In re Gleason

• Docket Number: 23-3037
• Decision Date: 23 March 2023
• Parties: In re: NOAH J. GLEASON, Movant.
• Court: U.S. Court of Appeals — Tenth Circuit

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In re: NOAH J. GLEASON, Movant.

No. 23-3037

United States Court of Appeals, Tenth Circuit

March 23, 2023

(D.C. No. 5:23-CV-03007-JWL) (D. Kan.)

Before TYMKOVICH, EBEL, and McHUGH, Circuit Judges.

ORDER

Noah J Gleason, a Kansas prisoner proceeding pro se, moves for authorization to file a second or successive 28 U.S.C. § 2254 application. We deny the motion for the reasons explained below.

In 2002, a Kansas jury convicted Gleason of felony murder. The state court then sentenced him to life, but with the possibility of parole after twenty years. He has since filed at least four § 2254 applications attempting to overturn this conviction and sentence. See Gleason v. Zmuda No. 23-3007-JWL-JPO, 2023 WL 156860, at *1 (D. Kan. Jan. 11 2023) (summarizing Gleason's previous applications).

On March 2, 2023, Gleason filed the motion for authorization currently at issue. We may not grant authorization unless he makes a prima facie showing that

(A) . . . 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 the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2); see also id. § 2244(b)(3)(C) (establishing that the movant's burden at this phase is to "make[] a prima facie showing that the [proposed second or successive] application satisfies the [foregoing] requirements").

Gleason's motion relies on the timing of the underlying crime as compared to the timing of charges brought against him. As explained by the Kansas Supreme Court:

Law enforcement found the [victim] dead on his kitchen floor in October 1999. But it was not until two and a half years later, in April 2002, that Gleason and two others were arrested and charged in the case. The State at first charged Gleason with conspiracy to commit aggravated robbery. About a week later, the State amended that complaint to charge Gleason with felony murder and conspiracy to commit burglary, instead of aggravated robbery.... Although the record before us does not clearly establish why, only the count of felony murder was submitted to the jury.

According to Gleason, this timeline showed that his sentence was void and illegal because the district court had never obtained jurisdiction over his criminal case. Though Gleason never raised the issue at trial, [he] asserted that the two-year statute of limitations applicable to a conspiracy-to-commit-aggravated-robbery charge had expired when the State filed the first complaint in April 2002. As a result, Gleason argued, all later proceedings- including the amended charge of felony murder-were void for lack of jurisdiction.

State v. Gleason, 505 P.3d 753, 755 (Kan. 2022). The Kansas Supreme Court rejected this argument, holding jurisdiction had been proper under state law and there was no rule that a criminal complaint which begins with a time-barred charge cannot be amended. Id. at 756.

Gleason now proposes four grounds for § 2254 relief based on this same set of facts:

1. The untimeliness of the original charge (conspiracy to commit aggravated robbery) foreclosed any further charges, so his defense attorney was ineffective for failing to move to dismiss the amended complaint on statute-of-limitations grounds.

2. The only possible underlying felony (i.e., the predicate for felony murder) was the amended charge of conspiracy to commit burglary, but the state dismissed that charge during trial. The trial court nonetheless allowed the jury to consider the elements of conspiracy to commit burglary as part of its deliberations about the felony murder

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