Opinion
21-60618
09-22-2021
IN RE JAMES ALLEN HIGGINBOTHAM, MOVANT
Motion for an order authorizing the United States District Court for the Northern District of Mississippi to consider a successive 28 U.S.C. § 2254 application
Before SMITH, HIGGINSON, and WILLETT, Circuit Judges .
PER CURIAM
James Allen Higginbotham, Mississippi prisoner # 149421, seeks authorization to file a successive 28 U.S.C. § 2254 application to challenge his conviction for murder and resulting sentence of life imprisonment. In his proposed § 2254 application, Higginbotham seeks to argue that the factual basis was insufficient to support his conviction and that the defective factual basis resulted in a due process violation.
To obtain authorization to file a successive § 2254 application, Higginbotham must make a prima facie showing that his claims rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, ” or that “the factual predicate for the claim[s] could not have been discovered previously through the exercise of due diligence” and “the facts underlying the claim[s], 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 [him] guilty.” 28 U.S.C. § 2244(b)(2); see § 2244(b)(3)(C).
Higginbotham has not made the requisite showing. See § 2244(b)(2). To the extent Higginbotham raises a claim of actual innocence, we do not recognize a freestanding claim of actual innocence on federal habeas review. See In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009). Moreover, even if a convincing claim of actual innocence could overcome § 2244(b)'s limits on filing a successive application, Higginbotham has not made the necessary showing. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Schlup v. Delo, 513 U.S. 298, 327-29 (1995).
Accordingly, IT IS ORDERED that Higginbotham's motion for authorization to file a successive § 2254 application is DENIED.