Davis v. Archuleta et al

Filing 11

USCA ORDER denying authorization to file a second or successive §2254 re: 10 Letter filed by Torriano Adarryll Davis (bjrsl, )

FILED
Appellate Case: 12-1037

Document: 01018802597

United States Court of Appeals
Date Filed: 03/01/2012 Page: 1
Tenth Circuit

March 1, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

In re:
TORRIANO ADARRYLL DAVIS,
Movant.

No. 12-1037
(D.C. No. 1:06-CV-01746-ZLW)
(D. Colo.)

ORDER

Before MURPHY, HARTZ, and MATHESON, Circuit Judges.

Torriano Adarryll Davis, proceeding pro se, moves for authorization to file
a second or successive 28 U.S.C. § 2254 habeas corpus petition. Because he
seeks to assert claims that he has already asserted, we deny authorization.
In 1997, Mr. Davis was convicted in the Arapahoe County District Court,
Colorado, Case No. 96-CR-1450, of various crimes for which he is serving a
124-year sentence. He filed his first § 2254 petition in federal court in 2006 in
which he asserted that his enhanced sentence was illegal. The court dismissed the
petition as time-barred under 28 U.S.C. § 2244(d)(1)(A), (D). Mr. Davis did not
appeal.
Mr. Davis has now filed a motion seeking authorization to file a second or
successive § 2254 habeas petition that challenges the legality of his enhanced

Appellate Case: 12-1037

Document: 01018802597

Date Filed: 03/01/2012

Page: 2

sentence. Under § 2244(b)(1), a claim presented in a previous § 2254 petition
must be dismissed. “The dismissal of [Mr. Davis’s] first habeas petition as
time-barred was a decision on the merits, and any later habeas petition
challenging the same conviction is second or successive.” In re Rains, 659 F.3d
1274, 1275 (10th Cir. 2011). Mr. Davis cannot proceed with a claim that he
already presented. See id.
We therefore DENY authorization. The 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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