Whether a Brady claim brought in a second-in-time habeas petition is 'second or successive' under AEDPA

QUESTIONS PRESENTED The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes gatekeeping provisions that prohibit federal district courts from even considering the merits of a “second or successive” habeas petition raising a claim based on newly discovered evidence unless the petitioner can “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). Read literally, that provision would bar even a claim based on exculpatory evidence that the state had intentionally suppressed until after a petitioner filed his first habeas petition. As this Court has repeatedly held, however, “second or successive” is a term of art that does not apply to all second-intime petitions. The questions presented are: 1. Is a Brady claim brought in a second-in-time habeas petition “second or successive” for purposes of AEDPA’s gatekeeping provisions when the claim is based on previously undisclosed evidence? 2. Does applying AEDPA’s severely limiting gatekeeping provisions to a second-in-time petition violate the presumption against retroactivity, where the petitioner’s initial petition was filed pre-AEDPA, and the second-in-time petition would have survived under the pre-AEDPA standard?