Filed: Jul. 11, 2013
Latest Update: Mar. 28, 2017
Summary: included a new proposed § 2254 habeas petition.transfer the successive petition to this court and dismissed it for lack of jurisdiction.Mr. Chand now seeks a COA to appeal from the district courts dismissal.second or successive habeas claim and dismiss it for lack of jurisdiction.
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2013
Elisabeth A. Shumaker
Clerk of Court
NAREND CHAND,
Plaintiff-Appellant,
v. No. 13-2099
(D.C. No. 2:06-CV-00444-RB-RHS)
ERASMO BRAVO, Warden; (D. N.M.)
STATE OF NEW MEXICO,
Defendants-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, O’BRIEN and TYMKOVICH, Circuit Judges.
Narend Chand1, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s decision to dismiss his motion to
reopen and attached proposed 28 U.S.C. § 2254 petition as an unauthorized second or
successive habeas petition. We deny a COA and dismiss this matter.
Mr. Chand was convicted of state charges of second degree murder,
aggravated burglary, interference with communications, and kidnapping. He is
*
This order is not binding precedent except under the doctrines of law of the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.
1
Mr. Chand has also used the name “Narendra Chand.”
serving a sentence of thirty-nine years and 364 days. As detailed by the district court
in its dismissal order, Mr. Chand has initiated seven unsuccessful attacks on his
convictions and sentence, including an initial § 2254 habeas petition that was denied
in 2007.
Last year, Mr. Chand sought a COA from this court to appeal the district
court’s decision to construe his Fed. R. Civ. P. 60(b) motion as an unauthorized
second or successive § 2254 habeas petition and dismiss it for lack of jurisdiction.
See Chand v. Romero, 484 F. App’x 260, 261 (10th Cir. 2012). Mr. Chand had
argued that he was entitled to 60(b) relief because the district court had failed to rule
on his claim that he was actually innocent of the kidnapping charge. Id. at 261. We
agreed with the district court, however, that “Mr. Chand did not properly present an
actual-innocence claim in his first habeas petition or any of his addendums or
supplements. His 60(b) motion therefore was not challenging a defect in the integrity
of the habeas proceeding but was seeking instead to raise a new claim for habeas
relief.” Id. at 262. We therefore denied his request for a COA. Id.
A few months after we denied his COA request, Mr. Chand sought
authorization to file a second or successive § 2254 habeas petition to bring a claim
that he was actually innocent of the kidnapping charge. This was his third attempt at
seeking authorization. We denied the motion because Mr. Chand had failed to meet
the standard for authorization in 28 U.S.C. § 2244(b)(2), which requires a new rule of
constitutional law or newly discovered evidence showing that, but for constitutional
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error, he would not have been found guilty of the underlying offense. We also
“cautioned Mr. Chand that persisting in filing motions for authorization that do not
satisfy the statutory standards might result in the imposition of filing restrictions.”
In re Chand, No. 12-2197, Order at 4 (10th Cir. Dec. 7, 2012) (unpublished).
In May 2013, Mr. Chand filed a motion in district court, which he styled
“Request for Chief Federal Judge to Review the § 2254 Petition,” R. at 458, and
included a new proposed § 2254 habeas petition. As the district court explained in
ruling on the motion, “Petitioner characterizes his motion as seeking this Court’s
review of a new § 2254 petition. His central new claim is that this Court failed to
rule on his claim of innocence of a kidnapping charge.” Id. at 550. The district court
then referred to our earlier order denying COA in which we concluded that
“Mr. Chand did not properly present an actual-innocence claim in his first habeas
petition or any of his addendums or supplements.” Id. (internal quotation marks
omitted). Given these circumstances, the district court determined that Mr. Chand’s
“motion to reopen and the attached § 2254 petition attempt, once again, to raise the
omitted innocence claim and thus amount to a second or successive petition.” Id.
The district court further determined that it was not in the interest of justice to
transfer the successive petition to this court and dismissed it for lack of jurisdiction.
Id. at 550-51.
Mr. Chand now seeks a COA to appeal from the district court’s dismissal. To
obtain a COA, Mr. Chand must show “that jurists of reason would find it debatable
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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). Mr. Chand’s COA
application attempts to relitigate the same issue we resolved in our COA denial order
from last year. Reasonable jurists could not debate that the district court was correct
to treat Mr. Chand’s motion as an attempt to once again assert an unauthorized
second or successive habeas claim and dismiss it for lack of jurisdiction.
Accordingly, we deny his request for a COA. We also deny his “Motion for Certified
Questions to be Reviewed and Answered by the Chief Judge Ms. Briscoe.”
We caution Mr. Chand that any further attempts to assert a claim that he is
actually innocent of the kidnapping charge or that the district court failed to rule on a
claim that he is actually innocent of the kidnapping charge may result in the
imposition of sanctions, including filing restrictions.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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