FILED

United States Court of Appeals

Tenth Circuit

July 23, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

ODI LUKE-SANCHEZ,

Movant.

No. 10-4085

(D.C. No. EP-10-CA-123-FM )

(W.D. Texas)

ORDER

Before TACHA, MURPHY, and HOLMES, Circuit Judges.

Odi Luke-Sanchez, a federal prisoner appearing pro se, has filed a motion

seeking authorization to file a second or successive 28 U.S.C. § 2255 motion

challenging his conviction and 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 in part and dismiss

the motion as unnecessary in part.

Mr. Luke-Sanchez was convicted of possession of a firearm by an illegal

alien, possession of methamphetamine with intent to distribute, and possession of

a firearm in furtherance of a drug-trafficking crime. His convictions and

295-month sentence were affirmed on direct appeal. United States v.

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Luke-Sanchez, 483 F.3d 703 (10th Cir. 2007). Mr. Luke-Sanchez filed a § 2255

motion in June 2008, asserting claims of ineffective assistance of counsel. The

district court denied the § 2255 motion as well as Mr. Luke-Sanchez’s subsequent

motion to vacate the § 2255 judgment pursuant to Fed. R. Civ. P. 60(b). We

denied Mr. Luke-Sanchez a certificate of appealability. United States v.

Luke-Sanchez, 327 F. App’x 774, 775-76 (10th Cir. 2009). 

Mr. Luke-Sanchez then filed a 28 U.S.C. § 2241 motion in the district court

claiming, without evidentiary support, that the police provided false evidence

against him and that he is actually innocent. The district court construed the

motion as an unauthorized second or successive § 2255 motion, and transferred

the matter to this court to give Mr. Luke-Sanchez an opportunity to seek the

required authorization. Sanchez v. Bragg, No. EP-10-CA-123-FM

(W.D. Tex. Apr. 16, 2010) (unpublished). In response, Mr. Luke-Sanchez has

filed the present motion for authorization.

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,”

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§ 2255(h)(2). In his motion for authorization, Mr. Luke-Sanchez does not raise

the false evidence or actual-innocence claims he asserted in his purported § 2241

motion. Rather, he seeks to present claims of ineffective assistance of trial

counsel and denial of due process in his prior § 2255 proceeding. 

As to his ineffective-assistance claims, Mr. Luke-Sanchez seeks to assert

that his attorney failed to effectively argue for a Jencks Act hearing, see

18 U.S.C. § 3500 (requiring the government to disclose certain witness

statements), thus denying him the opportunity to have an evidentiary hearing

under Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (holding that defendants

have the right to challenge the truthfulness of search warrant affidavits). 

Mot. for Authorization at 6. He also seeks to assert that his counsel was

ineffective for not “calling a Brady hearing or even objecting to it” and did not

allow him to consider a plea deal that had been offered. Id. With one exception,

Mr. Luke-Sanchez raised all of these same claims in his prior § 2255 motion,

which he concedes. Id. at 6. He now argues these claims are supported by new

law, citing to Cone v. Bell, 129 S. Ct. 1769 (2009), which held that “[w]hen a

state court declines to review the merits of a petitioner’s claim on the ground that

it has done so already, it creates no bar to federal habeas review.” Id. at 1781. 

The Cone decision has no relevance to Mr. Luke-Sanchez’s federal conviction

because it involved issues relating to exhaustion of state habeas remedies. 

Moreover, the Supreme Court did not make Cone retroactive, and “a new rule is

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not made retroactive to cases on collateral review unless the Supreme Court holds

it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001) (quotation omitted). 

Thus, Mr. Luke-Sanchez’s ineffective assistance of counsel claims do not qualify

for authorization because he has raised them before and has not shown that his

claims rely on a qualifying new rule of constitutional law. See 28 U.S.C.

§ 2255(h). Mr. Luke-Sanchez did not raise any ineffective-assistance-of-counsel

issue relating to Brady v. Maryland, 373 U.S. 83 (1963) in his prior appeal or

§ 2255 motion. He does not, however, identify any new evidence supporting this

claim or otherwise satisfy the authorization requirements of § 2255(h).

As to his due process claims, Mr. Luke-Sanchez complains that the district

court hearing his prior § 2255 motion did not comply with Rules 5(d) and 7(c) of

the Rules Governing Section 2255 Proceedings, which relate to the contents of

briefs and review of the record. These claims were not raised in

Mr. Luke-Sanchez’s prior § 2255 motion or his related Rule 60(b) motion, nor

were they included in his purported § 2241 motion. Nonetheless, these claims are

not properly brought in a § 2255 motion because they do not challenge the

substantive merits of Mr. Luke-Sanchez’s conviction or sentence; rather, because

they assert a defect in the integrity of the prior § 2255 proceeding, they are

properly filed in a Rule 60(b) motion in the prior § 2255 proceeding. 

See Spitznas v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006). Accordingly, these

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claims do not require prior authorization in order to be filed and the motion for

authorization as to these claims is dismissed as unnecessary. 

Because Mr. Luke-Sanchez’s ineffective-assistance claims do not meet the

requirements for authorization under § 2255(h), his motion for authorization as to

these claims 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). Because Mr. Luke-Sanchez’s due process claims

relating to the procedural integrity of his prior § 2255 motion do not require

authorization, the motion for authorization as to these claims is DISMISSED as

unnecessary. 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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