defense or forever lose the right to raise it. Id.; Gray v.
Netherland, 518 U.S. at 165-66.
X. SUCCESSIVE PETITIONS
The Third Circuit has held that the “gatekeeper”
provisions of 28 U.S.C. § 2244(b)(3) apply to all second
or successive habeas corpus applications by state
prisoners. In re Minarik, 166 F.3d 591, 599-600 (3d
Cir. 1999). Pursuant to 28 U.S.C. § 2244(b)(3), a
petitioner who wants to file a second or successive
petition for a writ of habeas corpus must first move in the
appropriate court of appeals for an order authorizing the
district court to consider the habeas application. 28
U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651,
664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). The
court of appeals cannot grant leave to file such a petition
unless the application makes a prima facie showing that
the claims were not presented in a prior application and
that the claims either rely upon a previously unavailable
new rule of constitutional law made retroactive by the
Supreme Court of the United States to collateral review
or are predicated on facts that could not have been
discovered previously through the exercise of due
diligence and that, if proven, 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)(1), (2), (3)(C). The court of
appeals has thirty days to grant or deny the motion for
leave to file a successive petition and the grant or denial
is not appealable and may not be the subject of a petition
for rehearing or a writ of certiorari. 28 U.S.C. §
2244(b)(3)(D), (E). The preclusion of further review
does not deprive the United States Supreme Court of its
jurisdiction to entertain an original habeas corpus
petition. Felker v. Turpin, 518 U.S. at 658, 116 S.Ct. at
2337.
On March 20, 2000, the Third Circuit adopted for
§ 2254 petitioners the holding of United States v. Miller,
197 F.3d 644 (3d Cir. 1999), and ruled that district
courts must provide a pro se petitioner with notice of his
or her available options in proceeding with a petition: (1)
the petition can be ruled upon as filed, (2) if the
application is not styled as a § 2254 petition, it can be
recharacterized as such, but the petitioner “will lose his
ability to file successive petitions absent certification by
the court of appeals” or (3) the petition can be withdrawn
and “one all inclusive” § 2254 petition can be filed within
the one-year statutory period. Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000). If, in the future, a district court fails
to provide the necessary warnings, then the statute of
limitations should be tolled for 120 days “to allow the
petitioner an opportunity to file all of his claims in the
correct manner.” Id.Federal Rule of Civil Procedure 60(b) provides for relief
from judgment in the context of habeas corpus on
grounds of mistake, inadvertence, surprise or excusable
neglect, newly discovered evidence, fraud, “or any other
reason justifying relief from the operation of the
judgment.” A petitioner’s Rule 60(b) motion for relief
from a judgment denying the habeas writ, or an
equivalent motion in the court of appeals for a recall of the
mandate, is to be treated as a second or successive petition
and the criteria of 28 U.S.C. § 2244(b) must be satisfied.
Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489,
1500, 140 L.Ed.2d 728 (1998) (prisoner’s motion to
recall mandate); Johnson v. United States, 196 F.3d 802,
805 (7th Cir. 1999) (after a fully adjudicated collateral
attack, a R. 60(b) motion advancing new theories of relief
“is a transparent attempt to avoid the need for prior
appellate approval of a second collateral attack ... [and]
must be seen for what it is and dismissed by the district
judge.”); Ortiz v. Stewart, 195 F.3d 520 (9th Cir, 1999);
Burris v. Parke, 130 F.3d 782, 783 (7th Cir.), cert. denied,
522 U.S. 990, 118 S.Ct. 462, 139 L.Ed.2d 396 (1997);
Fiero v. Johnson, 197 F.3d 147 (5th Cir. 1999), cert.
denied, __ U.S. __, 120 S.Ct. 2204, 147 L.Ed.2d 237
(2000) (recognizing pursuant to Calderon v. Thompson,
523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728, but
not deciding, that claims involving alleged fraud upon
the court may still be considered under the court’s
inherent powers notwithstanding 28 U.S.C. §
2244(b)(1)); Workman v. Bell, 227 F.3d 331 (6th Cir.
2000) (“cases of fraud upon the court are excepted from
the requirements of section 2244").In West v. Vaughn, 204 F.3d 53, 61 (3d Cir. 2000),
the court of appeals held that “precedent that makes clear
that a new constitutional rule fits the” retroactivity
exception of Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103.Ed.2d 334 (1989), “suffices to make a rule
retroactive for purposes of successive habeas petitions
under AEDPA. This is so even if the pronouncements are
not made in the context of an actual retroactive
application of the new rule on habeas review.”In re Minarik, 166 F.3d 591, governs in this circuit
regarding the motion of a petitioner whose previous
habeas petition was adjudicated on the merits before the
effective date of the AEDPA, that is, April 24, 1996, and
who is seeking leave to file a second or successive habeas
petition after that date. According to Minarik, the
second petition must be evaluated under the new