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:

DANIEL HARRIS,

Movant.

No. 10-8056

ORDER

Before TACHA, EBEL, and HOLMES, Circuit Judges.

Movant Daniel Harris, a Wyoming state prisoner appearing 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 1995 convictions. We deny

authorization.

Mr. Harris was convicted in 1995 of attempted first-degree sexual assault,

attempted second-degree sexual assault, first-degree felony murder, criminally

negligent homicide, and assault and battery. He was sentenced to life

imprisonment. He filed his first § 2254 petition challenging these convictions in

1998. That petition was denied by the district court, and this court

denied Mr. Harris a certificate of appealability. Harris v. Everett, No. 99-8102,

2000 WL 504731 (10th Cir. Apr. 27, 2000) (unpublished). 

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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). To obtain permission to file a second or successive § 2254

petition, a movant 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 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).

In his motion for authorization, Mr. Harris lists one issue that he wishes to

present: (1) a claim that he received ineffective assistance of counsel with

respect to how his attorney handled the voluntariness of his confession. He lists

additional issues in his proposed § 2254 petition attached to his motion:

(2) ineffective assistance of counsel relating to counsel’s handling the suppression

of evidence hearing; (3) denial of his constitutional right to notice of the charge

because two indictments were filed against him; (4) the court violated his due

process rights when it failed to give a jury instruction on an essential element of

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the offense; (5) requiring him to register as a sex offender violates double

jeopardy; (6) filing two indictments with distinct offenses under a single count is

duplicitous; (7) prosecutors violated an indictment information rule by using the

same information in two indictments; (8) filing a second indictment against him

five days before trial was prosecutorial misconduct; (9) his counsel was

ineffective by failing to request a jury instruction about the effect of alcohol on

his mental state; (10) his speedy trial rights were violated when the trial court

asked him five times to waive this right; (11) his counsel was ineffective when he

refused to file ineffective assistance of counsel claims on direct appeal;

(12) requiring him to register as a sex offender violates the Ex Post Facto clause;

(13) the parole board’s decision violated double jeopardy because it was based on

the attempted sexual assault counts; and (14) the trial court erred in admitting his

statement into the trial proceedings.

Mr. Harris fails to make the required prima facie showing that his proposed

claims satisfy the authorization requirements of § 2244(b)(2). Mr. Harris

articulates potential compliance with the requirements of § 2244(b)(2) only as to

his first claim–ineffective assistance of counsel relating to the voluntariness of his

confession. As to that claim, he asserts that it is based on new evidence, the

receipt of a copy of his confession. He does not state when he received this, only

that it was sometime after his appeals were concluded. He also states that it took

him several years to learn the relevant law. It is clear that this evidence was

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discoverable by Mr. Harris through the exercise of due diligence at the time of his

trial and at the time that he filed his first § 2254 petition; and he does not contend

otherwise. Evidence is not “new” under § 2244(b)(2)(B)(i) if the facts were

discoverable by the exercise of due diligence at the time the movant filed his first

§ 2254 petition. See Babbitt v. Woodford, 177 F.3d 744, 746-47 (9th Cir. 1999). 

Furthermore, learning about law that existed at the time he filed his first § 2254

petition does not constitute either new evidence or new law under § 2254(b)(2). 

Thus, Mr. Harris has not met his burden of demonstrating that this proposed claim

satisfies § 2244(b)(2).

As to his remaining thirteen claims, Mr. Harris does not even attempt to

argue why he believes these claims satisfy the new-evidence or new-law

requirements of § 2244(b)(2). With the exception of three claims, discussed

below, the factual predicate of all of these claims appear on their face to have

been discoverable through the exercise of due diligence at the time that

Mr. Harris filed his first § 2254 petition. Thus, Mr. Harris has not met his burden

of demonstrating that these proposed claims satisfy § 2244(b)(2).

Three of Mr. Harris’s proposed claims are based on facts not available at

the time he filed his first § 2254 petition, but they are not appropriately filed in a

§ 2254 petition. Relief under § 2254 is granted only for constitutional errors in

the state judgment forming the basis for incarceration. See Sellers v. Ward,

135 F.3d 1333, 1339 (10th Cir. 1998). A challenge to the execution of a

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particular sentence, however, is properly brought under 28 U.S.C. § 2241. Davis

v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). Mr. Harris’s proposed claim (13),

above, relates to an unspecified parole board decision. Issues concerning “parole

procedure[ ] go to the execution of sentence and, thus, should be brought against

defendant’s custodian under 28 U.S.C. § 2241.” United States v. Furman,

112 F.3d 435, 438 (10th Cir. 1997); see also Davis, 425 F.3d at 833. Mr. Harris’s

proposed claims (5) and (12), above, relate to an unspecified requirement that he

register as a sex offender. It does not appear from Mr. Harris’s motion that these

claims challenge the state court judgment forming the basis of his incarceration,

thus, it does not appear that relief under § 2254 is the appropriate forum. 

Accordingly, we DENY Mr. Harris authorization to file his proposed

second or successive § 2254 petition. 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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