UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTtLE COURT OF APPEALS BUILDING

56 Forsyth Street, NW.

Atlanta, Georgia 30303

John Ley

Clerk of Court

September 21, 2010

William M. McCool

United States District Court

111 NADAMS ST

TALLAHASSEE, FL 32301-7717

Appeal Number: 10-14138-H

Case Style: In re: Calvin Campbell

District Court Docket No:

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wswca I

The enclosed order has been entered. No further action will be taken in this matter.

Sincerely,

JOHN LEY, Clerk of Court

Reply to: Melanie Gaddis

Phone #: (404) 335-6187

Enclosure(s)

DIS-4 Multi-purpose dismissal letter
*

I FILED

I U.S. COURT OF APPEALS

IN THE TJNTTED STATES COURT OF APPEAfS ELEVENTH CIRCUIT

FOR THE ELEVENTH CIRCUIT 1?QiO

JOHN LEY

NO. 10-14138-H CLERK

TN RE: CALVIN CAMPBELL,

Petitioner.

Application for Leave to File a Second or Successive

Habeas Corpus Petition, 28 U.S.C. § 2244(b)

Before BLA, WILSON and PRYOR, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. § 2244(b)(3)(A), as amended by § 106 of the Antiterrorism and

Effective Death Penalty Act of 1996, Calvin Carlos Campbell has filed an application seeking an

order authorizing the district court to consider a second or successive petition for a writ of habeas

corpus. Such authorization may be granted only if:

(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.
28 U.S.C. § 2244(b)(2). "The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the application

satisfies the requirements of this subsection." Id. § 2244(b)(3)(C).

in his application, Campbell indicates that he wishes to raise five claims in a second or

successive § 2254 petition. He asserts that all five claims rely upon new rules of constitutional law.

His first claim is that he was deprived of a fair trial because over 40 off-duty police officers encircled

the wall of the courtroom and over 100 police officers were "milling about the courthouse" during

his trial. He contends that this "show of force" intimidated thejurors. Campbell concedes, however,

that he presented this claim in a prior habeas petition. Therefore, this claim cannot serve as the basis

for a second or successive habeas petition. See 28 U.S.C. § 2244(b)(1).

Campbell's second claim is that the state attorney violated his Sixth and Fourteenth

Amendment rights by improperly intercepting communications between his defense counsel and

psychiatrists that he retained to testify on his behalf. Campbell cites Weatherford v. Bursey, 429 U.S.

545,97 S.Ct. 837,51 L.Ed.2d 30(1977) arid Haworth v. Shillinger, 852 F.Supp. 961 (D.Wyo. 1994)

as new rules of constitutional law that support his claim. However, Weatherford was decided before

Campbell filed his 1979 habeas petition, and Haworth is not a decision of the United States Supreme

Court. Therefore, neither of those decisions qualifies as a new rule of constitutional law under 28

U.S.C. § 2244(b)(2)(A).

Campbell's third claim is that he was deprived of compulsory process to obtain witnesses in

his favor, in violation of the Sixth and Fourteenth Amendments. He explains that he subpoenaed

a psychiatrist who would have provided expert testimony that he did not have the specific intent to

commit first degree murder. Campbell cites four cases in support of this claim: Holmes v. South

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Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), Calfornia v. Tromberta, 467 U.s.

479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), Gagne v. Booker, 606 F.3d 278 (6th Cir. 2010), and

Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989). However, neither Holmes nor Trobetta has been

made retroactive by the Supreme Court. In addition, Gagne and Nixon are federal courts of appeals

decisions, not Supreme Court decisions. Thus, none of the cases cited by Campbell are new rules

of constitutional law within the meaning of 28 U.S.C. § 2244(b)(2)(A).

Campbell's fourth claim is that he was deprived of his rights to due process and equal

protection because, at the time of his indictment in 1966, African-Americans were systematically

excluded from the masterjury list in Baker County. Campbell concedes, however, that he raised this

claim in a prior habeas petition. Therefore, this claim cannot serve as the basis for a second or

successive petition. See 28 U.S.C. § 2244(b)(l).

Finally, Campbell asserts that the state trial court violated his right to a fair trial by

instructing the jury to presume that he was sane. Campbell acknowledges that he raised this claim

in a prior habeas petition. Thus, he cannot raise this claim in a second or successive petition. See

28 U.S.C. § 2244(b)(1).

Accordingly, because Campbell has failed to make aprimafacie showing of the existence

of either of the grounds set forth in § 2244(b)(2), his application for leave to file a second or

successive petition is hereby DENIED.

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