Kubacki v. Watkins, et al
Filing
24
USCA ORDER on 12/20/12 re: 23 Letter filed by Lawrence Michael Kubacki. Denied authorization to file a second or successive 28 U.S.C. § 2254 petition. (lswsl )
Appellate Case: 12-1493
Document: 01018972265
Date Filed: 12/20/2012
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
December 20, 2012
Elisabeth A. Shumaker
Clerk of Court
In re:
LAWRENCE MICHAEL KUBACKI,
No. 12-1493
(D.C. No. 1:02-CV-02199-ZLW)
(D. Colo.)
Movant.
ORDER
Before BRISCOE, Chief Judge, KELLY and O’BRIEN, Circuit Judges.
Movant Lawrence Michael Kubacki, a Colorado state prisoner appearing pro
se, has filed this motion seeking authorization to file a second or successive
28 U.S.C. § 2254 petition. We deny the motion.
Congress has placed strict limitations on second or successive § 2254 motions.
Such a motion must be authorized by this court before proceeding in the district
court. See id. § 2244(b)(3)(A). Under § 2244(b)(2), the court may authorize a claim
only if the prisoner makes a prima facie showing that (1) the claim “relies on a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable” or (2) “the factual predicate for the
claim could not have been discovered previously through the exercise of due
diligence” and that such facts, if proven, would establish by clear and convincing
evidence that no reasonable factfinder would have found the prisoner guilty but for
the constitutional error. Mr. Kubacki was convicted in 1990 of first degree murder
Appellate Case: 12-1493
Document: 01018972265
Date Filed: 12/20/2012
Page: 2
and aggravated robbery. His first § 2254 petition was dismissed as time-barred. In
his current motion for authorization, Mr. Kubacki relies primarily on the first, “new
law” prong to support his claims.
Mr. Kubacki’s first proposed claim is that he was deprived of his rights under
the Fourth Amendment to be free from illegal search and seizure after the police
allegedly procured evidence through use of a defective search warrant. Mr. Kubacki
cites United States v. Jones, 132 S. Ct. 945 (2012), as having established a new rule
of constitutional law on which his claim relies. However, the Supreme Court in that
case, or in any other subsequent cases, did not make the law retroactive to cases on
collateral review. See Tyler v. Cain, 533 U.S. 656 (2001). As such, Mr. Kubacki
cannot meet the requirements of § 2244(b)(2).
Mr. Kubacki’s second proposed claim is that his Fifth Amendment right
against double jeopardy was violated after murder charges against him were dropped
in one county and then filed in a different county. But Mr. Kubacki does not contend
that his claim relies on a new rule of law or on newly discovered evidence. He thus
fails to satisfy § 2244(b)(2).
The third proposed claim is that Mr. Kubacki was denied a fair trial under the
Sixth Amendment because of improprieties by the prosecution. Mr. Kubacki asserts
that the claim relies on both new rules of law and newly discovered evidence. The
rules of law in the cases he cites, Maryland v. Shatzer and Florida v. Powell, have
not been held by the Supreme Court to be applied retroactively. 130 S. Ct. 1213
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Appellate Case: 12-1493
Document: 01018972265
Date Filed: 12/20/2012
Page: 3
(2010); 130 S. Ct. 1195 (2010). The “newly discovered evidence,” meanwhile, is a
report suggesting the existence of a video of the coroner’s autopsy of the victim that
shows the victim’s time of death. Mr. Kubacki contends that the report, discovered
sometime after his trial and appeal, demonstrates a different time of death than the
one presented at trial. However, Mr. Kubacki has failed to show that the report or
video constitutes “clear and convincing evidence” that no reasonable factfinder
would have found him guilty of murder and aggravated robbery.
The last proposed claim is that Mr. Kubacki’s Sixth Amendment right to
effective assistance of counsel was violated when his trial counsel allegedly
committed numerous errors throughout the trial. As with the claims above, however,
Mr. Kubacki cannot meet the standards of § 2244(b)(2) because the new rule of law
found in Martinez v. Ryan, 132 S. Ct. 1309 (2012), has not been held to apply
retroactively.
The motion for authorization is denied. This denial of authorization “shall not
be 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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