Javier Orozco-Ramirez (Orozco-Ramirez), currently confined in a federal correctional institute in El Reno, Oklahoma, filed this federal habeas corpus motion in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. 2255. The district court dismissed his motion as "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Orozco-Ramirez appeals. We affirm in part and reverse in part.

On December 16, 1992, Orozco-Ramirez pleaded guilty to distribution of heroin and conspiracy to distribute heroin in the United States District Court for the Northern District of Texas. On April 14, 1993, he was sentenced to 180 months' imprisonment and a four-year term of supervised release. No notice of appeal was filed.

On January 30, 1995, Orozco-Ramirez filed a federal habeas corpus motion pursuant to section 2255 as to his 1993 conviction and sentence. In that motion, Orozco-Ramirez asserted only one ground for relief: that he received ineffective assistance of counsel in that his attorney did not file a notice of appeal despite having been asked to do so. Following an evidentiary hearing, the magistrate court recommended that Orozco-Ramirez be allowed an out-of-time appeal. The district court adopted this recommendation and on January 22, 1996, ordered an out-of-time appeal. Pursuant to that order, on January 24, 1996, Orozco-Ramirez filed his notice of appeal from the 1993 conviction and sentence. Represented by new counsel, Orozco-Ramirez raised on that direct appeal two issues relating to the quantity of drugs forming the basis of his 1993 sentence. This Court affirmed Orozco-Ramirez's sentence in an unpublished opinion. United States v. Orozco-Ramirez, 101F.3d 701, No. 96-10120 (5th Cir. Oct. 25, 1996).

On November 3, 1997, Orozco-Ramirez, proceeding pro se and in forma pauperis, filed the instant section 2255 motion1 to vacate his 1993 conviction and sentence, asserting numerous errors including ineffective assistance of counsel at his sentencing, ineffective assistance of counsel rendering his guilty plea involuntary, and ineffective assistance of counsel in the course of his out-of-time direct appeal.2 The magistrate court recommended that Orozco-Ramirez's motion be unfiled, because it was "second or successive" and was tendered without authorization from a court of appeals. Adopting the findings and recommendation of the magistrate court, the district court ordered that Orozco-Ramirez's section 2255 motion not be filed. Orozco-Ramirez filed a timely notice of appeal, and this Court granted a certificate of appealability (COA) permitting Orozco-Ramirez's appeal.3 We now affirm in part and reverse in part.

Enacted on April 24, 1996, AEDPA4 made it significantly harder for prisoners filing second or successive federal habeas corpus motions to obtain hearings on the merits of their claims. See Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999), cert, denied, ___ U.S. ___, 120 S. Ct. 1830, ___ L.Ed.2d ___, 68 U.S.L.W. (2000). As amended by AEDPA, section 2255 provides in relevant part as follows:

"A second or successive motion must be certified as provided in section 2244by a panel of the appropriate court of appeals to contain-

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. 2255.

As amended by AEDPA, section 2244 reads in pertinent part as follows:

"(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) 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.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." 28 U.S.C. 2244(b).

Orozco-Ramirez does not seek certification of his 1997 section 2255 motion by this Court. Rather, he asserts that his 1997 motion is not subject to AEDPA, and, even if it is, the motion is not "second or successive."We review de novo whether AEDPA applies to Orozco-Ramirez's current habeas motion and whether his motion is "second or successive" under AEDPA. See Graham, 168 F.3d at 772.

Orozco-Ramirez first contends that the district court erred in applying AEDPA's more stringent standards to his motion. Orozco-Ramirez argues that because his only prior habeas motion was filed before April 24, 1996 (AEDPA's enactment date) it would be impermissible to apply AEDPA's restrictions on "second or successive"applications to his present post-AEDPA motion. We disagree.

In Graham, we stated that Congress intended for AEDPA to govern applications filed after April 24, 1996. See id. at 782. Several circuits agree with our conclusion. See Trice v. Ward, 196 F.3d 1151, 1158 (10th Cir. 1999) ("We have repeatedly held that the 'AEDPA applies to cases filed after its effective date, regardless of when state court proceedings occurred.'") (quoting Moore v. Gibson, 195 F.3d 1152, 1162 (10th Cir. 1999)); Taylor v. Lee, 186 F.3d 557, 559-60 (4th Cir. 1999) ("[A]ny federal petition for a writ of habeas corpus filed after the signing of the AEDPA on April 24, 1996 is governed by the AEDPA."), cert. denied, 120 S. Ct. 1262 (2000); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.), cert. denied, 119 S. Ct. 2376 (1999) ("We conclude that the AEDPA applies to a habeas petition filed after the AEDPA's effective date, regardless of when the petitioner filed his or her initial habeas petition. . . . [T]his holding comports both with the statute's plain meaning and with congressional intent.") (footnote omitted); Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997), cert. denied, 118 S. Ct. 1807 (1998) (applying AEDPA to Pratt's second section 2255 motion filed in 1997 after an initial habeas motion was filed in 1995).5 Orozco-Ramirez filed his current 2255 motion on November 3, 1997. Therefore, AEDPA applies.

Orozco-Ramirez next contends that the district court erred in finding his present motion "second or successive" under AEDPA.6 As the Supreme Court noted inLindh, AEDPA is unclear in a number of important respects, including what "constitutes a 'second or successive' application." In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per curiam); see also Pratt, 129 F.3d at 60 ("AEDPA does not define the mantra 'second or successive.'").7 Whether a habeas motion, filed after an initial habeas motion that alleged only ineffective assistance of counsel by failing to file notice of appeal as requested and resulted only in an out-of-time appeal, is "second or successive" under AEDPA presents a question of first impression in this Court. Those of our sister circuits that have considered the issue have not reached a uniform conclusion. Compare In re Goddard, 170 F.3d 435 (4th Cir. 1999), Shepeck v. United States, 150 F.3d 800 (7th Cir. 1998) (per curiam), and United States v. Scott, 124 F.3d 1328 (10th Cir. 1997) (per curiam) (all holding a second habeas motion, filed after an initial motion upon which an out-of-time appeal was granted, was not "second or successive" under AEDPA), with Pratt v. United States, 129 F.3d 54 (1st Cir. 1997) (ruling that AEDPA barred Pratt's second habeas motion as "second or successive" where it was filed after an initial motion which sought only an out-of-time appeal), cert. denied, 118 S. Ct. 1807 (1998).8 We now weigh in on this issue.

As noted above, AEDPA does not define "second or successive." We have, however, held that "a prisoner's application is not second or successive simply because it follows an earlier federal petition." In re Cain, 137 F.3d at 235. Rather, a subsequent motion is "second or successive" when it: "1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ." Id. We find these standards consistent with the Supreme Court's views as expressed in Stewart v. Martinez-Villareal, 523 U.S 637, 118 S. Ct. 1618, 140 L. Ed. 2d 849 (1998), and Slanck v. McDaniel, ___ U.S.___, 120 S. Ct. 1595, ___ L.Ed.2d ___ (2000).

In Stewart, the Court held that a motion is not "second or successive" under AEDPA merely because it is numerically a second (or subsequent) motion. See id. at 1621-22. Martinez-Villareal filed a federal habeas petition, raising several claims including a Ford claim.9 See id. at 1620. The Ford claim was dismissed without prejudice as premature, because an execution date had not yet been set. See id. After his other grounds for habeas relief were adjudicated and denied, Martinez-Villareal later refiled the Ford claim. See id. The Court held the refiled motion was not "second or successive" under AEDPA, because "[t]o hold otherwise would mean the dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 1622. The Court noted that AEDPA's "'restrictions on successive petitions constitute a modified res judicata rule, a restraint on what used to be called in habeas corpus practice "abuse of the writ."' "Id. (quoting Felker v. Turpin,518 U.S. 651, 116 S. Ct. 2333, 2340 (1996)). See also United States v. Barrett, 178 F.3d 34, 44 (1st Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000) ("The core of AEDPA restrictions on second or successive 2255 petitions is related to the longstanding judicial and statutory restrictions embodied in the form of res judicata known as the 'abuse of the writ' doctrine."). Because Martinez-Villareal's Ford claim was not ripe for disposition until his most recent motion was filed, the Court ruled that the claim "would not be barred under any form of res judicata" and, therefore, was not "second or successive" under AEDPA. Id.10

In Slack, the petitioner, Slack, after his 1990 state conviction had been affirmed on direct appeal, filed his first federal habeas in 1991 raising various claims including some not previously presented to any state court. He filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust those claims. Thereafter, the district court dismissed the entire habeas petition "without prejudice" for failure to exhaust state remedies. After an unsuccessful round of state postconviction proceedings, Slack in May 1995 filed his second federal habeas, which included some claims Slack had not raised in his 1991 federal habeas. The state filed a motion to dismiss, in response to which the district court in March 1998 dismissed with prejudice as an abuse of the writ all claims not included in the 1991 petition, and dismissed (presumably, without prejudice) the remaining claims, which had been included in the 1991 petition, because state remedies had not been exhausted as to one of them. The Supreme Court ultimately held that the district court erred in dismissing as an abuse of the writ so much of Slack's second federal habeas as included claims not raised in his first federal habeas.11 In so holding the Court relied on Rose v. Lundy, 102 S. Ct. 1198 (1982), observing that "Rose v. Lundy held that a federal district court must dismiss habeas corpus petitions containing both exhausted and unexhausted claims. The opinion, however, contemplated that the prisoner could return to federal court after the requisite exhaustion." Slack at 120 S.Ct at ____ (emphasis added). Slack also relied on the statement in Stewart that "'[n]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition.'" Slack 120 S.Ct.at ___, quoting Stewart 118 S. Ct. at 1622. The Slack Court then stated its holding as follows: "A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as 'any other first petition' and is not a second or successive petition." Id. (emphasis added). Slack goes on to reiterate that "Rose v. Lundy dictated that, whatever particular claims the [first] petition contained, none could be considered by the federal court" and that "[no] claim made in Slack's 1991 petition was adjudicated during the three months it was pending in federal court." Id., 120 S.Ct. at ---- (emphasis added).

Here, in contrast to Stewart and Slack, there is nothing about or related to any of the claims raised in Orozco-Ramirez's 1997 habeas, except his claim respecting ineffective assistance of counsel on his out-of-time appeal, which prevented Orozco-Ramirez from properly alleging those claims in his 1995 habeas along with his claim that counsel was ineffective for failing to give notice of appeal as requested; nor did the presence in the 1995 habeas of a claim that counsel was ineffective for failure to give notice of appeal in any way dictate or require that the 1995 habeas, had it also contained the claims later included in the 1997 habeas (other than that related to ineffective assistance of counsel during the out-of-time appeal), be dismissed without any merits determination merely because of the presence therein of the former claim or any one or more of the latter claims. Further, in contract to Slack, the 1995 habeas was adjudicated on the merits as to the only claim alleged therein.

Orozco-Ramirez presents, in essence, two types of claims in his 1997 habeas: (1) ineffective assistance of trial counsel, and (2) ineffective assistance of counsel during the out-of-time appeal. We consider each claim independently in deciding whether it is "second or successive" under AEDPA. The facts underlying Orozco-Ramirez's claims relating to his counsel's performance at trial occurred before he filed his initial habeas motion in 1995; he could have alleged those claims in that 1995 motion, but failed to do so. Orozco-Ramirez does not argue to the contrary; instead, he contends only that his initial 1995 motion does not render the present 1997 motion "second or successive." Therefore, we conclude that Orozco-Ramirez's claims of ineffective assistance of counsel at trial were available to him and could have been asserted by him in his initial habeas motion. See In re Cain, 137 F.3d at 235. Accordingly, they are "second or successive" under AEDPA, and the district court properly dismissed them.

We next turn to Orozco-Ramirez's claim of ineffective assistance of counsel during the out-of-time appeal. The facts underlying this claim did not occur until after Orozco-Ramirez filed his initial habeas motion and the district court granted the relief requested in the motion. Therefore, his claim relating to his counsel's performance during his out-of-time appeal accrued after his initial habeas motion was adjudicated and could not have been raised in that motion. See id.; see also Shepeck, 150 F.3d at 801 ("[I]f Shepeck's appellate lawyer furnished ineffective assistance of counsel, that constitutional violation occurred after the grant of his first petition under 2255" which sought only to permit an out-of-time appeal.); Scott, 124 F.3d at 1330 ("Mr. Scott's ineffective assistance of appellate counsel claim did not even exist until the direct appeal process concluded."). We conclude then that this claim is not "second or successive" under AEDPA, because "[t]o hold otherwise . . . would bar the prisoner from ever obtaining federal habeas review" on this ground. Stewart, 118 S. Ct. at 1622. Accordingly, we reverse the district court's dismissal of Orozco-Ramirez's claim of ineffective assistance of counsel during the out-of-time appeal and remand that claim for consideration on its merits.

As Orozco-Ramirez points out, and the government concedes, the Fourth Circuit's decision in In re Goddard, 170 F.3d 435 (4th Cir. 1999) is almost directly on point with this case.12 The Fourth Circuit wouldhold that none of Orozco-Ramirez's claims are barred by AEDPA's restrictions on "second or successive" motions. See id. ("Because Goddard used his first 2255 motion solely to reinstate his right to direct appeal, that motion does not count against him."). We respectfully disagree with that holding.

In reaching its conclusion that Goddard's later motion was not "second or successive" under AEDPA, the Fourth Circuit reasoned that "[t]he only purpose of the reentered judgment, prompted by the first 2255 motion, was to put [Goddard] back in the position he would have been in had his lawyer filed a timely notice of appeal." Id. at 437. To deny him another 2255 motion would deprive him of "one full and fair opportunity to wage a collateral attack" on his conviction and sentence. Id.

Instead of applying res judicata principles as dictated by the Supreme Court in Stewart, the Fourth Circuit in Goddard focused on what it perceived to be the unfairness in requiring a prisoner in Goddard's (and Orozco-Ramirez's) position to present all claims that could be asserted in an initial habeas motion, including a claim that he has been deprived of a direct appeal by ineffective assistance of counsel. The First Circuit and Judge Wilkins's dissent in Goddard contest the notion that a prisoner suffers unfairness from a requirement that he present all collateral claims in an initial 2255 motion. See In re Goddard, 170 F.3d 435, 441 (4th Cir. 1999) (Wilkins, J., dissenting) ("[A] 2255 movant suffers no unfairness from a requirement that he pursue all of his collateral issues in his first 2255 motion, including a claim that he has been deprived of a direct appeal by ineffective assistance of counsel."); Pratt, 129 F.3d at 61 ("We discern no unfairness in holding Pratt to this regimen."). As both opinions explain, a prisoner in Orozco-Ramirez's position is always properly motivated to present all his collateral attacks in his initial motion, because when filing the motion he cannot know whether or not his claim seeking an out-of-time appeal will be successful. See id. If such a claim is not successful, then a subsequent motion would be "second or successive"; and all grounds for habeas relief that could have been asserted in the initial motion would be dismissed in the subsequent motion.13 Under the majority's view in In re Goddard, whether a subsequent motion would be "second or successive" would depend upon the success of the motion to permit an out-of-time appeal. We find the First Circuit's approach in Pratt follows our precedent as set forth in In re Cain and the standards set forth by the Supreme Court in Felker and Stewart.

"The requirement that all available claims be presented in a prisoner's first habeas petition is consistent not only with the spirit of AEDPA's restrictions on second and successive habeas petitions, but also with the preexisting abuse of the writ principle. The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidatethem for a unitary presentation to the district court." Id. (emphasis added). Pratt, 129 F.3d at 61.14

Applying res judicata principles to this appeal, we hold that Orozco-Ramirez's claims regarding his trial counsel were available to him when he filed his initial habeas motion and are, therefore, "second or successive" under AEDPA.15 His claim of ineffective assistance of counsel during the out-of-time appeal, however, could not have been raised in the prior proceeding and, thus, is not "second or successive."

We reverse the dismissal of Orozco-Ramirez's claim for collateral relief based on alleged ineffective assistance of counsel during the out-of-time appeal and remand that claim for consideration on its merits. We affirm the dismissal of all other claims raised by Orozco-Ramirez. AFFIRMED in part; REVERSED and REMANDED in part.