Swendra v. Woodford, et al

Filing 30

ORDER from the U.S. Court of Appeals denying Swendra's petition to file a second or successive 2254 petition (Attachments: # 1 Letter)(gmssl, )

Case: 09-1103

Document: 01017939279

Date Filed: U n i t e d States Court 1 Appeals 04/03/2009 Page: of T e n t h Circuit

FILED

A p r i l 3, 2009
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

I n re: A L A N SWENDRA, Movant. N o . 09-1103

ORDER B e f o r e BRISCOE, MURPHY, and McCONNELL, Circuit Judges. A l a n Swendra seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas petition. Because he has not made the requisite showing under 2 8 U.S.C. § 2244(b)(2), we deny his request. I n February 1991, Mr. Swendra was convicted in case number 90-CR-1114, i n Jefferson County, Colorado District Court of first-degree murder, attempted a g g r a v a t e d robbery, and conspiracy to commit aggravated robbery. He filed his f i r s t § 2254 petition in 1995. The district court dismissed his petition for failure t o exhaust state remedies. On appeal, this court affirmed the district court's d i s mi s s a l without prejudice to Mr. Swendra seeking a subsequent writ once he e x h a u s t e d his state court remedies. Mr. Swendra filed his second § 2254 petition i n 1998. The district court dismissed the writ with prejudice and denied M r . Swendra's request for a certificate of appealability. This court denied

Case: 09-1103

Document: 01017939279

Date Filed: 04/03/2009

Page: 2

M r . Swendra's request for a certificate of appealability and dismissed the appeal. Mr. Swendra now seeks leave to file a second or successive § 2254 petition, a r g u i n g that he has newly discovered evidence to support his new claims for relief. M r . Swendra's request for authorization to file a second or successive § 2254 petition may be granted if his new claims rely on a "factual p r e d i c a t e . . . [that] could not have been discovered previously through the e x e r c i s e of due diligence," 28 U.S.C. § 2244(b)(2)(B)(i); and "the facts u n d e r l y i n g the claim, if proven . . . would be sufficient to establish by clear a n d convincing evidence that, but for constitutional error, no reasonable f a c t f i n d e r would have found [him] guilty of the underlying offense[s]," i d . § 2244(b)(2)(B)(ii). Mr. Swendra seeks leave to present two new claims: ( 1 ) fundamental miscarriage of justice and (2) government intentionally caused p r o c e d u r a l default. M r . Swendra asserts that his newly discovered evidence to support these c l a i ms involves missing transcripts and other record evidence from his trial that s h o w he was "intentionally tried and convicted in the complete absence of all j u r i s d i c t i o n by way of an improperly/unlawfully seated court." Mot. for Leave a t 6(f). This alleged evidence, however, deals with procedural issues at trial i n v o l v i n g the disqualification of the trial judge and a motion to change venue. Mr. Swendra's "evidence" does not meet the standard for authorization because it
-2-

Case: 09-1103

Document: 01017939279

Date Filed: 04/03/2009

Page: 3

d o e s not involve facts that "if proven . . . would be sufficient to establish by c l e a r and convincing evidence that, but for constitutional error, no reasonable f a c t f i n d e r would have found [him] guilty of the underlying offense[s]." 28 U.S.C. § 2244(b)(2)(B)(ii). Because Mr. Swendra has failed to satisfy the requisite conditions in 2 8 U.S.C. § 2244(b)(2), authorization to file a second or successive § 2254 p e t i t i o n is DENIED. This denial of authorization is not appealable and shall not b e the subject of a petition for rehearing or for a writ of certiorari. 28 U.S.C. § 2244(b)(3)(E). E n t e r e d for the Court,

E L I S A B E T H A. SHUMAKER, Clerk

-3-