AEDPA standard of 28 U.S.C. § 2244(b) unless the
petitioner can show that he or she would have been
entitled to pursue a second or successive petition under
pre-AEDPA law. Id. at 602. If the petitioner can make
this showing, then 28 U.S.C. § 2244(b) may not be
applied retroactively to bar a second petition. Without
this showing, however, the AEDPA standard must be
applied. Id. at 602.
A. Pre-AEDPA Law on Second or Successive Petitions
Under preexisting law, a federal district court was not
permitted to reach the merits of a successive petition
raising grounds identical to grounds decided on the
merits in a previous habeas petition or a successive
petition raising grounds that were available but not relied
on in the previous petition unless the state prisoner
demonstrated cause and prejudice or, alternatively, made
a “colorable showing of factual innocence.” Kuhlmann v.
Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 91 L.Ed.2d
364 (1986); McCleskey v. Zant, 499 U.S. 467, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991); Sanders v. United States,
373 U.S. 1, 17-19, 83 S.Ct. 1068, 10 L.Ed.2d 148
(1963); 28 U.S.C. § 2254 foll. R. 9(b).
To demonstrate actual innocence, a petitioner must
show “that it is more likely than not that no reasonable
juror would have found [him] guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. at 327. “The cause
standard requires the petitioner to show that “some
objective factor external to the defense impeded counsel’s
efforts to raise the claim in state court.” In re Minarik,
166 F.3d at 604 (quoting from McCleskey v. Zant, 499
U.S. 467, which in turn was quoting from Murray v.
Carrier, 477 U.S. 478, 488 (1986)). If a petitioner was
subjectively unaware of a factual basis but the relevant
facts could have been discovered with due diligence, then
“cause” has not been demonstrated. In re Minarik, 166
F.3d at 604.
XI. STONE V. POWELL BAR
In Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037,
3052, 49 L.Ed.2d 1067 (1976), the United States
Supreme Court held:
where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be
granted federal habeas corpus relief on the ground that
evidence obtained in a unconstitutional search or seizure
was introduced at his trial. [Id. at 481-82].
Accordingly, Stone v. Powell bars relitigation of
Fourth Amendment claims if the State has provided the
opportunity for full and fair adjudication. Cardwell v.
Taylor, 461 U.S. 571, 572-73, 104 S.Ct. 30, 77 L.Ed.2d
1451 (1983)(Stone precluded petitioner’s claim based
upon Dunaway v. New York, 442 U.S. 200, 99 S.Ct.
2248, 60 L.Ed.2d 824 (1979)); Deputy v. Taylor, 19 F.3d
1485, 1491 (3d Cir.), cert. denied, 512 U.S. 1230, 114
S.Ct. 2730, 129 L.Ed.2d 853 (1994); United States v.
Torres, 926 F.2d 321, 323 (3d Cir. 1991). A Fourth
Amendment claim may not be relitigated in a federal
habeas court even if the petitioner contends the issue was
decided erroneously, Willett v. Lockhart, 37 F.3d 1265,
1270 (8th Cir. 1994), cert. denied, 514 U.S. 1052, 115
S.Ct. 1432, 131 L.Ed.2d 313; Deputy v. Taylor, 19 F.3d
at 1491; Capellan v. Riley, 975 F.2d 67, 71 (2d Cir.
1992); United States ex rel. Petillo v. New Jersey, 562 F.2d
903, 907 (3d Cir. 1977), or attempts to “cloak his or her
Fourth Amendment claim in due process clothing to
circumvent Stone v. Powell,” Gilmore v. Marks, 799 F.2d
51, 55-57 (3d Cir. 1986), cert. denied, 479 U.S. 1041,
107 S.Ct. 903, 93 L.Ed.2d 853 (1987) (rejecting
petitioner’s contention that state court’s finding of
harmless error in any Fourth Amendment violation could
be reexamined by a federal habeas court as a due process
claim).Stone v. Powell is based upon “the special nature of
Fourth Amendment protections in criminal cases and the
consequences of the remedial exclusionary rule.” Willett
v. Lockhart, 37 F.3d at 1269. In Stone v. Powell, the Court
found that any deterrent effect of permitting the review
of Fourth Amendment issues in collateral proceedings
was decidedly marginal and “outweighed by the
acknowledged costs to other values vital to a rational
system of criminal justice.” Stone v. Powell, 428 U.S. at
494, 96 S.Ct. at 3052. Accordingly, the Court has
refused to extend the bar of Stone v. Powell to other
constitutional violations. E.g., Withrow v. Williams, 507
U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)
(statements obtained in violation of Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966));
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574,
91 L.Ed.2d 305 (1986) (Sixth Amendment claim based
on counsel’s failure to file a timely suppression motion).See also Willett v. Lockhart, 37 F.3d 1265, which
reviewed the approach of other circuit courts in applying
Stone v. Powell. For example, some circuits read Stone as
requiring review of the state courts’ factual findings to
determine whether they were supported in the record
and not unclear before the bar will be invoked, while
other circuit courts of appeal have devised multi-part