Stein v. Zavaras et al

Filing 43

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

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

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