FAWLEY v. JABLONSKI (2021)

United States Court of Appeals, Tenth Circuit.2021-01-05No. No. 20-2121

Summary · law.co

Holding. The court denied the certificate of appealability and dismissed the matter because the district court properly found it lacked jurisdiction over an unauthorized second or successive petition, as the factual basis for Fawley's claims existed when he filed his earlier petitions.

Benjamin Fawley, an inmate in New Mexico serving a Virginia murder conviction from 2006, filed multiple federal habeas petitions challenging his conviction. After filing several unsuccessful § 2254 petitions and being denied permission to file additional ones, Fawley submitted another petition alleging sentence enhancement violations. The district court dismissed it as an unauthorized second or successive petition, and Fawley appealed seeking a certificate of appealability to continue his challenge.

Fawley argued his amended petition raised new claims that were not ripe when he filed earlier petitions, claiming the factual basis emerged only in 2017. The appellate court rejected this argument, holding that whether a claim is considered successive depends on whether the underlying facts existed at the time of the earlier petition, not when the petitioner discovered those facts. Because the factual foundation for Fawley's claims already existed during his earlier filings, reasonable jurists could not debate the district court's jurisdictional dismissal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a habeas petition raises successive claims based on discovery date versus factual existence
Jurisdiction to hear second or successive § 2254 petitions without authorization
Ripeness standard for habeas claims

Procedural posture

The inmate appealed the district court's dismissal of his habeas petition and denial of a certificate of appealability to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Benjamin W. Fawley, a state prisoner representing himself, seeks a certificate of appealability (COA) to appeal the district courts dismissal of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss this matter.

In 2006, Fawley entered an Alford

plea in a Virginia court to second-degree murder and received a lengthy prison sentence. He has been serving that sentence in the New Mexico Corrections Department since 2009. Since his transfer to New Mexico, he has filed several § 2254 petitions related to his Virginia conviction. See, e.g., Fawley v. Clarke, No. 12CV400, 2013 WL 1856111, *1 (E.D. Va. May 1, 2013) (unpublished); Fawley v. Johnson, No. 09CV452, 2010 WL 2483988, *1 (E.D. Va. June 16, 2010) (unpublished). And he has unsuccessfully sought authorization in this court and in the United States Court of Appeals for the Fourth Circuit to file a second or successive § 2254 petition.

After all this, Fawley brought the § 2254 proceeding underlying this appeal. His amended petition alleged various constitutional violations flowing from his claim that the New Mexico Corrections Department has improperly enhanced his sentence. The district court dismissed the amended petition, concluding that it lacked jurisdiction to consider a second or successive § 2254 petition without authorization from this court. And it denied Fawley a COA.

To obtain a COA from us, Fawley “must show that ‘jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). No one disputes that the district court lacked jurisdiction to address the merits of an unauthorized second or successive § 2254 petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Fawley argues that his amended petition is not second or successive, however, because it raises new claims. His amended petition alleges that the conduct underlying his claims began in 2009 and was “only discovered as [a] claim in 2017.” R. at 44. To be sure, a claim will not be considered second or successive if it was not yet ripe when the petitioner filed an earlier § 2254 petition. See In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013) (per curiam). But in this context, ripeness turns on whether the factual basis for the claim existed, not whether it had been discovered, when an earlier petition was filed. See United States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015) (discussing motions under 28 U.S.C. § 2255). Because the factual basis for the claims in Fawleys amended petition existed when he filed earlier habeas petitions, reasonable jurists could not debate the district courts decision to dismiss the amended petition as an unauthorized second or successive petition.

We deny Fawleys application for a COA and dismiss this matter.

FOOTNOTES

. See North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).