FILED

United States Court of Appeals

Tenth Circuit

February 23, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

DONALD ADAM PENROD,

Movant.

No. 12-1024

(D.C. No. 1:11-CV-02223-BNB)

(D. Colo.)

ORDER

Before BRISCOE, Chief Judge, O’BRIEN and HOLMES, Circuit Judges.

Donald Adam Penrod, a Colorado state prisoner appearing pro se, seeks

authorization to file a second or successive 28 U.S.C. § 2254 petition. Because

Mr. Penrod’s proposed claims do not meet the requisite conditions for

authorization under 28 U.S.C. § 2244, we deny the motion.

Mr. Penrod was convicted in Colorado in 1991 of aggravated robbery of a

controlled substance, second-degree kidnapping and aggravated robbery. He was

sentenced to a total of thirty years in prison. His conviction and sentence were

affirmed on direct appeal and in state post-conviction proceedings. Mr. Penrod

filed his first § 2254 habeas petition in 2001, which was denied as time-barred by

the district court. This court denied Mr. Penrod’s request for a certificate of

appealability (COA). Penrod v. Hargett, No. 03-1119 (10th Cir. Oct. 14, 2003)

(unpublished order).

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Mr. Penrod now seeks to present the following claims:

(1) the prosecutor hid one of the robbery victims, Ms. Sanford, in Wyoming

and falsely told the court Ms. Sanford was unavailable to testify;

(2) the prosecutor and post-conviction judges conspired to criminally

withhold certain trial transcripts from him;

(3) a police detective falsely testified Ms. Sanford’s leather jacket was

returned, but Mr. Penrod believes the police destroyed the jacket because it might

have contained exculpatory prints or DNA evidence;

(4) the state’s attorney falsely claimed Mr. Penrod’s defenses were

time-barred in response to his first § 2254 application; conspired with

Mr. Penrod’s post-conviction attorneys to defraud him of his meritorious defenses

and fabricate an exhibit relating to where Ms. Sanford was at the time of trial

(which he identifies as “Exhibit 84”); and knew that the judges deciding

Mr. Penrod’s state post-conviction motions were corrupt and were refusing to

prosecute themselves;

(5) state judges retaliated against him for exercising his rights by

withholding trial transcripts from him; refusing to rule on his motions for

transcripts and to disqualify themselves; and preventing the appointment of a

special prosecutor. Mr. Penrod further seeks to claim that one state judge stole

his post-conviction motions and affidavits; threatened and bribed his

post-conviction counsel; threatened to fabricate Exhibit 84; held ex parte

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meetings with the prosecutors to cover-up the perjuries concerning Exhibit 84 and

Ms. Sanford’s whereabouts; threatened Mr. Penrod’s investigator if he did not

suppress evidence; and refused to let Mr. Penrod testify about these alleged

cover-ups. Mr. Penrod contends that all of his proposed claims are based on

newly-discovered evidence because he did not receive certain trial transcripts

until 2010.

A movant seeking to bring a second or successive § 2254 petition may

proceed only with a claim not presented in a prior petition, see 28 U.S.C.

§ 2244(b)(1), that either “relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable,” id. § 2244(b)(2)(A), or relies on facts that “could not

have been discovered previously through the exercise of due diligence” and that

“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,” id. § 2244(b)(2)(B)(i)(ii).

We conclude that Mr. Penrod has failed to demonstrate that his proposed

claims satisfy these standards. First, Mr. Penrod has raised almost all of his

proposed claims before, in his first § 2254 application, and we may not grant

authorization as to any claim that has already been adjudicated in a previous

§ 2254 application, see id. § 2244(b)(1). In his first § 2254 application,

Mr. Penrod claimed that his attorneys assisted the prosecutors in suppressing

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Ms. Sanford’s address (citing an Exhibit 84); his post-conviction attorney was

engaged with the prosecutors, police, and judges in a criminal conspiracy against

him; and that exculpatory evidence concerning the location of Ms. Sanford and

her leather jacket were illegally suppressed. See Resp., Attach. A at 11-12

(Magistrate Judge’s Report and Recommendation in his first § 2254 application);

id. at 32 (this court’s order denying COA). In recommending the denial of that

application, the magistrate judge concluded that Mr. Penrod was “actually aware,

or with due diligence should have been aware, since March 1991” of the factual

bases of these claims. Id. at 12, 35.

Second, to the extent Mr. Penrod is asserting new claims, he has not

demonstrated that any of his proposed claims are based on newly-discovered

evidence. He provides no evidence in support of his assertion that he only

recently obtained his 1991 trial transcripts, nor does he indicate what new

information was contained in these allegedly newly-obtained transcripts.

Furthermore, we see nothing in his proposed claims to suggest that he has

evidence “sufficient to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found [him] guilty,”

28 U.S.C. § 2244(b)(2)(B).

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Accordingly, Mr. Penrod’s request for authorization is DENIED. This

denial of authorization “shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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