July 18, 2019

Tenth Circuit: Dismissal of First Habeas Petition as Time-Barred was a Decision on the Merits; A Claim Presented in a Previous Habeas Petition Must Be Dismissed

The Tenth Circuit Court of Appeals issued its opinion in In re Rains on Wednesday, September 21, 2011.

The Tenth Circuit denied authorization to file a second or successive habeas corpus petition. Petitioner pleaded guilty in Oklahoma state court to making a telephone bomb threat, robbery with a dangerous weapon, and robbery. He was sentenced to ten, twenty, and twenty years of imprisonment, respectively, with the sentences to run concurrently. He filed his first habeas petition in federal district court in 2007, “asserting that (1) his sentence was excessive because he was eighteen years old at the time of the offenses, he was a first-time offender, and the victims were uninjured; (2) his robbery sentences were illegal; (3) his guilty plea was not entered knowingly and voluntarily because he was not told he would need to serve at least 85% of the sentence for robbery with a dangerous weapon; and (4) his counsel was ineffective for coercing him to plead guilty, failing to inform him that he would serve 85% of the robbery-with-a-dangerous-weapon sentence, and inadequately negotiating the plea. The court dismissed the petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Petitioner did not appeal.

In 2008, he filed another habeas petition, “re-asserting the first, third, and fourth claims. The district court decided this filing was an unauthorized second or successive § 2254 petition. Declining to transfer it to [the Tenth Circuit], the district court instead dismissed for lack of jurisdiction.” Petitioner again did not appeal. Petitioner now seeks authorization to assert all four claims in a second or successive habeas petition. “Under AEDPA, a claim presented in a previous § 2254 petition must be dismissed. . . . The dismissal of [Petitioner]’s first habeas petition as time-barred was a decision on the merits, and any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” The Court therefore denied authorization. The denial of authorization is also not appealable and cannot not be the subject of a petition for rehearing or for a writ of certiorari.

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