Doyle, vs. Archuleta, et al

Filing 90

USCA ORDER on 3/14/13 re: 89 Letter filed by Michael Doyle. Deny fourth motion seeking authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus application. (lswsl )

Appellate Case: 13-1088

Document: 01019018840

Date Filed: 03/14/2013

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

FOR THE TENTH CIRCUIT

March 14, 2013
Elisabeth A. Shumaker
Clerk of Court

In re:

No. 13-1088
No
No 13 1088
(D.C. No. 1:07-CV-01358-WYD-KMT)
(D. Colo.)

MICHAEL DOYLE,
Movant.

ORDER
Before BRISCOE, Chief Judge, LUCERO and HARTZ, Circuit Judges.
Michael Doyle, a Colorado state prisoner appearing pro se, has filed his fourth
motion seeking authorization to file a second or successive 28 U.S.C. § 2254 habeas
corpus application. We deny the motion.
In 2001, Mr. Doyle pleaded guilty to second degree murder and was sentenced
in 2002 to eighteen years’ imprisonment. He did not file a direct criminal appeal. In
2007, he filed his first § 2254 petition, which was dismissed as time-barred. We have
on three occasions denied him authorization to file a second or successive § 2254
application. See In re Doyle, No. 12-1357, slip op. at 2 (10th Cir. Sept. 27, 2012);
In re Doyle, No. 11-1584, slip. op. at 2 (10th Cir. Jan. 6, 2012); In re Doyle,
No. 11-1222, slip op. at 1, 3 (10th Cir. June 2, 2011). In our order of September 27,
2012, we
WARN[ED] Mr. Doyle that any further future motion for authorization
to file a second or successive § 2254 application or other effort . . . to
begin a collateral attack on his conviction without satisfying the

Appellate Case: 13-1088

Document: 01019018840

Date Filed: 03/14/2013

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authorization standards of 28 U.S.C. § 2244(b) may be subject to
sanctions, including monetary sanctions.
In re Doyle, No. 12-1357, slip. op. at 3.
In his current motion for authorization, Mr. Doyle seeks to present, as best we
can discern, two claims: (1) he was denied a direct criminal appeal due to ineffective
assistance of counsel, and counsel’s ineffectiveness may establish cause excusing
Mr. Doyle’s procedural default for failing to timely file a direct appeal; and (2) he is
actually innocent of second degree murder. Despite Mr. Doyle’s statements to the
contrary, it appears that his current motion seeks to assert claims that he already has
tried to assert in prior § 2254 applications. See, e.g., Memo. at 10 (conceding
“[ineffective-assistance] claim has been presented several times to the states court’s
[sic] and also in federal court [in his first application for § 2254 relief, in case
number] 07-CV-1358”); In re Doyle, No. 11-1222, slip op. at 1, 3 (discussing 2007
application for § 2254 relief, in which Mr. Doyle alleged he was denied “his right to
a direct appeal” and “he is actually and factually innocent”). He is not entitled to
authorization for those claims. 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.”). To the extent Mr. Doyle’s
claims have not been previously presented, they are not based on any new law or
facts, and thus, do not satisfy the § 2244(b)(2) requirements to file a second or
successive § 2254 application, requirements we have repeatedly stated in denying
earlier motions for authorization.
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Appellate Case: 13-1088

Document: 01019018840

Date Filed: 03/14/2013

Page: 3

We deny the current motion for authorization. This denial “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). Any further applications filed by Mr. Doyle
for leave to file additional collateral attacks on his Colorado conviction for second
degree murder will be deemed denied on the thirtieth day unless this court otherwise
orders. See Berryhill v. Evans, 466 F.3d 934, 936 (10th Cir. 2006) (noting imposition
of same sanction after prisoner’s fourth request for leave to file a second or
successive habeas petition).
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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