FILED

United States Court of Appeals

Tenth Circuit

July 26, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

FRANKLIN DELANO FLOYD,

Movant.

No. 10-6160

ORDER

Before TACHA, MURPHY, and GORSUCH, Circuit Judges.

Franklin Delano Floyd seeks authorization to file a second or successive

28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. Because

Mr. Floyd cannot meet the requisite conditions under § 2255(h), we deny

authorization and dismiss the proceeding.

Following a bench trial, Mr. Floyd was convicted of kidnapping, carrying a

firearm during the commission of a kidnapping, carjacking, carrying a firearm

during the commission of a carjacking, felony possession of a firearm, and

interstate transportation of a stolen vehicle. He was sentenced to 627 months in

prison. We affirmed his convictions and sentence on direct appeal. See United

States v. Floyd, 81 F.3d 1517, 1519 (10th Cir. 1996). In January 2007, Mr. Floyd

filed a § 2255 motion to vacate, set aside or correct his sentence. In February

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2007, the district court dismissed the motion as untimely. Mr. Floyd did not

appeal from that decision.

To be entitled to authorization to file a second or successive § 2255 motion,

Mr. Floyd must show that the claims he now seeks to raise involve:

(1) 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

the movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable.

28 U.S.C. § 2255(h). Mr. Floyd seeks to raise two claims. For his first claim, he

contends that he was denied “lawful counsel” at trial. Mot. at 5. He admits,

however, that this claim does not rely on newly discovered evidence or a new rule

of constitutional law. See id. at 6. He is therefore not entitled to authorization on

his first claim. 

As for his second claim, he contends that he has newly discovered evidence

involving the prosecution’s main witness, James Davis. He alleges that during

discovery in Florida (in a state court murder case), a two-page handwritten

statement was discovered in which Mr. Davis did not mention that Mr. Floyd had

a gun during the kidnapping. But this evidence is not “newly discovered.”

Mr. Floyd was indicted in the Florida case in 1997 and went to trial in 2002. 

Based on these dates, Mr. Floyd would have learned of Mr. Davis’s alleged

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statement sometime between 1997 and 2002. Accordingly, this evidence was

available to Mr. Davis when he filed his first § 2255 motion in 2007 and cannot

provide a basis for granting his authorization to file a second or successive § 2255

motion. 

Because Mr. Floyd has failed to meet the conditions articulated in

§ 2255(h), we DENY authorization to file a second or successive § 2255 motion,

and DISMISS this matter. This order is not subject to further review by way of

rehearing, appeal, or writ of certiorari. See 28 U.S.C. § 2244(b)(3)(E). 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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