F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DARYL L. KINGSOLVER,
Petitioner - A ppellant,
No. 06-1171
v. (D.C. No. 1:00-CV-01102-W YD)
(D. Colorado)
C HA RLES R AY ; and TH E
A TTO RN EY G EN ER AL O F THE
STA TE OF C OLO RA D O ,
Respondents - Appellees.
OR D ER AND JUDGM ENT *
Before K ELLY, H ENRY, and TYM K O VICH , Circuit Judges.
Daryl Kingsolver, proceeding pro se, appeals the district court orders
denying his “motion for leave to amend issues in first [28 U.S.C.] § 2254
pursuant to FRCP 15(c)(2) or FRCP 60(b)(6),” and denying his “motion for an
order to certify a question of law to the Supreme Court of Colorado.” W e vacate
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
the district court orders, construe Petitioner Kingsolver’s appeal and appellate
brief as an implied application for authorization to file another § 2254 petition,
and deny authorization.
In 1988 Petitioner w as convicted in state court of first degree and third
degree sexual assault and sentenced to thirty-two years’ imprisonment. On
appeal, his conviction and sentence were affirmed. See People v. Kingsolver, No.
88-CA-1730 (Colo. Ct. App. Jul. 5, 1990) (unpublished). In 2000 he filed his
first § 2254 petition under the Antiterrorism and Effective Death Penalty Act
(“A ED PA ”), raising seventeen claims. The district court denied the petition. O n
appeal, this court denied a certificate of appealability and dismissed. See
Kingsolver v. Ray, 23 Fed. Appx. 899 (10th Cir. Nov. 16, 2001) cert. denied, 537
U.S. 844 (2002). In 2005, he filed a motion for authorization to file second or
successive § 2254 petition raising six claims. The motion for authorization was
denied. See Kingsolver v. Ray, No. 05-1387 (10th Cir. Oct. 31, 2005)
(unpublished order).
In M arch 2006, approximately five years after the district court denied his
first § 2254 petition, Petitioner Kingsolver filed a “motion for leave to amend
issues in first § 2254 pursuant to FRCP 15(c)(2) or FRCP. 60(b)(6)” and a
“motion for an order to certify a question of law to the Supreme Court of
Colorado,” seeking to raise claims he identified as amendments to previously
raised claims. These amended claims included misjoinder of offenses; witness
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tampering; prior inconsistent statement by victim; trial errors based on admission
of evidence of similar acts; insufficiency of evidence; sentencing errors; and
ineffective assistance of counsel. He also asserted a claim based on Dunton v.
People, 898 P.2d 571 (Colo. 1995), arguing that revisions to the state’s first
degree sexual assault statute required reversal of the trial court’s denial of his
challenge to jury instructions given by the court. In a M arch 23, 2006 Order, the
district court denied the motion for leave to amend. In a M arch 24, 2006 M inute
Order, the court denied the motion to certify. This appeal followed.
A post-judgment motion must be treated as a second or successive petition
and certified by an appellate panel if it asserts or reasserts a substantive claim to
set aside a movant’s criminal conviction. See Gonzalez v. Crosby, 545 U.S. 524,
530-31 (2005) (deciding the extent to which a Fed. R. Civ. P. 60(b) motion filed
in a § 2254 proceeding should be considered a second or successive habeas
petition); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006)
(“[u]nder Gonzalez, a 60(b) motion is a second or successive petition if it in
substance or effect asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction.”).
Petitioner Kingsolver’s motions for leave to amend and to certify
constituted an unauthorized second or successive § 2254 petition under the
AEDPA . A review of the motions confirms that Petitioner sought to raise new
substantive claims or reargue prior substantive claims challenging his 1988
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criminal conviction. Consequently, Petitioner was required to comply with the
relevant provisions of the A EDPA and obtain prior authorization from this court
before filing this unauthorized § 2254 petition in the district court in M arch 2006.
He failed to obtain this authorization. See 28 U.S.C. § 2244(b)(3)(A).
Therefore, the district court lacked subject matter jurisdiction. See United States
v. Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998) (per curiam). In light of this,
we must vacate the orders denying the unauthorized § 2254 petition. See
Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam)
(requiring transfer of unauthorized second or successive petition to appellate
court); see also Spitznas, 464 F.3d at 1227 (“[s]ince the claim was successive . . .
the district court . . . could only dismiss the petition or transfer it to us for
certification.”).
Nonetheless, we will construe Petitioner Kingsolver’s appeal and appellate
brief as an implied application under § 2244(b)(3)(A) for authorization to file a
second or successive § 2254 petition. See Pease v. Klinger, 115 F.3d 763, 764
(10th Cir. 1997) (per curiam).
In his appellate brief, Petitioner reasserts the claims raised in his motions
for leave to amend and to certify. After a thorough review, we conclude that
Petitioner’s claims do not establish the prima facie showing required by the
AEDPA criteria in § 2244(b)(2). These claims are not based on a new rule of
constitutional law made retroactive to cases on collateral review by the United
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States Supreme Court that was previously unavailable, id. § 2244(b)(2)(A), or on
facts previously undiscoverable through the exercise of due diligence that would
establish by clear and convincing evidence that he was not guilty of the offenses,
id. § 2244(b)(2)(B). Several of Petitioner’s claims are similar to those
unsuccessfully asserted in his first § 2254 petition; moreover, the Dunton decision
is a state supreme court decision, not a United States Supreme Court decision.
The district court’s M arch 23, 2006 and M arch 24, 2006 Orders are
V A C A TE D. The implied application for authorization to file a second or
successive § 2254 petition is DENIED. The motion to proceed in form a pauperis
is GR ANTED .
Entered for the Court
PER CURIAM
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