Sherratt v. Utah Board of Pardons & Parole , 483 F. App'x 534 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2012
Elisabeth A. Shumaker
Clerk of Court
WILLIAM HENRY SHERRATT,
Petitioner-Appellant,
v. No. 11-4174
(D.C. No. 2:10-CV-00255-CW)
UTAH BOARD OF PARDONS & (D. Utah)
PAROLE; STEVE TURLEY;
ATTORNEY GENERAL OF THE
STATE OF UTAH,
Respondents-Appellees.
ORDER*
Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.
William Henry Sherratt filed this 28 U.S.C. § 2254 habeas corpus action
seeking relief from his 2000 Utah state conviction of two counts of rape of a child.
On at least two prior occasions, he had filed unsuccessful habeas petitions concerning
the same conviction. See Sherratt v. Friel, No. 2:06-cv-1056-PGC (D. Utah June 15,
2007), appeal dismissed, 263 F. App’x 664 (10th Cir. 2008); Sherratt v. Friel,
*
This order is not binding precedent, except under the doctrines of law of the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.
No. 2:05-cv-885-TC (D. Utah Sept. 25, 2007), appeal dismissed, 275 F. App’x 763
(10th Cir. 2008).
The district court dismissed his petition as an unauthorized second or
successive application. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.”). To the extent the petition raised claims
concerning the execution of Mr. Sherratt’s sentence under 28 U.S.C. § 2241, the
district court dismissed them as well, reasoning they also were second or successive
and, alternatively, that he had not shown a federal constitutional violation.
Mr. Sherratt has appealed. He seeks a certificate of appealability (COA).
See 28 U.S.C. § 2253(c) (requiring a COA to appeal the dismissal of a claim under
§ 2254); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding state
prisoners proceeding under § 2241 must be granted a COA before their claims can be
considered on the merits). To obtain a COA, he must show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
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COA as to § 2254 Claims
A prisoner may not file a second or successive § 2254 petition unless he first
obtains an order from the circuit court authorizing the district court to consider the
petition. 28 U.S.C. § 2244(b)(3)(A). In the absence of such authorization, a district
court lacks jurisdiction to address the merits of a claim asserted in a second or
successive § 2254 petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)
(per curiam).
Mr. Sherratt’s petition is unquestionably second or successive. Because he
failed to first obtain circuit-court authorization to file the petition, the district court
properly dismissed it for lack of jurisdiction. Reasonable jurists could not debate that
the district court was correct in its procedural ruling dismissing the petition for lack
of jurisdiction. We therefore DENY Mr. Sherratt a COA as to his § 2254 claims and
DISMISS the appeal as to those claims.
COA as to § 2241 Claims
Mr. Sherratt did not require authorization under § 2244(b) to proceed with his
§ 2241 claims. See Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010),
cert. dismissed, 131 S. Ct. 973 (2011). We nevertheless DENY him a COA as to
those claims and DISMISS the appeal as to them, because reasonable jurists could
not debate the district court’s alternative conclusion that the allegations failed to state
a valid claim of the denial of a constitutional right.
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Permission to File Second or Successive Habeas Petition
Mr. Sherratt also seeks permission to file a second or successive petition.
28 U.S.C. § 2244(b)(3)(A). Ordinarily we require a separate motion for permission
under § 2244 when an appeal has been filed from the district court’s order of
dismissal of a second or successive petition. In the interest of judicial economy,
however, we will consider his motion in conjunction with this appeal.
To receive such authorization, Mr. Sherratt must show that he advances a
claim:
(A) . . . that . . . relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) 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).
On the cover sheet of his 62-page combined opening brief/application for
COA/motion to file second or successive petition, Mr. Sherratt indicates that he is
relying on subsection (A): a new rule of constitutional law, previously unavailable
and made retroactive by the Supreme Court to cases on collateral review. He cites
Tapia v. United States, 131 S. Ct. 2382 (2011). In Tapia, the Supreme Court held
that the Sentencing Reform Act of 1984 (SRA) precluded a district court from
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lengthening the defendant’s prison term to promote his rehabilitation. Even if Tapia,
which was based upon the SRA, could be considered to announce a new rule of
constitutional law, Mr. Sherratt fails to establish that the Supreme Court has made
this decision retroactive to cases on collateral review. We may therefore not grant
him authorization based on Tapia.
Construing Mr. Sherratt’s application liberally, he may also be arguing that he
meets the test in subsection (B) of § 2244(b)(2). He argues he has “new” evidence
that demonstrates his innocence of the underlying offenses.1 Having carefully
reviewed his evidence, however, we do not agree that the underlying facts he presents
“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)(ii). We therefore deny him authorization under
subsection (B).
1
This evidence consists of a hearsay affidavit from an inmate to whom an
alternative perpetrator allegedly confessed to the assaults for which Mr. Sherratt was
convicted; a letter from the alleged alternative perpetrator stating that he might be
willing to discuss his relationship with the victim; a letter from an official in the
Mormon church informing Mr. Sherratt that the church had no record of the victim
having a conversation with her bishop about the assaults; a set of emails between a
Mormon bishop and a stake president about these same issues, indicating that the
former bishop could not recall meeting with the victim; an affidavit from
Mr. Sherratt’s brother containing further hearsay information about these issues; and
the transcript of a police interview with the victim that Mr. Sherratt claims resulted in
the dismissal of eight of the charges against him.
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Conclusion
Mr. Sherratt’s application for a COA and request to file a second or successive
habeas petition are DENIED. This appeal is hereby DISMISSED. Mr. Sherratt’s
“Motion for Inclusion of Supplemental Notice of Material Facts” is DENIED
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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