The Tenth Circuit published its opinion in In re: Leo D. Graham on Tuesday, April 23, 2013.
In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. He then moved for authorization to file a second § 2255 motion based on Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).
Congress has placed strict limitations on successive § 2255 motions, requiring that a movant obtain this court’s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”
To date, however, every circuit court to consider the question has held that Frye and Lafler do not establish a new rule of constitutional law. Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The Tenth Circuit denied authorization.