(D.C. No. 1:17-CV-02824-LTB) (D. Colo.)
Before TYMKOVICH, MATHESON and BACHARACH, Circuit Judges.
ORDER
Arnold Anthony Cary, a state prisoner proceeding pro se, seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas application. We deny authorization.
A jury found Mr. Cary guilty of sexual assault on a child and aggravated incest. He was sentenced to six years to life in prison. The Colorado Court of Appeals affirmed his convictions but remanded for resentencing. On remand, the trial court resentenced him to the same sentence. He subsequently filed a § 2254 habeas application. After his application was dismissed as deficient, he filed an amended application, which the district court denied. He did not seek to appeal from that denial.
Mr. Cary now seeks authorization to file a second or successive § 2254 habeas application. To be entitled to authorization, he must make a prima facie showing that he can meet the requirements in 28 U.S.C. § 2244(b)(2). See § 2244(b)(3)(C). Those requirements are:
(A) . . . that the claim 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 [him] guilty of the underlying offense.
§ 2244(b)(2).
For his new rule of constitutional law, Mr. Cary cites Rojas v. People, 504 P.3d 296 (Colo. 2022). In Rojas, the Colorado Supreme Court abolished the res gestae doctrine in criminal cases. Id. at 301. That court described the doctrine as "a shortcut for admitting character evidence about criminal defendants," and it explained that the adoption of the Colorado Rules of Evidence more than forty years ago "should have rendered the res gestae doctrine obsolete." Id. at 300. But Mr. Cary fails to identify what new rule of constitutional law Rojas announced, and he also fails to show that the Supreme Court has made that state-court decision retroactive to cases on collateral review, as § 2244(b)(2)(A) requires.
For his newly discovered evidence, he asserts that the prosecuting District Attorney made "intimidating comments to judges and attorneys in her district, wherein she threaten[ed] to delay their trials if they opposed her prosecuting district attorney procedures." Mot. for Auth. at 14. But he fails to show how these facts "would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense[s]," § 2244(b)(2)(B)(ii).
Because Mr. Cary has not made a prima facie showing that he can meet the requirements in § 2244(b)(2), we deny 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." § 2244(b)(3)(E).