George Gage v. Kevin Chappell

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 Brady 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. Deb, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (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 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…