D.C. No. 1:21-CV-00207-LTB-GPG (D. Colo.)
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
ORDER
Harley David Sharp, proceeding pro se, seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas application. We deny authorization.
In 2013, Mr. Sharp was convicted in Colorado state court of sexual assault on a child, sexual assault on a child as a pattern of abuse, and sexual assault on a child by one in a position of trust. He was sentenced to an indeterminate term of twenty-four years to life in prison. The Colorado Court of Appeals affirmed the judgment on direct appeal.
In 2021, Mr. Sharp filed his first § 2254 habeas application. The district court dismissed it as time-barred, which constitutes a ruling on the merits, making any later habeas application challenging the same conviction second or successive. See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011).
Mr. Sharp now seeks authorization to file a second § 2254 habeas application to challenge the same convictions that he challenged in his first § 2254 habeas application. He seeks to raise three claims, but he admits that he raised the first two claims in his prior habeas application. See Mot. for Auth. at 9, 10. We may not authorize a second or successive § 2254 habeas application based on a claim presented in a prior application. See 28 U.S.C. §§ 2244(b)(1), (b)(3)(C).
For his third claim, he states that he seeks to merge his first two claims and present them as a claim under Brady v. Maryland, 373 U.S. 83 (1963). To be entitled to authorization, Mr. Sharp must show either that his claim relies on a new rule of constitutional law that has been made retroactively applicable to cases on collateral review or that new facts that were previously unavailable establish no reasonable jury would have found him guilty of the underlying offenses. See 28 U.S.C. § 2244(b)(2). He does not identify any new rule of constitutional law nor does he identify any new facts that were previously unavailable. Because this claim is based on the two claims he raised in his prior application, he knew of the factual predicate for this claim at the time he filed his first habeas application. He therefore cannot meet the standard for authorization in § 2244(b)(2).
For the foregoing reasons, we deny Mr. Sharp's motion for authorization. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).