Medicine Blanket v. Brill et al

Filing 70

USCA ORDER DENYING 67 PETITION (Motion) for Authroization to File a Second or Succvessive Habeas Corpus Petition. 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 on 1/16/14. (dbrow, )

Appellate Case: 14-1007

Document: 01019187000

Date Filed: 01/16/2014

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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

January 16, 2014
Elisabeth A. Shumaker
Clerk of Court

In re:
CHARLES MEDICINE BLANKET,
Movant.

No. 14-1007
(D.C. No. 1:08-CV-02735-MSK-KLM)
(D. Colo.)

ORDER

Before MATHESON, O’BRIEN, and BACHARACH, Circuit Judges.
Charles Medicine Blanket moves for authorization to file a second or
successive 28 U.S.C. § 2254 habeas application to challenge his convictions for
sexual crimes against a minor in case no. 97CR4188, Arapahoe County District
Court, Colorado. For the following reasons, we deny authorization.
Mr. Medicine Blanket has already unsuccessfully sought relief under § 2254.
See Medicine Blanket v. Brill, 425 F. App’x 751, 753, 755-56 (10th Cir. 2011)
(affirming the dismissal of procedurally defaulted habeas claims with prejudice).
Therefore, before he can file another § 2254 application in the district court, he must
obtain this court’s authorization. See 28 U.S.C. § 2244(b). To obtain authorization
he must make a prima facie showing that his “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 that “the factual predicate for the claim
could not have been discovered previously through the exercise of due diligence” and

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“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 the
underlying offense.” Id. § 2244(b)(2), (3).
Mr. Medicine Blanket presents three claims for authorization: (1) his
post-conviction and trial counsel were ineffective; (2) a United States Marshal
violated his Fourth, Fifth, and Fourteenth Amendment rights by fabricating a
fraudulent complaint and improperly removing him from his reservation; and (3) a
federal magistrate judge violated his Fourth and Fifth Amendment Rights in issuing a
federal warrant. He seeks authorization under both the “new law” provision,
§ 2244(b)(2)(A), and the “new facts” provision, § 2244(b)(2)(B).
Previously Presented Claim
In his motion for authorization Mr. Medicine Blanket indicates that he
previously asserted his second claim in federal court. Under § 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.” Accordingly, any claims
that Mr. Medicine Blanket already asserted in a habeas application cannot proceed.
New Law
For his new law, Mr. Medicine Blanket cites four recent Supreme Court
decisions: United States v. Davila, 133 S. Ct. 2139 (2013); McQuiggin v. Perkins,

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133 S. Ct. 1924 (2013); Trevino v. Thaler, 133 S. Ct. 1911 (2013); and Martinez v.
Ryan, 132 S. Ct. 1309 (2012). None of these decisions satisfy § 2244(b)(2)(A).
Davila held that a district court’s violation of Fed. R. Crim. P. 11(c)(1), which
precludes the court from participating in plea discussions, is subject to analysis for
harmless error (or plain error if a defendant does not object). 133 S. Ct. at 2143,
2149-50. Davila concerns the interpretation and application of federal rules of
procedure; it does not announce a new rule of constitutional law. Moreover, Davila
does not undermine Mr. Medicine Blanket’s conviction because he did not plead
guilty, but instead was convicted after trial. (To the extent that Mr. Medicine Blanket
relies on Davila to urge plain-error review, the plain-error rule is not new, but was
well-established long before Mr. Medicine Blanket was convicted. See, e.g.,
United States v. Young, 470 U.S. 1, 15 & n.12 (1985).)
McQuiggin held that a claim of actual innocence can overcome the expiration
of the statute of limitations for an untimely first habeas application. 133 S. Ct. at
1928. Notably, in McQuiggin the Supreme Court recognized that Congress, through
§ 2244(b), intended to “modify” and “constrain[]” the role of “actual innocence” with
respect to second or successive § 2254 habeas applications. 133 S. Ct. at 1933-34
(emphasis omitted). Nothing in McQuiggin allows Mr. Medicine Blanket to proceed
under § 2244(b)(2)(A).

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Finally, neither Trevino nor Martinez announces a new rule of constitutional
law. Martinez held:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.
132 S. Ct. at 1320. Trevino extended Martinez to cases in which the “state
procedural framework, by reason of its design and operation, makes it highly unlikely
in a typical case that a defendant will have a meaningful opportunity to raise a claim
of ineffective assistance of trial counsel on direct appeal.” 133 S. Ct. at 1921.
Instead of ruling on constitutional grounds, however, the Martinez Court
described its decision as an “equitable ruling.” 132 S. Ct. at 1319; see also id. at
1313 (describing the decision as being on narrower grounds than the constitutional
issue urged by petitioner); id. at 1315 (explicitly declining to resolve the question
before the Court as a constitutional matter). Therefore, Martinez fails to satisfy
§ 2244(b)(2)(A). See Adams v. Thaler, 679 F.3d 312, 322 n.6 (5th Cir. 2012);
cf. Págan-San Miguel v. United States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam)
(holding that Martinez fails to satisfy similar authorization provision in 28 U.S.C.
§ 2255(h)(2)); Buenrostro v. United States, 697 F.3d 1137, 1139-40 (9th Cir. 2012)
(same). And Trevino merely extends Martinez, see 133 S. Ct. at 1921, so it too fails
to satisfy § 2244(b)(2)(A), cf. Págan-San Miguel, 736 F.3d at 45.

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New Facts
Mr. Medicine Blanket also asserts that he has new evidence that would warrant
habeas relief. He does not clearly identify his new evidence, but it appears that he
may be referring to documents concerning the issuance of the federal warrant and
documents from Arapahoe County files. It also appears that some of his new
evidence may relate to claims he made in his pro se Colorado post-conviction filing,
claims his post-conviction counsel abandoned. However, nothing in the description
of these materials indicates that the facts “could not have been discovered previously
through the exercise of due diligence” or that they, “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
[Mr. Medicine Blanket] guilty of” his offenses of conviction, i.e., sexual crimes
against a minor. 28 U.S.C. § 2244(b)(2)(B).
The motion for authorization is denied. 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.” Id. § 2244(b)(3)(E).
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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