* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; 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, MURPHYand O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would notmaterially 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 w ithout 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 burg lary merge. Thus, the sentences should be served concurrently, and not co nsecutively as they were imposed. Mr. Girardin previously filed a § 2254 petition in 1990, in which he challenged these convictions. The district court d enied 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 See Girardin v. Pyle , No. 91-1014, 1991 WL 104397 (10th Cir. Jun. 12, 1991) (unpublished).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 addr ess 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 peti tion in the district court. Id. at 976. Mr. Girardin must make a prima facie showing that s atisfies § 2244(b)(2)’s criteria for the filing of another hab eas 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 no t 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 b e 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 200 2 when he found an unnamed Tenth Circuit case while researching in the law library. This does not constitute a new rule of constitutional law mad e 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 i s DENIED . Permission to appeal in forma pauperis is GRANTED . This matter is DISMISSED

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Entered for the CourtPer Curiam