FILED

United States Court of Appeals

Tenth Circuit

July 29, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

DAVID J. NEWTON,

Movant.

No. 10-5092

ORDER

Before KELLY, EBEL, and HARTZ, Circuit Judges.

David J. Newton seeks authorization to file a second or successive

28 U.S.C. § 2254 petition. Because Mr. Newton cannot meet the requisite

conditions under 28 U.S.C. § 2244, we deny authorization and dismiss the

proceeding.

Mr. Newton was convicted in 2004 of first degree rape and was sentenced

to 400 years in prison. His conviction and sentence were affirmed on direct

appeal. In February 2006, he filed his first § 2254 habeas petition, which was

denied by the district court. Mr. Newton sought to appeal from the district

court’s decision, but we denied his request for a certificate of appealability and

dismissed his appeal. See Newton v. Dinwiddie, 342 F. App’x 421, 422 (10th Cir.

2009). Mr. Newton now seeks authorization to file a second or successive § 2254

petition.

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In order to be entitled to authorization, Mr. Newton must show that:

(A) . . . 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).

Mr. Newton seeks to raise three new claims for relief. For his first claim,

he contends that his appellate counsel was ineffective for failing to raise trial

counsel’s ineffectiveness when trial counsel failed to utilize potential

impeachment evidence. Mr. Newton asserts that this claim relies on newly

discovered evidence, which he identifies as statements from the victim that were

wrongfully excluded by his own trial counsel. But all of these facts were

available to Mr. Newton after the conclusion of his direct appeal and before he

filed his first habeas action. Because he could have discovered the factual

predicate for this claim before he filed his first habeas petition, he cannot meet

the condition in § 2244(b)(2)(B)(i). 

Moreover, Mr. Newton cannot meet the conditions in § 2244(b)(2)(B)(ii)

because the facts in this claim do not establish that he is actually innocent of the

crime for which he was convicted. See Calderon v. Thompson, 523 U.S. 538, 558

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(1998) (“a federal court can consider a claim presented in a second or successive

application only if the prisoner shows, among other things, that the facts

underlying the claim establish his innocence by clear and convincing evidence.”). 

Mr. Newton is therefore not entitled to authorization on his first claim.

As for his second and third claims, he admits in his motion that they do not

rely on a new rule of constitutional law or newly discovered evidence. See Mot.

at 6-7. He is therefore not entitled to authorization on his second or third claims. 

Because Mr. Floyd has failed to meet the conditions in § 2244(b)(2), we

DENY authorization to file a second or successive § 2254 habeas petition, and

DISMISS this matter. 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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