Second or Successive Petitions. Under § 2244(b)(2), a petitioner can file a second or successive habeas petition only after obtaining an authorization order from a three-judge panel in the appropriate federal court of appeals. In order to obtain an authorization order, a petitioner must make a prima facie showing that the claim was not presented in a previous federal habeas petition. In addition, the petitioner must show either that: (1) the new claim relies on a new rule of constitutional law that was previously unavailable, and the Supreme Court made the rule retroactive to cases on collateral review; or (2) the factual basis for a new claim “could not have been discovered previously through the exercise of due diligence” and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, show by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the petitioner guilty of the offense. The grant or denial of authorization by the court of appeals cannot be appealed and is not subject to rehearing or writ of certiorari. If a circuit court issues an authorization order, the petitioner may file a second or successive petition in district court, which must dismiss the petition unless the petitioner can prove that claim satisfies § 2244(b) requirements set forth above.
A habeas petition filed after the dismissal of a prior petition without prejudice is not considered “second” or “successive” for purposes of § 2244. Some circuits have held that a Rule 60(b) motion under the Federal Rules of Civil Procedure seeking relief from judgment on the basis of mistake, neglect, fraud, or new evidence is equivalent to a successive habeas petition; however, whether a Rule 60(b) motion is viewed as a second or successive habeas petition depends on the circumstances under which the motion is filed. An application is not “second or successive” where it “challenge[s] a new judgment,” such as a new sentence after a resentencing.
Courts sometimes recharacterize motions filed by pro se litigants as § 2254 petitions, thereby subjecting successive petitions to stringent restrictions. However, according to Castro v. United States:
[A] court cannot so recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's “second or successive” restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing.
