Anthоny Braden Bryan is a Florida death row inmate. We previously affirmed the denial of his first petition seeking 28 U.S.C. § 2254 habeas corpus relief.
See Bryan v. Singletary,
Three of the claims now asserted by Bryan — his claims of ineffective assistance of counsel at the trial and at the penalty stage and on direct appeal — were presented in his first federal habeas corpus proceeding, and accordingly are due to be dismissed pursuant to § 2244(b)(1).
*805 Assuming there are any other claims 3 that were not presented in the previous federal habeas corpus proceeding, they are to be evaluated under § 2244(b)(2). Bryаn makes no argument that his claims rely upon a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. Therefore, such claims must be evaluated under § 2244(b)(2)(B), concerning new evidence. Bryan asserts that he first learned in Octоber, 1999, that his trial counsel was an active alcoholic, drinking daily, at the time of Bryan’s trial. In addition to the attorney’s October, 1999, affidavit, Bryan prоffers the affidavit of the attorney’s then secretary. We do not believe that Bryan has satisfied the due diligence prong of § 2244(b)(2)(B)(i). Bryan has not explained why a diligent investigation, for example during the 1991 collateral proceedings, could not have discovered the fact of the аttorney’s alcoholism.
We also conclude that Bryan has failed to satisfy the second prong of the test: that the facts underlying the claim, if рroven 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 applicant guilty of the underlying offense. Bryan has not explained how an alcohol-free cоunsel would have clearly resulted in a finding of innocence, whether by the jury or as might have been directed by the trial or appellate court. Indeed, the Florida Supreme Court, in
Bryan v. State,
Because Bryan has failed to make the necessary showing under § 2244(b), his application must bе denied.
APPLICATION DENIED. 5
Notes
. In seeking to reopen his first federal habeas corpus proceeding, and set aside the final judgment therein, Bryan is seeking to circumvent the operation of the statutory limitations upon second or successive habeas corpus petitions, as set out in § 2244(b). Bryan arguеs that such circumvention is appropriate where there has been a fraud upon the court. Like the Fifth Circuit in
Fierro v. Johnson,
. Section 2244(b) states:
(b)(1) A claim presented in a second or successive hаbeas 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 aрplication 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 fact-finder would have found the applicant guilty of the underlying offense.
. It is not clear whether Bryan is asserting other claims not presented in the first federal habeas corpus proceeding.
. Instead of the proper focus discussed in text, Bryan would havе us focus upon his argument that he could have mounted a stronger ineffective assistance of counsel claim had he known that the trial аttorney was an alcoholic. However, his ineffective assistance of counsel claims are subject to dismissal under § 2241(b)(1). Moreover, wе note in passing that the courts previously addressing his ineffective assistance of counsel claims have concluded that Bryan failed tо satisfy the prejudice prong — i.e., failed to demonstrate a reasonable probability that the result would have been different. In the matеrials presented to us, Biyan has made virtually no argument that there is any increased probability that the result would have been different. Bryan has аdduced little more than the fact that the trial attorney suffered from alcoholism at the time of the trial, and has pointed to very little additiоnal evidence going to the prejudice prong. In this regard, we note that the trial attorney, in his October, 1999, affidavit, did concede that he was an alcoholic at the time of the trial. However, in a February, 2000, affidavit, the attorney indicates that there was no impairment of his faculties.
.The request for stay of execution contained in the application is also DENIED.