FILED

United States Court of Appeals

Tenth Circuit

May 20, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JAIME ZAPATA,

Movant.

No. 10-1167

ORDER

Before BRISCOE, Chief Judge, LUCERO, and HARTZ, Circuit Judges.

Jaime Zapata, a federal prisoner appearing pro se, requests authorization to

file a second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence. Before a federal prisoner may file a second or successive

motion under § 2255, the prisoner must first obtain an order from the court of

appeals authorizing the district court to consider the motion. 28 U.S.C.

§§ 2244(b)(3)(A), 2255(h). We deny authorization.

Mr. Zapata was convicted in 2007 of conspiracy to distribute and possess

with intent to distribute five kilograms or more of cocaine and use of a telephone

while committing the conspiracy. He was sentenced to 292 months’

imprisonment. His conviction was affirmed on direct appeal. United States v.

Zapata, 546 F.3d 1179, 1182 (10th Cir. 2008). He filed a § 2255 motion in 2009,

challenging his sentence and alleging numerous claims of ineffective assistance of

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counsel. The district court denied the motion. United States v. Zapata,

No. 09-CV-02474 (D. Colo. Mar. 19, 2010). Mr. Zapata did not appeal that

denial.

In his current motion for authorization to file a second or successive § 2255

motion, Mr. Zapata seeks to present a claim that his counsel was ineffective for

failing to inform him about and take action to protect his rights under the Speedy

Trial Act. To obtain authorization to file a second or successive § 2255 motion, a

federal prisoner must demonstrate that his proposed claims either depend on

“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,” § 2255(h)(1),

or rely upon “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,”

§ 2255(h)(2). 

Mr. Zapata bases his motion for authorization on the new-evidence prong

of § 2255(h)(1), arguing that he only recently learned about the Speedy Trial Act. 

Learning about a statute that existed at the time of trial does not, however,

constitute new evidence, and the factual predicates underlying Mr. Zapata’s

proposed claim were discoverable by the exercise of due diligence at the time he

filed his first § 2255 petition. See Babbitt v. Woodford, 177 F.3d 744, 746-47

(9th Cir. 1999) (holding that claim could not be raised in a successive petition

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where evidence underlying claim was discoverable by the exercise of due

diligence at time of first petition). 

Accordingly, because Mr. Zapata’s motion does not meet the requirements

for authorization under § 2255(h), his motion is DENIED. 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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