*1 6 MOBLEY,
Stephen Petitioner- A.
Appellant,
v. Warden, HEAD, Georgia Frederick P.C., Steel, Firm, Brian Law The Steel Diagnostic and Classification Atlanta, GA, Petitioner-Appellant. Prison, Respondent-Appellee. Burton, Attaway State of Geor- Allison No. 02-14224. Atlanta, GA, Dept., Respon- Law gia Appeals, States Court United dent-Appellee. Circuit.
Eleventh
Sept. TJOFLAT, BARKETT and
Before
WILSON,
Judges.
Circuit
BARKETT,
Judge:
Circuit
Having determined that
the Su
forthcoming
in Ab
Court’s
preme
—Bell,
-,
dur’Raham v.
(grant
Unlike the Turpin, read fairly district court (11th Cir.1996), to have es- bright-line restric- tablished for “second or tions all petitions apply to successive” peti- motions filed (“We at 661 tioners. See hold that the successive restric- tions contained in amendments 60(b) proceedings, to Rule *2 1097 explained previously, even those seek to under proceedings where that standard review, became final be judgement amend a that amendments.”); fore the effective date A discretionary that decision within falls Medina, 1556, n re 109 F.3d I permitted bounds, is but based on false (11th Cir.1997) (“We held in Felker premises, raises question on review that and successive second as to whether the trial court would have to restrictions amended come to the same conclusion using prop- 60(b) motions.”). That is the same premises. er That it could have does unequivocal rule that the Court not satisfy inquiry as to it whether granted has certiorari Ab- would have reached the same result. dur’Raham, and we the outcome The affirmance of a deci- discretionary that ease will determine outcome here. sion that is based on improper an view believes, apparently The dissent not of the merely facts the law reflects Medina, withstanding Felker and that the appellate court’s exercise discre- Mobley’s subject motion not rightfully belongs that to the trial 2244(b)’s Assuming restrictions. ar- court. proper The role of appellate re- guendo on that that dissent correct permits view pro- remand further score, precedent we believe that our ceedings discretionary when squarely affirming precludes us has premises. been made on false clearly alleged district has Mobley court. Co., Collins Seaboard C.R. that regarding the State’s actions Fuller’s Cir.1982). Therefore, if testimony created infirmities in federal his right the dissent were that the district hearing, just pro not the state Felker, court misread then under Collins 60(b) motion, ceedings. Mobley In his remand; required we would recently claims that discovered evidence by substituting would not be free to affirm prior that demonstrates the district court’s district court’s discretion our con- resolution of his claim was tainted jecture it would have reached the (regarding because it was based facts it guided by same result had been a proper testimony) prior the State course, view of law. Of we believe the knew or should have known were false. correctly interpreted district court “ex argues these recognizing but circumstances,” traordinary granted has certiorari on the same issue court should have exercised its discretion Abdur’Rahman, we it appropriate find grant under Rule him relief from stay pending issue a decision in judgment denying request ha- case. beas relief.1 Appellant Stephen Mobley’s Stay A. Mobley’s The court denied Execution is GRANTED. perceived motion to be because what Felker’s This re absolute rule. TJOFLAT, Judge, dissenting: Circuit views a denial of a motion for abuse Singletary, of discretion. See Booker v. Before the court three last-minute (11th Cir.1996). Anthony petitions As we filed inmate Steven disagree reopen We lan- with the dissent that the would also have discretion to evidence”) 60(b)(2) guage Mobley's ("newly is restricted to Rule motion discovered 60(b)(6) ("any justifying has limited other reason ground. operation judgment”). to that enumerated The district from the Mobley’s death sen- the administration to death was sentenced Mobley, who Collins, em Pizza a Domino’s tence. killing John of a robbery during
ployee, armed February store Pizza Domino’s *3 I. to for Permission (1) “Application an 1991: Ha- of for Writ Petition File a Successive on what premised Mobley’s petitions (2) Cer “Application for an Corpus;” beas phase of his sentencing at the transpired of an [from order Appealability of tificate County, of Hall Superior in the trial for the District States the United sentencing phase, the Georgia. During his Georgia denying District Northern had that he evidence Mobley introduced for Re Stay of Execution Motion any exchange in plead guilty to offered Fed. Pursuant Judgment from lief penalty.1 than death other punishment Stay of and Motion ] R.Civ.P. Judge rebuttal, called prosecution In Execution;” “Motion Recall superior Though was Fuller. Andrew 13980[, Mobley v. in Case Mandate 00— trial, Mobley’s time of judge at the Cir.2001)].” (11th Head, F.3d 1312 267 attorney at the had been Fuller panel The believes made the and had prosecution onset of Ab in forthcoming decision Court’s against penalty death to seek the decisión — -, Bell, 122 v. dur’Rahman Mobley.2 (2002) will 152 L.Ed.2d Mobley the issues affect the resolution to seek that he decided Fuller testified the Court’s filings, because raises these what knew [he] “once penalty the death will determine in Abdur’Rahman decision actual to the regard with occurred” had 60(b) motion Mobley’s Rule whether Among crime. circumstances that Federal reviewed should be that it was were Fuller considered factors or, instead,, should Procedure Rule of Civil Mob- robbery,” that armed planned “a well succes- a “second or to be be considered immediately for the ley pistol [his] “used corpus, for writ sive” taking accomplishing purpose' previ- our with supposedly accordance Collins, seeing after money,” and that Turpin, 101 v. Felker ous face, to a back been marched Mobley’s had Cir.1996). Consequently, kneel, in the room, and then shot forced to consideration postpone chosen panel has he was Fuller said that the head. back of execu- stay his Mobley’s filings —and that Mob- by the troubled fact particularly decides AbdurRah- the Court tion—until shooting about the “wasn’t léy concerned from dissent I must Respectfully, man. put his bag grabbed as he so much I believe that this decision he exited money before and, getaway hand, at the case inapplicable building.” thus, postpone for us to is no need there actually The first Mobley tried twice. only was 2. was Mobley’s plea offer one failed At the commence- in a ended mistrial. trial mitigating that he pieces three Mobley's trial —at which of the second ment sentencing phase his tri- at the introduced ' (cid:127) imposed— ultimately was sentence father, plead who Mobley al. also called jeopardy, but his Mobley plead tried to double witness, son, expert and an mercy for Georgia rejected claim suffered who testified State, Ga. Court. See may personality disorder which antisocial (Ga.1993). testimony was S.E.2d 150 ages. as he mellow sentencing phase of during tire Mobley’s second trial. Fuller also added that he had mother, consulted the victim’s apparently contacted family, they Collins “supported” Mobley’s father to him tell that she had his decision to seek the death penalty. He decided to oppose Mobley’s execution. On however, emphasized, they “never put July Mobley filed an “Extraordinary anything that [he] would even associate Motion for New Trial as to Sentence” in pressure [him],” him, with telling “It is Superior Court of Hall County, Geor- decision, your our put you.” trust in gia. His motion asserted if his death fact, family’s feelings only factored as sentence were vacated and he were afford- “a small percentage” decision to trial, ed sentencing Mrs. Collins instead, seek the death penalty; per- “95 testify that her family only ac- *4 cent of the decision made based on [was] quiesced to Fuller’s decision to seek the [he saw] that describefd] and death penalty because Fuller had not told define[d] the defendant for [him].” them that a sentence life of without parole was an option available
Despite initial case. On his impressions, Fuller 19, July the superior court denied asserted Mob- nonetheless tried to re- ley’s motion. The main court found that “open minded ... because of the evidence Mobley simple decision,” present wished to gravity of the at a when Mob- new sentencing ley’s hearing counsel would approached him about a admissi- plea ble, but that even if Fuller, offer. According to testimony other were factors decision, to a jury, reinforced his “it though. [could] not Specifical- reason- ly, ably be Fuller concluded Mobley joked opposition recounted how had family victim’s getting job about a to the at Domino’s death penalty ... “because probably produce he knew vacancy,” there was a a gotten had different ver- dict.” Mobley a back, applied Domino’s tattoo on his had the Georgia Su- raped preme cellmate, his for a and had prison discretionary told a deputy, appeal of motion, way him, as a denial of his threatening but his application that he was was “looking denied. more and more like Domino’s delivery Pizza boy every day.” These 2, August On Mobley shifted his efforts led events Fuller to “that [he] had to the system federal court and filed a
made the right
decision”
seeking the
Stay
“Motion for
of Execution and for
death penalty, as he saw Mobley
“noth-
Relief
Judgment
from
Pursuant
Fed.
ing but pure unadulterated meanness.”
60(b)”
R.Civ.P.
with the United
Dis-
States
noted,
As
Mobley was sentenced to trict Court for the Northern District of
death. On
appeal,
direct
Georgia
Su- Georgia. The district court denied this
preme Court affirmed
capital
his
convic-
3,
August
finding
that Mobley
tion and death sentence.
Mobley
See
v. had not met the
conditions
28 U.S.C.
State,
(Ga.1995).
265 Ga.
S.E.2d
2244(b),
which,
said,
were applicable
Mobley
sought
then
relief
Turpin,
Felker v.
On 2002—less than a month an “Application for Permission to File before the date on was Successive Petition for Writ of Habeas Collins, scheduled to be executed—Nina Corpus,” and a “Motion Recall Man- under- guilty applicant found Mobley’s 00-13980.” No. in Case date lying offense. No. in Case the Mandate to Recall “Motion him re- direct to grant us asks 00-13980” revoking our
lief, specifically nei- has met application, In his denial the district affirmance His claim criteria. these two ther of contrast, in petition. his habeas unconstitutionally sentence his death Appeala- for Certificate “Application knowingly pre- the state imposed Permission “Application bility” during sen- testimony false Fuller’s sented of Ha- for Writ Petition File Successive tencing is not to allow Mobley wants us Corpus,” beas Likewise, Mobley has law. to seek him dis- not have that he could shown neither letting it reconsider namely by his claim— underlying the facts covered his claim that light misrepresentations namely, testimo- through his jury misled Fuller due dili- the exercise -through Collins— Mob- supported family Collins’ ny that jury had the proven nor gence, essentially *5 filings execution; both ley’s misrepresen- alleged Fuller’s about known two result, through albeit the same seek family, it would to the Collins’ tation mechanisms. procedural separate Therefore, him to death. have sentenced of showing of either facie a prima
without under Mobley’s application grounds, these II. 2244(b)(2)fails. § claims, Mobley for one vehicle As pursuant application an
has filed III. 2244(b)(3)(A), as amended § U.S.C. A. Effective the Antiterrorism § of (“AEDPA”), Act of Penalty Death “Application filing an In addition the district authorizing an order seeking Petition a Successive to File Permission or successive” a “second consider court Mobley filed Habeas Corpus,” of for Writ Such corpus. of habeas for writ petition Appeala- for Certificate “Application if: granted bemay authorization denial of court’s from the bility” aforementioned, As motion. his Rule claim that the (A) applicant shows in his Certifi- same relief Mobley seeks law, constitutional a new on relies review Appealability cate of —district on collateral to cases retroactive made alleged light of his sentence Court, by the application in his misrepresentations —-as unavailable; or previously corpus habeas or successive” for a “second (B)(i) predicate factual however, difference, There is petition. discovered been not have claim could and a “second a Rule between due through the exercise previously petition. habeas or successive” diligence; and each is in the harm lies The distinction or succes- A “second to cure. claim, designed if (ii) underlying facts corpus petition, discussed evi- sive” light viewed proven specific two above, to address is meant whole, be sufficient would as a dence by prisoners: claims of constitutional types convincing evi- by clear and establish rule of a new (1) “rel[y] on error, claims that constitutional but for dence rely (2) law,” claims have factfinder no reasonable on a rule of constitutional law and are any other reason justifying relief on evidence that “could not have operation of the judgment. previously through discovered the ex- 60(b). Fed.R.Civ.P. When a habeas cor- ercise of due diligence” and would estab- pus petitioner under, moves petitioner’s lish the factual innocence. 28 example, 60(b)(3), he is impugning 2244(b)(3)(A). U.S.C. Neither these integrity of the district court’s judg- types challenges claims the district ment rejecting ground denial of relief under 28 that the State obtained the judgment Instead, U.S.C. alleges each fraud. Asserting this claim is quite differ- the contextual pro- circumstances of the ent from contending, as the petitioner ceeding changed so much that the would ain successive peti- petitioner’s conviction or sentence now tion, that his conviction or sentence was runs afoul of the Constitution. “in obtained violation of the Constitution contrast,
In laws a motion treaties for relief United States.” 2254(a). Rule 60 of the Federal U.S.C. of Civil Rules Pro- cedure integrity contests the pro- sum, a “second or successive” habeas ceeding that resulted the district court’s corpus petition, like all peti judgment. Rule states: tions, is meant to remedy constitutional
(b) Mistakes; Inadvertence; (albeit Excusable violations ones which arise out of Neglect; Newly Evidence; Discovered facts discovered or laws evolved after an Fraud, Etc. On motion and such initial habeas corpus proceeding), while a *6 just, terms as are 60(b) the may court relieve Rule motion is designed to pro cure party a or a party’s legal representative cedural violations in an proceed earlier order, from a final judgment, or pro- ing here, a habeas corpus proceeding— — ceeding (1) for the following reasons: that questions raise about that proceed mistake, inadvertence, surprise, or ex- ing’s integrity. This distinction identifies (2) cusable neglect; newly discovered these types two of filings matter how —no evidence which diligence due styled. could either words, is In other if peti a not have been tioner, discovered time to already who has been denied feder move for a trial 59(b); under Rule al corpus habeas relief files a motion that (3) (whether fraud heretofore presents denom- new constitutional claims to the extrinsic), inated intrinsic or misrepre- district this motion should be consid sentation, or other misconduct of an ad- ered a “second or successive” habeas cor (4) party; verse void; the judgment is pus petition petitioner if the calls it —even (5) judgment the satisfied, 60(b) has been re- a Likewise, Rule motion3. if the leased, or discharged, or a prior judg- petitioner sought a “second or successive” upon ment which it is based has been habeas petition to questions raise vacated, reversed or otherwise or it is no about integrity a prior habeas cor longer equitable that the judgment pus proceeding perhaps suggesting that — should have prospective application; the prior proceeding was rife with fraud— Utilizing approach especially impor- following (6) any reasons: ... other reason dealing tant when with justifying motions made under operation relief from the of the Federal Rule of Civil judgment.”). Procedure See A district court that uses this 60(b)(6) ("On Fed.R.Civ.P. motion and provision "catch-all” to allow a habeas cor- just, such terms as may are pus petitioner court a relieve to obtain review of newa con- party legal representative or a party's will, view, from a my stitutional claim eviscerate order, judgment, final proceeding provisions of AEDPA.
1102
case,
only dealt with
which
filing facts
review
should
court
then
60(b)
amend
to
60(b)
of Rule
use
mo
Rule
standards
under
con-
other
allege
habeas
of 28
the strictures
not under-
and
tions
by the
Any decision
violations.
stitutional
2244(b)(2).4
U.S.C.
60(b) motions
Rule
regarding
panel
Felker
way
in no
inconsistent
approach
This
claims
allege
do not
that
101
Turpin,
v.
in Felker
holding
our
with
Second,
dicta.
mere
be considered
must
Cir.1996).
In that
F.3d
suggests
Felker
wording. of
mo-
last-minute
filed a
inmate
row
a universal
adopt
intend
did not
panel
(3),
60(b)(1), (2),
Rule
60(b)
motions filed
Rule
rule about
through
he discovered
though
even
petitioners;
'corpus
habeas
Georgia Open
under the
brought
lawsuit
“that
successive
said
the panel
§ 50-18-70
Ann.
Act, Ga Code
Records
amendments
contained
restrictions
(1994).
review
our
In
-76
60(b) proceed-
2244(b)
§to
motion,
spe-
we
of Felker’s
denial
conclu-
seemingly
id., it based this
ings,”
the claims
“[a]ll
cifically noted
that “Rule
notion
on the
statement
sive
Maryland,
Brady v.
raises
Felker
re-
to circumvent
be used
cannot
10 L.Ed.2d
83, 83 S.Ct.
petitions,”
habeas
on successive
straints
at 662.
(1963), claims.”
later
Therefore,
open
left
Felker
Id.
to use
trying
words, Felker was
other
a Rule
where
the scenario
asserting consti-
aas vehicle
corpus petitioner
by a
filed
con-
claims
tutional
to circumvent
meant
is not
Not
petition.
in a
veyed
particular
2244(b),
seeks
instead
but
Felk-
“because
held that
surprisingly,
Rule of Civil
that Federal
to be
was due
proceeding
er’s
provides.
specifically
Procedure
successive
second
treated
failed
cases
application,
Moreover,
Circuit
the Eleventh
authorizing the
order
for an
in line
...
falls
move
presumably
cites
that application,
to consider
Singletary,
with — Scott
*7
by
do
required
he was
Thigpen, 875
(11th Cir.1994); Lindsey
as
v.
denial
2244(b)(3)(A),
district
the
Cir.1989);
v.
(11th
§
Booker
and
F.2d
Id. at
proper.”
Cir.1987)—
entirely
(11th
was
his motion
Dugger, 825
all
concept
661.
support
no
provide
as 28
60(b)
viewed
should
motions
Rule
instant
In the
2244(b)
Scott
Both
petitions.
§
U.S.C.
pan-
this
colleagues on
my
presumably
habe-
where
with situations
Lindsey dealt
They
differently, however.
read Felker
el
constitution
asserted
petitioners
as
proposi-
for the
Felker stands
motions,
60(b)(6)
so
in Rule
al violations
in
the restrictions
peti
where
cases
inapplicable
they
peti-
2244(b)
or successive”
for “second
60(b) in
Rule
misuse
use
do not
filed tioners
motions
to all
tions
(“The
Scott,
at 1550
38 F.3d
way.
See
A close
petitioners.
by habeas
60(b)(6) motion
Scott’s
gravamen
at
presents
text of Felker
study of the
mandate is
to recall the
and his motion
why this inter-
reasons
separate
two
least
Dugger,
v.
in Scott
that our earlier
First,
it belies
inaccurate.
pretation
motion,
petitioner more
a
a Rule
of review
standard
Obviously, because the
4.
guise
the former
likely to file
habeas
successive”
"second
versa.
than vice
latter
stringent than that
more
petition is so much
(11th Cir.1989),
motions “second considered successive restrictions contained in or successive” corpus petitions. 2244(b) § the amendments to apply to all, After a claim prosecutorial fraud 60(b) proceedings.” rely does not on “a new rule of constitu- at 661. it Consequently, found that Mob- may tional by law” clear “establish 60(b) ley’s motion was by bound the same convincing evidence ... that no rea- restrictions as successive habeas sonable factfinder would have found the 2244(b). petitions under 28 U.S.C. Since applicant guilty of the underlying offense.” Mobley had not our sought permission to It is a claim that file such a petition under 28 U.S.C. recognized. must be nonetheless 2244(b)(3)(A), the district court rea-
soned, his motion under Rule must therefore fail. B.
Mobley now argues that Felker has been Mobley’s case point dis illustrates abrogated thus, the district court’s —and cussed above. that believes faulty —because district court should have him re granted granted certiorari AbdurRah- lief from its denial of his “[wjhether man as every Rule .to State, petition, according to Motion prohibited constitutes a ‘second or him, committed a fraud upon the district successive’ habeas petition as a matter of through purportedly false My colleagues, law.” reading the holding testimony. Clearly, he is suggesting, of Felker the same 60(b)(3),9 accordance with Rule stayed Mobley’s execution because they district court should him relieve from its were if unsure that holding would still be judgment in the habeas corpus proceeding valid after the Court decides AbdurRah- (whether due to “fraud heretofore denom I man. As discussed sec- extrinsic), inated intrinsic or misrepresen tion, however, I do not tation by or misconduct” the State. He is stands for the proposition that every Rule not presenting a claim upon a Motion filed a habeas peti- rule of constitutional law or constitution tioner constitutes “second successive” al claim based on he could and, thus, habeas corpus petition, I do not not have discovered through exercise believe that the grant Court’s effect, therefore, of due diligence. certiorari AbdurRahman threatens the wholly claim is different from one for a validity of holding in Felker. Never- does not indicate viously under which sub- petition, considered the habeas section of Rule he seeks relief. The did so based facts and assertions language Mobley’s actual motion makes (or respondent was aware clear, however, Mobley asserting fraud aware) materially were false. upon the district court seeking and therefore judgment The resulting denying Court’s 60(b)(3): relief under Rule thereby tainted mis- fraudulent grounds The Mobley's for Mr. motion relate representations respondent. directly integrity to the of this Court's deci- *10 added). (emphasis sionmaking process. pre- this When Court 1106 ha- court’s the district during never raised Mobley’s motion that theless, I believe therefore, and, no corpus proceeding, require- beas meet the not
fails,
it does
because
al
from Fuller’s
derived
60(b).
could have
fraud
ments of
Hence,
of them.10
misrepresentation
leged
Mobley’s
light,
possible
in the best
Read
fails.11
motion
Mobley’s
may have
the State
that
imply
allegations
supe-
Georgia
upon the
fraud
committed
IV.
allegedly
by proffering
court
ñor
resort,
filed a
Mobley has
final
As a
sentenc-
Mobley’s
during
testimony
false
in
No.
Mandate Case
Recall the
“Motion
60(b) relief
obtain Rule
In order
ing.
Thompson,
523
In Calderon
00-13980.”
of his
rejection
the district
L.Ed.2d
140
728
however, Mobley
petition,
acknowledged
(1998),
committed
fraud was
that
show
needs to
recognized
appeal
“the courts
that
See, e.g., Rodri-
couri.
the district
to recall their
power
an inherent
to have
(2d
Mitchell,
guez v.
that “it
mandates,”
emphasized
is
but it
Cir.2001) (“[A]
motion to vacate
resort,
in reserve
to be held
last
one of
may be based on
action]
[habeas
a federal
contingencies.”
grave, unforeseen
against
inadvertence,
ex-
mistake,
surprise,
‘(1)
In
549-50,
Cal-
at 1498.
at
118 S.Ct.
Id.
...,
‘(3)
misrep-
fraud
neglect’
cusable
moreover,
that a
deron,
found
the Court
an ad-
resentation,
misconduct
or other
recall the mandate
who seeks
petitioner
60(b). These
party.’ Fed.R.Civ.P.
verse
of a habeas
from the denial
inadvertence,
mistake,
are to
references
of AEDPA:
by the strictures
bound
etc.,
of the
fraud,
in the course
surprise,
motion to
prisoner’s
In a
liti-
in the
proceedings,
federal
the basis
mandate on
recall the
which the
against
of the conviction
gation
can
underlying
be
of the
directed.”)
merits
prof-
cannot
Mobley
ap-
or successive
a second
regarded as
regard because the
this
any
fer
2244(b).
§of
purposes
plication
wishes was
family’s
the Collins
issue of
Georgia Superi-
nary
for New Trial
Mobley
Motion
corpus petition,
did
10.
Therefore, had he raised
July
Court on
under oath
Judge Fuller
lied
]
“contendf
corpus petition to the
in his habeas
rejected
this claim
that the reasons
testified
when he
required
have
the court
guilty were the cir-
plead
Mobley's offer to
state court.
the claim in
first to exhaust
crime,
him
Mobley's boastful
cumstances
2254(b)(l)(A)("An application
U.S.C.
crime,
See 28
Mobley's conduct
about the
attitude
behalf of a
a writ of habeas
incarcerated,
Mobley
and the fact
while
judgment of
custody
pursuant
person in
'pure
me-
unadulterated
consumed with
granted unless
not be
court shall
a State
Judge Fuller had
...
... because
anness'
(A)
applicant has exhausted
appears
that —
he was
stipulation],
when
[a
into
entered
courts of the
available
the remedies
case, which
attorney
prosecuting
State.'').
plea was
of a
the offer
the reason
stated
without
possibility
rejected was
or the
sentence,
pa-
be
11. Even if
circuit
possibly
could
all
motions
adopted a rule that
The district
re-
future.”
roled
successive” habeas
testimony
“second
treated
whether Fuller's
to consider
fused
law,
Mobley’s
should still
corpus petitions,
motion
process
Mobley due
denied
II, supra,
I
Part
As discussed
the claim
be denied.
Georgia
had found
courts
the criteria of
Mobley’s
not meet
motion does
when Mob-
procedurally defaulted
Therefore, Mobley’s
review. Simi-
U.S.C.
it on direct
ley
to raise
failed
regardless of how we
first
that he
larly,
concedes
fails—
Supreme Court de-
or how
testimony
read Fellcer
about
regarding Fuller's
his claim
cides Abdur’Rahman.
his Extraordi-
wishes in
family's
Collins
*11
Otherwise, petitioners
Instead,
(1)
ings.
could evade the
deny
his “Ap-
against
bar
relitigation of claims pre-
plication for Certificate of Appealability
prior
application,
sented
[from order of the United States Dis-
2244(b)(1),
§
against
or the bar
litigation
trict Court for the Northern District of
prior appli-
claims
in a
Georgia denying his Motion
Stay
cation,
§
If
grants
the court
Execution and for Relief
Judgment
motion,
such a
subject
its
action
Pursuant
to Fed.R.Civ.P.
]
Mo-
irrespective
AEDPA
of whether the mo-
(2)
Execution,”
for Stay
deny his
(in
tion is based on old claims
case
“Application for Permission to File a Suc-
2244(b)(1)
would apply) or new ones
cessive Petition for Writ of Habeas Cor-
(in
2244(b)(2)
which case
apply).
(3)
pus,”
deny his “Motion to Recall the
Id. at
date of our affirmance of the district denial of his
must fail.
V. summary, panel post- should not
pone the resolution Mobley’s fil- three