FILED
United States Court of Appeals
Tenth Circuit
July 9, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ORLANDO CORTEZ CLARK,
Petitioner - Appellant,
No. 09-1153
v. (D.C. No. 09-CV-00653-ZLW)
(D. Colo.)
KEVIN MILYARD, Sterling
Correctional Facility; JOHN
SUTHERS, Attorney General of the
State of Colorado
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Petitioner-Appellant Orlando Cortez Clark, a state prisoner appearing pro
se, seeks a certificate of appealability (“COA”) allowing him to appeal the denial
of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.
The district court dismissed the action for lack of jurisdiction because it found the
petition to be a second or successive application. We agree, and decline to
authorize consideration of the petition.
Mr. Clark was convicted on two counts of second degree burglary (in
separate trials) and was sentenced to two 24-year sentences, to be served
concurrently. 1 R. Doc. 1 at 2-2(a). On direct appeal, his conviction and
sentence were affirmed and the Colorado Supreme Court denied certiorari. 1 R.
Doc. 1 at 2, 3. Mr. Clark then pursued post-conviction relief in state court, but
was again denied relief. 1 R. Doc. 1 at 3-4(c). Mr. Clark subsequently sought
relief in federal court by bringing two applications for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Both applications were dismissed with prejudice as
barred by the one-year limitation period in 28 U.S.C. § 2244(d). See Clark v.
Soares, No. 03-cv-01352-EWN-PAC (D. Colo. Nov. 29, 2005) (challenging
Arapahoe County District Court case number 95-CR-1261); Clark v. Soares, No.
03-F-01351-PSF-PAC (D. Colo. July 28, 2004) (challenging Arapahoe County
District Court case number 95-CR-1249). Mr. Clark then brought another
application for a writ of habeas corpus, which the district court dismissed for lack
of jurisdiction as a second or successive application. Clark v. Milyard, No. 09-
cv-00653-BNB (D. Colo. Apr. 8, 2009). Mr. Clark now seeks a COA from this
court.
In order for the district court to have jurisdiction over a second or
successive habeas corpus application, this court must grant a COA authorizing the
district court to consider it. 28 U.S.C. § 2244(b)(3)(A); see In re Cline, 531 F.3d
1249, 1251-52 (10th Cir. 2008). To secure such authorization, the petitioner must
demonstrate that the new claim he seeks to raise is based on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
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Court, that was previously unavailable,” 28 U.S.C. § 2244(b)(2)(A), or that “the
factual predicate for the claim could not have been discovered previously through
the exercise of due diligence” and “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,” id.
§ 2244(b)(2)(B).
Mr. Clark does not meet this standard. His claims in the instant action are
not based on either a new rule of constitutional law or newly discovered evidence.
While Mr. Clark argues that the county court judge was not properly authorized to
act as a district court judge in his case, and therefore lacked jurisdiction to enter
judgment and sentence against Mr. Clark, we note that Mr. Clark cites no new
rule of federal constitutional law and has not shown that he could not have
previously discovered the factual predicate for his claim. Further, Mr. Clark’s
attempt to avoid the limitations on second or successive petitions by framing the
issue as a Rule 60(b) issue and a jurisdictional issue fails. First, this is not
properly treated as a Rule 60(b) motion because it is a merits-based attack on his
state convictions. See Berryhill v. Evans, 466 F.3d 934, 937-38 (10th Cir. 2006).
Second, we note that “there are specific and narrow exceptions to the successive
petition rules. These exceptions are set forth in Section 2244(b)(2).” Propes v.
Quarterman, No. 07-40833, 2009 WL 1813192, at *7 (5th Cir. 2009). Alleged
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lack of jurisdiction is not one of them, and we will not create new exceptions.
See id. Accordingly, the district court properly dismissed the case for lack of
jurisdiction. See In re Cline, 531 F.3d at 1252.
We DENY the request for a COA and DENY the request to proceed IFP.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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