Zabriel Leon Evans v. State of Kansas

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ZABRIEL LEON EVANS,
Petitioner - Appellant,
v.
STATE OF KANSAS,
Respondent - Appellee.
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In re: ZABRIEL EVANS,
Movant.
Nos. 22-3161 & 22-3179
(D.C. No. 5:22-CV-03147-SAC)
(D. Kan.)
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ORDER
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Before HOLMES, McHUGH, and ROSSMAN, Circuit Judges.
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Zabriel Evans, proceeding pro se, seeks a certificate of appealability (COA) to
appeal from the district court’s order dismissing his second § 2254 habeas application for
lack of jurisdiction as an unauthorized successive application (No. 22-3161). He also
seeks authorization to file his second § 2254 habeas application (No. 21-3179). We deny
both a COA and authorization.
I. Background
In 2005, Mr. Evans was convicted after a jury trial of one count of rape, two
counts of aggravated burglary, one count of aggravated criminal sodomy, and one count
FILED
United States Court of Appeals
Tenth Circuit
September 29, 2022
Christopher M. Wolpert
Clerk of Court
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of theft. He was sentenced to 620 months’ imprisonment. The Kansas Court of Appeals
affirmed the judgment on direct appeal.
In 2012, Mr. Evans filed his first § 2254 habeas application. The district court
denied the habeas application, and we denied a COA.
Earlier this year, Mr. Evans filed a second § 2254 habeas application. Because it
was an unauthorized second or successive § 2254 habeas application, the district court
dismissed it for lack of jurisdiction. Mr. Evans now seeks a COA to appeal from the
district court’s dismissal order. He also seeks authorization to file a second or successive
§ 2254 habeas application.
II. COA (No. 22-3161)
To obtain a COA where, as here, a district court has dismissed a filing on
procedural grounds, the movant must show both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need not
address the constitutional question if we conclude that reasonable jurists would not
debate the district court’s resolution of the procedural one. Id. at 485.
A prisoner may not file a second or successive § 2254 habeas application unless he
first obtains an order from the circuit court authorizing the district court to consider the
motion. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks
jurisdiction to address the merits of a second or successive § 2254 habeas application.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
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In his COA application, Mr. Evans does not explain how the district court erred in
its procedural ruling dismissing his second § 2254 habeas application for lack of
jurisdiction as an unauthorized second or successive § 2254 habeas application. Instead,
he argues the merits of his underlying second habeas application. Because Mr. Evans has
not shown that jurists of reason would debate whether the district court’s procedural
ruling was correct, we deny a COA.
III. Authorization (No. 22-3179)
Mr. Evans also seeks authorization to file a second or successive § 2254 habeas
application to bring the claims in his second habeas application. To receive
authorization, he must make a prima facie showing that he can meet the requirements in
§ 2244(b)(2). See § 2244(b)(3)(C). To do so, he must show:
(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).
Mr. Evans filed his motion for authorization on this court’s form and he checked
boxes stating that his claims were based on newly discovered evidence and a new rule of
law. See Mot. for Auth. at 9-10. For the description of his claims, the factual support,
and the explanation of how his claims meet the requirements in § 2244(b)(2), he directs
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the court to the COA application he filed in his appeal from the dismissal of his second
habeas application, which he attached to the motion for authorization. See Mot. for Auth.
at 8-10.
The COA application recites the authorization standard from § 2244(b)(2), see
Mot. for Auth, Attach. at 3-4, but Mr. Evans does not go on to explain how his new
claims meet that standard. He has therefore failed to make a prima facie showing that he
can satisfy the authorization requirements in § 2244(b)(2).
IV. Conclusion
In No. 22-3161, we deny a COA and dismiss the matter. In No. 22-3179, we deny
authorization. The 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).
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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