FILED

United States Court of Appeals

Tenth Circuit

February 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JOHN H. MAHORNEY,

Movant.

No. 10-7009

ORDER

Before LUCERO, MURPHY, and O’BRIEN, Circuit Judges.

John H. Mahorney was convicted of first-degree murder in a case in which

the victim was shot with a .410 shotgun. One witness testified that she saw

Mr. Mahorney shoot the victim. The jury believed the witness instead of

Mr. Mahorney’s testimony that he was not present at the murder and rendered a

guilty verdict. Because he previously, and unsuccessfully, pursued habeas corpus

relief under 28 U.S.C. § 2254, Mr. Mahorney now has filed a motion for

authorization to file a second or successive § 2254 application. He raises two

arguments: (1) his counsel was ineffective for refusing to investigate his

allegations that the witness really was the murderer; and (2) the state intentionally

suppressed material evidence favorable to the defense. We deny authorization. 

A petitioner seeking to bring a second or successive § 2254 application may

proceed only with a claim not presented in a prior application that (A) “relies on a

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new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable,” or (B) relies on facts that

“could not have been discovered previously through the exercise of due

diligence” and 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 the applicant

guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2). Mr. Mahorney

proceeds under the “new facts” test of § 2244(b)(2)(B). 

With regard to his first claim, Mr. Mahorney contends he informed his

attorney of facts incriminating the primary witness “[w]ell in advance of trial,”

Mot. at 6, 16, 17, and counsel unreasonably refused to investigate his claim that

the witness was the murderer. By Mr. Mahorney’s own assertions, though, the

bulk of these allegations concern facts known to him at the time of trial and his

first habeas application, and so they do not satisfy § 2244(b)(2)(B). The only new

facts involved with this claim are Mr. Mahorney’s allegations that recently he

learned, from the witness’ brother, that the witness possessed a .410 shotgun that

went missing after the murder. He argues that, had counsel investigated, counsel

would have learned of the existence and disappearance of the shotgun, and in the

face of such evidence, the jury would have acquitted him. These new facts,

however, are simply cumulative of the other, previously known, facts that form

the basis of this claim of ineffective assistance. Further, in light of the evidence

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as a whole, as revealed on the record before us, the new facts do not satisfy

§ 2244(b)(2)(B)’s requirement of “clear and convincing evidence” that would

have caused a reasonable factfinder to find him not guilty.

Mr. Mahorney’s second claim concerns whether his clothing and pickup

truck were tested for gunshot residue. He states the sheriff testified that testing

was not done because more than four hours had elapsed since the shooting. But

Mr. Mahorney says he recently discovered that “a four hour elapse in time did not

make any difference in [gunshot residue] testing.” Mot. at 7. He argues the state

suppressed material evidence that was favorable to his defense. Importantly, he

does not allege the state actually performed gunshot-residue tests and suppressed

the results. Rather, he contends the state was lying about why it did not perform

the tests and it should have performed them, because the results would have not

been affected by the time-lapse and would have caused the jury to acquit him. 

These allegations do not meet § 2244(b)(2)(B)’s requirements.

First, Mr. Mahorney has not established constitutional error. He has not

shown that the state is required to perform every possible test on evidence, and

there is no indication the state suppressed any evidence that actually exists or

existed. Second, it appears that it was made clear to the defense, at the time of

trial, that the state was not performing gunshot-residue tests, allegedly because of

the time lapse. Mr. Mahorney claims that he only recently learned that there is no

four-hour period for gunshot-residue testing, but the record reveals no reason he

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could not have learned such information earlier had he exercised due diligence. 

Third, as there is no way to know the results of unperformed tests, it is impossible

to conclude the results would have exonerated Mr. Mahorney. Therefore, there is

no showing of “clear and convincing evidence” that would have caused a

reasonable jury to acquit him. His allegation that the jurors would have acquitted

him had they known that the state could have performed tests that would have

exonerated him and did not perform those tests does not satisfy § 2244(b)(2)(B).

The motion for authorization to file a second or successive § 2254 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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