United States v. Barrett

Opinion

USCA1 Opinion

          



                  United States Court of Appeals

                      For the First Circuit

                       ____________________


No. 96-2355



                          UNITED STATES,



                      Respondent, Appellee,



                                v.



                          JAMES BARRETT,



                      Petitioner, Appellant.


____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



             [Hon. Gene Carter, U.S. District Judge]



                       ____________________

                                

                              Before



                    Torruella, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                       ____________________


John G. S. Flym, with whom Liz Bostwick was on brief, for

appellant.

          Margaret D. McGaughey, Assistant U.S. Attorney, with whom

Jay P. McCloskey, U.S. Attorney, was on brief, for appellee.


____________________

                                

                           May 27, 1999

                                ____________________          LYNCH, Circuit Judge.  A federal prisoner/parolee,

convicted of a serious crime committed twenty-five years ago, seeks

to avoid the restrictions imposed by Congress in 1996 on successive

petitions for post-conviction relief and argues that it is illegal

and unconstitutional to deny him the ability to raise an argument

about the validity of his conviction that he could have raised

properly in 1990.  He has not shown that he is actually innocent

and no claims of constitutional dimension are raised on these

facts.  Under the various applicable gatekeeping mechanisms, which

augment society's interests in finality of criminal convictions

where there has been no miscarriage of justice, he has not

satisfied the preconditions in 28 U.S.C.  2255, as amended by the

Antiterrorism and Effective Death Penalty Act ("AEDPA"), that would

allow him to have the merits of his claim reviewed.  He cannot

evade the restrictions of  2255 by resort to the habeas statute,

28 U.S.C.  2241, or the All Writs Act, 28 U.S.C.  1651. 

Resolution of this case involves exploration of the various

statutes and legal doctrines authorizing limited review of claims

for post-conviction relief.  Our conclusion is that while there are

very rare circumstances in which review may exist even if the

requirements of  2255 have not been met, this case presents none

of those circumstances.

          James Barrett was convicted of a bank robbery in federal

court in 1984.  He brought an unsuccessful appeal in 1984 and an

unsuccessful  2255 petition in 1990, and now seeks to bring

another petition attacking his conviction.  The primary legal

questions presented in this case are whether the petition before us

is a "second or successive"  2255 petition, 28 U.S.C.  2255, and

whether Barrett may use  2241 or  1651 to bring a claim that

would otherwise be barred under  2255 and 28 U.S.C.  2244.  Each

of these raises subsidiary questions; several are questions of

first impression for this circuit.

                               I

          In 1975, three armed men wearing ski masks robbed a bank

in Portland, Maine.  In 1984, James Barrett was tried for that

robbery.  Barrett denied any involvement; the chief prosecution

witness, Joseph Aceto, said Barrett did participate in the robbery. 

The jury believed Aceto and not Barrett.  Barrett was convicted and

sentenced to twenty years of imprisonment.  Barrett promptly filed

post-trial motions for acquittal and a new trial, which the

district court denied.  See United States v. Barrett, 598 F. Supp.

469 (D. Me. 1984).  His conviction was affirmed on direct appeal. 

See United States v. Barrett, 766 F.2d 609 (1st Cir. 1985).

          In 1990, Barrett filed a petition under  2255 and then

amended it.  The amended petition asserted claims under Brady v.

Maryland, 373 U.S. 83 (1963), for the failure to disclose various

documents, including a transcript of a government interview with

Aceto.  In a reply brief, Barrett tried to characterize the failure

to disclose the transcript as a violation of the Jencks Act, 18

U.S.C.  3500, as well as a Brady violation.  The district court

dismissed the petition without addressing the belated and informal

Jencks Act claim.  See Barrett v. United States, 763 F. Supp. 658

(D. Me. 1991).  This court affirmed the dismissal.  See Barrett v.

United States, 965 F.2d 1184 (1st Cir. 1992).

          This appeal, Barrett's third trip to this court for

review of the 1984 conviction, concerns his efforts to raise anew

the Jencks Act claim that was adverted to in the reply brief. 

However, since Barrett's 1990 petition was decided, Congress has

enacted AEDPA, which places statutory restrictions on the filing of

second or successive petitions under  2255.  Cutting through the

procedural morass presented, we find three essential questions for

us to resolve:

          1.  Does Barrett present a "second or successive"  2255

petition, as that term is defined under the 1996 AEDPA amendments,

and, if so, is his petition barred because it does not meet AEDPA's

gatekeeper requirements?

          2.  Does Barrett's claim fall within the savings clause

of  2255, which permits a petitioner to seek relief under  2241

if  2255 is "inadequate or ineffective to test the legality of his

detention"?

          3.  Does the All Writs Act nonetheless provide Barrett

with a vehicle for raising his Jencks Act claim?

          The answer to the first question is yes, and the answer

to the second and third questions is no.  We affirm the dismissal

of Barrett's petition.

                               II

          We describe in detail the travel of the issues to this

court.  In June of 1990, Barrett filed a pro se petition under

 2555 requesting that his sentence be vacated or set aside.  The

court appointed counsel, different counsel than in the instant

petition.  Five months after Barrett's petition was first filed, he

filed an amended habeas petition, with counsel's assistance,

alleging that the government had failed to disclose certain

evidence.  Among that undisclosed evidence was a transcript of an

interview conducted in Arkansas by an FBI agent with Aceto, the

chief prosecution witness.  This interview took place in the

presence of the prosecuting Assistant U.S. Attorney ("AUSA") on

January 26, 1984, about two months before Barrett's trial.  Before

the trial, the government promised to disclose all prior statements

by Aceto and provided Barrett with a redacted summary of the

interview on FBI Form 302.  But the government did not provide a

copy of the transcript, and that failure underlies the case before

us.

          Barrett's 1990 amended  2255 petition alleged that the

failure to provide the interview transcript violated Brady.  On

January 4, 1991, the government responded to the amended petition;

included in its response was an affidavit from the AUSA who was

present at the interview -- a different AUSA than represents the

government before us now.  The AUSA stated that the interview was

conducted to assist the FBI in its investigation of two other

suspected participants in the bank robbery, who were fugitives at

the time and were considered extremely dangerous.  According to the

AUSA, since security concerns were very high he "never considered

the sensitive investigative information in the transcript as

discoverable."

          On February 19, 1991, Barrett filed "Plaintiff's Motion

for Leave to File a Brief Reply Memorandum," which asserted that

"several legal arguments and factual assertions raised by the

government . . . require a response from plaintiff."  After the

district court granted this motion, Barrett filed a reply brief on

February 22, 1991; this brief raised for the first time a claim

that the failure to disclose the interview transcript violated the

Jencks Act.  Barrett did not seek to amend his  2255 petition to

add this claim, and the government did not respond to it.

          On April 30, 1991, the district court dismissed the

amended petition without mentioning the Jencks Act claim.  The

court did, however, extensively discuss the Arkansas interview

transcript in order to determine whether a constitutional violation

had occurred under Brady.  See Barrett, 763 F. Supp. at 662-63.  In

arguing to the district court that the government's failure to

produce the transcript made a constitutional difference, Barrett

raised several specific purposes for which he would have used the

transcript to impeach Aceto.  See id. at 662.  Applying the test

set forth in United States v. Bagley, 473 U.S. 667 (1985), which

states that "a constitutional error occurs, and the conviction must

be reversed, only if the evidence is material in the sense that its

suppression undermines confidence in the outcome of the trial," id.

at 678, the court addressed each of these purposes and concluded,

after careful analysis, that its "confidence in the outcome of the

trial [was] not diminished in any respect," Barrett, 763 F. Supp.

at 662-63.  The court noted that "Aceto was thoroughly impeached by

far more substantial means:  his mental illness, inconsistencies

between trial and previous testimony, his prior criminal behavior,

and his agreement with the government.  Yet the jury believed him." 

Barrett, 763 F. Supp. at 663 (footnote omitted).

          After the district court issued this opinion, Barrett's

counsel filed an unsigned and undated motion for reconsideration on

the ground that the Jencks Act claim had not been addressed.  That

motion was stricken on June 6, 1991 for failure to comply with

various applicable rules requiring counsel's signature.  Two later

motions for reconsideration based on the same issue were filed and

denied.

          On appeal to this court from the denial of the  2255

petition, Barrett argued both the Jencks Act claim arising from the

failure to disclose the interview transcript and various Brady

claims.  This court affirmed the dismissal of the Brady claims. 

See Barrett, 965 F.2d at 1188-92 & n.15.  As to the Jencks Act

claim, this court held that the reply brief that first raised the

claim to the district court was not properly characterized as a

"traverse"; that the motions to reconsider were untimely under

Federal Rule of Civil Procedure 59(e); and that, if the motions for

reconsideration were considered Rule 60 motions, "petitioner would

fare no better, since the district court orders denying the motions

were never appealed."  Id. at 1187-88 & n.3.  Accordingly, this

court stated, "as a practical matter, petitioner's failure to raise

the Jencks Act claim in a timely manner below preclude[d] effective

appellate review on the merits."  Id. at 1188.

          This court also suggested, "without deciding," several

concerns about any future attempts by Barrett to raise the Jencks

Act claim.  First, we expressed doubts about the viability of such

a claim under  2255, given "the recognized rule that

nonconstitutional claims may not be presented in a section 2255

proceeding unless the claimed error of law [represents] a

fundamental defect which inherently results in a complete

miscarriage of justice."  Id. (internal quotation marks omitted). 

Second, we stated that a future attempt to raise the Jencks Act

claim would be "a successive  2255 petition" subject to "abuse of

the writ" analysis.  Id. at 1188 n.7 (citing McCleskey v. Zant, 499

U.S. 467 (1991)).

          The opinion of this court affirming the denial of the

 2255 petition was issued on June 8, 1992.  Barrett did nothing to

pursue his Jencks Act claim for four years.  On April 24, 1996,

AEDPA became effective.  Barrett filed his current petition later

in 1996.  AEDPA changed both the procedure for obtaining permission

to bring a "second or successive"  2555 petition and the

substantive standards that must be met to obtain such permission.

                              III

AEDPA Standards

          Under AEDPA, a prisoner may file a second or successive

 2255 petition only if the court of appeals first certifies that

the petition is based on either:

          (1) newly discovered evidence that, if proven and viewed in

     light of the evidence as a whole, would be sufficient to

     establish by clear and convincing evidence that no reasonable

     factfinder would have found the movant guilty of the offense;

     or

          (2) a new rule of constitutional law, made retroactive to

     cases on collateral review by the Supreme Court, that was

     previously unavailable.

          

28 U.S.C.  2255 (cross-referencing to  2244 certification

requirements); see also id.  2244(b)(3)(A) (requiring

authorization by the court of appeals "[b]efore a second or

successive application . . . is filed in the district court");

First Cir. Interim Local Rule 22.2.  "From the district court's

perspective," these pre-clearance provisions are "an allocation of

subject-matter jurisdiction to the court of appeals."  Nunez v.

United States, 96 F.3d 990, 991 (7th Cir. 1996).  Therefore, "a

district court, faced with an unapproved second or successive

habeas petition, must either dismiss it or transfer it to the

appropriate court of appeals."  Pratt v. United States, 129 F.3d

54, 57 (1st Cir. 1997) (citations omitted), cert. denied, 118 S.

Ct. 1807 (1998).

          AEDPA also requires a "certificate of appealability"

("COA") for an appeal of the final disposition of a  2255

petition.  See 28 U.S.C.  2253(c)(1) ("Unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from . . . the final order in a

proceeding under section 2255."); id.  2253(c)(2)-(3) ("A

certificate of appealability may issue . . . only if the applicant

has made a substantial showing of the denial of a constitutional

right. . . . The certificate of appealability . . . shall indicate

which specific issue or issues satisfy [this] showing . . . .");

Fed. R. App. P. 22(b).  This court has interpreted these provisions

to permit the district courts to issue the requisite COAs, although

petitioners may seek supplemental COAs from the court of appeals in

certain circumstances.  See Bui v. DiPaolo, 170 F.3d 232, 236-38

(1st Cir. 1999); Grant-Chase v. Commissioner, New Hampshire Dep't

of Corrections, 145 F.3d 431, 435 (1st Cir.) (noting that "every

court of appeals that has considered the question has concluded

that a district judge may issue a COA"), cert. denied, 119 S. Ct.

361 (1998).

Barrett's 1996 Petition

          These AEDPA provisions are applicable to our

consideration of Barrett's most recent petition.  In the late

summer of 1996, Barrett petitioned "to set aside judgment of

conviction and for such other and further relief as this Court may

deem appropriate," styling his petition as brought pursuant to 28

U.S.C.  1651, 2241, 2255, and Article I,  9, clause 2 of the

Constitution.  The magistrate judge issued an order returning the

petition on the ground that it was a "second or successive"  2255

petition that had not been pre-cleared by the court of appeals; the

district court, upon reviewing Barrett's objections, affirmed. 

Barrett appealed.  After proceedings not here relevant, the

district court treated the notice of appeal as a request for a COA

and certified the following issue:

          Whether, in the circumstances of this case, the application of

     the provisions of the [AEDPA], which bar the filing of

     successive petitions under 28 U.S.C.  2255 absent an order of

     the Court of Appeals authorizing the District Court to

     consider the petition, so as to bar the filing of the petition

     herein, conflicts impermissibly with the All Writs Act, 28

     U.S.C.  1651, to deny Petitioner his federally protected

     rights of equal protection of the laws and of due process of

     law under the Fifth Amendment to the Constitution of the

     United States.



Barrett then filed an application for a COA in this court; we

stated that the appeal could proceed to briefing "[i]n view of this

court's recent decision [in Grant-Chase] concluding that when a

district court has granted a [COA] on an issue, an appellant is not

required to obtain a further certificate from this court with

respect to that issue."

          Given this procedural history, this court has

jurisdiction to consider all three essential issues, outlined

above, necessary to resolve Barrett's appeal.  As to Barrett's

claim pursuant to  2255, our authority to consider the necessary

issues is similar to the Pratt court's.  To the extent that Barrett

contends that AEDPA is not applicable to his claim, the district

court's order is appealable and a COA has issued regarding the

propriety of applying AEDPA.  See Pratt, 129 F.3d at 57-58; see

also In re Davenport, 147 F.3d 605, 607 (7th Cir. 1998).  To the

extent that there is a question regarding the applicability of the

"second or successive" provisions of AEDPA, we exercise our

discretion to construe this appeal as an application to us for pre-

clearance, and no COA is necessary.  See Pratt, 129 F.3d at 58;

Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (per curiam). 

Finally, as to Barrett's claim that he should have been allowed to

proceed in the district court pursuant to  2241 or  1651, the COA

and pre-clearance requirements are not directly applicable.  See

Davenport, 147 F.3d at 607;  Valona v. United States, 138 F.3d 693,

694 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 373

n.17 (2d Cir. 1997); McIntosh v. United States Parole Comm'n, 115

F.3d 809, 810 n.1 (10th Cir. 1997); Salaam v. United States, No.

98-CV-4244, 1998 WL 812634, at *2 (E.D.N.Y. Nov. 20, 1998). 

Barrett's underlying substantive claim under the Jencks Act is

therefore before us only to the extent that the nature of that

claim is relevant to the determination of whether there is a means

available for asserting it.

                               IV

A.        "Second or Successive" Petition Under  2255

          We begin by considering Barrett's claim under  2255.  It

is clear that this provision is facially applicable to his

petition:  he challenges the validity of his conviction; he is "in

custody"; his request for relief was made to the federal court

that sentenced him; and he himself invoked  2255 as a basis for

jurisdiction.  See Valona, 138 F.3d at 694-95.  The issue becomes

how his petition is affected by the "second or successive"

requirements applicable to  2255 petitions.  Barrett makes three

general arguments.  He says that this is really a first petition. 

Even if not technically a first petition, he says it should be

treated as one because he attempted to raise the Jencks Act claim

in his first petition.  He also suggests that application of the

"second or successive" requirements would be impermissibly

retroactive and would raise constitutional problems.

Meaning of "Second or Successive" and the Abuse of the Writ

Doctrine

          As Barrett points out, AEDPA leaves the phrase "second or

successive" undefined.  See Galtieri v. United States, 128 F.3d

33, 35 (2d Cir. 1997) ("[W]hen is a petition 'second or successive'

within the meaning of . . . [AEDPA?]  Unfortunately, as with many

legal questions, the answer is: 'It depends.'").  However, there is

significant guidance as to whether Barrett's most recent petition

falls within the scope of AEDPA's "second or successive"

restrictions.  As an initial matter, courts construing the phrase

have generally applied pre-AEDPA abuse of the writ decisions.  See

Esposito v. United States, 135 F.3d 111, 113 (2d Cir. 1997) (per

curiam); Pratt, 129 F.3d at 60; Reeves v. Little, 120 F.3d 1136,

1138 (10th Cir. 1997) (per curiam).  As was true pre-AEDPA under

the abuse of the writ doctrine, "a numerically second petition is

not 'second or successive' if it attacks a different criminal

judgment or if the earlier petition terminated without a judgment

on the merits."  Pratt, 129 F.3d at 60; see also Esposito, 135 F.3d

at 113.

          Further definition is given in a series of post-AEDPA

decisions in this court and other courts of appeals.  A petition is

not "second or successive" when a state petitioner whose first

petition was dismissed for failure to exhaust state remedies brings

a new petition based on exhausted claims.  See Carlson v. Pitcher,

137 F.3d 416, 420 (6th Cir. 1998) ("[T]he very sound rationales

supporting this result are not altered by the additional

consideration that the second-in-time petition may contain new

habeas claims not presented in the first petition."); McWilliams v.

Colorado, 121 F.3d 573, 575 (10th Cir. 1997); In re Gasery, 116

F.3d 1051, 1052 (5th Cir. 1997) (per curiam); Christy v. Horn, 115

F.3d 201, 208 (3d Cir. 1997) (holding that the concerns of finality

and comity underlying the abuse of the writ doctrine "are not

implicated when a petition is filed after a prior petition is

dismissed for lack of exhaustion"); In re Turner, 101 F.3d 1323,

1323 (9th Cir. 1997) (per curiam) (noting that petitioner is

raising the same claims that he raised in the prior petition that

was dismissed for lack of exhaustion); Dickinson v. Maine, 101 F.3d

791, 791 (1st Cir. 1996) (per curiam); Camarano v. Irvin, 98 F.3d

44, 46 (2d Cir. 1996) (per curiam) ("[A]pplication of the

gatekeeping provisions to deny a resubmitted petition in cases such

as this would effectively preclude any federal habeas review and

thus, would conflict with the doctrine of writ abuse, as understood

both before and after Felker . . . .  To foreclose further habeas

review in such cases would not curb abuses of the writ, but rather

would bar federal habeas review altogether."); cf. Denton v.

Norris, 104 F.3d 166, 167 n.2 (8th Cir. 1997) (remarking that

"[t]here may be circumstances in which the statute should not be

literally and woodenly applied").  These cases do not directly

apply to Barrett, who was convicted of a federal crime.

          Other decisions have created an exception for at least

three categories of cases: (1) where the earlier petition was

rejected for failure to pay the filing fee or for mistakes in form,

see O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998);

Benton v. Washington, 106 F.3d 162, 164-65 (7th Cir. 1996); (2)

where the earlier petition was labeled a  2255 petition but

actually was a  2241 petition challenging the execution rather

than the validity of the sentence, see Chambers v. United States,

106 F.3d 472, 474-75 (2d Cir. 1997); and (3) where the second

petition challenges parts of the judgment that arose as the result

of the success of an earlier petition, see, e.g., In re Taylor, 171

F.3d 185, 187-88 (4th Cir. 1999); Esposito, 135 F.3d at 113; Pratt,

129 F.3d at 61-62; Walker v. Roth, 133 F.3d 454, 455 & n.1 (7th

Cir. 1997) (per curiam); cf., e.g., Shepeck v. United States, 150

F.3d 800, 801 (7th Cir. 1998) (per curiam).  These categories also

do not apply to Barrett.

          Barrett rather tries to build on the Supreme Court's

recent interpretation of the phrase "second or successive" in

Stewart v. Martinez-Villareal, 118 S. Ct. 1618 (1998).  In Stewart,

the Supreme Court held that a petition was not second or successive

within the meaning of the AEDPA state habeas provisions when the

claim at issue had been raised in a previous petition but dismissed

by the district court as premature and unripe (although the

district court had resolved the ripe claims presented in the first

petition on their merits).

          [The most recent petition] may have been the second time that

     respondent had asked the federal courts to provide relief on

     his Ford claim, but this does not mean that there were two

     separate applications, the second of which was necessarily

     subject to [the second or successive provision].  There was

     only one application for habeas relief, and the District Court

     ruled (or should have ruled) on each claim at the time it

     became ripe.  Respondent was entitled to an adjudication of

     all of the claims presented in his earlier, undoubtedly

     reviewable, application for federal habeas relief.

Id. at 1621.  The Supreme Court compared the case before it to the

cases involving dismissals for nonexhaustion, and explained that

"[t]o hold otherwise would mean that a dismissal of a first habeas

petition for technical procedural reasons would bar the prisoner

from ever obtaining federal habeas review."  Id. at 1622 (noting

that the Ford claim could not be decided at the time it was first

presented because petitioner's "execution was not imminent").

          The rationale of the Stewart decision does not help

Barrett, but reinforces that his claim does not fall within an

exception to the "second or successive" rule.   Part of the Stewart

Court's rationale for finding that the previously premature claims

were not second or successive was that those claims "would not be

barred under any form of res judicata."  Id.  The core of the AEDPA

restrictions on second or successive  2255 petitions is related to

the longstanding judicial and statutory restrictions embodied in

the form of res judicata known as the "abuse of the writ" doctrine. 

As the Supreme Court noted in Felker v. Turpin, 518 U.S. 651

(1996), as to similar restrictions on  2254 petitions, "[t]he new

restrictions on successive petitions constitute a modified res

judicata rule, a restraint on what is called in habeas corpus

practice 'abuse of the writ.'"  Id. at 664; see also O'Connor, 133

F.3d at 550 (stating that "the idea . . . is that a prisoner is

entitled to one, but only one, full and fair opportunity to wage a

collateral attack").

          Cases in which numerically second petitions have not been

treated as "second or successive" can be understood as describing

factual scenarios in which the application of a modified res

judicata rule would not make sense.  See Vancleave v. Norris, 150

F.3d 926, 928 (8th Cir. 1998) (stating that Stewart recognizes

"that some types of 'second' petitions do not implicate the

judicially developed abuse-of-the-writ principles that were the

basis for AEDPA's statutory restrictions"); Camarano, 98 F.3d at

46-47 (analogizing to civil claim preclusion doctrine); 2 Liebman

& Hertz, Federal Habeas Corpus Practice and Procedure  28.3a, at

275 (2d ed. Supp. 1997) ("Applying the no-second-bite rule makes no

sense when a prior petition gave the prisoner what amounts to no

bite at the apple -- because the prior petition involved a

different apple, because no bite was taken when the apple

previously was before the court, or because no bite could have been

taken at that time because the claim had not yet come into

existence or would not have been cognizable at the time of the

earlier petition."  (emphasis in original)); see also id.  28.3b,

at 1163-71 (3d ed. 1998).  We do not purport to define the full

scope of the phrase "second or successive."  However, as a general

matter, if a petition falls under the modified res judicata rule

known as the abuse of the writ doctrine -- because, for example, it

raises a claim that could have been properly raised and decided in

a previous  2255 petition -- it also falls within the definition

of "second or successive."  Once the petition is defined as

"second or successive," review occurs only if certain requirements

are met.

Application to Barrett's 1996 Petition

          Applying these principles, we conclude that Barrett's

current petition is a "second or successive" one.  This petition

does not fit into any of the exceptions described above:  Barrett's

1990 petition, which was undisputedly brought pursuant to  2255,

was dismissed on the merits (although the Jencks Act claim was not

considered); his current petition challenges the same judgment that

was challenged in his 1990 petition; and there has been no new

judgment or amendment of sentence.  See Thomas v.

Superintendent/Woodbourne Corr. Facility, 136 F.3d 227, 229-30 (2d

Cir. 1997) (per curiam). 

          Further, there is no question that Barrett's Jencks Act

claim was available and, unlike the Ford claim at issue in Stewart,

could have been both brought and adjudicated at the time of the

first petition.  Barrett had the transcript of the interview with

Aceto at the time he brought the Brady claim in the 1990 petition. 

Although Barrett leans heavily on the contention that his Jencks

Act claim was not available until after the filing of the AUSA's

affidavit, which he characterizes as an admission of bad faith, it

cannot be that a Jencks Act claim asserting bad faith is

unavailable until there has been a direct admission from the

prosecutor -- a circumstance that is surely a rare one.  Assuming

that the existence of bad faith was necessary in order to raise the

claim, Barrett had in front of him various facts from which he

could have marshaled a reasonable argument to that effect.  Cf.

McCleskey v. Zant, 499 U.S. 467, 498-500 (1991) (explaining that

"cause" for the failure to raise a claim is not established if

"petitioner possessed . . . a sufficient basis to allege a claim in

the first petition and pursue the matter through the habeas

process" (citing  2254 provisions on discovery, expansion of the

record, and evidentiary hearing)).  Indeed, Barrett's own brief to

us on this appeal seems to construct an argument -- that total

suppression is equivalent to willful destruction, which is

equivalent to an "elect[ion] not to comply" with the Act, 18 U.S.C.

 3500(d) -- that does not rely on any government admissions.  See

Appellant's Brief at 26-27.

          Barrett now asserts that he should be excused from his

failure to raise the Jencks Act claim in his first petition

because, he says, filing such a claim prior to the submission of

the AUSA's affidavit would amount to a violation of Rule 11.  That

is not so.  See Fed. R. Civ. P. 11(b)(3) (stating that an attorney

presenting a pleading certifies that "to the best of the person's

knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances, . . . the allegations and other

factual contentions have evidentiary support or, if specifically so

identified, are likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery");

Navarro-Ayala v. Nunez, 986 F.2d 1421, 1425 (1st Cir. 1992);

Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir. 1990); see also 1

Liebman & Hertz, supra,  11.3b, at 488-89 (3d ed. 1998) ("[A]

reasonable, even if as yet unconfirmed, belief that a meritorious

fact-based claim exists may oblige the prisoner . . . to raise the

claim and to pursue it via, e.g., court-funded investigation . . .

, discovery, an evidentiary hearing, and other fact-development

procedures of the sort that often are not fully available to

prisoners until they file a habeas corpus petition.  Thus, as

Justice O'Connor has stated, referring . . . to McCleskey, the

Court's 'carefully crafted doctrines of waiver and abuse of the

writ make it especially important that the first petition

adequately set forth all of a state prisoner's colorable grounds

for relief.'"  (quoting McFarland v. Scott, 512 U.S. 849, 860

(1994) (O'Connor, J., concurring in the judgment in part))

(footnote omitted)); Rule 6 Governing Section 2255 Proceedings for

the United States District Courts.

          Further, even assuming that the AUSA's affidavit was more

than simply "evidence discovered later [that] might also have

supported or strengthened the [existing] claim,"  McCleskey, 499

U.S. at 498, Barrett also had the option of seeking to amend his

petition again to add the claim.  See Fed. R. Civ. P. 15 (stating

that "leave [to amend] shall be freely given when justice so

requires"); Rule 12 Governing Section 2255 Proceedings for the

United States District Courts; United States v. Craycraft, 167 F.3d

451, 457 & n.6 (8th Cir. 1999); 2 Liebman & Hertz, supra,  28.1,

at 1145-46 (3d ed. 1998) ("If claims become available after the

habeas corpus petition is filed, the petitioner generally should

amend the new claims into the petition at the earliest possible

opportunity . . . .").  He did not even attempt to do so.  Cf. In

re Hill, 113 F.3d 181, 183 (11th Cir. 1997) (per curiam) (stating

that "the liberal amendment policy applicable to habeas petitions

may make [new] claims . . . 'available' to the petitioner during a

prior habeas action, even when the claim would not have been

available at the inception of that prior action").

          Barrett also makes a separate argument.  He argues that

the Jencks Act claim was in fact properly presented in his first

petition and that he should not be penalized for the failure of the

court to address it.  While such a situation is conceivable, cf.

Wainwright v. Norris, 121 F.3d 339, 340-41 (8th Cir. 1997), it is

not the situation that we face here.  This court has already

rejected Barrett's argument that he properly presented the Jencks

Act claim by traverse and has held that the district court did not

err in failing to rule on the claim.  See Barrett, 965 F.2d at

1187-88 & n.3.  Whether we consider this holding to be law of the

case or law of the circuit (indeed, we have relied on it in

subsequent opinions), Barrett's challenge to it, which largely

consists of citations to factually and legally distinguishable

cases, has not provided us with a rationale for disturbing our own

previous resolution of the issue.  See Lacy v. Gardino, 791 F.2d

980, 984-85 (1st Cir. 1986); see also Shore v. Warden, Stateville

Prison, 942 F.2d 1117, 1123 (7th Cir. 1991); Aldridge v. Dugger,

925 F.2d 1320, 1326 (11th Cir. 1991); cf. Jeffries v. Wood, 114

F.3d 1484, 1492 (9th Cir.) (en banc), cert. denied, 118 S. Ct. 586

(1997); Singleton v. United States, 26 F.3d 233, 240 (1st Cir.

1994); United States v. Michaud, 925 F.2d 37, 43 (1st Cir. 1991).

          Barrett's Jencks Act claim was not dismissed without

prejudice when his first petition was decided, or missed through

some error of the court's.  The situation presented here is

therefore equivalent to the common situation in which a petitioner

who has failed to raise an available claim in his first petition

attempts to raise that claim in a later petition.  That situation

clearly falls within the "second or successive" rule, even though

the claim has never been adjudicated on the merits.  See Pratt, 129

F.3d at 62 ("As a general rule, a prisoner who had both the

incentive and the ability to raise a particular claim in his first

petition for post-conviction relief, but declined to assert it,

cannot raise it the second time around."); see also Corrao v.

United States, 152 F.3d 188, 191 (2d Cir. 1998) ("Generally, a

 2255 petition is 'second or successive' if a prior  2255

petition, raising claims regarding the same conviction or sentence,

has been decided on the merits.  This remains true even if the

latter petition purports to raise new claims."  (citation

omitted)).

                    As we stated in Pratt, 

     The requirement that all available claims be presented in a

     prisoner's first habeas petition is consistent not only with

     the spirit of AEDPA's restrictions on second and successive

     habeas petitions, but also with the preexisting abuse of the

     writ principle.  The requirement serves the singularly

     salutary purpose of forcing federal habeas petitioners to

     think through all potential post-conviction claims and to

     consolidate them for a unitary presentation to the district

     court.  This exercise advances the cause of judicial

     efficiency and further justifies barring [petitioner]'s second

     petition.

     

Pratt, 129 F.3d at 61.  Accordingly, Barrett's  2255 petition is

"second or successive" within the meaning of AEDPA -- the result we

suggested in our previous, pre-AEDPA decision in this case.  See

Barrett, 965 F.2d at 1188 n.7.

The Retroactivity Argument and the Pre-AEDPA Test

          Barrett contends that, even if we construe his petition

as a "second or successive"  2255 petition, he meets the

requirements for proceeding in the district court because the

restrictions in AEDPA on such petitions should not apply to him. 

Despite the instruction in Lindh v. Murphy, 521 U.S. 320 (1997),

that the provisions of AEDPA govern petitions filed after April 24,

1996, see id. at 326-27; Pratt, 129 F.3d at 58, Barrett ignores the

AEDPA amendments to  2255.  Barrett instead confines his argument

to the terms of the test set forth in McCleskey v. Zant, 499 U.S.

467 (1991), which is less restrictive than the AEDPA amendments,

see Galtieri, 128 F.3d at 35-36; Benton, 106 F.3d at 163.

          Barrett attempts to justify his avoidance of AEDPA by

asserting that the 1996 amendments may not be applied

"retroactively" to him given that his first petition was brought

before the enactment of AEDPA.  We construe his somewhat

abbreviated argument to be that he relied on the law as it existed

before AEDPA in his approach to the Jencks Act claim in his first

petition, and that this reliance interest deserves protection.  We

have not adopted this so-called "mousetrapping" doctrine, see 

Burris v. Parke, 95 F.3d 465, 468-69 (7th Cir. 1996) (en banc), 

and do not do so now.  As we did in Pratt, we will assume arguendo

that the doctrine is applicable and briefly consider whether

Barrett's claim meets the "notoriously difficult to pass" pre-AEDPA

test in order to determine whether Barrett may have somehow relied

on the prior state of the law.  Pratt, 129 F.3d at 58-59; see also

United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998). 

          Under the pre-AEDPA test, a petitioner's failure to raise

a claim in a prior petition was excused in either one of two

situations.  The first was where the petitioner "show[ed] cause for

failing to raise [the claim] and prejudice therefrom."  McCleskey,

499 U.S. at 494; see also Andiarena v. United States, 967 F.2d 715,

717 (1st Cir. 1992).  "Cause" is "some external impediment, such as

government interference or the reasonable unavailability of the

factual or legal basis for a claim."  Andiarena, 967 F.2d at 718

(citing McCleskey, 499 U.S. at 497); see also Simpson v. Matesanz,

No. 98-2343, 1999 WL 257319, at *10-12 (1st Cir. May 4, 1999)

(citing Bousley v. United States, 118 S. Ct. 1604, 1611 (1998));

Whittemore v. United States, 986 F.2d 575, 578 (1st Cir. 1993). 

The second situation was a showing of a "fundamental miscarriage of

justice," defined as an "extraordinary instance[] when a

constitutional violation probably has caused the conviction of one

innocent of the crime."  McCleskey, 499 U.S. at 494.  "[T]he

miscarriage of justice exception is concerned with actual as

compared to legal innocence."  Calderon v. Thompson, 118 S. Ct.

1489, 1502-03 (1998) (internal quotation marks omitted); see also

Simpson, 1999 WL 257319, at *10.  To establish "actual innocence,"

a "petitioner must demonstrate that, in light of all the evidence,

it is more likely than not that no reasonable juror would have

convicted him."  Bousley, 118 S. Ct. at 1611 (internal quotation

marks omitted).

          Here, for the reasons already explained, Barrett is

unable to demonstrate cause.  He had the opportunity to raise his

claim properly at the time of his first petition, but he did not

take advantage of it.  See McCleskey, 499 U.S. at 498-500.  Whether

or not his failure to do so was intentional is of no moment.  See

id. at 489-90 (holding that "a petitioner can abuse the writ by

raising a claim in a subsequent petition that he could have raised

in his first, regardless of whether the failure to raise it earlier

stemmed from a deliberate choice"); see also Wainwright v. Sykes,

433 U.S. 72, 85-90 (1977) (rejecting the "deliberate bypass"

standard articulated in Fay v. Noia, 372 U.S. 391 (1963)).

          Nor can Barrett demonstrate actual innocence.  Despite

counsel's strong pronouncement at oral argument of Barrett's

innocence, Barrett's claim reduces to a complicated legal argument

(analogous to an argument for the suppression of evidence in the

Fourth Amendment context):  that the Arkansas interview was Jencks

Act material; that the government "elect[ed] not to comply" with a

court order to turn it over and acted in bad faith; that the remedy

under the Act would be to strike Aceto's testimony in its entirety;

that without Aceto's testimony Barrett would not have been

convicted; and that Barrett's conviction is therefore faulty.  18

U.S.C.  3500(d); cf. Embrey v. Hershberger, 131 F.3d 739, 741 (8th

Cir. 1997) (en banc) ("[Petitioner] has conflated his gateway and

his ultimate legal claim . . . ."), cert. denied, 119 S. Ct. 78

(1998).  Such an assertion of "legal" innocence is not sufficient. 

See Bousley, 118 S. Ct. at 1611 (stating that "'actual innocence'

means factual innocence, not mere legal insufficiency").  And it

has already been determined, through Barrett's prior petition, that

the evidence the government failed to produce was not material in

a constitutional sense -- that is, that it would not raise a

reasonable probability of a different outcome.  See Barrett, 965

F.2d at 1188-93 & n.15; see also Calderon, 118 S. Ct. at 1503-04;

Burks v. Dubois, 55 F.3d 712, 718 (1st Cir. 1995). 

          Barrett has not demonstrated that there would be any

impermissible retroactive consequences to applying the AEDPA

restrictions to his current petition, even assuming arguendo that

is the proper test.  Under these AEDPA restrictions, of course, we

reach the same conclusion that we reached under McCleskey.  Barrett

has not argued that he satisfies either of the two AEDPA

preconditions for filing a second or successive  2255 petition,

and he patently does not.  Therefore, we turn to whether this case

fits within the savings clause of  2255.

B.        The Savings Clause in  2255: "Inadequate or Ineffective" 

          Remedy

          Since Barrett may not proceed with his  2255 petition,

we turn to his argument that the savings clause of  2255 permits

him to proceed under  2241 as a means of seeking relief.  See 28

U.S.C.  2241 (stating that "[w]rits of habeas corpus may be

granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective jurisdictions"

under specified circumstances).

          We begin with the limitation on the use of  2241

petitions by federal prisoners that is set forth in  2255:  

          An application for a writ of habeas corpus in behalf of a

     prisoner who is authorized to apply for relief by motion

     pursuant to [ 2255], shall not be entertained if it appears

     that the applicant has failed to apply for relief, by motion,

     to the court which sentenced him, or that such court has

     denied him relief, unless it also appears that the remedy by

     motion is inadequate or ineffective to test the legality of

     his detention.



This circuit has not previously defined the phrase "inadequate or

ineffective" or analyzed its scope.

          A petition under  2255 cannot become "inadequate or

ineffective," thus permitting the use of  2241, merely because a

petitioner cannot meet the AEDPA "second or successive"

requirements.  Such a result would make Congress's AEDPA amendment

of  2255 a meaningless gesture.  See, e.g., In re Davenport, 147

F.3d 605, 608 (7th Cir. 1998) ("Congress did not change [the

"inadequate or ineffective"] language when in the Antiterrorism Act

it imposed limitations on the filing of successive 2255 motions. 

The retention of the old language opens the way to the argument

that when the new limitations prevent the prisoner from obtaining

relief under 2255, his remedy under that section is inadequate and

he may turn to 2241.  That can't be right; it would nullify the

limitations."); Triestman v. United States, 124 F.3d 361, 376 (2d

Cir. 1997) ("If it were the case that any prisoner who is prevented

from bringing a  2255 petition could, without more, establish that

 2255 is 'inadequate or ineffective,' . . . then Congress would

have accomplished nothing at all in its attempts -- through

statutes like the AEDPA -- to place limits on federal collateral

review."); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)

(stating that inadequacy or ineffectiveness cannot be established

"merely because th[e] petitioner is unable to meet the stringent

gatekeeping requirements of the amended  2255," because "[s]uch a

holding would effectively eviscerate Congress's intent in amending

 2255"); In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en

banc) (stating that  2255 is not inadequate or ineffective simply

"because an individual is procedurally barred from filing a  2255

motion").

          Such a reading of the savings clause would also recreate

the serious structural problems that led Congress to enact  2255

in the first place.  See In re Hanserd, 123 F.3d 922, 925, 934 n.19

(6th Cir. 1997) ("If [petitioner] and similarly situated inmates

proceed under habeas corpus [which must be brought in the district

with jurisdiction over the custodian], . . . courts located near

large federal prisons will be inundated with such motions, and

witnesses and court records will have to travel thousands of miles

to the situs of these habeas hearings, which would be held before

a judge unfamiliar with the case."); see also United States v.

Hayman, 342 U.S. 205, 210-14 (1952) (discussing the "practical

problems" that prompted the enactment of  2255).

          Yet the  2255 savings clause, which has been interpreted

to avoid constitutional questions about  2255, see Davenport, 147

F.3d at 609, must mean something.  In three recent cases, the

Seventh, Third, and Second Circuits have addressed the meaning of

the "inadequate or ineffective" language and given it content.  All

three cases involved a factual scenario in which the petitioner's

first  2255 petition had been resolved prior to the Supreme

Court's decision in Bailey v. United States, 516 U.S. 137 (1995).

Under Bailey's statutory interpretation, actions for which the

petitioner had been convicted were in fact not criminal at all, but

the petitioner's second petition, which raised a Bailey claim, was

barred by the AEDPA "second or successive" rules.

          In interpreting the savings clause, the Seventh Circuit

in Davenport looked to the essential function of habeas corpus.  It

characterized that function as "giv[ing] a prisoner a reasonable

opportunity to obtain a reliable judicial determination of the

fundamental legality of his conviction and sentence."  Davenport,

147 F.3d at 609.  The court stated that a prisoner who "had a

chance to raise the question" at issue in his appeal and his first

 2255 petition had already had his reasonable opportunity, and did

not need another "procedural shot at getting his sentence vacated." 

Id. at 609-10 ("Society . . . is unwilling to expend indefinitely

large judicial resources on repeated testing of the accuracy of a

determination of guilt.").  However, the court concluded that

 2241 was available where a Bailey claim simply could not have

been presented on direct appeal or in a first petition, stating

that "[a] procedure for postconviction relief can fairly be termed

inadequate when it is so configured as to deny a convicted

defendant any opportunity for judicial rectification of so

fundamental a defect in his conviction as having been imprisoned

for a nonexistent offense."  Id. at 611; see also id. ("A federal

prisoner should be permitted to seek habeas corpus only if he had

no reasonable opportunity to obtain earlier judicial correction of

a fundamental defect in his conviction or sentence because the law

changed after his first 2255 motion.").

          The Seventh Circuit's holding in Davenport is very

similar to the Third Circuit's holding in Dorsainvil that  2241

relief is available in the "unusual circumstance" in which

application of the AEDPA "second or successive" limitations would

result in a "complete miscarriage of justice."  Dorsainvil, 119

F.3d at 251 (internal quotation marks omitted).  Like Davenport,

Dorsainvil stressed that the petitioner had not had an earlier

opportunity to raise his Bailey claim; the court also pointed out

that "[t]he government has not suggested that Dorsainvil has abused

the writ, the principal situation that the AEDPA was intended to

eliminate."  Id.  Further, the court emphasized that its holding

was a "narrow one" and was not intended to interfere with

application of the  2255 gatekeeping provisions.  See id. at 251-

52 ("[A]llowing someone in Dorsainvil's unusual position -- that of

a prisoner who had no earlier opportunity to challenge his

conviction for a crime that an intervening change in substantive

law may negate, even when the government concedes that such a

change should be applied retroactively -- is hardly likely to

undermine the gatekeeping provisions of  2255.").

          Davenport and Dorsainvil are also similar to, but

distinct from, the Second Circuit's holding in Triestman that a

federal prisoner can seek  2241 habeas corpus in "the set of cases

in which the petitioner cannot, for whatever reason, utilize

 2255, and in which the failure to allow for collateral review

would raise serious constitutional questions."  Triestman, 124 F.3d

at 377.  The Triestman court found that such serious questions were

raised where "a person . . . can prove his actual innocence on the

existing record" and "could not have effectively raised his claim

of innocence at an earlier time."  Id. at 363, 377-78; see also id.

at 368 n.8 (concluding that the petition at hand would not have

been barred under the pre-AEDPA "abuse of the writ" doctrine). 

"[T]he cases in which serious questions as to  2255's

constitutional validity are presented will be relatively few . .

. .  In reaching this result, we therefore respect Congress' intent

to streamline collateral review and to discourage repetitive and

piecemeal litigation, while at the same time we give meaning to

Congress' express decision (reaffirmed in the AEDPA) to preserve

habeas corpus for federal prisoners in those extraordinary

instances where justice demands it."  Id. at 377-78.

          To the extent that these cases were concerned with the

status of a petitioner's claim under pre-AEDPA abuse of the writ

law, they may have been narrowed, in effect, by the holding of the

Supreme Court in Bousley v. United States, 118 S. Ct. 1604 (1998). 

Bousley did not address the savings clause, but did hold on a

federal prisoner's first petition under  2255 that "cause"

excusing failure to make an argument was not shown by the

"futility" of the argument.  See id. at 1611, cited in Simpson,

1999 WL 257319, at *11-12.  But Bousley retained an actual

innocence exception and remanded the case so petitioner had the

opportunity to show his actual innocence.  See id. at 1611-12.

          We agree with the Davenport, Dorsainvil, and Triestman

courts that habeas corpus relief under  2241 remains available for

federal prisoners in limited circumstances.  See also In re

Hanserd, 123 F.3d at 929-30 (asserting without discussion that

"[i]f AEDPA bars [petitioner] from raising his Bailey issue in a

 2255 motion, he could file a habeas petition pursuant to [the

inadequate and ineffective] provision"); United States v.

Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997) (suggesting that 

petitioner making a newly available Bailey claim could use  2241,

but not deciding the question because no request for  2241 relief

had been sought before the district court).  But it is not

necessary in this case to articulate those circumstances precisely

-- we leave that task for another day.  Applying any of the

appropriately narrow standards described above clearly demonstrates

that petitioner is not entitled to  2241 habeas relief in this

case.

          Barrett's claim does not raise a question of actual

innocence, as the post-Bailey claims of the petitioners in

Davenport, Dorsainvil, and Triestman arguably did.  See Triestman,

124 F.3d at 378-79; cf. In re Jones, 137 F.3d 1271, 1273 n.3 (11th

Cir.) (per curiam), cert. denied, 118 S. Ct. 1351 (1998); McDonald

v. Bowersox, 125 F.3d 1183, 1186 (8th Cir. 1997) ("Accordingly, we

need not decide whether, and in what circumstances, a claim of

actual innocence can allow us to waive  2244(b)(2)'s requirements

for our approval of a successive habeas petition."); Bush v.

Singletary, 99 F.3d 373, 375 (11th Cir. 1996) (per curiam). 

Further, where a prisoner had an opportunity to present his claim

properly in his first  2255 petition, but failed to do so, any

"ineffectiveness" of his current  2255 petition is due to him and

not to  2255.  See United States v. Walker, 980 F. Supp. 144, 146

(E.D. Pa. 1997); cf. United States v. Logan, 22 F. Supp. 2d 691,

694 (W.D. Mich. 1998) ("The Court concludes that any

'ineffectiveness' in this matter is attributable not to  2255, but

to Petitioner, for failure to file within [the AEDPA statute of

limitations] period."); Mejia v. INS, No. 97 C 6191, 1998 WL 26163,

at *2 (N.D. Ill. Jan. 16, 1998).

          Nor is a serious constitutional question raised by the

fact that AEDPA bars Barrett's claim from being heard on the

merits.  We need not reach the issue of the extent to which a

Jencks Act claim may ever be of constitutional dimension.  The

decision on Barrett's prior  2255 petition determined that the use

of the nondisclosed material would not have made a difference in

the outcome of the trial.  Barrett could have raised his claim in

his first petition, and Congress may constitutionally treat "second

or successive" petitions differently than first ones.  See Lonchar

v. Thomas, 517 U.S. 314, 323-25 (1996); cf. Davenport, 147 F.3d at

610.  The Supreme Court has already determined that the AEDPA

"second or successive" restrictions applicable to  2254 do not

violate the Suspension Clause, and that reasoning is applicable

here.  See Felker v. Turpin, 518 U.S. 651, 664 (1996) ("In

McCleskey . . . , we said that 'the doctrine of abuse of the writ

refers to a complex and evolving body of equitable principles

informed and controlled by historical usage, statutory

developments, and judicial decisions.'  The added restrictions

which the Act places on second habeas petitions are well within the

compass of this evolutionary process, and we hold that they do not

amount to a 'suspension' of the writ contrary to Article I,  9." 

(citations omitted) (quoting McCleskey, 499 U.S. at 489, and citing

U.S. Const. Art. I,  9, cl. 2 ("The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in Cases of

Rebellion or Invasion the public Safety may require it."))); see

also Graham v. Johnson, 168 F.3d 762, 787 (5th Cir. 1999); Green v.

French, 143 F.3d 865, 875-76 (4th Cir. 1998), cert. denied, 119 S.

Ct. 844 (1999); Ortiz, 136 F.3d at 168; In re Vial, 115 F.3d at

1197-98.  Further, the restrictions at issue do not, under the

circumstances of this case, offend separation of powers principles

or the Article III grant of judicial power.  Cf. Green, 143 F.3d at

875-76.

          Finally, and perhaps most tellingly, Barrett would not

have been able to proceed under the pre-AEDPA abuse of the writ

doctrine.  Therefore, as Barrett implicitly acknowledges,

application of the AEDPA standards to bar his  2255 petition --

which would have been barred pre-AEDPA in any event -- does not

raise any serious constitutional question.  See Davis v. Crabtree,

10 F. Supp. 2d 1136, 1141 (D. Or. 1998) (citing McCleskey, 499 U.S.

at 494-95, and Bousley, 118 S. Ct. at 1611-12); cf. Underwood v.

United States, 166 F.3d 84, 88 (2d Cir. 1999) ("The same

considerations that justify denial of relief under  2255 [and make

petitioner fail the pre-AEDPA abuse of the writ test] also require

that relief be denied under  2241.  This is not a case, such as

Triestman, in which denial of collateral relief could require a

prisoner to serve a sentence for acts that have been ruled not to

constitute criminal conduct."  (citation omitted)); Ortiz, 136 F.3d

at 169 ("Because Ortiz does not satisfy the standards for

successive  2255 motions in place prior to the enactment of AEDPA,

applying AEDPA to his motion cannot make him any worse off than he

was prior to its enactment.").

C.        All Writs Act

          Finally, Barrett also argues that he may present his

claim as a writ of error coram nobis under the All Writs Act.  He

may not.

          Barrett relies on United States v. Morgan, 346 U.S. 502

(1954), in which the Supreme Court stated that  2255 should not

"be construed to cover the entire field of remedies in the nature

of coram nobis in federal courts."  Id. at 510.  However, this

statement must be read in light of Morgan's broad concern about

whether any possibility of coram nobis survived the enactment of

 2255, a provision which was intended to "restate[], clarif[y] and

simplif[y] the procedure in the nature of the ancient writ of error

coram nobis," 28 U.S.C.  2255 Historical and Statutory Notes 1948

Enactment, and the enactment of Federal Rule of Civil Procedure

60(b), which "expressly abolish[ed] the writ of error coram nobis

in civil cases,"  Morgan, 346 U.S. at 505 n.4.   Although the Court

concluded that coram nobis was available to the Morgan petitioner,

the Court did not hold that there are situations in which both

 2255 and coram nobis are applicable.  The Morgan petitioner was

no longer "in custody," as is required in order to seek  2255

relief.  See id. at 503-04.

          Indeed, as the Supreme Court noted in rejecting the use

of coram nobis in Carlisle v. United States, 517 U.S. 416 (1996),

"[t]he All Writs Act is a residual source of authority to issue

writs that are not otherwise covered by statute.  Where a statute

specifically addresses the particular issue at hand, it is that

authority, and not the All Writs Act, that is controlling."  Id. at

428-29 (quoting Pennsylvania Bureau of Correction v. United States

Marshals Serv., 474 U.S. 34, 43 (1985)) (internal quotation marks

omitted); see also Aetna Cas. & Sur. Co. v. Markarian, 114 F.3d

346, 350 (1st Cir. 1997) ("The All Writs Act does not authorize

[federal courts] to issue ad hoc writs whenever compliance with

statutory procedures appears inconvenient or less appropriate." 

(internal quotation marks omitted)).

          Barrett asserts that no statute, "other than the Jencks

Act and statutory provisions governing direct appeals,"

specifically addresses the particular issue at hand in his case. 

However,  2255 is applicable to Barrett, and the statute

specifically addresses this situation by barring Barrett's second

 2255 petition.  See, e.g., United States v. Brown, 117 F.3d 471,

475 (11th Cir. 1997); United States v. Kindle, 88 F.3d 535, 536

(8th Cir. 1996) (per curiam). 

          That  2255 does not provide Barrett with a means to

obtain the relief he seeks does not mean that it is not a

"controlling" authority for the purposes of determining whether the

All Writs Act applies.  The fact that  2255 bars his second

petition at its inception does not make that provision any less

controlling.  In Carlisle itself, the Court forbade the use of

coram nobis to circumvent Rule 29, Fed. R. Civ. P., despite the

fact that application of that rule meant that the defendant's

motion for a judgment of acquittal was untimely and should have

been rejected immediately by the district court without any

consideration of the merits or any grant of relief.  See Carlisle,

517 U.S. at 428-29, 433; see also Aetna Cas. & Sur. Co., 114 F.3d

at 350 (finding use of the All Writs Act inappropriate where Rule

69(a) had been consistently interpreted to block plaintiff's

claim); Ex parte Farrell, 189 F.2d 540, 545 (1st Cir. 1951) ("Where

the appeal statutes establish the conditions of appellate review

[such as timeliness], an appellate court cannot rightly exercise

its authority to issue a writ under the 'all writs' section, 28

U.S.C.  1651, the only effect of which would be to avoid those

conditions and thwart the congressional policy.  For us to grab

hold of the present case under 28 U.S.C.  1651 would not be in aid

of our appellate jurisdiction . . . , but would be a palpable

evasion of the statutory conditions which Congress has seen fit to

impose . . . .").  The writ of coram nobis may not be used to

circumvent the clear congressional directive embodied in the

"second or successive" provisions of  2255, which are themselves

a sort of "timeliness" requirement.  See, e.g., United States v.

Damiano, No. CRIM. 90-00488-01, 1997 WL 539704, at *2 (E.D. Pa.

Aug. 6, 1997) ("[T]he [AEDPA] limits the ability of a petitioner to

obtain relief in later Section 2255 motions and encourages all

petitioners to include all of their claims of error in their first

motion.  For this reason, given the broad purpose of the Act, it

would be astounding if [the "second or successive" restrictions]

could be rendered wholly ineffective by the simple ruse of labeling

future  2255 motions as petitions for writs of coram nobis.");

Bennett v. United States, No. 87 CR 874, 1997 WL 285987, at *2

(N.D. Ill. May 22, 1997) ("[Section] 2255 is not unavailable to

[petitioner]; it just offers him no relief from his sentence.");

see also, e.g., United States v. Bailey, No. 97 C 7665, 94 CR 481,

1997 WL 757869, at *2 (N.D. Ill. Nov. 26, 1997) (applying the same

rule in a case involving the AEDPA statute of limitations).

          It may be that there are situations in which  2255 is

not "controlling" despite the fact that the petitioner remains in

custody -- for instance, where  2255 is "inadequate or

ineffective."  See Triestman, 124 F.3d at 380 n.24; see also United

States v. Ransom, 985 F. Supp. 1017, 1019 (D. Kan. 1997).  But we

have no cause to explore those potential situations in this case,

since  2255 is not "inadequate or ineffective" and so plainly

"specifically addresses" the situation that we face.  Carlisle,

517 U.S. at 429 (internal quotation marks omitted); see also

Davenport, 147 F.3d at 608 ("[I]f Congress has forbidden federal

prisoners to proceed under 2241 even when 2255 is closed to them[,]

then it would be senseless to suppose that Congress permitted them

to pass through the closed door simply by changing the number 2241

to 1651 on their motions.").

          The scope of relief obtainable under the All Writs Act is

narrowed when a statute governing a particular issue is enacted. 

Here  2255, as amended by AEDPA, governs.  There is no contention

that the AEDPA provisions themselves have somehow amended the All

Writs Act.  We conclude merely that Barrett is not permitted to

proceed with a  1651 petition under the circumstances of this

case.  For the reasons already discussed, barring Barrett's

petition does not present any constitutional difficulties.

                               V

          We have considered Barrett's remaining arguments; they

are without merit.  See United States v. Bongiorno, 106 F.3d 1027,

1034 (1st Cir. 1997) (explaining that this court has "steadfastly

deemed waived issues raised on appeal in a perfunctory manner, not

accompanied by developed argumentation").  Despite Barrett's

liberal invocation of federal constitutional principles, this case

is in the end simply an example of a garden-variety abuse of the

writ -- an abuse that would have been forbidden prior to the

enactment of AEDPA and is most certainly barred by AEDPA's more

stringent provisions.  See Pratt, 129 F.3d at 63 ("[Petitioner]

failed to marshal all his claims of error in his first section 2255

petition, and he must now pay the piper.  AEDPA governs here, and,

on the facts of this case, AEDPA's clear language prohibits

[petitioner] from rectifying his omission by means of a second

petition."); cf. Calderon, 118 S. Ct. at 1502; McCleskey, 499 U.S.

at 491-93.

          The lessons of this case for the criminal defense bar are

clear.  A first petition for post-conviction relief under  2255

should raise all available claims.  Informal reference to a new

claim in a reply brief will not suffice to raise a claim if the

district court does not address that claim in its order.  Failure

to raise an available claim does not permit an end-run around the

requirements of  2255 by resort to  2241 or the All Writs Act. 

There is only one bite at the post-conviction apple unless a second

or successive petition can show one of two things:  a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable, or newly

discovered evidence sufficient to establish by clear and convincing

evidence, on the whole record, that no reasonable factfinder would

have returned a guilty verdict.  A claim of actual innocence --

defined as factual innocence, not mere legal insufficiency -- will

have a mechanism for review.

          We therefore affirm the district court's dismissal of

Barrett's petition.  Barrett's appeal is also treated concurrently

as a request for leave to file a second or successive habeas

petition and that request is denied.