EASTERBROOK, Circuit Judge.
Last June we affirmed the district judge’s order denying relief under 28 U.S.C. § 2254 in this capital case. Burris v. Parke, 116 F.3d 256 (7th Cir.1997). A petition for rehearing with suggestion of rehearing en banc was filed and denied, and the mandate issued on August 22. We have twice denied requests for stays of execution, most recently on November 12. Now, with execution less than a week away, Burris asks us to recall our mandate and entertain arguments based on a neuropsychologist’s testimony at a state clemency hearing on November 3. Burris apparently has in mind the procedure employed in Thompson v. Calderon, 120 F.3d 1045 (9th Cir.) (en banc), cert. granted, — U.S. -, 118 S.Ct. 14, 138 L.Ed.2d 1037 (1997), in which the court recalled its mandate to avoid the procedures the Antiterrorism and Effective Death Penalty Act establishes for successive collateral attacks. We need not anticipate the Supreme Court’s treatment of Thompson, because even the ninth circuit would treat Burris’s request as a successive collateral attack, which must be dismissed because it does not satisfy the statutory criteria.
After its amendment by the AEDPA, 28 U.S.C. § 2244(b) reads in part:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, 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.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
Appellate courts agree that a post-judgment motion under Fed.R.Civ.P. 60(b) in the district court, or the equivalent motion in the court of appeals—-which is to say, a motion to recall the mandate—is a “second or successive” application for purposes of § 2244(b). Mathenia v. Delo, 99 F.3d 1476 (8th Cir.1996) (Rule 60(b) motion); Ruiz v. Norris, 104 F.3d 163 (8th Cir.1997) (motion to recall mandate); Felker v. Turpin, 101 F.3d 657 (11th Cir.1996) (Rule 60(b) motion). Cf. Felker v. Turpin, 101 F.3d 95 (11th Cir.1996) (suit under 42 U.S.C. § 1983); Hill v. Hopper, 112 F.3d 1088 (11th Cir.1997) (same); In re Sapp, 118 F.3d 460 (6th Cir.1997) (same). Otherwise the statute would be ineffectual. Instead of meeting the requirements of § 2244(b), the petitioner would restyle his request as a motion for reconsideration in the initial collateral attack and proceed as if the AEDPA did not exist. Even the ninth circuit, which concluded in Thompson that a court may reopen a ease to readjudicate old arguments, has held that a petition to recall the mandate so that the court may determine [784]*784the effect of new evidence and arguments is a successive collateral attack that must be evaluated under the AEDPA’s mechanism. Nevius v. Sumner, 105 F.3d 453, 461-62 (9th Cir.1996), approved in Thompson, 120 F.3d at 1051.
There is one potential difference between Rule 60(b) motions in the district court and motions to recall mandate in the court of appeals: the Rule 60(b) motion may be designed as an end run around the appellate court’s gatekeeping function under § 2244(b)(3), while the motion to recall mandate is addressed to the tribunal with authority to authorize additional proceedings. But this difference does not matter substantively. We agree with Ruiz and Nevius that a motion filed in the court of appeals after the time for rehearing has expired (or rehearing has been sought and denied) may be granted only if it meets the substantive criteria of § 2244(b)(2). Cf. Felker v. Turpin, — U.S. -, -, 116 S.Ct. 2333, 2339, 135 L.Ed.2d 827 (1996) (a petition filed in the Supreme Court under 28 U.S.C. § 2241 must be evaluated in light of the new substantive criteria). To the extent either Nevius or Thompson implies that the AEDPA may be bypassed and the common-law criteria for recalling a mandate used instead if the petition does nothing but reiterate old arguments, we have grave doubts, but we need not come to rest on that subject today.
Burris argued in the appeal decided last June that the three lawyers representing him at his second capital sentencing proceeding rendered ineffective assistance because they did not obtain additional psychiatric and neurological evidence concerning the effect of a bullet wound he received many years earlier. We replied (116 F.3d at 259-60, emphasis in original):
Burris wanted the district court to appoint a neuropsychologist to investigate him and opine at a federal evidentiary hearing whether he suffers from a brain injury that contributed to his vicious conduct. Such an appointment is possible if the expert services “are reasonably necessary for the representation of the defendant”. 21 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
EASTERBROOK, Circuit Judge.
Last June we affirmed the district judge’s order denying relief under 28 U.S.C. § 2254 in this capital case. Burris v. Parke, 116 F.3d 256 (7th Cir.1997). A petition for rehearing with suggestion of rehearing en banc was filed and denied, and the mandate issued on August 22. We have twice denied requests for stays of execution, most recently on November 12. Now, with execution less than a week away, Burris asks us to recall our mandate and entertain arguments based on a neuropsychologist’s testimony at a state clemency hearing on November 3. Burris apparently has in mind the procedure employed in Thompson v. Calderon, 120 F.3d 1045 (9th Cir.) (en banc), cert. granted, — U.S. -, 118 S.Ct. 14, 138 L.Ed.2d 1037 (1997), in which the court recalled its mandate to avoid the procedures the Antiterrorism and Effective Death Penalty Act establishes for successive collateral attacks. We need not anticipate the Supreme Court’s treatment of Thompson, because even the ninth circuit would treat Burris’s request as a successive collateral attack, which must be dismissed because it does not satisfy the statutory criteria.
After its amendment by the AEDPA, 28 U.S.C. § 2244(b) reads in part:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, 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.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
Appellate courts agree that a post-judgment motion under Fed.R.Civ.P. 60(b) in the district court, or the equivalent motion in the court of appeals—-which is to say, a motion to recall the mandate—is a “second or successive” application for purposes of § 2244(b). Mathenia v. Delo, 99 F.3d 1476 (8th Cir.1996) (Rule 60(b) motion); Ruiz v. Norris, 104 F.3d 163 (8th Cir.1997) (motion to recall mandate); Felker v. Turpin, 101 F.3d 657 (11th Cir.1996) (Rule 60(b) motion). Cf. Felker v. Turpin, 101 F.3d 95 (11th Cir.1996) (suit under 42 U.S.C. § 1983); Hill v. Hopper, 112 F.3d 1088 (11th Cir.1997) (same); In re Sapp, 118 F.3d 460 (6th Cir.1997) (same). Otherwise the statute would be ineffectual. Instead of meeting the requirements of § 2244(b), the petitioner would restyle his request as a motion for reconsideration in the initial collateral attack and proceed as if the AEDPA did not exist. Even the ninth circuit, which concluded in Thompson that a court may reopen a ease to readjudicate old arguments, has held that a petition to recall the mandate so that the court may determine [784]*784the effect of new evidence and arguments is a successive collateral attack that must be evaluated under the AEDPA’s mechanism. Nevius v. Sumner, 105 F.3d 453, 461-62 (9th Cir.1996), approved in Thompson, 120 F.3d at 1051.
There is one potential difference between Rule 60(b) motions in the district court and motions to recall mandate in the court of appeals: the Rule 60(b) motion may be designed as an end run around the appellate court’s gatekeeping function under § 2244(b)(3), while the motion to recall mandate is addressed to the tribunal with authority to authorize additional proceedings. But this difference does not matter substantively. We agree with Ruiz and Nevius that a motion filed in the court of appeals after the time for rehearing has expired (or rehearing has been sought and denied) may be granted only if it meets the substantive criteria of § 2244(b)(2). Cf. Felker v. Turpin, — U.S. -, -, 116 S.Ct. 2333, 2339, 135 L.Ed.2d 827 (1996) (a petition filed in the Supreme Court under 28 U.S.C. § 2241 must be evaluated in light of the new substantive criteria). To the extent either Nevius or Thompson implies that the AEDPA may be bypassed and the common-law criteria for recalling a mandate used instead if the petition does nothing but reiterate old arguments, we have grave doubts, but we need not come to rest on that subject today.
Burris argued in the appeal decided last June that the three lawyers representing him at his second capital sentencing proceeding rendered ineffective assistance because they did not obtain additional psychiatric and neurological evidence concerning the effect of a bullet wound he received many years earlier. We replied (116 F.3d at 259-60, emphasis in original):
Burris wanted the district court to appoint a neuropsychologist to investigate him and opine at a federal evidentiary hearing whether he suffers from a brain injury that contributed to his vicious conduct. Such an appointment is possible if the expert services “are reasonably necessary for the representation of the defendant”. 21 U.S.C. § 848(q)(9), applied by § 848(q)(4)(B) to capital cases in which relief is sought under § 2254. To establish that a service is “reasonably necessary,” the defendant must make a preliminary showing, which Burris has not done. His current lawyers suspect — more accurately, believe that his former lawyers should have suspected — that a bullet to the head in the 1970s damaged Burris’s brain. All that the record shows, however, is that Burris complains of headaches, which plague many people without brain damage. After his arrest, Burris was examined by two psychiatrists. Their 1981 report describes the gunshot wound as “superficial” and concludes that Burris displays “no indications of mental illness or deficiency”. Before the second penalty proceeding, Burris’s lawyers arranged for another mental examination; a psychologist interviewed and examined Burris in 1991 and concluded that he shows no signs of brain damage or dysfunction. Counsel meanwhile found witnesses to testify that Burris is alert, intelligent, a good conversationalist and jailhouse lawyer, and so on. None of the evidence available at the time suggested the utility of further mental examinations, and counsel therefore cannot be called incompetent under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
What a neuropsychologist might turn up today is irrelevant; so is the fact that the psychologist who examined Burris in 1991 now wants to investigate the potential effects of the bullet. The performance of counsel is assessed by what was known at the time or would have been discovered through diligent pursuit of lines of inquiry reasonable at the time; this was not such a line, given the multiple mental exams ending in clean bills of mental health and the fact that lay witnesses likewise detected no mental problems.... What is more, counsel could not have developed a brain-damage theory without risk of undercutting the evidence of Burris’s turnaround in prison, and without opening up the possibility that a jury would conclude that Burris was undeterrable. As we observed in Stewart v. Gramley, 74 F.3d 132 (7th Cir.1996), jurors may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that, [785]*785when violent behavior appears to be outside the defendant’s power of control, capital punishment is appropriate to incapacitate. Counsel avoided this potential pitfall; their performance was well in excess of the constitutional floor. Burris submits that the testimony at his clemency hearing shows that lines of inquiry available at the time of the second sentencing could have assisted Burris “without opening up the possibility that a jury would conclude that Burris was undeterrable.” Let us suppose that the new evidence indeed supports that proposition. All this means, however, is that Burris wants to relitigate, with the aid of better evidence, the ineffective assistance claim that he has already litigated and lost. Section 2244(b)(1) provides: “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” To the extent Burris rings changes on his ineffective-assistance theory, his contentions “shall be dismissed.” If on the other hand we indulge the approach of Thompson and apply the common law rule that a mandate may be recalled on account of intervening authority or grave error, Burris still is not entitled to relief. There is no intervening authority, and the testimony at the clemency hearing is the sort of information that we have already held to be legally irrelevant to an assessment of counsel’s adequacy.
If instead we understand Burris to be making a new argument, then he must satisfy the requirements of § 2244(b)(2). He does not rely on a rule of constitutional law articulated after our prior decision, so § 2244(b)(2)(A) is irrelevant. And he gets no more aid from § 2244(b)(2)(B)—not only because he does not contend that the neuropsy-chologist’s testimony shows that he is actually innocent, but also because we held in Hope v. United States, 108 F.3d 119 (7th Cir.1997), that § 2244(b)(2)(B)(ii) requires the petitioner to show by clear and convincing evidence that but for the asserted constitutional error he would have been acquitted “of the underlying offense.” Burris’s arguments concern sentencing; his guilt “of the underlying offense” is beyond question. See Burris v. Farley, 51 F.3d 655 (7th Cir.1995).
When recalling its mandate in Thompson, the court stressed that the petitioner presented neither new evidence nor new arguments but wanted only to put his original arguments before the court en banc belatedly. 120 F.3d at 1048-51. One might have supposed that this brought Thompson’s claim securely within the reach of § 2244(b)(1) as well as § 2244(b)(3)(E), which says that “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing”. See Thompson, 120 F.3d at 1064-65 (Hall, J., dissenting). The ninth circuit not only granted relief on the basis of an argument made and rejected before but also reheard the case after the panel declined to recall its mandate. No matter; the Supreme Court will have the last word on the ninth circuit’s approach. Burris wants us to recall our mandate to take a step that every court of appeals that has addressed the subject believes forbidden by § 2244(b): reassessing old theories in light of new evidence. A state governor or clemency board may receive and act on such evidence; under § 2244(b), a federal court may not.
Accordingly:
• The motion to recall the mandate is denied because arguments of the kind Burris now presents initiate a successive collateral attack for the purpose of § 2244(b); and
• The implied motion for leave to commence a successive collateral attack is denied under § 2244(b)(1), (3)(C).