United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2684

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John T. Moss, *

*

Petitioner, *

* Application for Permission

v. * to File a Successive

* Habeas Petition.

Ray Hobbs, Director, Arkansas *

Department of Correction, * [UNPUBLISHED]

*

Respondent. *

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Submitted: October 20, 2011

Filed: October 24, 2011

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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Arkansas prisoner John T. Moss seeks authorization to file a successive 28

U.S.C. § 2254 petition challenging his convictions for capital murder and attempted

capital murder. See Moss v. State, 655 S.W.2d 375 (Ark. 1983) (affirming

convictions). We deny authorization because Moss’s application does not satisfy the

statutory requirements for authorizing a successive § 2254 petition. 

In 1988, Moss filed his first § 2254 petition claiming his constitutional rights

were violated because of alleged juror bias, prosecutorial misconduct, an improper
burden shift regarding an element of the offense, and the lack of sufficient evidence

to support his conviction. The district court denied the petition on the merits, and we

affirmed the denial. See Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992). After Moss

unsuccessfully sought state habeas relief, he filed a second § 2254 petition. The

district court dismissed the petition because Moss did not have this court’s

authorization to file it. See 28 U.S.C. § 2244(b)(3)(A) (authorization requirement). 

Moss now seeks our authorization to raise claims that (1) his attorney was

ineffective for failing to fully investigate and to present evidence about Moss’s

mental health history, (2) the trial court violated his due process rights by failing to

provide a state psychiatrist with Moss’s prior medical records, which the psychiatrist

needed to form an opinion, (3) he could have made a preliminary showing of insanity

absent those errors, (4) he was illegally sentenced due to counsel’s ineffective

assistance and trial court error, and (5) the prosecutor committed misconduct at trial

by alluding to inadmissible evidence--Moss’s prior possession of a gun. Except for

the prosecutorial misconduct claim, Moss did not raise his proposed claims in his first

§ 2254 petition. See Moss, 971 F.2d at 81.

Authorization to file a successive § 2254 petition may be granted only if the

prisoner did not present the proposed claim in an earlier § 2254 petition and the

prisoner shows the claim relies on either (A) a new, previously unavailable rule of

constitutional law made retroactively applicable to cases on collateral review by the

Supreme Court, or(B) a previously undiscoverable factual predicate showing by clear

and convincing evidence that, but for constitutional error, no reasonable fact finder

would have found the petitioner guilty of the underlying offense. See 28 U.S.C.

§ 2244(b)(2). We conclude Moss has failed to satisfy this standard with respect to

any of his claims. 

First, Moss cites no new, retroactively applicable rule of constitutional law in

support of his claims. Moss relies heavily on Ake v. Oklahoma, 470 U.S. 68 (1985)

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(due process requires that when defendant shows sanity at time of offense will be

significant factor at trial, state must assure accessto competent psychiatrist to conduct

appropriate examination and assist in defense). Ake was decided in 1985, however,

and thus was available to Moss when he filed his first § 2254 petition in 1988. See

28 U.S.C. § 2244(b)(2)(A). Second, the factual predicates for the claims, which

allege errorsthat occurred pretrial, during trial, and during sentencing, existed before

Moss filed his first § 2254 petition. See 28 U.S.C. § 2244(b)(2)(B)(i). Indeed,

Moss’s application states that before his trial, he informed his attorney of his

“complete history of his mental problems and treatment,” of “his dependence on

psychotropic medication to function,” and of recent theft charges against him being

dropped because of the results of a mental evaluation. Cf. Ward v. Norris, 577 F.3d

925, 933-34 (8th Cir. 2009) (Rule 60(b) claim of incompetency was successive

ineffective-assistance claim where factual support for incompetency available to

earlier habeas counsel). Moss also states he was medicated before trial and able to

assist in his defense. Moss does not assert that mental incapacity prevented him from

presenting his current claims at the time of his first § 2254 petition. Last, Moss’s

prosecutorial misconduct claim must be dismissed because it was presented in his

first § 2254 petition. See 28 U.S.C. § 2244(b)(1). 

Because Moss has failed to show his proposed new claims rely on previously

unavailable law or facts, we deny him authorization to file a successive § 2254

petition. 

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