FILED

United States Court of Appeals

Tenth Circuit

June 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

ERIC OROZCO,

Movant.

No. 10-6125

ORDER

Before MURPHY, TYMKOVICH, and GORSUCH, Circuit Judges.

Eric Orozco, 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.

Background. Mr. Orozco was convicted by a jury in 2006 of conspiracy to

distribute methamphetamine and money laundering, and he was sentenced to

240 months’ imprisonment. His conviction and sentence were affirmed on direct

appeal. United States v. Orozco, 240 F. App’x 287, 294 (10th Cir. 2007). He

filed a § 2255 motion in December 2007, which the district court denied. See

United States v. Orozco, 301 F. App’x 783, 784 (10th Cir. 2008) (denying a

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certificate of appealability). Mr. Orozco filed a prior motion for authorization to

file a successive § 2255 motion, which we denied. In re Orozco, No. 08-6153

(10th Cir. Oct. 3, 2008) (unpublished). 

In August 2009, Orozco filed a 28 U.S.C. § 2241 habeas petition in which

he argued that, based on a recent Supreme Court decision, United States v.

Santos, 553 U.S. 507, 128 S. Ct. 2020 (2008), he is actually innocent of his

money laundering conviction. He also claimed the district court committed error

in sentencing him to the maximum sentence. The district court construed his

§ 2241 motion as an unauthorized second or successive § 2255 motion and

transferred it to this court to enable Mr. Orozco to seek authorization. Rather

than seek authorization, Mr. Orozco filed a motion for remand, arguing the

district court should not have treated his motion as an unauthorized § 2255

motion. That motion is still pending before this court. In re Orozco,

No. 09-6188.

Motion for Authorization. Mr. Orozco now seeks authorization to file a

second or successive § 2255 motion raising the same Santos and sentencing

claims he is also seeking to raise in his § 2241 petition. In Santos, the Supreme

Court held that in a prosecution for money laundering under 18 U.S.C.

§ 1956(a)(1), the government must prove that the “proceeds” involved were the

“profits” of unlawful activity. 128 S. Ct. at 2025. Mr. Orozco seeks to present a

§ 2255 claim that his trial and appellate counsel were constitutionally ineffective

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because they did not raise claims similar to those successfully raised in Santos,

and a claim that he is factually innocent of his money-laundering conviction

under Santos because the government did not show that he received any profits

from the money laundering scheme. He also seeks to raise a claim that his role in

the drug conspiracy did not warrant an upward departure at sentencing, citing Rita

v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2462 (2007) (holding that a court

of appeals may apply a presumption of reasonableness to sentences properly

calculated under the Guidelines).

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. Orozco bases his request for authorization on the new-law

prong of § 2255(h)(2), citing to Santos for his ineffective-assistance and

actually-innocent claims and to Rita for his upward-departure sentencing claim.

Mr. Orozco’s claims do not qualify for authorization because he has not

shown that his claims rely on a qualifying new rule of constitutional law. 

See 28 U.S.C. § 2255(h)(2). Santos decided a question of statutory interpretation,

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see 128 S.Ct. at 2023-25; it did not announce a new rule of constitutional law. 

Mr. Orozco’s upward-departure sentencing claim also does not qualify; he relies

on Rita, 551 U.S. 338, which is not a “new” rule of law; it was decided in June

2007, well before he filed his first § 2255 motion in December 2007.

Accordingly, because Mr. Orozco’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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