Doyle, vs. Archuleta, et al

Filing 85

USCA ORDER Denying authorization re 84 Letter for permission to file a second or successive 28 USC § 2254 filed by Michael Doyle. USCA case no. 11-1222. (bjrsl, )

FILED
Appellate Case: 11-1222

Document: 01018651631

United States Court of Appeals
Date Filed: 06/02/2011 Page: 1
Tenth Circuit

June 2, 2011
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

In re:
MICHAEL DOYLE,

No. 11-1222
(D.C. No. 1:07-cv-01358-WYD-KMT)
(D. Colo.)

Movant.

ORDER

Before KELLY, HOLMES, and MATHESON, Circuit Judges.

Michael Doyle, a Colorado state prisoner proceeding pro se, moves for
authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus
petition. Because he fails to meet the 28 U.S.C. § 2244(b)(2) authorization
requirements, we deny authorization.
In 2001, Mr. Doyle was charged in Colorado state court with arson and first
degree murder. Pursuant to a plea agreement, he pleaded guilty to an added count
of second degree murder in exchange for dismissal of the arson and first degree
murder counts. In 2007, he filed his first application for § 2254 habeas relief in
federal district court, asserting that his guilty plea was involuntary and unlawfully
induced, that he was denied a mental competency hearing, that he was denied
appellate counsel and his right to a direct appeal, and that he is actually and
factually innocent. The district court dismissed the application as time barred.
This court denied a certificate of appealability.

Appellate Case: 11-1222

Document: 01018651631

Date Filed: 06/02/2011

Page: 2

In 2010, Mr. Doyle filed another federal-court application for § 2254 relief,
asserting that his conviction is void because the trial court lacked jurisdiction, that
he is actually and factually innocent, and that he involuntarily entered into a plea
bargain. The district court dismissed the application for lack of jurisdiction,
finding that it was second or successive and that Mr. Doyle had not obtained
authorization from this court to file it. The district court chose to dismiss rather
than to transfer the application to this court because Mr. Doyle did not assert either
a new rule of constitutional law or newly discovered evidence as is required by
§ 2244(b)(2) and the application would be time barred. See In re Cline, 531 F.3d
1249, 1251-52 (10th Cir. 2008) (per curiam) (discussing what district courts should
consider when deciding whether to transfer or dismiss second or successive § 2254
applications).
Mr. Doyle now seeks this court’s authorization to assert two claims in a
second or successive § 2254 application: (1) the one-year statute of limitations is
inapplicable, because the trial court lost jurisdiction when the court and the
prosecutor amended the charges against him; and (2) ineffective assistance of
counsel may establish cause excusing his procedural default for failing to file a
direct criminal appeal within the forty-five days required by Colorado law.
To obtain authorization to bring a second or successive § 2254 application,
Mr. Doyle must make a prima facie showing that (1) a 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

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Appellate Case: 11-1222

Document: 01018651631

Date Filed: 06/02/2011

Page: 3

the claim could not have been discovered previously through the exercise of due
diligence” and “the facts underlying the claim, 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 [him] guilty of” second degree murder. 28 U.S.C. § 2244(b)(2)(A) and (B).
Mr. Doyle concedes that his claims neither rely on newly discovered evidence nor
new, retroactively-applicable law. Based on this admission, as well as our
independent review, we conclude that Mr. Doyle cannot meet the § 2244(b)(2)
requirements.
To the extent that Mr. Doyle seeks to assert a claim of actual innocence, we
conclude that he cannot meet the requirements of § 2244(b)(2)(B). He sets forth no
facts establishing actual innocence. Nor does he establish by clear and convincing
evidence that a reasonable factfinder would not have found him guilty.
Accordingly, we DENY authorization. This denial 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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