Skip to main content
Photo of a Law Library


Decided: June 20, 2016

The Fourth Circuit denied the motion.

In December 2006, a Virginia state jury convicted John McFadden of eleven offenses, including multiple counts of robbery and use of a firearm in the commission of a felony. McFadden is currently serving an 88-year prison sentence and has filed multiple petitions challenging his conviction and sentence, none of which have been successful. McFadden alleged in a proposed successive habeas application that despite multiple attempts over the years to obtain his entire case file from his trial, it was not until May 2014 he was provided a document that suggested his counsel provided ineffective assistance. The document is a proposed plea agreement, signed by the counsel by McFadden’s trial counsel but not the government, stipulating that McFadden would plead guilty to one count of robbery and one related count, and would be sentenced to no more than ten years of active incarceration. McFadden claimed his counsel failed to communicate this offer and that he would have accepted it if he had known about it. McFadden filed a motion for pre-filling authorization to the Fourth Circuit, a procedural prerequisite for the filing of successive federal habeas application.

The court can only grant McFadden’s pre-filing authorization motion if the application makes a prima facie showing that his claim relies on a new, retroactive and previously unavailable rule of constitutional law or that the factual reason for the claim could not have been previously discovered through the exercise of due diligence and the new facts if viewed with the evidence as a whole would be sufficient to establish that no reasonable factfinder would have found the applicant guilty of the offense. McFadden’s basis for granting the pre-filing authorization motion is on the newly discovered facts exception. The court reasoned that even if the newly discovered factual information could not have been discovered previously through the exercise of due diligence, McFadden’s new facts did not establish his innocence by clear and convincing evidence. The court stated that McFadden’s offered evidence of a plea offer would not have any bearing for a reasonable factfinder in regards to McFadden’s innocence or guilt as required for the factual exception to allow pre-filing authorization. Newly discovered evidence that a defendant may have lost out on a favorable plea offer does not fit either of the exceptions for pre-filling, therefore, McFadden’s pre-filing authorization was denied by the court.

Full Opinion

Ryan Jones