Opinion
23-7005
02-15-2023
In re: SCHUYLER L. SCARBOROUGH, Movant.
D.C. No. 6:21-CV-00277-JFH-KEW (E.D. Okla.)
Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges.
ORDER
Schuyler L. Scarborough is an Oklahoma prisoner serving a sentence of life without parole for a murder committed in 2004. Scarborough previously filed a 28 U.S.C. § 2254 petition attacking this judgment, but the district court dismissed it as untimely, and this court denied a certificate of appealability. See Scarborough v. Province, 332 Fed.Appx. 516, 516-17 (10th Cir. 2009). Proceeding pro se, Scarborough now moves for authorization to file a second or successive § 2254 petition. We may not grant authorization unless he makes a prima facie showing that
(A) . . . the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, 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 the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2); see also id. § 2244(b)(3)(C) (establishing that the movant's burden at this phase is to "make[] a prima facie showing that the [proposed second or successive] application satisfies the [foregoing] requirements").
Scarborough proposes to bring a claim that "[t]he Oklahoma Court of Criminal Appeals violated [his] equal protection rights when it denied his application for postconviction relief." Mot. for Auth. at 8. More specifically, the OCCA "did not afford [him] a constitutionally adequate opportunity to prove he was denied the assistance of counsel for his defense." Id. Scarborough says he raised such a claim in his state proceedings, but the OCCA ignored it.
Scarborough describes this claim as newly discovered evidence for purposes of § 2244(b)(2)(B). But, by way of explanation, he merely continues his argument: "The [OCCA] arbitrarily and capriciously denied corrective procedure and provided no corrective procedure to redress alleged constitutional errors in his conviction, which denied [him] equal protection of the law." Mot. for Auth. at 10.
This is not a newly-discovered-evidence argument. Nor can we see how the OCCA's alleged failings could satisfy that standard. We therefore deny Scarborough's 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." 28 U.S.C. § 2244(b)(3)(E).