                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  May 21, 2008
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 FLOYD STRICKLAND,

          Petitioner-Appellant,

 v.

 MICHAEL MURPHY, in his official                        No. 08-8013
 capacity as Warden, Wyoming                     (D.C. No. 07-CV-314-WFD)
 Department of Corrections State                         (D. Wyo.)
 Penitentiary, and
 PATRICK CRANK, in his official
 capacity as (former) Wyoming
 Attorney General,

          Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.


      Floyd Strickland, a state prisoner in Wyoming, sought habeas relief in

federal district court under 28 U.S.C. § 2254. Because Mr. Strickland had

previously filed a Section 2254 petition that was considered and denied on its

merits, the district court dismissed the present petition as an unauthorized second



      *
        This order and judgment is not binding precedent except under the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.
or successive habeas petition. Construing Mr. Strickland’s appellate filings

before us as a request for leave to file a second or successive petition pursuant to

28 U.S.C. § 2244(b)(2)-(3), we deny the request because Mr. Strickland fails to

meet the standards Congress requires for the initiation of such proceedings.

                                       *   *     *

      In 2001, a Wyoming jury convicted Mr. Strickland of first and second

degree arson for setting his home afire with the intention of collecting the

insurance proceeds. The trial court sentenced him to concurrent prison terms of

120-216 months on the first degree count and 60-108 months on the second

degree count. Mr. Strickland appealed, and the Wyoming Supreme Court

substantially affirmed his conviction and sentence. See Strickland v. State, 94

P.3d 1034 (Wyo. 2004). 1

      Mr. Strickland then timely filed a Section 2254 petition in federal district

court, asserting violations of his (1) Fifth Amendment right against double

jeopardy; (2) Fourth Amendment rights against unreasonable searches and

seizures; (3) Fifth and Fourteenth Amendment rights to due process and a fair

trial in relation to alleged prosecutorial misconduct; and (4) Sixth Amendment



      1
         Though otherwise affirming Mr. Strickland’s sentence, the Wyoming
Supreme Court held unlawful a provision of that sentence that restricted Mr.
Strickland from residing in Natrona County following his prison term. See
Strickland, 94 P.3d at 1050-51. The trial court subsequently entered an amended
sentence that did not include this provision.

                                           -2-
right to effective assistance of counsel. 2 The district court considered these

claims on their merits, discerned no constitutional violation, and denied Mr.

Strickland’s petition. Mr. Strickland sought COA from this court, which we

denied while expressing our agreement with the district court’s reasoning. See

Strickland v. Abbott, 175 F. App’x 973 (10th Cir. 2006). Mr. Strickland also

unsuccessfully pursued petitions for post-conviction relief in the Wyoming state

trial court and the Wyoming Supreme Court.

      In late 2007, Mr. Strickland filed another Section 2254 petition in federal

district court, in which he raised all of the same issues already addressed by his

previous Section 2254 petition, as well as a number of new issues, including ones

relating to (1) his First Amendment right of access to the courts; (2) allegations of

conspiracy and RICO violations by the trial court judge and prosecution; and (3)

asserted violations of due process by the trial court and prosecution. The district

court dismissed the petition, explaining that Mr. Strickland failed to seek and

receive authorization from this court to file a second or successive Section 2254

petition and that such a failure precluded the district court from considering any

of the claims in the petition. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or

      2
         Mr. Strickland had previously filed a Section 2254 petition while his
state appeal was still pending, raising issues relating to the denial of a
continuance of his bail bond. The district court summarily dismissed the petition,
finding that such issues are not cognizable in Section 2254 proceedings.
Accordingly, that first attempt at pursuing Section 2254 relief did not work to
preclude Mr. Strickland’s second Section 2254 petition as a successive petition
under 28 U.S.C. § 2244(b).

                                         -3-
successive application . . . 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.”).

                                        *   *     *

      Mr. Strickland now purports to appeal the district court’s disposition.

Viewing this pro se pleading charitably, as we must, we construe his appellate

filing as the application to this court required by Congress for leave to file a

second or successive Section 2254 petition. See Pease v. Klinger, 115 F.3d 763,

764 (10th Cir. 1997). To obtain authorization to file a successive Section 2254

petition, an applicant must make a prima facie showing that

      (A) . . . the claim relies on a new rule of constitutional law, made
      retroactive to cases on collateral review . . . ; 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.

28 U.S.C. § 2244(b)(2).

      Mr. Strickland specifically points us to the last subsection – (b)(2)(B)(ii) –

and contends that his claims, if proven, would establish by clear and convincing

evidence that, but for the constitutional errors allegedly underlying his

conviction, no reasonable jury would have convicted him of arson. Mr.

                                            -4-
Strickland, however, misunderstands what is required of him in order to make

new claims in a second or successive habeas petition. A showing under

subsection (b)(2)(B)(ii) means nothing unless it is accompanied by satisfaction of

subsection (b)(2)(B)(i), which requires Mr. Strickland to demonstrate that the

factual predicates for his new claims could not have been discovered previously

through the exercise of due diligence.

      As it happens, and even construing them as liberally as we might, none of

Mr. Strickland’s claims are based on newly discovered facts, much less facts that

could not have been discovered previously with due diligence. Instead, Mr.

Strickland has simply forged various new legal arguments to deliver the same

essential message that has been the basis of his previous appeals and petitions –

namely, that he is innocent, that he received ineffective assistance of counsel, and

that the trial court in various ways deprived Mr. Strickland of due process. These

claims have been thoroughly vetted in prior proceedings, and Mr. Strickland has

failed to come forward with any new facts or new rules of constitutional law that

would allow us to authorize him to petition for habeas relief once again.

                                      *   *     *

      Because Mr. Strickland has failed to make a prima facie showing that his

Section 2254 petition should not be dismissed pursuant to 28 U.S.C. § 2244(b),




                                          -5-
we deny Mr. Strickland’s request for leave to file a second or successive habeas

petition. 3



                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




       3
         Because of our disposition of the threshold inquiry under Section 2244,
we deny as moot Mr. Strickland’s motion to incorporate in the present
proceedings his previous Section 2254 petition and the appeal from the dismissal
of that petition. The filings from those proceedings, however, are part of the
record on appeal for this petition and have been reviewed as part of our
consideration.

                                        -6-
