FILED

United States Court of Appeals

Tenth Circuit

April 12, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

CHARLES JEFFREY McMILLIAN,

Movant.

No. 10-1098

ORDER

Before TACHA, HARTZ, and HOLMES, Circuit Judges.

Charles Jeffrey McMillian, a Colorado state prisoner proceeding pro se,

moves for authorization to file a second or successive 28 U.S.C. § 2254 habeas

corpus petition. We deny authorization. 

In 1994, Mr. McMillian pleaded guilty to conspiracy to commit first-degree

murder, retaliation against a witness, second-degree murder, and aggravated

motor vehicle theft. Before sentencing, he moved to withdraw his guilty plea. 

The motion was denied and he was sentenced to sixty-four years of imprisonment.

Mr. McMillian filed a § 2254 habeas petition in 1998, asserting that his

plea was not voluntary or intelligent because he was under the influence of the

prescribed drug Halcion at the time he pled guilty and his counsel was ineffective

for allowing him to plead guilty while he was under the influence of Halcion. At

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Mr. McMillian’s request, the district court granted a voluntary dismissal without

prejudice so that he could exhaust state-court remedies. 

Mr. McMillian filed another petition for § 2254 habeas corpus relief in

1999, asserting that his counsel was ineffective and he was denied due process

because counsel failed to assert his mental impairment as an affirmative defense. 

The district court dismissed the action as time-barred. On appeal, we vacated the

district court’s order and remanded for the court to determine whether the petition

was timely. McMillian v. Hickox, No. 00-1151, 2000 WL 1846200 (10th Cir.

Dec. 18, 2000). On remand, the district court granted Mr. McMillian’s motion to

dismiss without prejudice so that he could exhaust state remedies on a new claim. 

In May 2005, Mr. McMillian filed another habeas petition under § 2254,

asserting that (1) his due process rights were violated because his guilty plea was

not free and voluntary as he was under the influence of Halcion; (2) his counsels

were ineffective (a) for failing to investigate the defense of involuntary

intoxication due to his taking Halcion, (b) for allowing him to plead guilty while

he was under the influence of Halcion, (c) for failing to present all mitigating

evidence at his sentencing hearing, (d) for failing at his withdrawal of plea

hearing to assert his innocence due to involuntary intoxication by Halcion, and

(e) for failing to assert on direct appeal that his counsel at his withdrawal of plea

hearing was ineffective, his plea was involuntary, and he was innocent due to

involuntary intoxication; and (3) the accumulated errors in (1) and (2) violated his

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equal protection rights because other criminal defendants successfully used a

Halcion defense. The district court determined the petition was time-barred. On

appeal, however, we determined that the petition was timely. Accordingly, we

vacated the district court’s judgment and remanded for further proceedings. 

McMillian v. Carochi, 198 F. App’x 766 (10th Cir. 2006). 

On reinstatement of the § 2254 petition, the district court dismissed the

action, finding that all but one part of the second claim and all of the third claim

were unexhausted and procedurally barred and that the part of the second claim

concerning counsel allowing Mr. McMillian to enter a guilty plea while he was

under the influence of Halcion and all of the first claim were defaulted in state

court as time-barred and as successive. Additionally, the district court

determined that Mr. McMillian failed to show cause for his procedural defaults

and resulting prejudice or that denial of the review of his claims would result in a

fundamental miscarriage of justice. On appeal, we denied a certificate of

appealability for substantially the same reasons set forth by the district court. 

McMillian v. Carochi, 301 F. App’x 801 (10th Cir. 2008). 

Mr. McMillian now seeks authorization to raise three claims in a second or

successive § 2254 habeas corpus petition: (1) ineffective assistance of counsel at

the time of his plea, at sentencing, at the withdrawal of plea hearing, and on

direct appeal; (2) denial of due process because his guilty plea was not knowing

and voluntary; and (3) denial of equal protection. As before, each of these claims

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relates to his taking of the prescription drug Halcion. Because Mr. McMillian

seeks to assert the same claims that he brought in the 2005 § 2254 application,

they must be dismissed. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a

second or successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.”). 

Accordingly, Mr. McMillian’s claims are DISMISSED, and his motion for

authorization to file a second or successive § 2254 petition 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.” Id. § 2244(b)(3)(E). 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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