Opinion
22-5024
05-06-2022
In re: ALONZO G. DAVISON, Petitioner.
(D.C. No. 4:16-CV-00194-GKF-PJC) (N.D. Okla.)
Before TYMKOVICH, Chief Judge, HOLMES and CARSON, Circuit Judges.
ORDER
Petitioner Alonzo G. Davison moves for authorization to file a second or successive 28 U.S.C. § 2254 application. We deny his motion for the reasons that follow.
I. BACKGROUND & PROCEDURAL HISTORY
In 2002, an Oklahoma jury convicted Davison of lewd molestation of a child and sexually abusing a minor. He received a 45-year prison sentence on both counts, running concurrently.
In 2016, Davison filed his first § 2254 petition, which the district court dismissed as untimely. This court denied a certificate of appealability. See Davison v. McCollum, 696 Fed.Appx. 859 (10th Cir. 2017).
In April 2022, Davison filed the motion for authorization currently at issue, seeking to bring four new challenges to his conviction and sentence. We discuss them in further detail below.
II. LEGAL STANDARD
A prisoner may not file a second or successive § 2254 application without this court first determining that he has made "a prima facie showing" either that
• the new 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
• "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," and "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."28 U.S.C. § 2244(b)(2) & (b)(3)(C).
III. ANALYSIS
A. Ground One: Effect of McGirt v. Oklahoma
Davison claims he recently learned of his Native American heritage. He further asserts that his crime occurred in a part of Tulsa encompassed by the Creek Reservation. Thus, given McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), he argues he should never have been prosecuted in state court. Davison says McGirt satisfies the new-rule-of-constitutional-law standard and his Native American status satisfies the previously-undiscovered-factual-predicate standard.
McGirt did not announce a new rule of constitutional law. Rather, it concluded that Congress never disestablished the Creek Reservation, so it remains Indian Country today. See 140 S.Ct. at 2459. We also question whether discovering one's Native American heritage is the sort of factual predicate that might qualify for relief under § 2244(b)(2)(B). Assuming for argument's sake that the answer is yes, we note Davison's assertion that he recently discovered his Native American heritage after reading Chief Justice Roberts's dissent in McGirt, which inspired him to contact the Oklahoma Historical Society and conduct genealogical research. See Motion at 16-17. While McGirt may have inspired his research, Davison could have previously determined his heritage. Thus, the factual predicate for his proposed claim could have previously been discovered through the exercise of due diligence.
For these reasons, we will not authorize Davison to file his proposed Ground One.
B. Grounds Two, Three, and Four: Ineffective Assistance of Counsel
Davison says he recently discovered that Oklahoma is administering his two sentences differently for parole-eligibility purposes, and he asserts that this reveals three new ineffective-assistance-of-counsel claims.
1. Davison's Discovery of the Original and Amended Charging Documents
As noted, Davison is serving concurrent 45-year sentences on his two counts of conviction. Davison says he had been "under the impression" that he would need to serve one-third of those sentences (fifteen years) before he could be considered for parole. Mot. for Authorization ("Motion") at 8, 19. But he did not come up for parole in 2017 (fifteen years after he began serving his sentences), so he began to inquire why and learned that the state considers him parole-eligible on count two (child sexual abuse) because he has served one-third of that sentence, but it will not consider him parole-eligible on count one (lewd molestation) until he has served 85% of that sentence.
All page citations are to the handwritten numbers at the bottom of each page.
The difference between the counts, Davison further learned, arises from the dates on which he committed the two offenses. Oklahoma requires that those who commit certain offenses on or after March 1, 2000 (including lewd molestation of a child), serve 85% of the sentence for that crime before parole consideration. See Okla. Stat. tit. 21, §§ 12.1, 13.1(18). Here, the state charged, and the jury agreed, that Davison committed the offense described in count one between August 1, 2001, and February 27, 2002. Thus, he must serve at least 85% of his count-one sentence. But he committed the offense charged in count two before March 1, 2000, so the state applied a different rule under which prisoners become parole-eligible after serving one-third of their sentences.
Not long after learning all this, Davison says he was shown the relevant charging documents for the first time. He discovered that the state originally charged him with committing the count-one offense on January 1, 2000, but it amended the information a few months later to charge that the offense occurred no earlier than August 1, 2001.
2. Davison's Theories of Relief
Davison does not argue that his trial counsel failed to present evidence showing the crime was actually committed on January 1, 2000 (or some other date before March 1, 2000). Nor does he argue that any such evidence exists. Instead, in his proposed Ground Two, Davison says his attorney should have objected when the state amended the information. Davison also says if he had understood the effect of the amended information, "there is a reasonable probability that he would have taken the 20 year plea deal that was offered by the State." Motion at 19.
These contentions do not satisfy § 2244(b)(2)(B)(ii)'s requirement that the second-or-successive petitioner present evidence of factual innocence. Neither an attorney's failure to object to an amendment nor an attorney's allegedly poor advice about a plea deal creates a "factual predicate" that, combined with "the evidence as a whole," can show that "no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B); cf. In re McFadden, 826 F.3d 706, 707-08 (4th Cir. 2016) (refusing to authorize a successive § 2254 petition based on counsel's alleged failure to convey a plea offer because it "would simply have no bearing on the deliberations of a 'reasonable factfinder' regarding [the petitioner's] innocence or guilt").
Davison's Ground Three alleges ineffective assistance of appellate counsel for "fail[ing] to raise the issues related to Ground Two," Motion at 21, and his Ground Four alleges ineffective assistance of postconviction counsel for "fail[ing] to raise the issues related to Grounds Two and Three," id. at 22. These grounds depend on the viability of Ground Two. As already explained, Ground Two does not state a viable successive § 2254 claim.
For these reasons, we will not authorize Davison to file his proposed Grounds Two, Three, or Four.
IV. CONCLUSION
We deny Davison's motion. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).