Opinion
23-3017
02-09-2023
In re: KISHEN WOODS, SR., Movant.
(D. Kan., D.C. No. 5:22-CV-03189-JWL-JPO)
Before TYMKOVICH, BACHARACH, and ROSSMAN, Circuit Judges.
ORDER
Kishen Woods, Sr., is a Kansas prisoner serving a life sentence for murdering his wife. He previously filed an unsuccessful 28 U.S.C. § 2254 petition challenging that judgment. Proceeding pro se, he now moves for authorization to file another § 2254 petition, asserting two proposed claims. 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").
Mr. Woods's first proposed claim accuses his wife of taking the children from their home despite his custody over them. This does not fit either the new-rule-of-constitutional-law prong or the new-evidence prong of § 2244(b)(2), so we may not authorize a new claim on this basis.
Mr. Woods's second proposed claim is difficult to understand. It contains arguable references to double jeopardy, competency to stand trial, and ineffective assistance of counsel. It also seems to re-assert that his actions were justifiable in light of his parental rights. Although Mr. Woods is pro se and therefore deserves a liberal construction of his pleadings, we cannot act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We cannot discern what claim he intends to bring here, so we cannot say it satisfies the § 2244(b)(2) standard.
For these reasons, we deny Mr. Woods'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." § 2244(b)(3)(E).