Gage v. Chappell, No. 13-73438 (9th Cir. 2015)Annotate this Case
Petitioner, convicted of sexually assaulting his stepdaughter, applied for permission to file a second or successive habeas petition under 28 U.S.C. 2254, seeking to bring a Brady
claim and an ineffective assistance of counsel claim. The court concluded that United States v. Buenrostro forecloses petitioner's argument that his new petition is not “second or successive," where the factual predicate of petitioner's claim could have been discovered previously through the exercise of due diligence. The also court concluded that petitioner cannot make out a prima facie case of satisfying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2244(b)(2), because he did not exercise due diligence by failing to include the Brady claim in his original petition. Further, the actual innocence exception articulated in Schlup v. Delo does not abrogate section 2244(b)(2)(B). Accordingly, the court denied the petition.