FILED

United States Court of Appeals

Tenth Circuit

January 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

MICHAEL EUGENE LAMB,

Movant.

No. 09-6279

ORDER

Before TACHA, KELLY, and O’BRIEN, Circuit Judges.

Movant Michael Eugene Lamb, an Oklahoma state prisoner proceeding pro

se, has filed a motion for authorization to file a second or successive 28 U.S.C.

§ 2254 habeas corpus petition seeking to challenge his convictions. We deny

authorization.

Mr. Lamb was convicted in 2004, of two counts of shooting with intent to

kill. He was sentenced to twenty-two years’ and eighteen years’ imprisonment,

respectively, on the two counts, to be served concurrently. His convictions were

upheld on direct appeal. Mr. Lamb filed his first § 2254 petition challenging his

convictions in 2006. That petition was denied by the district court, and this court

denied Mr. Lamb a certificate of appealability. Lamb v. Okla. County Dist. Ct.,

229 F. App’x 690 (10th Cir. 2007). 

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Before a state prisoner may file a second or successive § 2254 petition, the

prisoner must first “move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3)(A). A district court does not have jurisdiction to address the merits

of a second § 2254 petition unless the circuit court has granted the required

authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). In 2009,

Mr. Lamb filed an unauthorized § 2254 petition in the district court, which was

dismissed for lack of jurisdiction. Lamb v. Franklin, No. CIV-09-871-W

(W. D. Okla. Oct. 16, 2009) (unpublished order).

Mr. Lamb now seeks this court’s authorization to file his proposed § 2254

petition. He states in his motion for authorization that he wishes to present the

following claims: (1) ineffective assistance of trial counsel, for failure to request

a jury instruction stating that he would have to serve eighty-five percent of his

sentence; (2) ineffective assistance of appellate counsel, because appellate counsel

did not raise trial counsel’s failure to request the eighty-five-percent-rule jury

instruction; and (3) his jury was not instructed on the eighty-five percent rule.

To obtain permission to file a second or successive § 2254 petition,

Mr. Lamb must show that he has not raised his claim in a previous habeas

application, 28 U.S.C. § 2244(b)(1), and that his new claim 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 depends

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on facts, previously undiscoverable through the exercise of due diligence, that “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 [him] guilty,” id. § 2244(b)(2)(B). 

Mr. Lamb’s motion does not make a prima facie case that these standards

have been satisfied. He states that his claims are based on a new rule of law,

citing Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006). This state court

decision does not satisfy the requirements of § 2244(b)(2)(A) because it is not

new constitutional law declared retroactively applicable by the Supreme Court 

of the United States. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (“[A] new rule

is not ‘made retroactive to cases on collateral review’ unless the Supreme Court

holds it to be retroactive.”). Mr. Lamb concedes that his claims are not based on

any new evidence.

 Accordingly, we DENY authorization. This matter is DISMISSED. This

denial of authorization is not 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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