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
2 GAGE V. CHAPPELL

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.
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).
4 GAGE V. CHAPPELL

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),
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,2the 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.
6 GAGE V. CHAPPELL

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
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
8 GAGE V. CHAPPELL

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.
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
10 GAGE V. CHAPPELL

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-thewrit 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.3551 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).
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-intime 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-orsuccessive 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.
12 GAGE V. CHAPPELL

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-orsuccessive 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.
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
14 GAGE V. CHAPPELL

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 gatewaypast 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.
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
16 GAGE V. CHAPPELL

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.
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
18 GAGE V. CHAPPELL

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
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-orsuccessive 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).
20 GAGE V. CHAPPELL

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.