Portley-El v. Brill et al

Filing 33

USCA ORDER on 5/9/12 denying authorization to file a second or successive 2254 habeas application. (lsw, )

Appellate Case: 12-1149

Document: 01018841348

Date Filed: 05/09/2012 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
EALS

FOR THE TENTH CIRCUIT

May 9, 2012
Elisabeth A. Shumaker
Clerk of Court

In re:

No. 12-1149
No 12 1149
No 12 1149
(D.C. Nos. 1:09-CV-01309-ZLW
& 1:09-CV-01310-ZLW)
(D. Colo.)

PATRICK DURAY PORTLEY-EL,
Movant.

ORDER
Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.
Patrick Duray Portley-El, a state prisoner proceeding pro se, seeks
authorization to file a second or successive 28 U.S.C. § 2254 habeas application. We
deny authorization.
Mr. Portley-El seeks to file a § 2254 application challenging two convictions
from Arapahoe County, Colorado. In case number 88-CR-1555, Mr. Portley-El was
found guilty by a jury of second degree kidnapping, first degree sexual assault, first
degree burglary, first degree aggravated motor vehicle theft, and attempted
aggravated robbery. He appealed and the case was remanded for further proceedings
on a jury selection issue. The trial court ultimately vacated the judgment of
conviction and ordered a new trial. Mr. Portley-El subsequently entered a guilty plea
to first degree sexual assault and second degree kidnapping. In 1995, he was
sentenced to two consecutive terms of imprisonment totaling fifty-four years. He did
not appeal.

Appellate Case: 12-1149

Document: 01018841348

Date Filed: 05/09/2012

Page: 2

In case number 89-CR-430, Mr. Portley-El pleaded guilty to aggravated
robbery and mandatory sentencing for a crime of violence. In 1990, he was
sentenced to two consecutive twenty-six year terms of imprisonment to run
concurrently with the sentence imposed in 88-CR-1555 and another conviction. He
did not appeal.
In 2009, Mr. Portley-El simultaneously filed two § 2254 applications. In case
number 09-CV-1310, Mr. Portley-El sought to challenge the two Arapahoe County
convictions at issue in this case, another Arapahoe County conviction, and two other
Colorado convictions from Denver County and Adams County. The district court
dismissed the § 2254 application without prejudice because Mr. Portley-El failed to
file an amended petition that complied with Rule 2(e) of the Rules Governing Section
2254 Cases in the United States District Court.
In case number 09-CV-1309, Mr. Portley-El sought to challenge only the two
convictions at issue here. The district court determined, however, that Mr. Portley-El
had failed to exhaust his state remedies on the claims he wished to present. The court
further determined that the claims that Mr. Portley-El failed to exhaust were
procedurally defaulted and there was no basis to excuse the default. The district
court therefore dismissed the application as procedurally barred. This court
subsequently denied Mr. Portley-El’s request for a certificate of appealability.
Mr. Portley-El now seeks authorization to file a second or successive § 2254
application with eight claims for relief. To be eligible to file a successive
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Appellate Case: 12-1149

Document: 01018841348

Date Filed: 05/09/2012

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application, he must meet the standards for authorization in 28 U.S.C. § 2244(b).
Section 2244(b)(2)(A) permits authorization if a claim relies on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court.” Section 2244(b)(2)(B) permits authorization if “the factual predicate for 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
the applicant guilty of the underlying offense.” A claim that has been presented in a
prior § 2254 application is not eligible for authorization. See 28 U.S.C.
§ 2244(b)(1).
In his motion for authorization, Mr. Portley-El contends that six of his eight
claims rely on newly discovered evidence. In order to support authorization,
however, the new facts must show “a high probability of actual innocence.”
Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). Actual innocence requires a showing
that the petitioner is factually innocent, not legally innocent. See Ellis v. Hargett,
302 F.3d 1182, 1186 n.1 (10th Cir. 2002). Mr. Portley-El does not assert that he has
new evidence showing that he is factually innocent of the sexual assault, kidnapping
or robbery crimes to which he pleaded guilty. Instead, he claims to have new
evidence that: the trial court was going to preclude the admission of his positive
DNA results at his second trial but his counsel failed to inform him of this and
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Document: 01018841348

Date Filed: 05/09/2012

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coerced him into entering a guilty plea (ground one); there were factual
inconsistencies between the actual kidnapping offense committed and statutory
section he was charged with violating (ground two); independent counsel was
secretly appointed and secretly dismissed (ground three); his rights to a speedy trial
were violated (ground five); the trial court lacked jurisdiction to impose a sentence
pursuant to specific statutory subsections (ground six); and his counsel was
ineffective for failing to follow through on a motion for sentence reduction (ground
eight). None of these claims involve new evidence that would establish
Mr. Portley-El’s actual innocence and therefore he is not entitled to authorization on
these claims.
For his remaining two claims, Mr. Portley-El contends that the sentencing
court engaged in “impermissible double counting” when it was considering his
conduct for sentencing purposes (ground four). He asserts that this claim relies on a
new rule of law and cites to this court’s decision in United States v. Terrell, 608 F.3d
679 (10th Cir. 2010). But our decision in Terrell does not meet the standard for
authorization in § 2244(b)(2)(A), which requires a new rule of constitutional law that
the Supreme Court has made retroactively applicable to cases on collateral review.
Finally, Mr. Portley-El contends that the sentencing court was prohibited from
sentencing him to a greater term of imprisonment after remand than it had originally
sentenced him after his first trial (ground seven). He admits, however, that this claim

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Date Filed: 05/09/2012

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was raised in a prior application, it does not rely on a new rule of law and it does not
rely on new evidence. He is therefore not entitled to authorization on this claim.
Because Mr. Portley-El has not met the standards for authorization in
§ 2244(b), we DENY his motion. 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).

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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