"Second or Successive" Habeas Petitions and Late-Ripening Claims after Panetti v Quarterman

The Antiterrorism and Effective Death Penalty Act of 19961 (AEDPA) provides that, except in narrow circumstances, "second or successive" petitions for writs of habeas corpus must be dismissed.2 Some valid constitutional claims, however, do not become ripe until after the prisoner has been convicted and sentenced, and perhaps af ter one habeas petition has been presented and denied on the merits. AEDPA's "gatekeeping" provisions-codified at 28 USC ? 2244(b) have the potential to foreclose review of meritorious constitutional claims, and a division in the circuit courts has developed over their interpretation. One set of courts takes a "liberal" approach, focusing on pre-AEDPA common law principles and erring on the side of al lowing claims. Another set takes a more rigorous textual and struc tural tack, which is appealing on an interpretive level but has the po tential to prevent judicial review of constitutional violations. The Su preme Court has recently addressed a limited aspect of this question, and it applied the liberal approach with a pragmatist flourish. All of these approaches suffer from serious shortcomings, and this Comment argues that the textual interpretation should be followed except in certain circumstances in which that interpretation would foreclose review of a possible constitutional violation. In this scenario, courts should invoke the canon of constitutional avoidance to prevent violat ing the underlying constitutional right that the prisoner seeks to vindi cate through a writ of habeas corpus. In short, this Comment focuses on a very particular question, but one that could be of great import. Imagine a prisoner petitions a fed eral court for a writ of habeas corpus, and the petition is duly adjudi cated on the merits. If she files again, this time including a claim that was unripe at the time of the earlier petition and thus not included, must the chronologically second petition be dismissed as "second or