FILED

United States Court of Appeals

Tenth Circuit

January 29, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JAMES L. SHAW,

Movant.

No. 09-6298

ORDER

Before TACHA, KELLY, and MURPHY, Circuit Judges.

James L. Shaw, proceeding pro se, moves for authorization to file a second

or successive motion to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2255. We deny authorization. 

In 2001, Mr. Shaw pleaded guilty to and was convicted of maintaining a

place or aiding and abetting the maintaining of a place for manufacturing, using,

and distributing methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 856(a)(1). The district court imposed a 240-month sentence. Mr. Shaw did not

appeal. In June 2005, he filed a § 2255 motion alleging that his sentence was

improperly enhanced by the Sentencing Guidelines under facts found by the court,

but to which he did not plead, and which were not found by a jury beyond a

reasonable doubt. He based his argument on Apprendi v. New Jersey, 530 U.S.

466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v.

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Booker, 543 U.S. 220 (2005). The district court denied the § 2255 motion as

untimely. See United States v. Shaw, No. CIV-05-732-M (W.D. Okla. Oct. 24,

2007) (order citing 28 U.S.C. § 2255(f)). Mr. Shaw did not appeal. 

Mr. Shaw now seeks authorization to file a second or successive § 2255

motion in order to assert the following claims: (1) the district court improperly

increased the drug amounts in his case, after engaging in judicial fact-finding and

thereby finding facts that he did not plead to and that a jury did not find beyond a

reasonable doubt, all contrary to Apprendi, Blakely, and Booker; and (2) he

improperly received a drug-quantity enhancement, since he pleaded guilty to only

one count of the superceded indictment. Mr. Shaw may bring these claims only if

he can show either

(1) newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

[him] guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable. 

28 U.S.C. § 2255(h). 

Mr. Shaw first asserts that his claims are based on new rules of law set

forth in Apprendi, Blakely, and Booker. None of these cases, however, are new. 

And none applies retroactively to second or successive § 2255 motions. See Bey

v. United States, 399 F.3d 1266, 1268-69 (10th Cir. 2005). 

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Additionally, Mr. Shaw asserts that his claims are based on newly

discovered evidence, including his counsel’s ineffectiveness in failing to provide

him with copies of filings after he was sentenced and in refusing to respond to

telephone calls or correspondence. Further, he points out that he has very little

knowledge of the law and only recently began studying Apprendi and Blakely. 

These assertions do not show newly discovered evidence sufficient to establish

that no reasonable factfinder would have found him guilty of the drug-trafficking

offense for which he was convicted. See 28 U.S.C. § 2255(h)(1). 

Accordingly, we DENY Mr. Shaw authorization to file a second or

successive § 2255 motion. Denial of authorization is not appealable and “shall

not be the subject of a petition for rehearing or for a writ of certiorari.” Id.

§ 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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