Opinion
21-2071
08-03-2021
VERNON LEE BAKER, Movant.
(D.C. Nos. 1:08-CR-01680-PJK-1 & 1:16-CV-00715-PJK-GBW) (D. N.M.)
Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
ORDER
Vernon Lee Baker, a federal inmate, has filed a motion seeking authorization to file a second or successive 28 U.S.C. § 2255 habeas petition. At the court's request, the government filed a response. We deny the motion.
In 2011, a jury convicted Baker of felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 235 months in prison. Baker appealed, arguing there was insufficient evidence to support the conviction. In particular, he challenged the government's DNA analysis and the testimony of an eyewitness who had seen Baker in possession of the firearm. See United States v. Baker, 485 Fed.Appx. 964, 966 (10th Cir. 2012). Significantly for our present purposes, we affirmed the conviction solely on the basis of the eyewitness evidence. We did "not consider Defendant's arguments as to the DNA analysis because the eyewitness testimony . . . provide[d] ample evidence to support the jury's verdict." Id. at 967.
Baker then filed his first § 2255 motion in 2016, asserting that his sentence violated his due process rights in light of Johnson v. United States, 576 U.S. 591 (2015). The district court denied Baker's motion, and this court denied a certificate of appealability. United States v. Baker, 748 Fed.Appx. 807 (10th Cir. 2018).
Baker now seeks to file a second § 2255 motion based on his assertion that "[n]ew evidence has come to light, indicating that the DNA testimony presented at Mr. Baker's trial was incorrect and that there is in fact no DNA connecting Mr. Baker to any firearm." Proposed § 2255 Mot. at 1. Baker's motion for authorization therefore rests solely on the "newly discovered evidence" prong of § 2255(h), which allows a second or successive § 2255 motion when the new evidence, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C. § 2255(h)(1). We hold the new evidence does not meet the "clear and convincing" standard.
The government contends the evidence is not new because the problems with the government's DNA analysis could have been discovered through the exercise of due diligence more than a decade ago. The government therefore argues Baker's motion for authorization is beyond the one-year statute of limitations. In light of our analysis, we need not address this argument.
Baker's argument here depends on the assertion that without the DNA evidence introduced at trial, no reasonable factfinder would have found him guilty of felony possession of a firearm. But we have already found that even in the absence of the DNA evidence, "the eyewitness testimony . . . provides ample evidence to support the jury's verdict." Baker, 485 Fed.Appx. at 967. In his motion Baker calls into question the quality of the eyewitness testimony. But he already challenged that testimony without success in his direct appeal and therefore may not attempt to reassert the same challenge in a § 2255 motion. E.g., United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (court will not consider arguments for § 2255 relief that have already been decided on direct appeal); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (same).
Baker also argues that had his trial counsel known the DNA evidence did not connect Baker to the gun, he would have had much more leverage in plea negotiations and could have cross-examined the eyewitness more aggressively. We reject this argument. In the first place, Baker overestimates the strength of the DNA evidence, which showed only that Baker "could not be excluded as a contributor for th[e] DNA found on the grip [of the gun]." Trial Tr. vol. II at 414. More importantly, even accepting his trial counsel's characterization, whether the altered dynamics of cross-examination would have made any difference to the jury's verdict is pure speculation. And the fact that Baker's counsel might have had more leverage in plea negotiations has no bearing on whether a reasonable factfinder would have found Baker guilty.
For the foregoing reasons we deny Baker's motion for authorization. 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." 28 U.S.C. § 2244(b)(3)(E).