Stein v. Zavaras et al

Filing 43

USCA ORDER re: 42 Letter. Denying authorization to file a second or successive habeas corpus application. (dbrow, )

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Appellate Case: 14-1020 Document: 01019188456 Date Filed: 01/17/2014 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 17, 2014 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court In re: MICHAEL D. STEIN, No. 14-1020 (D.C. No. 1:09-CV-02389-WYD) (D. Colo.) Movant. ORDER Before GORSUCH, HOLMES, and BACHARACH, Circuit Judges. Michael D. Stein seeks authorization under 28 U.S.C. § 2244(b) to file a second or successive habeas corpus application challenging his Colorado conviction for attempted sexual exploitation of a child, Colo. Rev. Stat. § 18-6-403. We deny authorization. Mr. Stein specifies one claim he wishes to pursue: “18-6-403, as it existed in 2003-2004, was unconstitutional, being overly broad and abridging the freedom to engage in a substantial amount of lawful speech protected by the First and Fourteenth Amendments of the United States Constitution.” Motion Requesting Permission to File a Second Writ of Habeas Corpus Pursuant to 28 USC 2254, at 2. Two distinct considerations preclude our authorization of this claim. First of all, it appears to be a version of a claim Mr. Stein already pursued in his first habeas application, which challenged the constitutionality of his conviction under Section 18-6-403 on First Amendment grounds. Insofar as it is the same claim, Appellate Case: 14-1020 Document: 01019188456 Date Filed: 01/17/2014 Page: 2 we cannot authorize it. We may authorize a second or successive application only with respect to claims “not presented in a prior application.” 28 U.S.C. § 2244(b)(2). Repetitious claims must simply be dismissed. See id. § 2244(b)(1). Secondly, to the extent it is a new claim, Mr. Stein does not satisfy either of the two grounds for authorization in § 2244(b)(2). He does not show that the claim relies on a previously unavailable rule of constitutional law, see § 2244(b)(2)(A), or a previously undiscoverable factual predicate, see § 2244(b)(2)(B), since he offers no law or facts that were not available at the time of his prior habeas proceeding. See Nguyen v. Gibson, 162 F.3d 600, 601 (10th Cir. 1998) (per curiam) (denying authorization under § 2244(b)(2)(A) and (B) where pertinent law and facts were known when prior habeas application was filed). 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 -2-

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