Doyle, vs. Archuleta, et al

Filing 88

USCA ORDER on 9/7/12 denying authorization to file a second or successive 28 U.S.C. §2254 habeas application, (lswsl ) Modified on 9/27/2012 to reflect not by clerk(lswsl, ).

Appellate Case: 12-1357

Document: 01018922676

Date Filed: 09/27/2012

Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
EALS

FOR THE TENTH CIRCUIT

September 27, 2012
Elisabeth A. Shumaker
Clerk of Court

In re:
MICHAEL DOYLE,

No. 12-1357
No 12 1357
No 12 1357
(D.C. No. 1:07-CV-01358-WYD-KMT)
(D. Colo.)

Movant.

ORDER
Before BRISCOE, Chief Judge, LUCERO and MURPHY, Circuit Judges.
Michael Doyle, a state prisoner appearing pro se, moves for authorization to
file a second or successive 28 U.S.C. § 2254 habeas application seeking to challenge
his 2001 Colorado conviction for second degree murder. Mr. Doyle pleaded guilty to
that charge in exchange for the dismissal of arson and first degree murder counts. He
filed his first § 2254 application in 2007, which was dismissed as time barred.
Before a state prisoner may file a second or successive § 2254 application, the
prisoner must first “move in the appropriate court of appeals for an order authorizing
the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
We have previously described Mr. Doyle’s history of seeking post-conviction
relief and set forth 28 U.S.C. § 2244(b)’s authorization criteria that he must satisfy
in order to file a second or successive § 2254 application. See In re Doyle,
No. 11-1222, slip op. at 1-3 (10th Cir. June 2, 2011) (unpublished order denying
authorization). Since the date of that order, Mr. Doyle again sought, and was denied,

Appellate Case: 12-1357

Document: 01018922676

Date Filed: 09/27/2012

Page: 2

authorization, In re Doyle, No. 11-1584, slip op. at 2 (10th Cir. Jan. 6, 2012), and he
filed an unauthorized § 2254 application in the district court that was dismissed for
lack of jurisdiction, Doyle v. Colorado, No. 12-1113, slip op. at 3 (10th Cir. June 7,
2012) (denying a certificate of appealability).
In Mr. Doyle’s most recent motion for authorization, he seeks to present two
claims: that the state court lacked jurisdiction, which cannot be waived by a plea
agreement, and that his state post-conviction counsel was ineffective by failing to
raise an ineffective assistance of counsel claim. Mot. at 9-10. Mr. Doyle raised these
arguments in prior motions for authorization, as he concedes. This court may not
authorize a claim that has been raised in a prior habeas application, see 28 U.S.C.
§ 2244(b)(1) (“A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.”).
Further, these claims are not based on any new evidence, as he concedes, nor are they
based on any “new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,” id. § 2244(b)(2)(A).
Accordingly, we DENY authorization. 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).

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Appellate Case: 12-1357

Document: 01018922676

Date Filed: 09/27/2012

Page: 3

We WARN Mr. Doyle that any further future motion for authorization to file a
second or successive § 2254 application or other effort by him to begin a collateral
attack on his conviction without satisfying the authorization standards of 28 U.S.C.
§ 2244(b) may be subject to sanctions, including monetary sanctions.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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