In re: Clark
837 F.3d 1080
10th Cir.2016Background
- Richard Clark sought authorization from the Tenth Circuit to file a second or successive 28 U.S.C. § 2255 motion; the court denied authorization on July 29, 2016.
- The panel’s order included the statutory-language statement that the denial “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari,” quoting 28 U.S.C. § 2244(b)(3)(E).
- Clark filed a petition for panel rehearing and rehearing en banc asking the court to delete that § 2244(b)(3)(E) bar from its order, arguing the provision does not apply to denials of authorization in § 2255 proceedings.
- Clark relied on Castro v. United States to argue that § 2244(b)(3)(E) applies only when the rehearing petition’s subject is the denial of authorization itself, not collateral matters about the applicability of § 2244(b)(3)(E).
- The panel held Clark’s rehearing petition challenging the application of § 2244(b)(3)(E) to his case is not itself precluded by § 2244(b)(3)(E), but ultimately concluded that § 2244(b)(3)(E) does apply to denials of authorization under § 2255 because § 2255(h) explicitly incorporates the certification procedures of § 2244.
- The panel denied the petition for panel rehearing and the petition for rehearing en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2244(b)(3)(E) bars Clark’s petition for rehearing of the denial of authorization | Clark: His rehearing petition does not challenge the denial of authorization itself, so § 2244(b)(3)(E) does not bar it (citing Castro) | Court: § 2244(b)(3)(E) bars petitions whose subject is the denial of authorization; but petition here disputes applicability of that statute | Court: Clark’s rehearing petition (as framed) is not precluded by § 2244(b)(3)(E) because it does not directly challenge the denial of authorization |
| Whether § 2244(b)(3)(E) applies to denials of authorization to file second or successive § 2255 motions | Clark: § 2244 governs habeas corpus; § 2244(b)(3)(E) does not apply to § 2255 denials because § 2244 references § 2255 only in subsection (a) | Court: § 2255(h) expressly incorporates the certification process in § 2244, so its preclusion clause applies to § 2255 authorizations | Court: § 2244(b)(3)(E) is part of the § 2244 certification process incorporated by § 2255(h), so it applies to § 2255 authorization denials |
| Whether the panel overlooked controlling law or facts warranting rehearing | Clark: asserted the court misapplied § 2244(b)(3)(E) to § 2255 authorizations | Court: cited decades of circuit precedent applying § 2244 provisions to § 2255 and the text of § 2255(h) | Court: No point of law or fact shown to be overlooked; rehearing denied |
| Whether rehearing en banc should be granted | Clark: sought en banc review of statutory applicability | Court: no judge in regular active service requested a poll | Court: rehearing en banc denied |
Key Cases Cited
- Castro v. United States, 540 U.S. 375 (2003) (read limitations on Supreme Court jurisdiction narrowly; petitioner’s certiorari was not challenging denial of authorization)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (distinguishing some § 2255 provisions from habeas corpus provisions)
- Leonard v. United States, 383 F.3d 1146 (10th Cir. 2004) (applying § 2244(b)(3)(E) in § 2255 authorization context)
- Browning v. United States, 241 F.3d 1262 (10th Cir. 2001) (noting application of § 2244 provisions to § 2255(h))
- United States v. Villa-Gonzalez, 208 F.3d 1160 (9th Cir. 2000) (treating § 2255 as incorporating § 2244 certification procedures)
- Triestman v. United States, 124 F.3d 361 (2d Cir. 1997) (discussing incorporation of § 2244 mechanisms in § 2255)