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    Strickland v. Murphy, 10th Cir. (2008)

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    Floyd Strickland, a state prisoner in Wyoming, filed a second habeas petition under 28 U.S.C. § 2254 raising the same claims from his first petition as well as new claims. The district court dismissed the petition as an unauthorized second petition. The appellate court construed Strickland's appeal as a request to file a second petition but denied the request because Strickland failed to demonstrate that the factual predicates for his new claims could not have been discovered previously with due diligence, as required by 28 U.S.C. § 2244(b)(2)(B)(i). The court concluded that Strickland's claims had been thoroughly considered in prior proceedings and he failed to present any new

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    Strickland v. Murphy, 10th Cir. (2008)

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    Floyd Strickland, a state prisoner in Wyoming, filed a second habeas petition under 28 U.S.C. § 2254 raising the same claims from his first petition as well as new claims. The district court dismissed the petition as an unauthorized second petition. The appellate court construed Strickland's appeal as a request to file a second petition but denied the request because Strickland failed to demonstrate that the factual predicates for his new claims could not have been discovered previously with due diligence, as required by 28 U.S.C. § 2244(b)(2)(B)(i). The court concluded that Strickland's claims had been thoroughly considered in prior proceedings and he failed to present any new

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    Filed: 2008-05-21 Precedential Status: Non-Precedential Docket: 08-8013

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    Floyd Strickland, a state prisoner in Wyoming, filed a second habeas petition under 28 U.S.C. § 2254 raising the same claims from his first petition as well as new claims. The district court dismissed the petition as an unauthorized second petition. The appellate court construed Strickland's appeal as a request to file a second petition but denied the request because Strickland failed to demonstrate that the factual predicates for his new claims could not have been discovered previously with due diligence, as required by 28 U.S.C. § 2244(b)(2)(B)(i). The court concluded that Strickland's claims had been thoroughly considered in prior proceedings and he failed to present any new

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    Download as pdf
    18 views6 pages

    Strickland v. Murphy, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    Floyd Strickland, a state prisoner in Wyoming, filed a second habeas petition under 28 U.S.C. § 2254 raising the same claims from his first petition as well as new claims. The district court dismissed the petition as an unauthorized second petition. The appellate court construed Strickland's appeal as a request to file a second petition but denied the request because Strickland failed to demonstrate that the factual predicates for his new claims could not have been discovered previously with due diligence, as required by 28 U.S.C. § 2244(b)(2)(B)(i). The court concluded that Strickland's claims had been thoroughly considered in prior proceedings and he failed to present any new

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    of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    May 21, 2008

    Elisabeth A. Shumaker
    Clerk of Court

    FLOYD STRICKLAND,
    Petitioner-Appellant,
    v.
    MICHAEL MURPHY, in his official
    capacity as Warden, Wyoming
    Department of Corrections State
    Penitentiary, and
    PATRICK CRANK, in his official
    capacity as (former) Wyoming
    Attorney General,

    No. 08-8013
    (D.C. No. 07-CV-314-WFD)
    (D. Wyo.)

    Respondents-Appellees.

    ORDER AND JUDGMENT *

    Before OBRIEN, McKAY, and GORSUCH, Circuit Judges.

    Floyd Strickland, a state prisoner in Wyoming, sought habeas relief in


    federal district court under 28 U.S.C. 2254. Because Mr. Strickland had
    previously filed a Section 2254 petition that was considered and denied on its
    merits, the district court dismissed the present petition as an unauthorized second

    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.

    or successive habeas petition. Construing Mr. Stricklands appellate filings


    before us as a request for leave to file a second or successive petition pursuant to
    28 U.S.C. 2244(b)(2)-(3), we deny the request because Mr. Strickland fails to
    meet the standards Congress requires for the initiation of such proceedings.
    *

    In 2001, a Wyoming jury convicted Mr. Strickland of first and second


    degree arson for setting his home afire with the intention of collecting the
    insurance proceeds. The trial court sentenced him to concurrent prison terms of
    120-216 months on the first degree count and 60-108 months on the second
    degree count. Mr. Strickland appealed, and the Wyoming Supreme Court
    substantially affirmed his conviction and sentence. See Strickland v. State, 94
    P.3d 1034 (Wyo. 2004). 1
    Mr. Strickland then timely filed a Section 2254 petition in federal district
    court, asserting violations of his (1) Fifth Amendment right against double
    jeopardy; (2) Fourth Amendment rights against unreasonable searches and
    seizures; (3) Fifth and Fourteenth Amendment rights to due process and a fair
    trial in relation to alleged prosecutorial misconduct; and (4) Sixth Amendment

    Though otherwise affirming Mr. Stricklands sentence, the Wyoming


    Supreme Court held unlawful a provision of that sentence that restricted Mr.
    Strickland from residing in Natrona County following his prison term. See
    Strickland, 94 P.3d at 1050-51. The trial court subsequently entered an amended
    sentence that did not include this provision.
    -2-

    right to effective assistance of counsel. 2 The district court considered these


    claims on their merits, discerned no constitutional violation, and denied Mr.
    Stricklands petition. Mr. Strickland sought COA from this court, which we
    denied while expressing our agreement with the district courts reasoning. See
    Strickland v. Abbott, 175 F. Appx 973 (10th Cir. 2006). Mr. Strickland also
    unsuccessfully pursued petitions for post-conviction relief in the Wyoming state
    trial court and the Wyoming Supreme Court.
    In late 2007, Mr. Strickland filed another Section 2254 petition in federal
    district court, in which he raised all of the same issues already addressed by his
    previous Section 2254 petition, as well as a number of new issues, including ones
    relating to (1) his First Amendment right of access to the courts; (2) allegations of
    conspiracy and RICO violations by the trial court judge and prosecution; and (3)
    asserted violations of due process by the trial court and prosecution. The district
    court dismissed the petition, explaining that Mr. Strickland failed to seek and
    receive authorization from this court to file a second or successive Section 2254
    petition and that such a failure precluded the district court from considering any
    of the claims in the petition. See 28 U.S.C. 2244(b)(3)(A) (Before a second or
    2

    Mr. Strickland had previously filed a Section 2254 petition while his
    state appeal was still pending, raising issues relating to the denial of a
    continuance of his bail bond. The district court summarily dismissed the petition,
    finding that such issues are not cognizable in Section 2254 proceedings.
    Accordingly, that first attempt at pursuing Section 2254 relief did not work to
    preclude Mr. Stricklands second Section 2254 petition as a successive petition
    under 28 U.S.C. 2244(b).
    -3-

    successive application . . . is filed in the district court, the applicant shall move in
    the appropriate court of appeals for an order authorizing the district court to
    consider the application.).
    *

    Mr. Strickland now purports to appeal the district courts disposition.


    Viewing this pro se pleading charitably, as we must, we construe his appellate
    filing as the application to this court required by Congress for leave to file a
    second or successive Section 2254 petition. See Pease v. Klinger, 115 F.3d 763,
    764 (10th Cir. 1997). To obtain authorization to file a successive Section 2254
    petition, an applicant must make a prima facie showing that
    (A) . . . the claim relies on a new rule of constitutional law, made
    retroactive to cases on collateral review . . . ; 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).
    Mr. Strickland specifically points us to the last subsection (b)(2)(B)(ii)
    and contends that his claims, if proven, would establish by clear and convincing
    evidence that, but for the constitutional errors allegedly underlying his
    conviction, no reasonable jury would have convicted him of arson. Mr.
    -4-

    Strickland, however, misunderstands what is required of him in order to make


    new claims in a second or successive habeas petition. A showing under
    subsection (b)(2)(B)(ii) means nothing unless it is accompanied by satisfaction of
    subsection (b)(2)(B)(i), which requires Mr. Strickland to demonstrate that the
    factual predicates for his new claims could not have been discovered previously
    through the exercise of due diligence.
    As it happens, and even construing them as liberally as we might, none of
    Mr. Stricklands claims are based on newly discovered facts, much less facts that
    could not have been discovered previously with due diligence. Instead, Mr.
    Strickland has simply forged various new legal arguments to deliver the same
    essential message that has been the basis of his previous appeals and petitions
    namely, that he is innocent, that he received ineffective assistance of counsel, and
    that the trial court in various ways deprived Mr. Strickland of due process. These
    claims have been thoroughly vetted in prior proceedings, and Mr. Strickland has
    failed to come forward with any new facts or new rules of constitutional law that
    would allow us to authorize him to petition for habeas relief once again.
    *

    Because Mr. Strickland has failed to make a prima facie showing that his
    Section 2254 petition should not be dismissed pursuant to 28 U.S.C. 2244(b),

    -5-

    we deny Mr. Stricklands request for leave to file a second or successive habeas
    petition. 3

    ENTERED FOR THE COURT

    Neil M. Gorsuch
    Circuit Judge

    Because of our disposition of the threshold inquiry under Section 2244,


    we deny as moot Mr. Stricklands motion to incorporate in the present
    proceedings his previous Section 2254 petition and the appeal from the dismissal
    of that petition. The filings from those proceedings, however, are part of the
    record on appeal for this petition and have been reviewed as part of our
    consideration.
    -6-

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