In re Simon

• Decision Date: 01 November 2022
• Docket Number: 22-1357
• Parties: In re: EDDIE L. SIMON, JR., Movant.
• Court: U.S. Court of Appeals — Tenth Circuit

In re: EDDIE L. SIMON, JR., Movant.

No. 22-1357

United States Court of Appeals, Tenth Circuit

November 1, 2022

D.C. No. 1:19-CV-03532-CMA (D. Colo.)

Before HOLMES, Chief Judge, MATHESON and PHILLIPS, Circuit Judges.

ORDER

Eddie L. Simon, Jr., a Colorado 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. Simon guilty of two counts of sexual assault. He was sentenced to concurrent indeterminate terms of ten and sixteen years to life in prison. The Colorado Court of Appeals affirmed his convictions. He subsequently filed a § 2254 habeas application, which the district court dismissed because Mr. Simon failed to cure certain deficiencies. He then filed another § 2254 habeas application, which the district court denied on the merits. He did not appeal from that denial.

Mr Simon now seeks authorization to file a second or successive § 2254 habeas application to raise two new claims. 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 rules of constitutional law, Mr. Simon cites Rojas v. People, 504 P.3d 296 (Colo. 2022), and People v. Hunsaker, 490 P.3d 688 (Colo.App. 2020), aff'd and remanded, 500 P.3d 1110 (Colo. 2021). In Rojas, the Colorado Supreme Court abolished the res gestae doctrine in criminal cases. Id. at 301. The 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. In Hunsaker, the Colorado Court of Appeals "conclude[d] that the correction of an illegal sentence only resets the time period for filing a Crim. P. 35(c) motion for those claims that relate to how the illegality in the sentence potentially affected a defendant's original convictions." 490 P.3d at 690. Mr. Simon fails to identify what new rules of constitutional law Rojas and Hunsaker announced, and he also fails to show that the Supreme Court has made those state-court decisions retroactive to cases on collateral review. Accordingly, he has not established that his claims rely on a new rule of constitutional law within the meaning of § 2244(b)(2)(A).

He also contends his claims rely on newly discovered evidence referencing procedural errors he discovered in the record and false information in his original arrest affidavit. This information should have been...