Parker v. Dinwiddie, 10th Cir. (2007)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
December 7, 2007
Elisabeth A. Shumaker
Clerk of Court
TORRIE PARKER,
Petitioner-Appellant,
v.
No. 07-6180
(D.C. No. CIV-07-383-HE)
(W.D. Okla.)
WALTER DINWIDDIE, Warden,

Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Torrie Parker appeals the district courts denial of his 28 U.S.C.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
2254 petition, in which he challenged his 1990 Oklahoma state convictions

of six counts of robbery with firearms and two counts of attempted robbery.
He alleged that he was denied effective assistance of counsel because his
attorney did not pursue the prosecutions failure to reveal how one of its
witnesses became a suspect and implicated Mr. Parker.
Mr. Parker previously filed a 2254 petition in 1998, in which he
challenged the same convictions. The district court denied relief on the
ground that the petition was filed beyond the one-year period set forth in 28
U.S.C. 2244(d). In spite of Mr. Parkers arguments to the contrary, a
dismissal on statute of limitations grounds is a disposition on the merits.
See Fed. R. Civ. P. 41(b) (Unless the dismissal order states otherwise, any
[involuntary] dismissal ... except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19 operates as an adjudication
on the merits.); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)
(The rules of finality, both statutory and judge made, treat a dismissal on
statute-of-limitations grounds the same way they treat a dismissal for failure
to state a claim, for failure to prove substantive liability, or for failure to
prosecute: as a judgment on the merits.); Murphy v. Klein Tools, Inc., 935
F.2d 1127, 1128-29 (10th Cir. 1991) (holding that a dismissal on
limitations grounds is a judgment on the merits.).
A district court does not have jurisdiction to address the merits of a
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second or successive petition until this court has granted the required
authorization under 28 U.S.C. 2244(b)(3)(A). See 28 U.S.C.
2244(b)(3)(A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to
consider the application.); Pease v. Klinger, 115 F.3d 763, 764 (10th Cir.
1997) (The district court had no jurisdiction to decide [the petitioners]
2254 petition without authority from the court of appeals.). The district
court should have transferred the action to this court. See Coleman v.
United States, 106 F.3d 339, 341 (10th Cir. 1997) ([W]hen a second or
successive petition for habeas corpus relief under 2254 or 2255 motion
is filed in the district court without the required authorization by this court,
the district court should transfer the petition or motion to this court in the
interest of justice pursuant to [28 U.S.C.] 1631.). At the very least, the
court should have dismissed the petition for lack of jurisdiction. See
Spitznas v. Boone, 464 F.3d 1213, 1227 (10th Cir. 2006) (Since the claim
was successive ... the district court ... could only dismiss the petition or
transfer it to us for certification.).
However, we will construe the pleadings filed in this court as a
request under 2244(b)(3)(A) for authorization to file a second 2254
petition. Id. at 1219 n. 8 (Of course, consistent with our prior practice, we
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may, but are not required to, exercise discretion to construe a request for a
certificate of appealability as an application to file a second or successive
petition, or vice versa as warranted in the interests of justice.) (citing to
Pease, 115 F.3d at 764).
In order to obtain such authorization Mr. Parker must make a prima
facie showing that satisfies 2244(b)(2)s criteria for the filing of another
habeas petition. That section requires that:
(2) A claim presented in a second or successive

habeas corpus application under section 2254 that
was not presented in a prior application shall be
dismissed unless-(A) the applicant shows that the 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
(B)(i) the factual predicate for the claim could not
have been discovered previously through the
exercise of due diligence; and
(ii) 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.
Based on our review of the implied application, we hold that Mr.

Parker has failed to make a prima facie showing that the successive petition
-4-
satisfies the above requirements. He invokes no new rule of constitutional

law made retroactive to cases on collateral review by the Supreme Court,
nor does he rely on any newly discovered evidence. His allegations of
ineffective assistance of counsel, which he alleges he could not bring earlier
because he was unable to obtain transcripts, are not based on a factual
predicate which could not have been discovered earlier through the
exercise of due diligence. Nor are his allegations sufficient to establish
by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [Mr. Parker] guilty of the
underlying offense.
The district court order is VACATED, and the implied application for
authorization to file another 2254 petition is DENIED. We also DENY
the motion to proceed in forma pauperis. This matter is DISMISSED.
ENTERED FOR THE COURT
PER CURIAM
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

WALTER DINWIDDIE, Warden,

ORDER AND JUDGMENT *

Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.

2254 petition, in which he challenged his 1990 Oklahoma state convictions

(2) A claim presented in a second or successive

Based on our review of the implied application, we hold that Mr.

satisfies the above requirements. He invokes no new rule of constitutional

ENTERED FOR THE COURT

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