Brenner v. Sloan et al

Filing 8

USCA ORDER as to Patrick Brenner. Mr. Brenner filed a motion for authorization to file a second or successive 28 U.S.C. § 2254 petition, we deny that motion. USCA case no. 09-1183. (bjrsl, )

Case: 09-1183

Document: 01018071708

Date Filed: 05/27/2009 FILED 1 Page: U n i t ed States Court of Appeals T e n t h Circuit

U N I T E D STATES CO U R T O F APPEALS E l i s a b e t h A. Shumaker F O R TH E TENTH CIRCUIT C l e r k of Court

M a y 27, 2009

I n re: P A T R I C K L. BRENNER, M ovant. N o . 09-1183

ORDER

B e f o r e L U C E R O , M U R P H Y , and O'BRIEN, Circuit Judges.

M o v a n t Patrick L. Brenner, a Colorado state prisoner appearing pro se, has f i l e d a motion for authorization to file a second or successive 28 U.S.C. � 2254 p e t i t i o n seeking to challenge his 1991 state convictions for sexual assault on a c h i l d by one in a position of trust. W e deny authorization. I n our last order denying M r . Brenner's motion for authorization to file a s e c o n d or successive � 2254, we recited his history of postconviction collateral c h a l l e n g e s ; thus, we do not repeat that history here. See In re Brenner, N o . 07-1373, at 1-2 (10th Cir. Oct. 11, 2007) (unpublished order). M r . Brenner n o w seeks to present three claims: (1) the district court did not have subject m a t t e r jurisdiction over him, creating an illegal sentence, because after his plea a g r e e m e n t was signed, the district attorney altered the agreement by writing class 4 felony over class 5 felony; (2) the district court failed to follow Supreme Court

Case: 09-1183

Document: 01018071708

Date Filed: 05/27/2009

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r u l i n g s when subject matter jurisdiction was raised; and (3) the district court v i o l a t e d his Fourteenth Amendment rights by refusing to address his previously r a i s e d Fourteenth Amendment claims. I n order to obtain authorization to file a second or successive habeas corpus p e t i t i o n , the moving party must show that: ( A ) . . . the claim relies on a new rule of constitutional law, made r e t r o a c t i v e to cases on collateral review by the Supreme Court, that w a s previously unavailable; or (B)(i) the factual predicate for the claim could not have been d i s c o v e r e d previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of t h e evidence as a whole, would be sufficient to establish by clear and c o n v i n c i n g evidence that, but for constitutional error, no reasonable f a c t f i n d e r would have found the applicant guilty of the underlying offense. 2 8 U.S.C. � 2244(b)(2)(A) and (B). M r . Brenner has not satisfied these standards. He asserts that each claim is b a s e d on new constitutional law. He states that his first claim is based on A r b a u g h v. Y&H Corp., 546 U.S. 500 (2006) (holding that employee-numerosity r e q u i r e m e n t for establishing "employer" status under employment discrimination l a w was an element of the claim, rather than a jurisdictional requirement); his s e c o n d claim is based on Pittsburg County Rural Water District No. 7 v. City of M c A l e s t e r , 358 F.3d 694, 706 (10th Cir. 2004) (holding, inter alia, that a federal c o u r t has an ongoing obligation to ensure that its jurisdiction is proper); and his

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Case: 09-1183

Document: 01018071708

Date Filed: 05/27/2009

Page: 3

t h i r d claim is based on M o o r e v. M i c h i g a n , 355 U.S. 155 (1957) (holding that w a i v e r of counsel must be knowing and intelligent). None of these cases qualifies a s "a new rule of constitutional law, made retroactive to cases on collateral r e v i e w by the Supreme Court, that was previously unavailable." 28 U.S.C. � 2244(b)(2)(A). He also asserts his first and second claims are based on new evidence b e c a u s e he did not obtain a copy of his plea agreement until 2008, and the M c A l e s t e r decision was not published until 2007. M r . Brenner's 1991 plea a g r e e m e n t , available since his conviction, does not constitute evidence that "could n o t have been discovered previously through the exercise of due diligence," id. � 2244(b)(2)(B)(i), and a court decision does not constitute evidence. B e c a u s e M r . Brenner has not met the requisite conditions under � 2244, a u t h o r i z a t i o n to file a second or successive � 2254 petition is DENIED and the m a t t e r is DISM I S S E D . This denial of authorization is not appealable and "shall n o t be the subject of a petition for rehearing or for a writ of certiorari." Id. � 2244(b)(3)(E).

E n t e r e d for the Court

E L I S A B E T H A. SHUM A K E R , Clerk

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Case: 09-1183

Document: 01018071709

Date Filed: 05/27/2009

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 [phone] Elisabeth A. Shumaker Clerk of Court

May 27, 2009

Douglas E. Cressler Chief Deputy Clerk

Mr. Patrick L. Brenner Bent County Correctional Facility 11560 Road FF.75 Las Animas, CO 81054-9573 #66893 RE: 09-1183, In re: Patrick Brenner Dist/Ag docket: 1:07-CV-01822-ZLW

Dear Mr. Brenner: Enclosed please find an order issued today by the court. Please contact this office if you have questions. Sincerely,

Elisabeth A. Shumaker Clerk of the Court

cc:

EAS/jm