ORDER
Curtis Jones is a Michigan prisoner serving a life sentence for second-degree murder. He has moved the court for authorization to file a second or successive habeas petition raising two claims: (1) that changes to Michigan’s parole system since his conviction constitute an unconstitutional ex post facto law, and (2) that the jury at his trial was not drawn from a fair cross-section of the community. Because we conclude that the ex post facto claim may proceed without our authorization, we dismiss the motion as unnecessary with respect to that claim. We deny the motion as it pertains to the jury-selection claim.
I.
In 1991, a Michigan jury convicted Jones of second-degree murder and being a felon in possession of a firearm. He was sentenced to a term of life imprisonment. In 1997, after pursuing an unsuccessful appeal in state court, Jones filed a petition for a writ of habeas corpus in federal court. In his petition, Jones raised a double-jeopardy claim, as well as claims related to the admission of evidence, jury selection, and sentencing. The petition was dismissed, and Jones did not appeal.
Twice since the dismissal of his initial habeas petition, Jones has unsuccessfully moved this court under 28 U.S.C. § 2244 for authorization to file a second petition. In his first such motion, Jones sought to raise a host of new claims: that the prosecutor failed to disclose exculpatory evidence in violation of
Brady v. Maryland,
Now before the court is Jones’s third motion for authorization to file another habeas petition, in which he intends to raise two claims. He first contends that the cumulative effect of changes made to Michigan’s parole-review procedures in 1992 and 1999 has “produce[d] a sufficient risk of increasing the measure of punishment attached” to his conviction to constitute a violation of the Constitution’s
Ex Post Facto
Clause.
Cal. Dep’t of Corr. v. Morales,
The state of Michigan has elected not to respond to Jones’s motion.
II.
28 U.S.C. § 2244 “established] a gatekeeping mechanism for the consideration of second or successive habeas corpus applications” brought in federal court by state prisoners.
Stewart v. Martinez-Villareal,
But not every numerically second habeas petition is subject to these gatekeeping procedures. Instead, in a series of postAEDPA cases, the Supreme Court has confirmed that a numerically second petition is not properly termed “second or successive” to the extent it asserts claims whose predicates arose after the filing of the original petition. The statutory phrase “second or successive petition,” the Court has emphasized, is a “term of art given substance” in the Court’s prior habeas eases.
Slack v. McDaniel,
The same principles govern Jones’s
ex post facto
claim, which challenges the cumulative effect of amendments to Michigan’s parole system, the last of which took effect in 1999 — two years after Jones’s initial habeas petition was filed. Like the
Ford
claims at issue in
Panetti
and
Martinez-Villareal,
Jones’s
ex post facto
claim was unripe when his initial petition was filed — the events giving rise to the claim had not yet occurred. And, as in
Panetti,
no useful purpose would be served by requiring prisoners to file
ex post facto
claims in their initial petition as a matter of course, in order to leave open the chance of reviving their challenges in the event that subsequent changes to the state’s parole system create an
ex post facto
violation. As a result, we conclude that Jones’s
ex post facto
claim is not properly classified as “second or successive,” and thus does not require our authorization to go forward in the district court. In so holding, we join several other circuits that have reached the closely related conclusion that § 2244(b)’s limitations on second or successive petitions do not apply to a numerically second petition challenging a parole determination or disciplinary proceeding that occurred after
*606
the prisoner’s initial petition was filed.
See In re Cain,
Jones’s jury-selection claim is more straightforward, as it challenges events that occurred at his trial. It thus falls squarely within the scope of § 2244(b)’s gatekeeping requirements, meaning that Jones must show that the claim satisfies one of the two exceptions to the bar on second or successive petitions.
He has not done so. The claim does not rely on any new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2244(b)(2)(A). And although Jones broadly asserts that court officials concealed practices that systematically excluded African-Americans from the jury pool at his trial, he has not explained with any detail why the facts underlying the claim could not have been discovered earlier through due diligence. See id. § 2244(b)(2)(B)®. Furthermore, the facts underlying Jones’s claim of racial discrimination in jury selection would not be “sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty.” See id. § 2244(b)(2)(B)(ii).
In closing, we emphasize that our decision here is confined to the narrow question whether Jones’s contemplated habeas petition is barred by the limitations on second or successive petitions imposed by § 2244(b). Although we conclude that Jones’s
ex post facto
claim may proceed without our authorization, formidable obstacles may await him in the district court. For one thing, there is the question whether habeas is the proper avenue for a claim that seeks a modification of parole procedures that would not necessarily result in the petitioner’s speedier release.
See Wilkinson v. Dotson,
The motion for authorization to file is dismissed as unnecessary as it relates to the ex post facto claim. The motion is denied as it relates to the jury-selection claim.