United States v. Prince ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
July 10, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES of A M ER ICA,
Plaintiff - Appellee,
No. 06-6043
v.
(D.C. No. 05-CV-1518-W )
(W .D. Okla.)
ALFRED JAM ES PRINC E,
Defendant - Appellant.
OR DER AND JUDGM ENT *
Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.
The district court denied D efendant-Appellant Alfred James Prince’s
second or successive 28 U.S.C. § 2255 motion challenging his 1990 bank robbery
and firearm convictions. 1 Prince appeals from that decision. Under the
*
After examining appellant’s brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
1
Prince was convicted of bank robbery, in violation of 18 U.S.C.
§ 2113(a) and (d), and unlawfully using a firearm during the commission of a
violent crime, in violation of 18 U.S.C. § 924(c). See United States v. Prince,
938 F.2d 1092, 1093 n.3 (10th Cir. 1991).
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), however, a
defendant must obtain this court’s authorization to file a second or successive
§ 2255 motion before filing that motion in the district court. 2 See 28 U.S.C.
§ 2255; see also United States v. Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998)
(per curiam). Because Prince failed to obtain this court’s authorization first, the
district court lacked subject matter jurisdiction to consider his successive § 2255
motion. See Gallegos, 142 F.3d at 1212; United States v. Avila-Avila, 132 F.3d
1347, 1348-49 (10th Cir. 1997) (per curiam). In light of that, we must vacate the
district court’s decision denying Prince’s § 2255 motion. See Gallegos, 142 F.3d
at 1212.
Nevertheless, this court will construe Prince’s notice of appeal and his
appellate brief filed with this court as an application to file a successive § 2255
motion. See id. W e will authorize such a motion only if it is grounded upon
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255.
Prince alleges that the district court that tried him on the federal bank
2
AEDPA applies to this § 2255 motion, even though Prince’s
convictions became final prior to AEDPA ’s enactment. See United States v.
Daniels, 254 F.3d 1180, 1184-85 (10th Cir. 2001) (en banc).
robbery and weapons charges lacked jurisdiction over him because that court took
too long to try him, depriving him of due process and violating the Sixth
Amendment, the Speedy Trial Act, see 18 U.S.C. § 3161, Oklahoma’s U niform
Extradition Act and the Interstate Agreement on Detainers Act, and the Federal
Rules of Criminal Procedure. For the first time in this proceeding, he also asserts
that his attorney was ineffective for failing to make these same arguments on
direct appeal and to file a timely habeas petition. Having thoroughly reviewed
Prince’s filings, we conclude he has failed to make a prima facie showing that
satisfies AEDPA ’s criteria. See Gallegos, 142 F.3d at 1212; Avila-Avila, 132
F.3d at 1349. These are the same arguments Prince unsuccessfully asserted in his
first § 2255 motion. And Prince has alleged neither newly discovered evidence
nor a new rule of law that would apply retroactively to his successive § 2255
motion. See Gallegos, 142 F.3d at 1212; A vila-A vila, 132 F.3d at 1349.
For these reasons, we VACATE the district court’s decision denying
Prince’s second or successive § 2255 motion, and we DENY his implied
application for leave to file a successive § 2255 motion in the district court. All
pending motions are DENIED.
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge