Opinion
22-8051
09-01-2022
In re: CHRISTOPHER HARRELL, Movant.
(D.C. No. 2:13-CV-00078-NDF) (D. Wyo.)
Before BACHARACH, BRISCOE, and EID, Circuit Judges.
ORDER
Christopher Harrell, proceeding pro se, seeks authorization to file a second or successive application pursuant to 28 U.S.C. § 2254. For the following reasons, we deny authorization.
Mr. Harrell was convicted in 2010 of three counts of first-degree sexual assault, one count of kidnapping, and one count of aggravated assault. The Wyoming Supreme Court affirmed his conviction. He then filed a petition for post-conviction relief in state district court. The state court dismissed his petition, and the Wyoming Supreme Court denied review of that decision.
In 2013, Mr. Harrell filed his first § 2254 application in district court, claiming his due process rights were violated due to prosecutorial misconduct, duplicitous charges, and ineffective assistance by both his trial and appellate counsel. The district court denied the application, and we denied a certificate of appealability. Harrell v. Wilson, 577 Fed.Appx. 839, 840 (10th Cir. 2014).
Mr. Harrell now seeks authorization to file a successive § 2254 application in district court to raise a claim that his conviction violated his constitutional right to be free from double jeopardy. In support of authorization, he asserts that his claim relies on a new rule of constitutional law. To obtain authorization on that basis, he must make a prima facie showing that his claim "relies on 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. § 2244(b)(2)(A); see Case v. Hatch, 731 F.3d 1015, 1027 (10th Cir. 2013) (explaining prima facie showing required to satisfy § 2244's gate-keeping requirement).
To meet this requirement, Mr. Harrell cites the Supreme Court's recent decision in Wooden v. United States, 142 S.Ct. 1063 (2022). Wooden held that the defendant's multiple prior burglary convictions were for offenses "committed on a single occasion" and therefore counted as only one prior conviction for purposes of the Armed Career Criminal Act. See id. at 1074. To the extent Wooden might support Mr. Harrell's double jeopardy claim, the Tenth Circuit lacks precedential authority on whether Wooden announced a new rule of constitutional law. We need not reach that issue here, however, because Mr. Harrell has not shown that the Supreme Court has made Wooden "retroactive to cases on collateral review." § 2244(b)(2)(A). He has therefore failed to satisfy the standard required to obtain authorization to file a successive § 2254 application.
The motion for authorization is denied. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).