way indicated that a state court’s 

determination could be overturned based upon subsequently-issued medical standards, nor 

has it made Moore retroactively applicable to cases on collateral review. Rather, the Court 

held only that the state court’s determination must be informed by current diagnostic 

criteria. See Moore, 137 S. Ct. at 1049. 
17

The matter for decision today is whether Richardson’s motion for an order 

authorizing the district court to consider a second or successive challenge to the state 

court’s imposition of his death sentence satisfies the requirements set forth by Congress in 

§ 2244(b). He has not done so. Moreover, Richardson has cited no authority to support 

his claim that § 2244(b) is an unconstitutional exercise of Congressional power or that our 

application of it would violate his constitutional rights. On the contrary, the Supreme Court 

and this court have rejected similar challenges to the constitutionality of AEDPA’s 

limitations on federal habeas relief. See Felker v. Turpin, 518 U.S. 651, 664 (1996) 

(holding that AEDPA’s restrictions on successive habeas petitions do not amount to an 

unconstitutional suspension of the writ of habeas corpus, but rather “constitute a modified 

res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the 

writ.’”); In re Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997) (explaining that the restrictions 

on multiple motions for post-conviction relief “amount[] to an entirely proper exercise of 

Congress’ judgment regarding the proper scope of the writ and [fall] well within the 

compass of the evolutionary process surrounding the doctrine of abuse of the writ.”) 

(internal quotation marks omitted); Bowles, 935 F.3d at 1182 (rejecting petitioner’s claim 

that “any procedural obstacle to the consideration of a claim of intellectual disability must 

cede to the categorical protections of the Eighth Amendment” and, thereby, his “invitation 

to effectively declare part of AEDPA unconstitutional.”).

IV.

For the foregoing reasons, we deny Richardson’s motion for leave to file a second 

or successive habeas petition.
18

MOTION DENIED