Opinion
21-6075
08-06-2021
In re: BRITT JARRIEL HAMMONS, Movant.
D.C. Nos. 5:20-CV-00789-F & 5:04-CR-00172-F) (W.D. Okla.)
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
ORDER
Britt Jarriel Hammons, appearing pro se, has filed a motion seeking authorization to file a second or successive motion under 28 U.S.C. § 2255. We deny the motion.
In 2004, Mr. Hammons pleaded guilty to felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 180 months' imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e), to run consecutively to prison terms related to his state-law violations. We affirmed his sentence on direct appeal. United States v. Hammons, 153 Fed.Appx. 492, 495 (10th Cir. 2005).
Mr. Hammons filed a § 2255 habeas claim challenging his federal sentence in 2016, which we denied. See United States v. Hammons, 862 F.3d 1052, 1057 (10th Cir. 2017). He then filed a motion for authorization to file a second § 2255 claim, which we also denied. In re Hammons, No. 18-6099 (10th Cir. June 5, 2018).
Mr. Hammons now seeks authorization to file a second or successive habeas claim. His proposed new habeas claim is premised on the alleged discovery of new facts. Such an allegation must "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)(ii). In addition, if a claim is premised on newly discovered facts, the movant must show that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." Id. § 2244(b)(2)(B)(i).
Mr. Hammons contends the pre-sentence report contains an error regarding his criminal history. He alleges that on one page, the report states that Mr. Hammons had been previously convicted of two violent felonies, while a different page states he had been convicted of three such felonies. Even if this were true, however, Mr. Hammons and his counsel had access to the pre-sentence report several weeks before his sentencing hearing in April 2005. Mr. Hammons therefore cannot demonstrate that this claim could not have been discovered previously through the exercise of due diligence. Accordingly, we deny his motion for authorization. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." Id. § 2244(b)(3)(E).