In re: Graham
2013 U.S. App. LEXIS 8282
10th Cir.2013Background
- Graham pleaded guilty to armed bank robbery in 2000 and did not appeal.
- He later unsuccessfully sought relief under 28 U.S.C. § 2255.
- Graham now seeks authorization to file a second or successive § 2255 motion based on Frye and Lafler.
- 42 U.S.C. § 2255(h) requires authorization if a new-rule retroactive claim is established and previously unavailable.
- Courts have held Frye and Lafler do not establish a new rule of constitutional law, and the Ninth, Eighth, Seventh, and Eleventh Circuits agree with this view.
- The district court denied authorization; the denial is not appealable under § 2244(b)(3)(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Frye/Lafler create a new rule | Graham argues Frye/Lafler are new rules. | Graham cannot satisfy §2255(h)(2) as Frye/Lafler are not new rules. | No authorization due to no new rule. |
| Whether Frye/Lafler are retroactive for §2255(h) purposes | Graham asserts retroactivity. | Retroactivity not satisfied; decisions are applications of Strickland. | Not satisfied; authorization denied. |
| Whether the Court of Appeals should grant authorization based on circuit precedent | Graham relies on post-conviction context. | Court should follow circuits holding Frye/Lafler not new rules. | Consistent with circuits; authorization denied. |
Key Cases Cited
- Frye v. United States, 443 F.3d 523? (N/A) (not included; (text discusses Frye))
- Lafler v. Cooper, 131 S. Ct. 1383 (2012) (Sixth Amendment counsel guidance applied to plea context)
- United States v. Moya, 676 F.3d 1211 (10th Cir. 2012) (Frye/Lafler not new rules; post-conviction context)
- Hare v. United States, 688 F.3d 879 (7th Cir. 2012) (Frye applied as Strickland-based; not new rule)
- Perez v. United States, 682 F.3d 930 (11th Cir. 2012) (Frye/Lafler governed by Strickland; not new rule)
- Buenrostro v. United States, 697 F.3d 1137 (9th Cir. 2012) (Frye/Lafler not new rules; Strickland framework)
- In re King, 697 F.3d 1189 (5th Cir. 2012) (Per curiam; Frye/Lafler not new rules)
- Williams v. United States, 705 F.3d 293 (8th Cir. 2013) (Per curiam; Frye/Lafler not new rules)