George Gage v. Kevin Chappell , 793 F.3d 1159 ( 2015 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GEORGE H. GAGE,                         No. 13-73438
    Petitioner,
    v.
    OPINION
    KEVIN CHAPPELL,
    Respondent.
    Application to File Second or Successive
    Petition under 28 U.S.C. § 2254
    Argued and Submitted April 7, 2015
    Submission Vacated April 7, 2015
    Resubmitted July 16, 2015
    Pasadena, California
    Filed July 20, 2015
    Before: Dorothy W. Nelson, A. Wallace Tashima,
    and Richard R. Clifton, Circuit Judges.
    Opinion by Judge Tashima
    2                       GAGE V. CHAPPELL
    SUMMARY*
    Habeas Corpus
    The panel denied California prisoner George Gage’s
    application for permission to file a second or successive
    habeas petition under 28 U.S.C. § 2254 in a case in which
    Gage, who was convicted of sexually assaulting his
    stepdaughter, sought to bring a Brady claim and an
    ineffective assistance of counsel claim, neither of which was
    included in his first federal habeas petition.
    The panel held that Gage’s argument that his new petition
    is not “second or successive” within the meaning of the
    AEDPA is foreclosed by United States v. Buenrostro,
    
    638 F.3d 720
    (9th Cir. 2011), because the factual predicates
    for his claims existed at the time of his first petition.
    The panel held that Gage is barred from bringing a
    successive petition under 28 U.S.C. § 2244(b)(2)(B) because
    he failed to exercise due diligence by failing to include the
    Brady claim in his original petition, and that the actual
    innocence exception articulated in Schlup v. Delo, 
    513 U.S. 298
    (1995), does not abrogate § 2244(b)(2)(B).
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    GAGE V. CHAPPELL                      3
    COUNSEL
    Tony Faryar Farmani (argued), Farmani, APLC, San Diego,
    California, for Petitioner.
    Kamala D. Harris, Attorney General of California, Gerald A.
    Engler, Chief Assistant Attorney General, Lance E. Winters,
    Senior Assistant Attorney General, Kenneth C. Byrne,
    Supervising Deputy Attorney General, David C. Cook
    (argued), Deputy Attorney General, Los Angeles, California,
    for Respondent.
    OPINION
    TASHIMA, Circuit Judge:
    California prisoner George Gage applies for permission
    to file a second or successive habeas petition under 28 U.S.C.
    § 2254. Gage, who was convicted in California court of
    sexually assaulting his stepdaughter, seeks to bring a Brady1
    claim and an ineffective assistance of counsel claim, neither
    of which was included in his first federal habeas petition. He
    asserts actual innocence and argues that his petition thus falls
    into the miscarriage of justice exception articulated in Schlup
    v. Delo, 
    513 U.S. 298
    (1995), thereby excusing him from the
    limitations on second or successive petitions imposed by the
    Antiterrorism and Effective Death Penalty Act of 1996
    (“AEDPA”), 28 U.S.C. § 2244(b)(2)(B). We conclude, first,
    that Gage is barred from bringing a successive petition under
    § 2244(b)(2)(B) because of his failure to exercise due
    1
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    4                   GAGE V. CHAPPELL
    diligence, and, second, that the Schlup exception does not
    abrogate § 2244(b)(2)(B). We therefore deny the application.
    I.
    In 1985, while living in Texas, Gage met Wanda, a
    mother of two children, Marian and Lionel. Gage and Wanda
    moved in together and were married in 1990. Marian was
    then nine years old and Lionel was seven. The family moved
    to California in 1993.
    In April 1995, Wanda learned that Gage had pursued an
    affair with another woman that resulted in a child. Gage had
    been siphoning money from family funds to pay child
    support. These revelations led to the marriage’s acrimonious
    collapse. Wanda and the children quickly moved back to
    Texas.
    Several years after the split, in 1998, Marian told Wanda
    that Gage had sexually abused her while they were living in
    California. Marian and Wanda reported Gage to Texas
    authorities approximately two months later. According to the
    initial police report, Marian indicated that Gage engaged in
    inappropriate touching but did not have intercourse with her.
    Later, however, Marian stated that Gage actually had
    intercourse with her on numerous occasions. These
    accusations surfaced during a tumultuous time in Marian’s
    life. Around the time she reported the abuse, Marian
    apparently attempted suicide on several occasions and spent
    a significant amount of time hospitalized for mental illness.
    In response to Marian’s allegations, the Los Angeles
    County District Attorney charged Gage with one count of
    continuous sexual abuse of a child (Cal. Penal Code § 288.5),
    GAGE V. CHAPPELL                                 5
    nine counts of forcible rape (Cal. Penal Code § 261(a)(2)),
    and nine counts of lewd acts against a child (Cal. Penal Code
    § 288(a)).
    Prior to trial,2 the prosecution sought to exclude Marian’s
    medical records as subject to the doctor-patient privilege and
    the defense did not object. The trial judge questioned the
    prosecution about the content of those records:
    I take it that the statements – that any
    statement [Marian] might have made to the
    psychiatrist would have been turned over, if
    they were not – if they were inconsistent.
    The prosecutor responded:
    I . . . contacted the therapist, communicated
    with her directly, and she indicated that the
    victim had always been consistent that the
    molestation had taken place . . . . And then I
    tried to communicate with the hospitals, and
    . . . there was nothing that I found, in response
    to the court’s inquiry, that would indicate that
    there were any inconsistencies that she had
    ever said. For example, “no that never
    2
    California authorities initially offered Gage a plea deal that would have
    resulted in a sentence ranging between probation and approximately
    sixteen years’ imprisonment. (The court described the likely sentence that
    would have resulted from this plea as “about five years, plus.”) Gage
    declined the offer.
    6                    GAGE V. CHAPPELL
    happened,” or that “I made all that stuff up,”
    or anything like that.
    No further discussion of the medical records occurred.
    At Gage’s first trial, Marian did not testify and the jury
    hung. At Gage’s second trial, Marian’s testimony provided
    the core of the case against Gage. According to Marian,
    Gage began abusing her when the family moved to
    California. The abuse typically occurred once and later twice
    a week. Marian testified that Gage told her the incidents were
    a secret and threatened to hurt her, her mother, or her brother
    if she reported it. Wanda also testified that on one occasion
    Gage hit her in front of the children, and that he demeaned
    her and encouraged the children to call her names. However,
    Wanda observed no indications of sexual abuse while living
    with Gage. A physical exam of Marian did not show signs of
    abuse.
    The defense’s theory at the second trial was that either
    Marian or Wanda had manufactured the allegations against
    Gage in retribution for his extramarital affair. Gage took the
    stand and denied the allegations. A defense expert witness
    also testified that, based on an interview, Gage “did not meet
    the diagnostic criteria for pedophilia.” The second trial
    resulted in Gage’s conviction on all counts contained in the
    indictment.
    At the beginning of the sentencing phase, the trial judge
    requested the prosecution provide Marian’s medical and
    psychiatric records. When the prosecution protested, the
    judge indicated that if the state did not comply, she would set
    aside the verdict. The prosecution subsequently turned the
    medical records over to the court for in camera review and
    GAGE V. CHAPPELL                        7
    Gage filed a motion for a new trial on the ground that
    insufficient evidence supported the jury’s verdict.
    After reviewing the medical records in camera, the court
    granted the motion for a new trial and vacated Gage’s
    convictions. The trial court concluded that the testimony of
    the victim and her mother was not credible, leaving
    insufficient evidence to support the jury’s verdict. The court
    explained that it had harbored doubts about the veracity of
    Marian’s testimony during trial because it “appeared to be
    contrived.” The court then concluded that evidence in the
    medical records rendered Marian’s testimony an insufficient
    basis for conviction as a matter of law. Several items in the
    medical records grounded this conclusion: (1) Wanda
    apparently described Marian to a mental health professional
    as “a pathological liar [who] lives her lies”; (2) Marian’s
    accusations followed a large fight with her mother after
    Wanda caused Marian’s then-boyfriend to be sent to prison;
    and (3) Marian made only fleeting references to having been
    sexually abused during the course of her psychological
    treatment.
    The State appealed to the California Court of Appeal,
    which reinstated the conviction. It held that the trial court
    improperly relied on the medical records, which were never
    before the jury, in granting the new trial. The Court of
    Appeal also directed that the matter be reassigned. A new
    judge sentenced Gage to 70 years’ imprisonment.
    Since his conviction, Gage has filed or attempted to file
    three petitions. Gage first petitioned the California Court of
    Appeal for the disclosure of Marian’s medical records on the
    ground that those records constituted Brady material. In a
    short opinion, the Court of Appeal denied the petition. In so
    8                    GAGE V. CHAPPELL
    doing, it noted that “[t]here is nothing in [the] records which
    could be of assistance to defendant,” and concluded that
    Gage “failed to demonstrate that there is any merit to any of
    [his] constitutional contentions . . . .” The Court of Appeal,
    however, did not explain why the contents of the medical
    records failed to meet the Brady standard and did not
    elaborate on the records’ content. The California Supreme
    Court summarily denied a hearing of Gage’s appeal. Since
    that time, the State has refused to turn over Marian’s medical
    records to Gage, his counsel, or the court.
    In 2005, Gage filed a pro se habeas petition in the U.S.
    District Court for the Central District of California. Although
    Gage mentioned the possibility of a Brady claim in this
    petition, it focused on unrelated procedural defects in Gage’s
    trial and conviction. Without addressing the possibility of a
    Brady claim, the district court adopted a magistrate judge’s
    findings and recommendations and denied the petition. In
    April 2014, the Ninth Circuit denied Gage’s request for a
    certificate of appealability, and in August 2014, it denied his
    motion for reconsideration of that denial. In his motion for
    reconsideration, Gage did not argue that he had, in fact, raised
    the Brady claim in his first petition.
    In September 2013, Gage filed a pro se application before
    this court for leave to file a second or successive habeas
    petition under 28 U.S.C. § 2254, including a Brady claim
    relating to the State’s failure to produce Marian’s medical
    records and an ineffective assistance of counsel claim. We
    appointed counsel and ordered supplemental briefing.
    GAGE V. CHAPPELL                        9
    II.
    The AEDPA places significant limitations on the ability
    of petitioners to bring second-in-time habeas petitions:
    A claim presented in a second or successive
    habeas corpus application under section 2254
    that was not presented in a prior application
    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
    factfinder would have found the
    applicant guilty of the underlying
    offense.
    28 U.S.C. § 2244(b)(2). Additionally, before a federal district
    court may entertain a second or successive petition, the
    appropriate circuit court must issue an order authorizing the
    10                     GAGE V. CHAPPELL
    district court to consider the petition. 28 U.S.C. § 2244(b)(3).
    We will issue such an order and grant an application for a
    second or successive petition if the would-be petitioner makes
    a “prima facie showing” that his petition would meet the
    requirements of § 2244(b)(2). Woratzeck v. Stewart,
    
    118 F.3d 648
    , 650 (9th Cir. 1997) (per curiam) (quoting
    28 U.S.C. § 2244(b)(3)).
    Gage argues first that he need not satisfy § 2244(b)(2)
    because his new petition is not a “second or successive”
    petition within the meaning of the AEDPA. The Supreme
    Court has indicated that “second or successive” is “a habeas
    ‘term of art’ that incorporates the pre-AEDPA abuse-of-the-
    writ doctrine.” United States v. Buenrostro, 
    638 F.3d 720
    ,
    724 (9th Cir. 2011) (per curiam) (quoting Maywood v.
    Patterson      
    561 U.S. 320
    , 332–33, 344–45 (2010)).
    Depending on the substance of the underlying constitutional
    claim, a second-in-time petition may or may not be
    considered second or successive under § 2244(b)(2). In
    Panetti v. Quarterman, for example, the Supreme Court
    considered a second-in-time petition that argued carrying out
    the petitioner’s capital sentence would be unconstitutional
    under Ford v. Wainwright because the petitioner had
    developed a mental illness rendering him insane.3 
    551 U.S. 930
    , 934–35, 946–47 (2007). The Court concluded that the
    petition was not second or successive, because the factual
    predicate for the Ford claim did not exist at the time the
    petitioner filed his first petition – because at that time the
    petitioner was not yet insane. See 
    id. at 946–47.
    According
    to the Court, this interpretation of § 2244(b)(2) made sense
    3
    See Ford v. Wainwright, 
    477 U.S. 399
    , 410 (1986) (holding that the
    Eighth Amendment prohibits states from executing legally insane
    prisoners).
    GAGE V. CHAPPELL                              11
    because “[a]n empty formality requiring prisoners to file
    unripe . . . claims neither respects the limited legal resources
    available to the States nor encourages the exhaustion of state
    remedies.” 
    Id. at 946.
    Gage contends that his new petition falls into the Panetti
    exception and does not qualify as a second or successive
    petition. In Buenrostro, however, we adopted a constrained
    reading of Panetti’s reach. 
    See 638 F.3d at 721
    . Buenrostro
    involved a would-be petitioner seeking to bring a second-in-
    time habeas petition alleging ineffective assistance of counsel
    based on newly discovered evidence. 
    Id. In considering
    whether such a petition would be subject to the second-or-
    successive bar under 28 U.S.C. § 2255(h),4 we distinguished
    between petitions containing claims, the factual predicate of
    which came into being after the first habeas petition – such as
    the mental incompetency claim in Panetti – and those
    containing “claims that were ripe at the conclusion of a first
    [habeas] proceeding but were not discovered until afterward”
    – such as the ineffective assistance of counsel claim in
    Buenrostro. 
    Id. at 725
    (emphasis omitted). We held that the
    second category of claims, those in which the factual
    predicate existed at the time of the first habeas petition,
    indeed qualify as second or successive under the AEDPA. 
    Id. at 725
    –26; accord United States v. Obeid, 
    707 F.3d 898
    ,
    902–03 (7th Cir. 2013); Tompkins v. Sec’y, Dep’t of Corr.,
    
    557 F.3d 1257
    , 1259–60 (11th Cir. 2009) (per curiam).
    4
    28 U.S.C. § 2255(h) sets forth the second or successive bar for federal,
    as opposed to state, habeas petitions. It is analogous to § 2244(b)(2)(B),
    the statute that governs successive habeas petitions challenging state
    convictions, at issue here. See 
    Buenrostro, 638 F.3d at 723
    –24.
    12                       GAGE V. CHAPPELL
    Buenrostro forecloses Gage’s argument. The factual
    predicate for Gage’s Brady claim developed, at the latest,
    when the state trial judge commented on the contents of
    Marian’s medical records. The predicate for the ineffective
    assistance of counsel claim matured at trial.5 This is not a
    case where the basis for the would-be petitioner’s second
    petition did not exist or was unripe when the first petition was
    filed. Thus, the Panetti exception to § 2244(b)(2)’s plain text
    does not apply.
    We acknowledge that Gage’s argument for exempting his
    Brady claim from the § 2244(b)(2) requirements has some
    merit. Under our precedents as they currently stand,
    prosecutors may have an incentive to refrain from disclosing
    Brady violations related to prisoners who have not yet sought
    collateral review. See United States v. Lopez, 
    577 F.3d 1053
    ,
    1064–65 (9th Cir. 2009). But as a three-judge panel, we are
    bound to follow the teaching of Buenrostro. See Miller v.
    Gammie, 
    335 F.3d 889
    , 899 (9th Cir. 2003) (en banc).
    III.
    Because Gage’s new petition qualifies as a second-or-
    successive petition, we turn to whether Gage has established
    a prima facie case that would meet the requirements of
    § 2244(b)(2). Gage has not argued that his claim relies on a
    new rule of constitutional law, so we ask (i) whether the
    5
    Gage’s ineffective assistance of counsel claims all relate to his former
    counsel’s performance before the trial court. They include: (1) counsel’s
    failure properly to impeach Marian; (2) counsel’s failure to investigate
    Marian’s medical records; and (3) counsel’s failure to present additional
    evidence that Gage was not a pedophile. Gage does not allege any
    ineffective assistance of counsel occurring after he filed his first habeas
    petition.
    GAGE V. CHAPPELL                          13
    factual predicate for Gage’s claim could have been
    discovered previously through the exercise of due diligence,
    and (ii) whether the facts underlying Gage’s claim would be
    sufficient to establish that, but for constitutional error, no
    reasonable factfinder would have found Gage guilty. See
    28 U.S.C. § 2244(b)(2)(B).
    We note the difficulty in attempting to evaluate whether
    Gage has satisfied the actual innocence standard under
    § 2244(b)(2)(B)(ii) because the State has refused to provide
    access to the potential Brady material – Marian’s medical
    records. Although we are disturbed by this refusal, we do not
    confront whether the State should have disclosed the medical
    records because Gage cannot satisfy the due diligence
    requirement under § 2244(b)(2)(B)(i).
    Under § 2244(b)(2)(B)(i), a petitioner fails to show due
    diligence regarding a claim by omitting that claim from his
    initial habeas petition, provided the claim’s factual predicate
    was known or reasonably discoverable at the time. See
    Babbitt v. Woodford, 
    177 F.3d 744
    , 746–47 (9th Cir. 1999)
    (per curiam). The factual predicate for Gage’s Brady claim
    became known to him, at the latest, when the state trial judge
    granted his motion for a new trial on the basis of the medical
    records. That occurred in 2000, long before Gage filed his
    first habeas petition in 2005. Although Gage mentioned the
    possibility of a Brady claim and the medical records in
    passing in his first petition, he has never argued, either on
    appeal of the denial of that petition or in his application to file
    a second-or-successive petition, that he actually raised the
    Brady claim in that petition. Thus, Gage failed to show due
    diligence by failing to include the Brady claim in his original
    petition. See 
    Woratzeck, 118 F.3d at 652
    (concluding that a
    successive petitioner raising a claim for unconstitutional
    14                       GAGE V. CHAPPELL
    destruction of exculpatory evidence did not exercise due
    diligence because “he [had] known about its (possible)
    destruction for several years”); Johnson v. Dretke, 
    442 F.3d 901
    , 910–11 (5th Cir. 2006) (noting that a default under
    § 2244(b)(2)(B)(i) may occur “where the record demonstrates
    that the defendant . . . was aware of the potential Brady
    material but failed to pursue investigation of that ultimate
    claim”).6 Gage cannot make out a prima facie case of
    satisfying § 2244(b)(2).
    IV.
    Last, Gage contends that notwithstanding his default
    under § 2244(b)(2), he should be allowed to file his second
    petition because his claim falls into the actual innocence
    exception articulated in Schlup. Decided one year before
    AEDPA’s enactment, Schlup identified a narrow exception
    allowing federal courts to consider the merits of certain
    procedurally defaulted habeas petitions asserting
    constitutional violations, if those petitions also include
    compelling showings of actual innocence. 
    Schlup, 513 U.S. at 326
    –27. We assume without deciding that Gage’s Brady
    claim, paired with his assertion of actual innocence, would
    satisfy Schlup. The question, then, is whether Schlup
    provides a gateway past the procedural requirements imposed
    by AEDPA, § 2244(b)(2)(B).
    6
    Gage’s ineffective assistance of counsel claims relate to his former
    counsel’s performance before the trial court. All of the alleged
    deficiencies should have been known to Gage, at the latest, when the state
    trial judge overturned his conviction based on Marian’s medical records.
    Thus, Gage also did not exercise due diligence in failing to bring these
    claims in his first habeas petition.
    GAGE V. CHAPPELL                         15
    Dualisms define habeas corpus. Habeas is a “vital
    instrument for the protection of individual liberty” against
    government power. Boumediene v. Bush, 
    553 U.S. 723
    , 743
    (2008). But the reexamination of state convictions that the
    modern writ entails implicates values of finality and comity
    that are important to federalism and our system of criminal
    justice. See Coleman v. Thompson, 
    501 U.S. 722
    , 731
    (1991); McCleskey v. Zant, 
    499 U.S. 467
    , 491 (1991);
    Kuhlmann v. Wilson, 
    477 U.S. 436
    , 453 n.16 (1986).
    Likewise, habeas corpus is “at its core, an equitable remedy,”
    that is sensitive to the ends of justice. 
    Schlup, 513 U.S. at 319
    . Yet Congress has placed limits on the substantive scope
    of habeas for over a century. See Felker v. Turpin, 
    518 U.S. 651
    , 659–60 (1996); 
    Kuhlmann, 477 U.S. at 446
    ; Note,
    Powers of Congress and the Court Regarding the Availability
    and Scope of Review, 114 Harv. L. Rev. 1551, 1551–53
    (2001).
    From these competing principles emerged the
    fundamental miscarriage of justice exception. The exception
    “seeks to balance the societal interests in finality, comity, and
    conservation of scarce judicial resources with the individual
    interest in justice that arises in the extraordinary case.”
    
    Schlup, 513 U.S. at 324
    . As a general matter, the exception
    allows federal courts to excuse procedural default in the
    “truly deserving” habeas petition where there is a showing of
    actual innocence. 
    Id. at 321;
    see Sawyer v. Whitley, 
    505 U.S. 333
    , 336 (1992). Furthermore, under Schlup, where the
    petitioner’s assertion of actual innocence is accompanied by
    an assertion of constitutional error at trial, the likelihood of
    innocence required to excuse procedural default is lower than
    if the trial had been error free. 
    Schlup, 513 U.S. at 316
    . In
    these cases, procedural default may be excused if “it is more
    16                   GAGE V. CHAPPELL
    likely than not that no reasonable juror would have convicted
    [the petitioner] in the light of the new evidence.” 
    Id. at 327.
    When Congress enacted the AEDPA, it altered, and in
    many respects strengthened, the rules governing procedurally
    defaulted habeas petitions. See Jones v. Ryan, 
    733 F.3d 825
    ,
    841–42 (9th Cir. 2013). The question thus arose whether and
    in what circumstances the Schlup exception, which developed
    under the pre-AEDPA regime, remains viable and provides a
    gateway past the AEDPA’s new procedural default rules. In
    a series of cases, the Supreme Court has held that the actual
    innocence exception survives the enactment of the AEDPA
    in certain instances and provides a gateway past some of the
    AEDPA’s procedural restrictions. See McQuiggin v. Perkins,
    
    133 S. Ct. 1924
    , 1935–38 (2013) (holding that a Schlup actual
    innocence showing provides a gateway past the AEDPA
    statute of limitations); House v. Bell, 
    547 U.S. 518
    , 537–38
    (2006) (indicating that the Schlup actual innocence exception
    permits a federal court to reach the merits of a petition that
    was procedurally defaulted in state court); Calderon v.
    Thompson, 523 U.S 538, 558 (1998) (indicating that a federal
    court may, consistent with the AEDPA, recall its mandate if
    there is a showing of a miscarriage of justice).
    The Supreme Court has not explicitly determined whether
    the Schlup exception provides a gateway past § 2244(b)(2)’s
    successive petition restrictions. At least one of our sister
    circuits has indicated that Schlup does not bypass
    § 2244(b)(2). See Jordan v. Sec’y, Dep’t of Corr., 
    485 F.3d 1351
    , 1359 (11th Cir. 2007). In Cooper v. Woodford, we
    considered the issue but declined to resolve it. 
    358 F.3d 1117
    , 1119 (9th Cir. 2004) (en banc); see also 
    Jones, 733 F.3d at 841
    n.5.
    GAGE V. CHAPPELL                      17
    In answering this question, we recognize that although
    habeas remains an equitable writ, we generally are bound to
    observe the limits on its scope established by Congress. See
    Felker v. Turpin, 
    518 U.S. 651
    , 663–64 (1996) (rejecting a
    challenge to § 2244(b) under the Suspension Clause, U.S.
    Const., art. I, § 9, cl. 2, because “[t]he power to award the
    writ by any of the courts of the United States, must be given
    by written law” (quoting Ex Parte Bollman, 8 U.S. (4 Cranch)
    75, 94 (1807))).
    In each of the cases where the Supreme Court has held
    that the actual innocence exception may excuse procedural
    default, the procedural bar at issue did not itself provide
    guidance on when its strictures could be overcome. The
    default at issue in House occurred under a state statute that
    provided only “that claims not raised in prior postconviction
    proceedings are presumptively waived” and did not directly
    implicate any of the AEDPA’s provisions. 
    House, 547 U.S. at 534
    . Similarly, in McQuiggin, the default came under the
    AEDPA statute of limitations, which simply identifies a rule
    for when habeas petitions must be filed and does not lay out
    equitable exceptions to that rule. See 
    McQuiggin, 133 S. Ct. at 1929
    .
    Unlike those cases, the provision Gage seeks to bypass
    through the Schlup gateway explicitly identifies equitable
    exceptions to the procedural bar it sets out. Under
    § 2244(b)(2)(B), successive petitions are allowed, provided
    that actual innocence can be shown by clear and convincing
    evidence and the petitioner displayed due diligence. Thus, it
    appears that in enacting § 2244(b)(2)(B), Congress accounted
    for the equitable principles from which the actual innocence
    exception arose. Congress provided a safety valve for
    petitioners with compelling claims of actual innocence, but
    18                   GAGE V. CHAPPELL
    cabined its scope by instituting the due diligence requirement.
    See 
    Felker, 518 U.S. at 664
    (explaining that § 2244(b)’s
    requirements are “well within the compass” of the evolving
    equitable principles that have traditionally informed when
    courts may entertain successive petitions).
    Reading Schlup to bypass that scheme entirely proves too
    much. Under Schlup, a procedural default is excused if the
    facts underlying the petitioner’s claim, more likely than not,
    would have resulted in any reasonable jury being unable to
    convict the petitioner. Section 2244(b)(2)(B)(ii) provides the
    same thing but raises the petitioner’s burden of proof,
    requiring clear and convincing evidence of innocence instead
    of a preponderance of the evidence. See 
    Schlup, 513 U.S. at 323
    –27.      Were Schlup to provide a gateway past
    § 2244(b)(2)(B), the due diligence requirement in
    § 2244(b)(2)(B)(i) would lose all effect. The only cases in
    which petitioners would be subject to the due diligence bar
    would be those where they failed to establish actual
    innocence by a preponderance of the evidence. But because
    the preponderance is a less exacting standard than clear and
    convincing evidence, those petitioners invariably would be
    barred under § 2244(b)(2)(B)(ii). Under this reading, the due
    diligence requirement would be surplusage. Familiar
    principles of statutory interpretation direct that we give
    independent meaning to each provision in a statute. See
    United States v. 144,774 Pounds of Blue King Crab, 
    410 F.3d 1131
    , 1134–35 (9th Cir. 2005).
    The Supreme Court’s recent decision in McQuiggin
    confirms our conclusion. In that case, the petitioner did not
    file his habeas petition within one year of “the date on which
    the factual predicate of [his] claim . . . could have been
    discovered through the exercise of due diligence,” as required
    GAGE V. CHAPPELL                            19
    under § 2244(d)(1)(D). 
    McQuiggin, 133 S. Ct. at 1929
    (quoting 28 U.S.C. § 2244(a)(1)(D)). The Supreme Court
    ultimately held that a valid Schlup claim abrogated that
    requirement, but it did so by distinguishing § 2244(d)(1)(D)
    from § 2244(b)(2)(B), at issue here. The Court explained
    that, in contrast to § 2244(d)(1)(D), in § 2244(b)(2)(B),
    “Congress constrained the application of the [actual
    innocence] exception. . . . Congress . . . required second-or-
    successive habeas petitioners attempting to benefit from the
    miscarriage of justice exception to meet a higher level of
    proof (‘clear and convincing evidence’) and to satisfy a
    diligence requirement that did not exist prior to AEDPA’s
    passage.” 
    Id. at 1933
    (quoting 28 U.S.C. § 2244(b)(2)(B)).
    Accordingly, the Court concluded, “[i]n a case not governed
    by [§ 2244(b)(2)(B)] . . . the miscarriage of justice exception
    survived AEDPA’s passage intact and unrestricted.” 
    Id. at 1934
    (emphasis added). The negative implication is that in
    a case that is governed by § 2244(b)(2)(B), the exception did
    not survive enactment of the AEDPA intact. We cannot
    ignore the Supreme Court’s clear teaching. We hold that
    Schlup does not abrogate § 2244(b)(2)(B).7
    Accordingly, Gage cannot take advantage of the Schlup
    gateway; thus, his second petition is barred under
    § 2244(b)(2)(B)(i) for lack of due diligence.
    7
    Our holding is confined to the context of gateway claims relying on
    Schlup. We do not decide whether freestanding claims of actual
    innocence, see Herrera v. Collins, 
    506 U.S. 390
    , 417 (1993), may excuse
    procedural default under § 2244(b)(2)(B). Nor do we address the effect
    of Schlup on AEDPA provisions other than § 2244(b)(2)(B).
    20                   GAGE V. CHAPPELL
    V.
    We conclude that Gage’s application is subject to the
    requirements of § 2244(b)(2)(B). Gage cannot satisfy those
    requirements because he did not exercise due diligence by
    failing to raise his Brady or ineffective assistance of counsel
    claims in his first habeas petition. Gage’s application for
    leave to file a second or successive petition is DENIED.