Opinion
21-8049
08-16-2021
In re: BRUCE LOWELL WILLIAMS, Movant.
(D.C. Nos. 1:20-CR-00076-ABJ-1 & 1:20-CR-00224-ABJ) (D. Wyo.)
Before McHUGH, MORITZ, and EID, Circuit Judges.
ORDER
Bruce Lowell Williams seeks authorization to file a second or successive 28 U.S.C. § 2255 motion. We deny authorization.
In 2020, Williams pled guilty to violating 18 U.S.C. § 922(g)(1) by possessing a firearm, and the district court sentenced him to 90 months' incarceration. Williams did not appeal. But he did file a § 2255 motion arguing his sentence should be set aside because (1) prosecutors engaged in a vindictive prosecution and breached his plea agreement, (2) his counsel rendered ineffective assistance, and (3) he should have been given an opportunity to withdraw his plea. The district court dismissed the motion and Williams did not appeal the dismissal. Williams then filed the present motion seeking authorization to file a second or successive § 2255 motion.
Because Williams has already sought relief under § 2255, he must obtain this court's authorization before filing another § 2255 motion. See 28 U.S.C. §§ 2255(h), 2244(b)(3)(A). We may grant authorization only if Williams makes a prima facia showing that his proposed second or successive § 2255 motion "contain[s]" either "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 the movant guilty of the offense" or "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)(1)-(2); see also In re Gieswein, 802 F.3d 1143, 1144 (10th Cir. 2015) (per curiam).
Williams first seeks authorization based on a new rule of constitutional law, citing United States v. Kentucky Bar Ass'n, 439 S.W.3d 136 (Ky. 2014), and Godley v. United States, 5 F.3d 1473 (Fed. Cir. 1993). But these cases predate Williams's indictment and therefore were not "previously unavailable," § 2255(h)(2).
Williams also checked the box on the court's form motion indicating that he seeks authorization based on newly discovered evidence. But he does not identify any evidence he did not know about when the district court sentenced him or when he filed his first § 2255 motion. See, e.g., United States v. McKye, 947 F.3d 1293, 1296-97 (10th Cir. 2020) (declining to grant authorization under § 2255(h)(1) where the defendant knew about the evidence in question "before he filed his first § 2255 motion").
Because Williams has not met the requirements of § 2255(h), the motion for authorization is denied. 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).