FILED

United States Court of Appeals

Tenth Circuit

February 8, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JIMMIE ODELL BRUNER,

Movant.

No. 10-7002

ORDER

Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.

Jimmie Odell Bruner seeks authorization to file a second or successive

28 U.S.C. § 2254 petition. Because he has not made the requisite showing under

28 U.S.C. § 2244(b)(2), we deny his request.

In April 1992, a jury found Mr. Bruner guilty of rape, burglary, and

robbery by force and fear. The Oklahoma Criminal Court of Appeals affirmed his

conviction. In June 1995, he filed a § 2254 petition, which was denied. On

appeal, we denied his request for a certificate of appealability. In 2002, 2003,

and 2004, he filed motions for authorization to file second or successive § 2254

petitions. All of those requests were denied. Mr. Bruner now seeks leave to file

another second or successive § 2254 petition, arguing that he has newly

discovered evidence to support his claim for a new trial. 

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This does not appear to be an accurate characterization of the fingerprint 1

test report, which indicates that “the known fingerprints of [Mr. Bruner] lacked

detail in the extreme tips of the fingers to allow for a complete comparison,” one

print from the crime scene was “searched through the [AFIS] with no

identification,” and the other fingerprint from the crime scene “was not of

sufficient quality for an automated search.” See Criminalistics Examination

Report (attached to Motion for Authorization).

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Mr. Bruner’s request for authorization to file a second or successive § 2254

petition may be granted if his new claim relies on a “factual predicate . . . [that]

could not have been discovered previously through the exercise of due diligence,”

28 U.S.C. § 2244(b)(2)(B)(i); and “the facts underlying the claim, if proven . . .

would be sufficient to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found [him] guilty of the

underlying offense[s],” id. § 2244(b)(2)(B)(ii). 

Mr. Bruner asserts that he has newly discovered evidence to support his

claim for a new trial because of a recently obtained test of the fingerprints taken

from the crime scene. He asserts that “[t]he AFIS [Automated Fingerprint

Identification System] test results positively prove[] that the fingerprints were

identifiable, and that they do not match petitioner.” Mot. for Auth. at 8b. While 1

the AFSI technology for fingerprint testing was not available at trial, the evidence

Mr. Bruner seeks to introduce is not new. At trial, the jury heard testimony that

the fingerprints could not be identified as belonging to Mr. Bruner. The new

AFSI test is therefore consistent with the testimony at trial and does not present

new evidence establishing Mr. Bruner’s innocence. Moreover, Mr. Bruner has not

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asserted that “but for constitutional error” he would not have been found guilty. 

See 28 U.S.C. § 2244(b)(2)(B)(ii); see also In re Schwab, 531 F.3d 1365, 1366-67

(11th Cir. 2008) (per curiam) (noting that motion for authorization did not satisfy

§ 2244(b)(2)(B)(ii) because it failed to assert constitutional error). 

Because Mr. Bruner has failed to satisfy the requisite conditions in

28 U.S.C. § 2244(b)(2), authorization to file a second or successive § 2254

petition 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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