Full opinion text
KING, Chief Judge: Gary Graham, now known as Shaka Sanko-fa, a Texas death row inmate, appeals the district court’s dismissal of his fourth habeas corpus application under 28 U.S.C. § 2254. Alternatively, he moves for the recall of the mandate in one of his prior habeas cases or for an order pursuant to 28 U.S.C. § 2244(b)(3)(C) authorizing the district court to consider a successive habeas corpus petition. We previously denied this last motion in an order entered February 8, 1999, in which we noted that we would rule on the other two pleadings and issue a full opinion explaining our decision in all three matters as soon as possible. We now do so. Graham’s current application for a writ of habeas corpus is successive to a previous petition he filed in 1988 that was fully litigated on the merits and, in fact, was twice considered by the Supreme Court. In 1996, more than two years before Graham brought this application, Congress passed a new law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that was specifically designed to limit and, in some cases, completely bar successive applications such as Graham’s. Not only did AEDPA itself impose stringent restrictions on successive ha-beas applications, but the House Conference Report accompanying it explicitly stated that it incorporated “reforms to curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases.” Graham concedes that all of the claims he makes today could have been raised in 1988 and that if AEDPA governs his current application, he is entitled to no relief whatsoever. Thus, our task is to determine whether AED-PA applies to him. We conclude that it does. Accordingly, we must affirm the judgment of the district court dismissing Graham’s fourth federal habeas application and deny his motion for recall of the mandate in his previous habeas case. I. FACTUAL AND PROCEDURAL HISTORY This appeal and the accompanying alternative motions are the latest installments of a story that began nearly eighteen years ago. About 9:30 p.m. on May 13, 1981, in the parking lot of a Safeway Food Store in Houston, Texas, Bobby Lambeit, a customer at the store, was shot and killed by a lone black male who apparently was ti'ying to rob him. The perpetrator left the scene without being apprehended. After his arrest for another offense about a week later, Gary Graham, then seventeen yeai’s old, was charged with the capital murder of Lambert. At trial in the 182nd Judicial District of Hams County, Texas, Bernadine Skillern was the only witness to identify Graham as Lambert’s killer; two other eyewitnesses, Wilma Timos and Daniel Grady, were unable to do so because they did not get a good enough look at, or did not sufficiently recall, the perpetrator’s face. Immediately befoi'e Skillern testified that Gi'aham was the shooter, the trial judge conducted a hearing outside the presence of the jury to detei'mine whether her identification was “tainted by [an] illegal lineup.” Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (citing United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Skillern described in some detail how she had picked Graham out of a May 26, 1981 photographic display and a May 27, 1981 police station lineup, and defense counsel raised many of the same issues regarding suggestive identification procedures that Graham’s current counsel now brings before us. The trial judge concluded that Skillern’s identification was “based solely on [Skil-lern’s] independent recollection of the facts as they occurred on May 13, 1981” and was “made independently of any conversation or processes that were performed by members of the Houston Police Department.” The jury then returned, and Skillern testified in open court that Graham was the person she had seen shoot Lambert. Defense counsel presented no evidence at the guilt-innocence stage. The jury convicted Graham of capital murder and answered the three death penalty special issues in the affirmative. Accordingly, the court sentenced Graham to death. On direct appeal, the Texas Court of Criminal Appeals affirpied Graham’s capital murder conviction and death sentence in an unpublished opinion. See Graham v. State, 671 S.W.2d 529 (Tex.Crim.App. 1984) (unpublished table decision). Graham did not seek certiorari from the United States Supreme Court. Instead, represented by new counsel, Graham filed a state habeas petition in July 1987, contending, inter alia, that he was incompetent and therefore could not constitutionally be executed, that the Texas capital punishment scheme was constitutionally defective for various reasons and did not allow the jury adequately to consider mitigating evidence, including youth, and that he received ineffective assistance of counsel. Counsel was alleged to be ineffective in numerous respects, including failing adequately to investigate, interview, and call alibi witnesses and not allowing Graham to testify. Graham’s petition was supported by an affidavit signed by Dorothy Shields, William Chambers, Mary Brown, and Loraine Johnson asserting that Graham had been with them continuously during the night of the offense, that Graham had told them that he had given their names to his trial counsel, that counsel did not call them to testify, and that Graham later informed them that counsel not only had refused to call alibi witnesses but also had prevented him from testifying on his own behalf. State district judge Donald Shipley, who had not presided at Graham’s trial, held competency and evi-dentiary hearings. At the latter, Graham, three alibi witnesses (William Chambers, Mary Brown, and Dinah Miller), and Graham’s trial counsel (Ronald Mock and Chester Thornton), testified. On February 9, 1988, Judge Shipley entered findings of fact and conclusions of law adverse in all respects to Graham. With respect to the ineffective assistance of counsel claim, he found: 4. Prior to trial, counsel [who had been appointed to represent Graham on June 12, 1981] reviewed the information in the State’s file several times. 5. On numerous, occasions prior to trial, counsel met with the applicant and attempted to discuss the facts of the case with him. The applicant stated only that he did not commit the robbery-murder and that he had spent the evening with a girlfriend whose name, appearance, and address the applicant could not remember. 6. Although defense counsel made numerous inquiries of applicant, he did not give his defense counsel where he had been and what he had been doing on the night of the instant offense, May 13,1981. 7. No person ever presented himself to defense counsel as an alibi witness, either before, during or after trial. 8. Specifically, the applicant did not furnish his counsel with the names or addresses of Dorothy Shield [sic], William Chambers, Mary Brown, or Lo-rain [sic] Johnson as potential alibi witnesses. 9. This court finds that the testimony of William Chambers, Mary Brown, and Dinah Miller concerning Gary Graham’s whereabouts on May 13, 1981 is not credible testimony. 10. Gary Graham was aware that an investigator was working with defense counsel in connection with the defense of his case. 11. Counsel for applicant hired an investigator, Merv West, who assisted them in investigating and interviewing possible defense witnesses. Ex parte Graham, No. 335378-A (182d Dist. Ct., Harris County, Tex. Feb. 9, 1988). The state habeas trial court concluded that Graham had received effective assistance of counsel and recommended that the Texas Court of Criminal Appeals deny habeas relief. The Court of Criminal Appeals did so in an unpublished per curiam order with reasons issued February 19,1988. Shortly thereafter, Graham, through new counsel, filed a federal habeas application in the Southern District of Texas. In addition to challenging the racial and age composition of the grand jury that indicted him, the constitutionality of the Texas death penalty statute as applied to him, and his own competency to be executed, Graham asserted that he was denied the effective assistance of trial counsel. Specifically, he claimed that counsel failed adequately to investigate his case and introduce defense witnesses at trial. Although he told them of at least four alibi witnesses, Graham asserted, counsel neither interviewed nor called these individuals to testify. Graham also complained that counsel refused to permit him to testify, failed to obtain an independent psychiatric evaluation, did not object to the exclusion of certain jurors, allowed him to be tried in the same clothes he was wearing when arrested, concealed counsel Ronald Mock’s personal acquaintance with chief prosecution witness Skillern, neglected adequately to investigate the extraneous offenses introduced against him at the punishment phase of his trial, and called only two punishment phase witnesses on his behalf. Without holding an evidentia-ry hearing, the district court denied relief, see Graham v. Lynaugh, No. 88-563 (S.D.Tex. Feb. 24, 1988), and the Fifth Circuit declined to issue a certificate of probable cause, see Graham v. Lynaugh, 854 F.2d 715, 723 (5th Cir.1988). The court of appeals panel specifically reviewed the ineffective assistance of counsel allegations and the state habeas court findings in respect thereto, concluding that “Graham has failed to overcome the presumption that the state court’s findings were correct.” Id. at 722. In a per curiam order, the Supreme Court granted certiorari, vacated the Fifth Circuit’s judgment, and remanded “for further consideration in light of Penry v. Lynaugh [, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ].” Graham v. Lynaugh, 492 U.S. 915, 109 S.Ct. 3237, 106 L.Ed.2d 585 (1989). On remand, the same Fifth Circuit panel reinstated, in Part I of its new opinion, all of its 1988 opinion except Section II.B, which dealt with whether the Texas capital sentencing scheme allowed adequate consideration of mitigating evidence, especially youth. See Graham v. Collins, 896 F.2d 893, 894 (6th Cir.1990). The panel went on to hold that the Texas capital sentencing scheme, contrary to Penry, did not allow adequate consideration of Graham’s youth and accordingly vacated his death sentence. See id. at 898. The Fifth Circuit then took the case en banc and ultimately affirmed the denial of habeas relief. See Graham v. Collins, 950 F.2d 1009, 1034 (5th Cir.1992). The en banc court explicitly approved Part I of the 1990 panel opinion, thus reinstating all of the 1988 panel opinion except Section II.B thereof, including the earlier panel findings that Graham’s ineffective assistance of counsel claim lacked merit. See id. at 1013 n. 4. It reversed the 1990 panel’s conclusion that the Texas capital sentencing scheme did not allow adequate consideration of Graham’s mitigating evidence, particularly his youth. See id. at 1030-34. The Supreme Court affirmed, addressing only the yovAh-Penry issue and holding that any claim that the Texas capital sentencing scheme did not allow adequate consideration of youth was barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Graham v. Collins, 506 U.S. 461, 477-78, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). On April 20, 1993, Graham, through counsel, filed his second state habeas petition. Again, he urged that trial counsel was ineffective for failing to develop or present defense evidence or meaningfully test the prosecution’s evidence, and that he thus had been “condemned to die for a crime that he almost certainly did not commit.” Graham also asserted that the trial court’s voir dire erroneously equated “deliberateness,” as used in the first death penalty special issue, with “intent” as relevant to guilt or innocence. Finally, he contended that the special issues did not allow adequate consideration of his youth. The ineffective assistance claim was supported by new evidence purporting to prove that a number of eyewitnesses whom Graham’s counsel had not called during trial would have provided testimony tending to exonerate Graham. This new evidence consisted of the following: 1. A March 31,1993 affidavit of the investigator, Mervyn West, retained by Graham’s trial counsel, indicating that he and counsel had assumed Graham was guilty and therefore gave his case relatively little attention; 2. April 17, 1993 affidavits of Malcolm Stephens and his wife, Lorna Stephens, stating that they had come on the crime scene just after the shooting and had seen a young black man run away (not followed in the parking lot by anyone in a car, as Skillern had testified that she had done), and that the man was about 5' 5" tall (a lineup chart showed Graham to be 5' 9"); 3. An April 15, 1993 affidavit of Wilma Amos, who had been present at the crime scene, stating that the shooter was no taller than 5' 5", that no one followed him in a car, that defense counsel never contacted her, and that she had examined two photographs of Graham as he appeared in 1981 and was “certain that Gary Graham is not the man who shot Bobby Lambert”; 4. An April 15, 1993 affidavit of Ronald Hubbard, a Safeway employee who also had been present at the scene, describing the shooter as 5' 6" and indicating that no one associated with Graham’s defense team ever contacted him; 5. An April 18, 1993 affidavit of Mary Brown indicating that she had been with Graham on the night of the offense; 6. An April 18, 1993 affidavit of William Chambers indicating that he had been with Graham on the night of the offense; 7. An April 18, 1993 affidavit of Dorothy Shields indicating that she had been with Graham for most of the night of the offense; and 8. An April 18, 1993 affidavit of Loraine Johnson indicating that she had been with Graham on the night of the offense and that she had spoken to trial counsel about testifying to an alibi defense but had been rebuffed. Graham supplemented his petition on April 26, 1993, adding a claim under Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), that because he was actually innocent his execution would be unconstitutional. This supplement was supported by an April 26, 1993 affidavit of Malcolm Stephens stating that, after seeing news coverage of Graham’s ease, he had realized that Graham was not the person who had run in front of his ear in the Safeway parking lot and stating that he saw the true murderer several times in 1982, 1983, and 1985. The state filed a reply, supported by an April 21, 1993 affidavit from trial counsel Ronald Mock, an April 22, 1993 affidavit from Mer-vyn West, and a March 26, 1993 affidavit from Bernadine Skillern. Later that same day, the state habeas trial court, Judge Ship-ley, without holding an evidentiary hearing, entered findings and conclusions, plus supplemental findings, recommending that the Court of Criminal Appeals deny relief. The trial court adopted its February 9, 1988 findings and conclusions regarding Graham’s first state habeas petition. In addition, it found that the new 1993 affidavits from Chambers, Brown, Shields, and Loraine Johnson were “not credible,” that in light of his April 22, 1993 affidavit showing loss of memory, West’s March 31,1993 affidavit was “not reliable,” that Amos’s 1993 affidavit was “not credible,” that Hubbard and the Ste-phenses did not see the actual shooting and that their affidavits therefore did not undermine Skillern’s identification, and that Skil-lern’s testimony was credible. The court concluded that Graham’s ineffective assistance of counsel claim had been rejected in the previous state habeas proceeding and hence need not be considered again. Alternatively, it found that Graham had shown neither defective performance nor any resultant prejudice. Finally, the court concluded that a claim of actual innocence independent of constitutional infirmity at trial was not cognizable in habeas proceedings and that even if it were, Graham fell far short of the showing necessary to trigger consideration of such a claim. On April 27, 1993, in a per curiam order, the Court of Criminal Appeals denied habeas relief. See Ex parte Graham, 853 S.W.2d 564 (Tex.Crim.App.1993). Graham filed both a petition for certiorari in the Supreme Court, which was denied, see Graham v. Texas, 508 U.S. 945, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993), and a motion for reconsideration, which the Court of Criminal Appeals overruled, see Ex parte Graham, 853 S.W.2d 565, 566 (Tex.Crim.App.1993). Nevertheless, the latter ordered Graham’s execution stayed for thirty days pending the Supreme Court’s resolution of Johnson v. Texas, 506 U.S. 1090, 113 S.Ct. 1148, 122 L.Ed.2d 499 (1993) (granting certiorari). See Graham, 853 S.W.2d at 566-67. On April 28, 1993, immediately after the Texas Court of Criminal Appeals denied relief on his second state habeas petition, Graham filed a second federal habeas application in the Southern District of Texas asserting that he had received ineffective assistance of counsel at trial. He voluntarily dismissed it that same day, after Governor Ann Richards granted a thirty-day stay in connection with executive clemency proceedings. On June 24, 1993, the Supreme Court issued its opinion in Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), holding that the Texas capital sentencing scheme adequately allowed consideration of the defendant’s youth as a mitigating factor. See id. at 353, 113 S.Ct. 2658. Graham then filed in the Court of Criminal Appeals a motion to continue the stay of execution and for remand to the state trial court for an evidentiary hearing on his claims of ineffective assistance of counsel, based on evidence discovered after the second state habeas proceeding. In a per curiam order issued July 5, 1993, the Court of Criminal Appeals denied the motion to continue the stay and the motion for remand without prejudice. The state then set Graham’s execution for August 17, 1993. On July 21, 1993, Graham filed a civil suit against the Texas Board of Pardons and Paroles (TBPP) seeking an evidentiary hearing before that body on his innocence-based clemency request. After a hearing, the Travis County state district court issued a temporary injunction requiring the TBPP to hold a hearing on Graham’s claim of innocence by August 10, 1993 or, in lieu thereof, to reschedule his execution until after such a hearing. The TBPP did not hold a hearing, but instead filed a notice of appeal to the state court of appeals in Austin, which operated to supersede the trial court’s order. On August 13, 1993, the Austin Court of Appeals, on Graham’s motion, enjoined his execution pending resolution of the TBPP’s appeal. Three days later, the Court of Criminal Appeals, on Graham’s motion, stayed his execution “pending further orders by the Court.” On the same day, the Court of Criminal Appeals also denied motions, filed by the district attorney of Harris County and the TBPP, for leave to file with the Court of Criminal Appeals applications for mandamus to require the Austin Court of Appeals to vacate its injunction prohibiting Graham’s execution. See State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873, 873 (Tex.Crim.App.1993). On November 9, 1993, however, the court sua sponte reconsidered its denial of leave to file the applications for mandamus, granted leave, and stayed further proceedings in the Austin Court of Appeals. See State ex rel. Holmes v. Honorable Court of Appeals, 885 S.W.2d 386, 386-87 (Tex.Crim.App.1993). Graham, through counsel, then appeared before the Court of Criminal Appeals as the real party in interest. On April 20, 1994, after Graham’s appeal of his third federal habeas application had been briefed and argued, see infra, the court conditionally granted the writs, holding that the Austin Court of Appeals had no jurisdiction to enjoin Graham’s execution. See State ex rel. Holmes v. Honorable Court of Appeals, 885 S.W.2d 389, 390 (Tex.Crim.App.1994). It also addressed the scope of Graham’s available state habeas remedies with respect to his claim that evidence discovered since his conviction demonstrated his actual innocence and decided that habeas corpus is an appropriate vehicle for a prisoner to assert claims of actual innocence: [W]e hold an applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different. Once that threshold has been met the habeas court must afford the applicant • a forum and opportunity to present his evidence. ... This threshold standard and burden of proof will satisfy the Due Process Clause of the Fourteenth Amendment and we adopt them in the habeas context. If the applicant meets the threshold standard announced above the habeas judge must hold a hearing to determine whether the newly discovered evidence, when considered in light of the entire record before the jury that convicted him, shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt. Therefore, we ... hold that, pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, Graham may appropriately couch his claims of factual innocence in the context of a violation of the Due Process Clause of the Fourteenth Amendment. Id. at 398-99. Notwithstanding this conclusion, the court declined to use the case then before it to resolve Graham’s claim because “there is no [habeas] application presently pending before this Court, nor has the trial judge been given the opportunity to prepare findings of fact consistent with art. 11.07 § 3.” Id. at 399. It observed, however, that “Graham is free to pursue his claims through the filing of an application under Tex.Code Crim.Proe.Ann. art. 11.07.” Id. On June 22, 1994, the Austin Court of Appeals set aside the Travis County district court’s temporary injunction against the TBPP, but did not rule on the merits of the controversy. In October, the Travis County district court rendered judgment that Graham was not entitled to a clemency hearing before the TBPP on his actual innocence claim. The Austin Court of Appeals affirmed: [W]e determine that Graham’s right to a due course of law hearing on his claim of actual innocence has been satisfied by the habeas corpus procedure fashioned for him by the Court of Criminal Appeals in Holmes. Upon a showing of new. evidence that undermines confidence in the jury verdict, Graham will be entitled to an evi-dentiary hearing in accordance with statutory post-conviction habeas corpus procedures .... ... Now that the Court of Criminal Appeals in Holmes has created a judicial vehicle for testing such a claim of actual innocence, we hold that the Texas Constitution does not afford Graham an additional, duplicative hearing within the executive-clemency process. Graham v. Texas Bd. of Pardons & Paroles, 913 S.W.2d 745, 751 (Tex.App.—Austin 1996, writ dism’d w.o.j.). Graham was thus left with recourse only to the courts. The day after filing the civil suit against the TBPP, Graham, through counsel, filed a third federal habeas application in the Southern District of Texas. The application asserted only two grounds for relief: first, that Graham was actually innocent of the offense and thus was entitled to relief under the opinions of five justices in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), agreeing that “the execution of an innocent person would violate the Constitution,” and second, that he was denied effective assistance of counsel in that his attorneys failed to interview crime scene witnesses named in the police report, investigate and present an alibi defense, properly question witness Amos, and call Hubbard to the stand. Graham also moved for an evi-dentiary hearing and for leave to undertake discovery. Graham’s application was supported by numerous affidavits and exhibits, many of which he had obtained after the conclusion of his second state habeas proceeding on April 26,1993 and never had submitted to the state courts. This new material included the following: 1.A July 10, 1993 affidavit of Sherian Etuk, who had been working at the Safeway on the evening of May 13, 1981 and had seen the shooting or its immediate aftermath, describing the perpetrator as a young black man not taller than 5' 6", with a light build and very narrow face, declaring that Etuk had been shown photographs by the police and that no one had contacted her on behalf of Graham, and stating that none of four pictures of Graham “depict the guy who shot the man out in the parking lot that night”; 2. A May 25,1993 affidavit of crime scene witness Leodis Wilkerson, aged twelve in May 1981, declaring that he was never contacted by anyone on Graham’s behalf, describing the shooter as a short, young, clean-shaven black man, and stating that none of three attached photographs of Graham “to the best of my memory looks anything like the man who did the shooting at the Safeway”; 3. A June 1, 1993 affidavit of Loraine Johnson providing essentially the same information as her April 18, 1993 affidavit but describing in more detail her attempt to inform Graham’s trial counsel of his alibi; 4. A May 1993 affidavit of Vanessa Ford tending to corroborate the alibi portions of Loraine Johnson’s June 1,1993 affidavit; 5. A June 28,1993 affidavit of Jo Carolyn Johnson corroborating Loraine Johnson’s affidavits as to Loraine’s informing Graham’s trial counsel of Graham’s alibi; 6. A Houston Police Department offense report indicating that Lambert was facing federal drug charges in Oklahoma, was carrying three shotguns and a number of false identification cards in his van, and had “fashioned himself as a con man,” describing three other suspects in the Lambert murder, who were not investigated further after Graham’s arrest, and indicating that there was no evidence except Skil-lern’s identification connecting Graham to the crime, the Safeway, or its neighborhood; 7. A July 1993 report by psychologist Elizabeth Loftus concluding that Skil-lern’s identification was likely unreliable; 8. An April 20, 1993 report by another psychologist, Curtis Wills, asserting that “Bernadine Skillern’s identification is totally unreliable”; 9. A Houston Police Department firearms report dated May 26, 1981, indicating that the .22 caliber pistol Graham had with him when arrested was not the .22 caliber pistol with which Lambert was killed. On August 6, 1993, the state filed its answer and motion for summary judgment, which waived exhaustion and did not raise the issue of successive or abusive applications. On August 13, 1993, the district court, without any evidentiary hearing, denied Graham’s application. See Graham v. Collins, 829 F.Supp. 204, 209-10 (S.D.Tex.1993). On appeal, the Fifth Circuit declined to accept the state’s waiver of exhaustion and remanded the case to the district court. See Graham v. Johnson, 94 F.3d 958, 970-71 (5th Cir.1996). In so doing, it concluded that exhaustion would not be futile, although Texas recently had passed a statute erecting significant barriers to death row inmates’ successive habeas applications: (a) If an initial application for a writ of habeas corpus is untimely or if a subsequent application is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent or untimely initial application unless the application contains sufficient specific facts establishing that: (1)the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable: (A) on the date the applicant filed the previous application; or (B) if the applicant did not file an initial application, on or before the last date for the timely filing of an initial application; (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 or 37.0711. Tex.Code Crim.Proc.Ann. art. 11.071 § 5(a). Section 5(e) defines an unavailable factual claim as one “not ascertainable through the exercise of reasonable diligence on or before that date.” The Fifth Circuit found that these new provisions “appear[edj” to afford Graham the right to have his claims heard, and noted that, in any case, it was unclear whether article 11.071, enacted while Graham’s federal habeas appeal was pending, would apply to him. See Graham, 94 F.3d at 969 n. 20. The court also emphasized that exhaustion was necessary to flesh out the record: The issues in this case are almost exclusively factual, and the relevant factual scenario is complex, highly controverted, and in many respects unresolved. The district court denied the petition without an evi-dentiary hearing. There is a large body of relevant evidence that has not been presented to the state court. It is doubtful that the record before us allows review of the underlying issues on a fully informed basis. Id. at 970-71. On remand, on October 11, 1996, the district court dismissed Graham’s third federal habeas application for failure to exhaust state remedies. Eighteen months later, on April 27, 1998, Graham filed a third state habeas application, supported by the evidence he previously had presented to the courts and three entirely new affidavits, raising the same two issues as the third federal habeas application. He also added a claim that Texas violated his Eighth and Fourteenth Amendment rights by (1) sentencing him to death for a crime he allegedly committed at the age of seventeen without a pretrial determination that he was sufficiently mature and morally responsible to be tried as an adult and (2) failing to require the full consideration of youth as a mitigating circumstance. On November 18,1998, the Court of Criminal Appeals dismissed his application as an abuse of the writ under the new state habeas law. See Ex parte Graham, No. 17,568-05 (Tex. Crim.App. Nov. 18,1998). On December 18, 1998, Graham filed his fourth federal habeas application in the Southern District of Texas, raising the same three issues as he had in his third state habeas application. The district court dismissed for lack of jurisdiction, holding that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), required Graham to obtain permission from the appropriate court of appeals before filing a “second” or “successive” habeas application. See Graham v. Johnson, No. H-98-4241 (S.D.Tex. Jan. 7, 1999). Graham filed motions in the district court for a stay of execution and for a certificate of probable cause or a certificate of appealability. The court granted a certificate of appeal-ability but denied the stay. See Graham v. Johnson, No. H-98-4241 (S.D.Tex. Jan. 8, 1999). Graham then filed in the Fifth Circuit a motion for stay of execution, a notice of appeal from the district court’s dismissal of his application, and alternative motions to recall the mandate in the 1996 habeas case or for an order authorizing the district court to consider a successive habeas corpus application. On January 10, 1999, we granted a stay to allow more time to consider the issues presented by the three pleadings, and on February 8,1999, in keeping with Congress’s directive that we rule on such a request within thirty days, see 28 U.S.C. § 2244(b)(3)(D), we denied Graham’s Motion for Order Authorizing District Court to Consider Successive Habeas Petition. We now rule on Graham’s appeal and Motion to Recall Mandate in Previous Habeas Case and provide a full opinion explaining our decision in all three matters. II. STANDARD OF REVIEW The only issue raised by Graham’s appeal, whether AEDPA applies to his current habe-as application, is an issue of law that we review de novo. See Kiser v. Johnson, 163 F.3d 326, 326-27 (5th Cir.1999). The two alternative pleadings are properly directed to us, rather than to the district court, in the first instance: The Motion to Recall Mandate in Previous Habeas Case asks us to withdraw our own prior decision, see Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 1498, 140 L.Ed.2d 728 (1998) (“[T]he courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion.”), and the Motion for Order Authorizing District Court to Consider Successive Habeas Petition must be filed in the appropriate court of appeals, see 28 U.S.C. § 2244(b)(3)(A). III. DISCUSSION A. Appeal of Dismissal Enacted on April 24, 1996, AEDPA made it significantly harder for prisoners filing second or successive federal habeas applications under 28 U.S.C. § 2254 to obtain hearings on the merits of their claims. As amended by AEDPA, 28 U.S.C. § 2244(b) provides: (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 appeal-able 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). AEDPA also added a stringent statute of limitations to the federal habeas statute: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). AEDPA’s amendments to the federal habeas statute impact Graham in the following manner. With respect to § 2244(b), Graham concedes in his brief on appeal that his November 1998 application is second or successive to his 1988 application, which was 'fully adjudicated on the merits. Thus, if AEDPA applies to this latest application, he would be required to obtain an order from this court authorizing the district court to consider it. Graham admits that he cannot meet § 2244(b)’s prerequisites for the issuance of such an order. He contends, however, that he need not obtain authorization from this court because AEDPA does not apply to his November 1998 application. This is the crucial issue before us. 1. Is the district court’s dismissal of Graham’s application appealable? Before deciding whether AEDPA does, in fact, apply to Graham’s application, we pause to consider whether the district court’s order dismissing his application for lack of jurisdiction as a result of his failure to comply with 28 U.S.C. § 2244(b)(3)(C) is appealable. Although neither party has suggested that it is not, we may determine the existence of our own jurisdiction sua sponte. See Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985). As a general rule, federal law limits our appellate jurisdiction to reviewing final decisions of the district courts. See 28 U.S.C. § 1291. Similarly, the federal habeas corpus statute provides that “[i]n a habeas corpus proceeding ... before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.” Id. § 2253. A final judgment is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment..” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)) (internal quotation marks omitted). We have taken a practical approach to determining whether a district court decision meets this standard; a judgment reflecting an intent to dispose of all issues before the court is final. See National Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 705 (5th Cir.1994); Vaughn v. Mobil Oil Exploration & Producing Southeast, Inc., 891 F.2d 1195, 1197 (5th Cir.1990). Our own court and one of our sister circuits have found dismissals for failure to move for authorization to file a successive application to be appealable final orders. In Spotville v. Cain, 149 F.3d 374, 375 (5th Cir.1998), we reviewed such a dismissal without questioning the existence of jurisdiction. The First Circuit considered an analogous situation in Pratt v. United States, 129 F.3d 54, 57-58 (1st Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1807, 140 L.Ed.2d 945 (1998), and concluded that it had jurisdiction to consider an appeal from a dismissal of a federal prisoner’s successive 28 U.S.C. § 2255 motion for failure to obtain the required clearance from the court of appeals. Pratt, like Graham, challenged the dismissal on the grounds that AEDPA did not apply to his successive motion. See id. at 57. Under such circumstances, the court determined, he could regain access to the district court and vindicate his theory that AEDPA did not apply to him only by an appeal and a subsequent holding that the district court erred in considering his latest petition under the new statute. See id. The district court’s order was therefore final “in the relevant sense” and appealable even though it was without prejudice to Pratt’s refiling after obtaining the necessary authorization from the court of appeals. Id. at 57-58. We find this reasoning persuasive and conclude that we have jurisdiction to review the district court’s dismissal of Graham’s application. 2. Does AEDPA apply by its terms? We now turn to the merits of Graham’s appeal. It appears to us that, on its face, AEDPA applies to Graham’s application. The statute was enacted on April 24, 1.996, and Graham did not file his current federal habeas application until November 18, 1998. In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that “the new provisions of chapter 153 [the chapter of Title 28 of the United States Code containing § 2244 and §§ 2253-2255] generally apply only to cases filed after the Act became effective.” We are comforted in our conclusion by the fact that, in Felker v. Turpin, 518 U.S. 651, 655-58, 665, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Court applied AEDPA to a successive application filed after April 24, 1996 where the first application was filed before that date. It seems equally apparent that § 2244(b)’s restrictions on second or successive habeas applications govern Graham’s current application, which he concedes is second or successive within the meaning of the statute. Graham, however, contends that AEDPA does not govern his most recent federal ha-beas application. First, he argues that it is not a new application but a continuation of his third application for federal habeas relief, which he filed in July 1993 and which was dismissed without prejudice in October 1996 for failure to exhaust state remedies. Because this earlier application was pending on appeal on the date of AEDPA’s enactment, he claims, the statute does not apply to it under Lindh. In the alternative, he asserts that there is no indication that Congress intended AEDPA to govern applications in the procedural posture of his own — specifically, where one or more habeas applications were filed before the enactment of the statute and a successive application was filed afterward — and to apply the Act to him would be impermissibly retroactive. We address each of these arguments in turn. 3. Is Graham’s application exempt from AEDPA because it is a continuation of an application pending on the date of AEDPA’s enactment? Graham’s first argument goes thus: AEDPA does not apply to habeas applications pending on the date of its enactment. See Lindh, 521 U.S. at 336, 117 S.Ct. 2059. A habeas application filed after a previous application was dismissed for non-exhaustion is a “continuation” of the earlier application. In re Gasery, 116 F.3d 1051, 1052 (5th Cir.1997) (per curiam). Therefore, AEDPA does not apply to his November 1998 application because, in the words of Gasery, it is a “continuation” of its 1993 predecessor, which was pending on appeal on the day AEDPA became law. We think that Graham reads too much into Gasery. Our decision in Gasery does not exempt from AEDPA an application in the same procedural posture as Graham’s. Instead, it holds that an application refiled after. an earlier application was dismissed without prejudice for failure to exhaust state remedies is not second or successive to that earlier application within the meaning of § 2244(b) as amended by AEDPA. See id. at 1052. In doing so, however, it assumes that AEDPA governs the refiled application. Moreover, the Supreme Court’s only pronouncement on the relationship under AEDPA of applications refiled after their predecessors have been dismissed without prejudice provides little support for Graham’s reading of Gasery. In Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the habeas applicant was convicted in Arizona state court of two counts of first-degree murder and sentenced to death. See id. at 1619. He filed three federal habeas applications, all of which were dismissed on the ground that they contained claims on which state remedies had not yet been exhausted. See id. at 1620. In March 1993, Martinez-Villa-real filed a fourth federal habeas application asserting, inter alia, that he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The district court dismissed the Ford claim as premature. Thereafter, the state obtained a warrant for Martinez-Villareal’s execution, and the Arizona courts found him competent to be executed. Martinez-Villareal then moved in federal district court to reopen his Ford claim, and the district court ruled that under § 2244(b), it did not have jurisdiction over a “second or successive” habeas application unless (as Martinez-Villareal had not) the prisoner obtained permission to file such an application from the appropriate court of appeals. The Ninth Circuit reversed, holding that § 2244(b) does not apply to an application that raises only a competency-to-be-executed claim. See Martinez-Villareal v. Stewart, 118 F.3d 628, 634 (9th Cir.1997), aff'd, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). In the Supreme Court, the state argued that because Martinez-Villareal already had had one fully litigated habeas petition (in which his Ford claim was found to be premature), § 2244(b) required his new application to be treated as successive. The Court held that the new application, based on the Ford claim, was not a “second or successive” application within the meaning of § 2244(b) because it never had been adjudicated on its merits. See 118 S.Ct. at 1622. In that way, it said, a claim dismissed as premature is analogous to one dismissed for failure to exhaust state remedies: But none of our cases expounding [the non-exhaustion] doctrine 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. Id. Graham interprets Martinez-Villareal as holding that the new application was a continuation of the dismissed petition and thus not successive. The opinion provides no direct support for this proposition, however. Rather, the Court held simply that a habeas claim that has not been adjudicated on the merits is not “successive” under AEDPA even if it has been brought before the courts before and dismissed on procedural grounds. Both where a claim is dismissed as premature and for failure to exhaust state remedies, “the habeas petitioner does not receive an adjudication of his claim. To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.” Id. The Court’s conclusion provides no indication that the dismissed application should be treated as a continuation of the first so as to preclude the application of AEDPA. To the contrary, the Court applied AEDPA in reaching its result. Graham could fairly point out that in neither Gasery nor Martinez-Villareal was the dismissed habeas application pending on the date of AEDPA’s enactment. That difference, he would argue, compels the conclusion that AEDPA does not apply in his own ease even though it did in Gasery and Martinez-Villareal. See Lindh, 521 U.S. at 323-24, 336, 117 S.Ct. 2059 (holding that “the new provisions of chapter 153 generally apply only to cases filed after the Act became effective” and refusing to apply AEDPA to Lindh because his first habeas application was pending in the court of appeals on the date the statute was enacted). To accept that conclusion would create a distinction between applications in an identical procedural posture whose predecessor applications were dismissed only a few days apart. That is, if a prisoner’s prior application was dismissed on or before April 23, 1996, AEDPA would govern his “continuation” of this application; if it was dismissed after April 23, 1996, AEDPA would not apply to the “eontin-uation” application. We can see no justification for this disparate result. As further support for his position that AEDPA does not apply to his current application, Graham argues that federal courts retain an interest in unexhausted habeas suits that they do not in conventional civil suits dismissed without prejudice. For this reason, he claims, courts often have held or permitted habeas cases to be held in abeyance pending the exhaustion of state remedies, rather than dismissing them outright. As examples, he points to Burris v. Farley, 51 F.3d 655, 659 (7th Cir.1995); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993); Scott v. Dugger, 891 F.2d 800, 802 (11th Cir.1989); Giarratano v. Procunier, 891 F.2d 483, 485 (4th Cir.1989); Johnson v. Texas, 878 F.2d 904, 906 (5th Cir.1989); Collins v. Lockhart, 754 F.2d 258, 260 (8th Cir.1985); and Chenault v. Stynchcombe, 581 F.2d 444, 448 (5th Cir.1978). Furthermore, Graham insists, we recently made clear in Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir.1998), that district courts may either hold an unexhausted federal habeas application in abeyance or dismiss it without prejudice, subject to review for abuse of discretion. If a federal court can hold an unexhausted habeas case in abeyance rather than dismiss it outright, Graham contends, we should view his third habeas application not as never having been filed, but as stayed pending exhaustion. Graham misunderstands the law governing unexhausted federal habeas applications. The Supreme Court has held that “a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Subsequent opinions have interpreted Lundy as requiring the dismissal of an application containing any claims that have not been exhausted in the state courts. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“This Court has long held that a state prisoner’s federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.”); Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (“Respondent’s habeas petition should have been dismissed if state remedies had not been exhausted as to any of the federal claims.”); Engle v. Isaac, 456 U.S. 107, 124 n. 25, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“If [an unexhausted due process claim] were present, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), would mandate dismissal of the entire petition.”). Of course, because exhaustion is based on comity rather than jurisdiction, there is no absolute bar to federal consideration of unex-hausted habeas applications. See Lundy, 455 U.S. at 515, 102 S.Ct. 1198; Narvaiz v. Johnson, 134 F.3d 688, 693 n. 1 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 2364, 141 L.Ed.2d 731 (1998); Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir.), cert. denied, — U.S. -, 119 S.Ct. 344, 142 L.Ed.2d 283 (1998). Thus, under certain circumstances, a federal court may consider an unexhausted habeas application. See Granberry v. Greer, 481 U.S. 129, 134-35, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (concluding that a federal appellate court may consider an application to which the state raises a non-exhaustion defense for the first time on appeal). Unless the court decides to consider an unexhausted application, however, Lundy dictates that it be dismissed. Indeed, we recognized this principle in Graham, 94 F.3d at 968, when we noted, citing Lundy, that “[t]he exhaustion doctrine, generally codified in section 2254(b) & (c), requires that normally a state prisoner’s entire federal ha-beas petition must be dismissed unless the prisoner’s state remedies have been exhausted as to all claims raised in the federal petition” and dismissed Graham’s petition because he “presented significant evidentiary support for his claims of actual innocence and ineffective assistance of counsel that was never presented to the state courts,” id. at 969. Moreover, neither the cases Graham cites nor the current practice of the federal courts support the proposition that abatement of an application containing unexhausted claims is generally an acceptable substitute for dismissal. We turn first to Graham’s own citations. One of these, Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.1978), predates Lundy. Burris and Fetterly held fully exhausted habeas applications in abeyance pending exhaustion of other claims that had not yet been presented to the state courts. See Burris, 51 F.3d at 658-59; Fetterly, 997 F.2d at 1297-98; see also Calderon v. United States Dist. Ct., 134 F.3d 981, 987 (9th Cir.) (pointing out that Fetterly involved an application containing only exhausted claims), cert. denied, — U.S.-, 119 S.Ct. 274, 142 L.Ed.2d 226 (1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.) (same), cert. denied, 519 U.S. 1102, 117 S.Ct. 794, 136 L.Ed.2d 735 (1997). It is not clear that the district courts in Scott and Giarratano held in abeyance petitions containing unexhausted claims; at any rate, neither appellant challenged the legitimacy of such an action. See Scott, 891 F.2d at 802; Giarratano, 891 F.2d at 485. Lockhart permitted the abatement of an application containing unexhausted claims, but the Eighth Circuit has since rejected its reasoning in that case. See Victor v. Hopkins, 90 F.3d 276, 280-82 (8th Cir.1996). Our own court often has dismissed unex-hausted habeas applications rather than hold them in abeyance pending dismissal. See, e.g., Sterling v. Scott, 57 F.3d 451, 454 (5th Cir.1995) (concluding that the district court was required to dismiss the unexhausted application and, citing Coleman, that it did not err in refusing to hold it in abeyance); McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.1995) (“McGrew’s allegations reflect that he has not exhausted his state remedies and, therefore, insofar as his complaint can be construed as seeking habeas relief, it must be dismissed for failure to exhaust.”); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir.1998) (“A habeas petition containing both exhausted and unex-hausted claims is a ‘mixed’ petition which should be dismissed without prejudice.”); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.1998) (“A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims.”). It is true, as Graham points out, that in Brewer, 139 F.3d at 493 (5th Cir.1998), we stated, citing Johnson v. Texas, 878 F.2d 904 (5th Cir.1989), that district courts may either hold an unexhausted petition in abeyance or dismiss it without prejudice. In Brewer, however, the prisoner had been appointed counsel, but had not yet filed a federal habeas application, at the time he sought to have his federal proceeding held in abeyance. See 139 F.3d at 492. Thus, despite its citation to Johnson, the court was not squarely confronted with a situation in which a prisoner seeks to abate an application containing unexhausted claims. Similarly, several other circuits have concluded that district courts should dismiss without prejudice, and not hold in abeyance, habeas applications containing unexhausted claims. See Calderon v. United States Dist. Ct., 144 F.3d 618, 620 (9th Cir.1998) (stating that “a petition with exhausted and unexhausted claims must be dismissed or the unexhausted claims' stricken from the petition,” but permitting amendment of applications to delete unexhausted claims and holding amended petition containing only exhausted claims in abeyance pending exhaustion of deleted claims); Christy v. Horn, 115 F.3d 201, 206-08 (3d Cir.1997); Victor, 90 F.3d at 280-83; see also Morris v. Bell, 124 F.3d 198, No. 96-5510, 1997 WL 560055, *2-*3 (6th Cir. Sept. 5, 1997) (unpublished table decision) (affirming dismissal of federal habeas application for failure to exhaust even where prisoner argued that district court should have abated proceedings so as to prevent application of AEDPA upon post-exhaustion return to federal court), cert. denied, — U.S.-, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998). Thus, there is no general consensus that dismissing a federal habeas application for non-exhaustion is the equivalent of holding it in abeyance pending exhaustion. Certainly the Texas courts have acknowledged a fundamental difference between the two. A district court that holds a habeas petition in abeyance but does not dismiss it retains jurisdiction over the case. See Ex parte Powers, 487 S.W.2d 101, 102 (Tex.Crim.App.1972). Therefore, as a matter of comity, the Texas courts will not consider a habeas petition while a federal habeas proceeding concerning the “same matter” or seeking the same relief is presently pending. See May v. Collins, 948 F.2d 162, 169 (5th Cir.1991); Carter v. Estelle, 677 F.2d 427, 435-36 (5th Cir.1982); Ex parte McNeil, 588 S.W.2d 592, 592-93 (Tex.Crim.App.1979); Ex parte Green, 548 S.W.2d 914, 916 (Tex.Crim. App.1977); Powers, 487 S.W.2d at 102. Graham suggests that Texas’s habeas abstention doctrine forced the district court to dismiss his application, that, but for the doctrine, it would have held the proceeding in abeyance, and that we should therefore act as though it did so. But he provides no evidence for his contention that the lower court would have held his third federal application in abeyance; indeed, it would not have been justified in so doing even absent the Texas abstention doctrine. Furthermore, Texas’s refusal to consider a habeas petition raising the same claims or seeking the same relief as a pending federal application underscore the fact that dismissal and abatement are not the same for all purposes. Indeed, a contrary conclusion would allow a prisoner to avoid AEDPA (and, inter alia, its statute of limitations) for many years after the passage of the statute. We note that, when Gasery himself returned to the district court after we held that he was not required to seek permission under § 2244(b)(3)(A) to file a new application when his initial application was dismissed for failure to exhaust, the district court found it time-barred under § 2244(d), even though he filed the first, dismissed petition before Congress enacted AEDPA. See Gasery v. Johnson, No. H-97-1685, slip op. (S.D.Tex. Mar. 5, 1998), appeal docketed, No. 98-20221 (5th Cir. Mar. 30,1998). According to the district court, if § 2244(d) were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to “continue” his federal remedy, without running afoul of the statute of limitations. Id. at 5-6. Construing an application filed after a previous application is dismissed without prejudice as a continuation of the first application for all purposes would eviscerate the AEDPA limitations period and thwart one of AEDPA’s principal purposes. See 28 U.S.C. § 2244(d); H.R.Conf.Rep. No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944 (“[Title