Robert G. Johnson, a state prisoner convicted of felony murder, sought authorization from the Tenth Circuit to file a second or successive petition under 28 U.S.C. § 2254. To proceed, a prisoner must show that the claim relies on a new rule of constitutional law or newly discovered evidence that could not have been discovered earlier through due diligence. Johnson argued that material exculpatory evidence had been withheld from his defense. Specifically, he pointed to a 2023 documentary featuring a confession from former FBI Agent Granville Long. In this confession, Long allegedly admitted that Johnson was located 16 miles from the crime scene at the time of the murders and that this information was withheld from the defense. Johnson claimed he only learned of this evidence during the filming of the documentary. However, the court noted that Johnson had presented this exact same evidence in a motion for authorization filed the previous year in case number 25-6111. In that prior order, the court denied the motion, concluding that Johnson had not met the statutory requirements for newly discovered evidence.
The Tenth Circuit addressed the motion based on the principle that a second or successive petition cannot rely on evidence that was already available or previously litigated. The court observed that Johnson's current motion was based on the same evidence he had presented in his prior motion, which the court had already denied. The court reiterated that under 28 U.S.C. § 2244(b)(2)(B), a prisoner must make a prima facie showing that the new evidence could not have been discovered earlier through due diligence and that the evidence, if proven, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty. Because the evidence Johnson relied upon was identical to that previously rejected, the court found he had failed to make the required showing. The court denied the motion on the same basis as its previous order, emphasizing that the statutory gatekeeping requirements for second or successive petitions were not met.
The denial of authorization means Robert G. Johnson cannot file a second or successive habeas petition in federal court based on the evidence regarding Agent Long's confession. The court explicitly stated that this denial is not appealable and cannot be the subject of a petition for rehearing or a writ of certiorari. This decision reinforces the strict procedural barriers for prisoners attempting to introduce evidence in successive petitions that was available or previously considered in earlier proceedings.
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