Opinion
23-6013
02-14-2023
In re: STEVEN MARIO ALFORD ORECCHIO, Movant.
(D.C. Nos. 5:21-CV-01167-R &5:18-CR-00218-R-1) (W.D. Okla.)
Before MATHESON, BACHARACH, and ROSSMAN, Circuit Judges.
ORDER
Steven Mario Alford Orecchio, a federal prisoner proceeding pro se, seeks authorization to file a second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We deny authorization.
Mr. Orecchio pleaded guilty to two counts of sexual exploitation of children and was sentenced to 480 months' imprisonment and a lifetime of supervised release. He filed his first § 2255 motion in 2021. The district court dismissed it as untimely and this court denied a certificate of appealability. See United States v. Orecchio, No. 21-6172, 2022 WL 2062440, at *3 (10th Cir. June 8, 2022).
Mr. Orecchio now seeks authorization to file a second or successive § 2255 motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h) (requiring petitioners who have already sought relief under § 2255 to obtain this court's authorization before filing another § 2255 motion). As pertinent here, we may grant authorization if Mr. Orecchio makes a prima facie showing that his proposed 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. § 2255(h)(2); see also id. § 2244(b)(3)(C); In re Gieswein, 802 F.3d 1143, 1144 (10th Cir. 2015) (per curiam).
We may also grant authorization if the proposed claim relies on "newly discovered evidence that, 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 [him] guilty of the offense." § 2255(h)(1). Mr. Orecchio does not contend that his proposed claim relies on newly discovered evidence, and "learning of a new legal theory is not the discovery of new evidence." FDIC v. Arciero, 741 F.3d 1111, 1118 (10th Cir. 2013) (emphasis omitted).
Mr. Orecchio seeks authorization to file a second or successive § 2255 motion asserting a claim under Wooden v. United States, 142 S.Ct. 1063 (2022). In Wooden, the Supreme Court 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.
Mr. Orecchio proposes to file a § 2255 motion contending that his separate convictions of sexual exploitation of two victims are multiplicitous under Wooden because "the victims were a[]part of the same course of conduct." Mot. for Auth. at 9.
But Mr. Orecchio has not established that Wooden satisfies § 2255(h)(2)'s requirements for authorization. He points to no Supreme Court holding or combination of holdings that necessarily make Wooden retroactively applicable to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 663, 666 (2001). And because he has not established that Wooden satisfies the retroactivity requirement, we need not consider whether Wooden announced a new rule of constitutional law, as opposed to a new rule based on statutory interpretation.
Because Mr. Orecchio's proposed claim does not meet the standard for authorization under § 2255(h), we deny his motion for authorization to file a second or successive § 2255 motion. 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).