Bolton v. El Reno Federal, 10th Cir. (2007)
Bolton v. El Reno Federal, 10th Cir. (2007)
July 2, 2007
Elisabeth A. Shumaker
Clerk of Court
B EN N IE WR EN BO LTO N ,
Petitioner - A ppellant,
No. 07-5037
v.
(N. D. Oklahoma)
EL R EN O FED ER AL
C ORREC TIO N A L IN STITU TION;
A TTO RN EY G EN ER AL O F THE
STA TE OF O K LA H O MA ,
Respondents - Appellees.
OR DER *
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
served. As w e have stated: A prisoner who has completely served his state
sentence is not entitled to habeas relief under 2254 even if the state sentence
affected the calculation of his federal sentence. Accordingly, the district court
lacked jurisdiction to entertain [the applicants] 2254 petition. Brown v.
Warden, Springfield M ed. Ctr. for Fed. Prisoners, 315 F.3d 1268, 1270 (10th Cir.
2003) (citations omitted).
Even if we were to interpret M r. Boltons application as a motion for relief
under 2255, the district court would have had no jurisdiction to entertain it. A s
the district court noted, M r. Bolton had previously filed a 2255 motion
challenging the federal sentence. Therefore, this motion would be barred as a
second or successive petition. See 2255 8. A second or successive
2255 motion must be certified by an appellate panel before it can be addressed
by a district court. See Gonzalez v. Crosby, 545 U.S. 524, 52931 (2005); United
States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). W e could construe
M r. Boltons pleading in this court as an implied application to file a successive
2255 motion in the district court, see United States v. Gallegos, 142 F.3d 1211,
1212 (10th Cir. 1998); but we can certify a successive motion only if its claims
rely on either (1) 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; or (2) a new rule of constitutional law , made retroactive to
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Harris L Hartz
Circuit Judge
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