Opinion
21-1190
06-21-2021
In re: ROSCOE FORD, Movant.
(D.C. No. 1:20-CV-02926-LTB-GPG) (D. Colo.)
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
ORDER
Roscoe Ford seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas petition. For the following reasons, we deny authorization.
In 1999 Mr. Ford was convicted in Colorado state court of aggravated robbery. He was determined to be a habitual offender based on prior convictions for first-degree murder and aggravated robbery and was sentenced to life imprisonment. In 2009 he filed his first § 2254 petition, asserting eleven claims for relief including, among other things, prosecutorial misconduct and ineffective assistance of counsel. The district court denied the petition, and this court denied a certificate of appealability. Mr. Ford filed a second § 2254 petition in 2020, which the district court dismissed for lack of jurisdiction because Mr. Ford had not received authorization from this court before filing it. He now seeks authorization to file a second or successive § 2254 petition to bring two new claims for relief.
To receive authorization to file another habeas petition, Mr. Ford must show his proposed claims rely 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), or that they are based on facts that "could not have been discovered previously through the exercise of due diligence" and that "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 of the underlying offense," id. § 2244(b)(2)(B). Mr. Ford has not met these requirements.
Mr. Ford asserts in his first proposed claim that he was "denied a fair trial based on prosecutorial misconduct, illegal use of prior convictions, and a lack of sufficient evidence." Mot. for Auth. at 12. He purports to rely on both a new rule of constitutional law, citing the Supreme Court's decisions in Wilson v. Sellers, 138 S.Ct. 1188 (2018), and Ylst v. Nunnemaker, 501 U.S. 797 (1991), and newly discovered evidence. Ylst was decided well before Mr. Ford filed his first § 2254 and therefore cannot serve as a basis for authorization because it was not "previously unavailable." 28 U.S.C. § 2254(b)(2)(A). And Wilson offers no support because that case did not announce "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." § 2244(b)(2)(A). Wilson did not involve a constitutional question; it involved statutory interpretation of the Anti-Terrorism and Effective Death Penalty Act of 1996, and its holding concerned federal courts' application of that statute in affording deference to state court decisions. See 138 S.Ct. at 1192. It is not entirely clear what new evidence Mr. Ford believes justifies his authorization request, but, in any event, he does not explain how the factual predicate for his claims-that one of his prior convictions was inappropriately used to enhanced his sentence as a habitual offender and that the habitual criminal statute itself is unconstitutional-could not have been discovered previously through the exercise of due diligence. This proposed claim therefore fails to meet the standards for authorization in § 2244(b)(2).
For his second claim, Mr. Ford asserts he was "denied a constitutional right to a fair trial under the Sixth Amendment, and Eighth, Fourteenth Amendments," Mot. for Auth. at 14, apparently taking issue with the Colorado habitual criminal statute as a general matter. He again cites Wilson in connection with this claim, which we have already determined does not satisfy the requirement in § 2244(b)(2)(A). And he does not otherwise attempt to show that this claim relies on a new rule of constitutional law or newly discovered evidence
Accordingly, we deny 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).