                                                                  FILED
                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS       Tenth Circuit

                                FOR THE TENTH CIRCUIT                        May 9, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                               No. 13-5125
v.                                                 (D.C. Nos. 4:12-CV-00449-JHP-TLW
                                                      and 4:10-CR-00022-JHP-1)
ELMER MARAVILLA,                                               (N.D. Okla.)

               Defendant - Appellant.


                                           ORDER*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


     Elmer Maravilla, proceeding pro se, requests authorization to file a successive motion

under 28 U.S.C. § 2255(h)(1) based upon recently learning that his copy of the

indictment contained a final page showing two “irregularities”: (1) an electronic signature

for the grand jury foreperson, “/s/Grand Jury Foreperson”; and (2) a lack of any notation




     *
      After examining the brief and appellate record, this panel has determined
unanimously that oral argument wouldn’t be of material assistance in the determination
of this case. See Fed. R. App. P. 34(a) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order isn’t 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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
showing that 12 grand jurors voted to indict.1 We deny his request for a successive § 2255

motion because neither of his asserted grounds satisfies the standard for newly discovered

evidence set forth in § 2255(h)(1).2


                                       BACKGROUND

   In May 2010, Maravilla pleaded guilty to one count of his seven-count indictment,

conspiracy to possess with intent to distribute and to distribute 50 grams or more of a

mixture or substance containing a detectable amount of methamphetamine. United States

v. Maravilla, 458 F. App’x 764, 765 (10th Cir. 2012). In exchange, the government

dismissed the remaining six counts, including one for possessing a firearm in furtherance

of a drug-trafficking crime under 18 U.S.C. § 924(c). Maravilla, 458 F. App’x at 765.

Maravilla is now serving a 145-month sentence. Id.

   In March 2011, Maravilla filed an appeal, challenging certain guideline enhancements

and criminal history points. Id. at 765–66. In February 2012, this Court affirmed his

conviction and sentence. See id. at 767.

   In August 2012, Maravilla filed a motion under § 2255. First, he complained that his

counsel had failed by allowing a two-level firearm enhancement under United States

Sentencing Guidelines § 2D1.1(b)(1) after dismissal of the § 924(c) charge. United States
   1
     The indictment’s last page also contained the seventh charge against Maravilla,
but he doesn’t premise any error on his supposedly lacking that information.
   2
    It is not necessary to rule on Maravilla’s in forma pauperis motion as the Tenth
Circuit doesn’t collect appellate filing fees for successive § 2255 motion
authorization requests.


                                           -2-
v. Maravilla, No. 10-CR-0022-JHP, 2013 WL 3791504, at *4 (N.D. Okla. July 19, 2013).

Second, he complained that his “guilty plea was unlawfully induced” because he’d

pleaded guilty thinking that the firearm was off-limits for sentencing after dismissal of

the § 924(c) charge. Maravilla, 2013 WL 3791504, at *4. The district court denied the

motion, finding that (1) the magistrate judge had informed Maravilla of the consequences

of the plea agreement at his change-of-plea hearing; and (2) Maravilla was procedurally

barred from objecting to the firearm enhancement because he’d failed to appeal that

issue. Id. at *2, *6–*7.

   In September 2013, Maravilla filed a notice of appeal from the denial of this § 2255

motion. This appeal is now before us. Unsurprisingly, his brief’s title suggested that he

was applying for a certificate of appealability, but, oddly, it “alternatively” claimed to be

a motion under 28 U.S.C. § 2244(b)(3) to file a successive § 2255 motion. Appellant’s Br.

1. In the body of the brief, Maravilla clarified his desired relief, asking that we

“recharacterize his Application For A Certificate of Appealability and construe it as a

Petition For Permission to File a Second or Successive §§ [sic] 2255 Motion.” Id. at 8.

For two reasons, we will accede to Maravilla’s wishes and treat the instant filing as a

request to file a successive § 2255 motion: (1) he acknowledges that he is unlikely to

qualify for a certificate of appealability based on the grounds raised in his first § 2255

motion; and (2) he alleges no error related to the denial of his first § 2255 motion.3 See


   3
     Because we construe Maravilla’s filing as a request for authorization to file a
successive § 2255 motion and not an appeal of his first § 2255 motion, we don’t need
                                                                         (continued)
                                       -3-
United States v. DeMeulenaere, 386 F. App’x 780, 783 (10th Cir. 2010) (“To the extent

that [movant] presents claims that were not presented in his original § 2255 motion, we

may liberally construe his pleadings to treat them as an implied application to this court

for leave to file a second § 2255 motion.” (internal quotation marks omitted)).

   As part of his recharacterizing his legal course as a second or successive motion under

§ 2255(h)(1), Maravilla abandoned his earlier issues but pursued a new one. For the first

time, he now asserts that “newly discovered evidence”—his alleged recent discovery of

the indictment’s final page—shows two “irregularities” that render his conviction invalid.

As “irregularities,” he cites to the indictment’s last page having what he considers an

improperly redacted or forged electronic signature for the grand jury foreperson; and its

having nothing establishing that at least 12 jurors approved it as required by Federal Rule

of Criminal Procedure 6(f). He argues two grounds of relief based on these alleged flaws:

that his counsel was ineffective for not moving for dismissal based on the irregularities;

and that the district court erred by proceeding without jurisdiction because the indictment

itself didn’t establish that 12 grand jurors had voted in favor of the indictment.


                                        DISCUSSION

   A circuit court of appeals may authorize a successive motion under § 2255(h). 28

U.S.C. § 2244(b)(3)(A), (C). By its language, § 2255(h)(1) requires that before the court



to consider the untimeliness of Maravilla’s notice of appeal—i.e., his noncompliance
with the prisoner mailbox rule. See Fed. R. App. P. 4(c)(1).


                                            -4-
can award relief this panel must certify that Maravilla’s motion contains “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.” Maravilla’s motion doesn’t meet this

standard.

   We find it unlikely that his recent discovery of his indictment’s last page even

constitutes “newly discovered evidence.” He admitted at his plea hearing that he had

received a copy of the indictment, that he had read it, and that he didn’t want it read to

him again in open court. See Brian R. Means, Federal Habeas Manual § 11:27 (2013)

(“Evidence that was previously known to petitioner is not ‘newly discovered.’”). If the

last page of his indictment had actually been missing, we’d expect that he would have

noticed that his copy only contained six counts instead of seven and that it lacked any

indicia of the requisite signatures. He could have requested another copy from counsel

during the district court proceedings or on direct appeal, or he might have expressed

confusion when the district court questioned him at his plea hearing. Nothing suggests

that he did either. Regardless, even if the alleged discovery did amount to new evidence,

Maravilla’s claims would fail.

   Maravilla’s claims aren’t probative of his innocence because neither amounts to a

fatal flaw in his indictment that would have divested the district court of jurisdiction.

First, despite Maravilla’s saying otherwise, the indictment isn’t invalid because his copy

has an electronic signature for the grand jury foreperson. See Hobby v. United States, 468


                                          -5-
U.S. 339, 345 (1984) (“Even the foreman’s duty to sign the indictment is a formality, for

the absence of the foreman’s signature is a mere technical irregularity that is not

necessarily fatal to the indictment.”). Federal Rule of Criminal Procedure 6(c) requires

the foreperson to “sign all indictments.” But it says nothing about how that signature

must be presented. Under the local rules for the Northern District of Oklahoma, the

foreperson’s actual signature must be redacted from the public docket. N.D. Okla. Local

Civil Rule 47.1(g)(3)(B). The clerk of court retains a sealed hard copy of the original

indictment with the written signature. Id. This appears to be exactly what happened here.

   Second, Maravilla offers no authority to support his claim that the indictment itself

must establish that 12 or more grand jurors voted in favor of the indictment. In fact, his

claims run counter to the relevant authority. “[Rule 6(c)] affirms that the well-established

rule of grand jury secrecy includes the voting record of the grand jurors. It seems

apparent that in adopting Rule 6(c) Congress made the policy decision that the record

revealing the number of grand jurors concurring to indict should remain secret absent a

particularized, discrete showing of need.” United States v. Deffenbaugh Indus., Inc., 957

F.2d 749, 755–56 (10th Cir. 1992) (citations omitted). Maravilla made no showing of a

need for disclosure, so the voting record correctly stayed closed. See Douglas Oil Co. of

Cal. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand

jury proceedings have been closed to the public, and records of such proceedings have

been kept from the public eye.”).




                                           -6-
   Furthermore, the indictment’s not including a voting tally of the grand jurors doesn’t

render it invalid. “There is a presumption of regularity that attaches to grand jury

proceedings.” United States v. Kilpatrick, 821 F.2d 1456, 1473 (10th Cir. 1987). Federal

Rule of Criminal Procedure 6(f) allows a grand jury to “indict only if at least 12 jurors

concur,” but the rule doesn’t require that this be shown on the indictment itself. The

grand jury foreperson’s signature is de facto evidence that 12 jurors concurred in the

result, because otherwise the foreperson would have to submit a “lack of concurrence” to

the magistrate judge—which didn’t happen here. Fed. R. Crim. P. 6(f). Because Maravilla

presents no evidence to refute the presumption of regularity, his argument must fail.

   Moreover, Maravilla’s indictment claims, even if proven, wouldn’t bear on his actual

factual innocence—they would go to his legal innocence. See Black’s Law Dictionary 859

(9th ed. 2009) (defining legal innocence to include procedural defects invalidating a

conviction). Although neither the Supreme Court nor the Tenth Circuit has directly passed

on the issue, our sister circuits interpret § 2255(h)(1) to require new evidence of actual

factual innocence. See, e.g., Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,

1282 (11th Cir. 2013) (stating that § 2255(h)(1) allows “a claim of actual innocence

based on newly discovered evidence” (emphasis added)); Gilbert v. United States, 640

F.3d 1293, 1318 (4th Cir. 2011) (en banc) (same); cf. Prost v. Anderson, 636 F.3d 578,

583–84 (10th Cir. 2011) (“Congress has specified that only certain claims it has deemed

particularly important—those based on newly discovered evidence suggestive of




                                           -7-
innocence . . . —may be brought in a second or successive motion.” (emphasis added)).

Maravilla fails to present any evidence of actual factual innocence.

   We conclude that his discovery of the indictment’s last page and the “irregularities” he

contrives from it are likely not new evidence and don’t prove the indictment’s invalidity,

which means they are insufficient to enable Maravilla to proceed under § 2255(h)(1).


                                        CONCLUSION

   Finding that Maravilla hasn’t met the required showings to file a successive motion

under § 2255(h)(1), we deny him authorization to do so. This denial of authorization

“shall not be appealable and shall not be subject of a petition for rehearing or for a writ of

certiorari.” 28 U.S.C. § 2244(b)(3)(E).


                                                  Entered for the Court



                                                  Gregory A. Phillips
                                                  Circuit Judge




                                            -8-
