*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an

order and judgment may be cited under the terms and conditions of 10th

Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

January 24, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS EDWARD GIRARDIN,

Petitioner - Appellant,

v.

KEVIN MILYARD, Warden,

Sterling Correctional Facility;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

No. 05-1384

(D.C. No. 05-CV-672-ZLW)

(District of Colorado)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, MURPHY and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.

Thomas Edward Girardin appeals the district court’s denial of his 28

U.S.C. § 2254 petition, in which he argued that his convictions for

attempted first degree murder and first degree burglary merge. Thus, the

sentences should be served concurrently, and not consecutively as they

were imposed.

Mr. Girardin previously filed a § 2254 petition in 1990, in which he

challenged these convictions. The district court denied relief on the merits,

see Girardin v. Pyle, 752 F.Supp. 979 (D.Colo. 1990), and this court

affirmed. See Girardin v. Pyle, No. 91-1014, 1991 WL 104397 (10th Cir.

Jun. 12, 1991) (unpublished).

A district court does not have jurisdiction to address the merits of a

second or successive petition until this court has granted the required prior

authorization under 28 U.S.C. § 2244(b)(3)(A). See Lopez v. Douglas, 141

F.3d 974, 975-76 (10th Cir.1998). Accordingly, we will construe the notice

of appeal and appellate brief as an implied application under §

2244(b)(3)(A) for leave to file another habeas petition in the district court. 

Id. at 976.

Mr. Girardin must make a prima facie showing that satisfies §

2244(b)(2)’s criteria for the filing of another habeas petition. That section

requires that:
(2) A claim presented in a second or successive

habeas corpus application under section 2254 that

was not presented in a prior application shall be

dismissed unless--

(A) the applicant shows that 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.

Mr. Girardin does not meet these requirements. He states that he was

not aware of the constitutional infirmity until 2002 when he found an

unnamed Tenth Circuit case while researching in the law library. This does

not constitute a new rule of constitutional law made retroactive to cases on

collateral review by the United States Supreme Court, nor does it constitute

newly discovered evidence. 

The district court order is VACATED, and the implied application

for authorization to file another § 2254 petition is DENIED. Permission to 

appeal in forma pauperis is GRANTED. This matter is DISMISSED. 

Entered for the Court
Per Curiam