FILED

United States Court of Appeals

FOR THE TENTH CIRCUIT May 30, 2017

Petitioner - Appellant,

v. Nos. 16-6232 & 16-6284

Respondent - Appellee.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, HOLMES, and MORITZ, Circuit Judges.

Terry Dale Lomack, an Oklahoma prisoner proceeding pro se,1 requests a

certificate of appealability (COA) so he can appeal the district courts orders dismissing

his successive 28 U.S.C. 2254 habeas application and denying his subsequent Fed. R.

Civ. P. 59(e) motion.2 Lomack also moves for leave to proceed on appeal in forma

pauperis (IFP). We grant Lomacks motion for IFP status. But because Lomack doesnt

* This order isnt binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
We liberally construe pro se pleadings. But we do not make arguments for pro se
litigants or otherwise advocate on their behalf. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
2
Lomack filed two separate notices of appealone designating each district court
orderand we granted Lomacks motion to consolidate the resulting appeals.
make the requisite showing to obtain a COA, we deny his COA request and dismiss this

matter.

Lomack is currently serving a 200-year prison sentence for kidnaping, feloniously

pointing a firearm, and possessing a firearm after a felony conviction. In March 2015,

Lomack filed a pro se motion in this court seeking authorization to file a successive

2254 habeas application. See 28 U.S.C. 2244(b)(3)(A) (requiring applicant seeking to

file successive habeas application to move in the appropriate court of appeals for an

order authorizing the district court to consider the application). Lomack attached a pro

se proposed 2254 application to the motion for authorization.

In the proposed application, Lomack asserted that the state violated his Fourteenth

Amendment right to due process by (1) obtaining his convictions without sufficient

evidence, (2) withholding exculpatory evidence, and (3) soliciting and knowingly

presenting perjured testimony at trial. Lomack predicated these claims on newly

discovered evidence that the victim and key prosecution witness, Darrell Shaver, recanted

his trial testimony through statements he made in a 2012 affidavit and through testimony

he provided during a 2013 evidentiary hearing on Lomacks application for state post-

conviction relief.

A panel of this court, with one judge dissenting, determined that Lomack made a

prima facie showing that he met 2244(b)s requirements and authorized Lomack to file

his proposed application. Order, dated April 3, 2015; see 2244(b)(3)(C) (The court of

appeals may authorize the filing of a second or successive application only if it

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determines that the application makes a prima facie showing that the application

satisfies 2244(b)s requirements).

After docketing this courts authorization order, the district court sua sponte

appointed counsel for Lomack and referred the case to a magistrate judge. Lomacks

appointed counsel filed an amended 2254 application, refining Lomacks due process

claims into one claim focusing on the states alleged withholding of exculpatory

evidence, namely (1) a handwritten statement that Shaver provided to Officer Mike

Atchley on the date of the kidnaping, wherein Shaver identified his attacker only as a

Black male, Doc. 35, Att. 6; and (2) evidence that Shaver negotiated a deal with the

prosecutor in exchange for providing allegedly false preliminary hearing and trial

testimony positively identifying Lomack as his attacker.

The Respondent moved to dismiss the 2254 application, arguing that Lomack

failed to satisfy 2244(b)s requirements. In a thorough report and recommendation, the

magistrate judge agreed and recommended dismissing Lomacks application. The district

court adopted the report and recommendation in its entirety, over Lomacks pro se

objections, and dismissed Lomacks application for failure to satisfy 2244(b)s

requirements. See 2244(b)(4) (A district court shall dismiss any claim presented in a

second or successive application that the court of appeals has authorized to be filed unless

the applicant shows that the claim satisfies the requirements of [ 2244(b)].). The court

denied as moot Lomacks motions for appointment of substitute counsel3 and for IFP

3
After Lomack filed pro se objections questioning his counsels actions, counsel
sought and obtained permission to withdraw from the case.
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status. The court also denied Lomacks subsequent pro se Rule 59(e) motion to alter or

amend the judgment of dismissal.

II

Lomack requests a COA to appeal four issues. Specifically, he asserts that the

district court (1) failed to liberally construe his objections to the magistrate judges report

and recommendation, (2) abused its discretion by sua sponte appointing counsel, (3) erred

in considering the amended habeas application that his appointed counsel filed because

this court granted him authorization to file only his original pro se habeas application,

and (4) abused its discretion by denying his Rule 59 motion.

But before we can address these issues, Lomack must obtain a COA. See 28

U.S.C. 2253(c)(1)(A) (requiring certificate of appealability to appeal from the final

order in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court).4 And because the district court dismissed Lomacks

2254 application without reaching its merits, we will grant a COA only if Lomack

demonstrates both [1] that jurists of reason would find it debatable whether [his 2254

application] states a valid claim of the denial of a constitutional right and [2] that jurists

4
Lomack doesnt need a COA to appeal the district courts order appointing
counsel because that order isnt a final order disposing of Lomacks 2254 application.
See Harbison v. Bell, 556 U.S. 180, 183 (2009). But Lomack fails to cite any authority to
support his claim that the district court abused its discretion by sua sponte appointing
habeas counsel. And his complaint, it seems, is more with counsels performance than
with the courts decision to appoint counsel. Thus, we affirm the district courts order
appointing counsel.

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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 conclude that Lomack fails to make the requisite showing because he doesnt

identify any aspect of the district courts procedural rulingi.e., its determination that he

failed to satisfy 2244(b)s requirementsthat would cause reasonable jurists to debate

the correctness of that ruling. See id.; Garrett, 425 F.3d at 840 (explaining that pro se

appellants, like all other appellants, must state contentions of error and supporting

arguments).

When a state prisoner seeks authorization to file a successive habeas application to

assert claims based on newly discovered facts, he or she must demonstrate that (1) the

factual predicate for the claim could not have been discovered previously through the

exercise of due diligence, and (2) 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. 2244(b)(2)(B)(i)-(ii).

And the applicant must make this showing twice, by pass[ing] through two

gates. Case v. Hatch, 731 F.3d 1015, 1027 (10th Cir. 2013); see id. at 1026 (explaining

that 2244(b) expressly establishe[s] a two-step gate-keeping mechanism for the

consideration of second or successive habeas corpus applications in federal courts). At

the first gate, this court conducts a preliminaryand expeditedassessment of the

habeas application to determine whether the applicant has made a prima facie showing

that the application meets 2244(b)s requirements. Id. at 1026-27; see 2244(b)(3)(C)

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(requiring applicant to make prima facie showing to obtain authorization);

2244(b)(3)(D) (requiring court of appeals to grant or deny motion for authorization not

later than 30 days after the filing of the motion); see also Ochoa v. Sirmons, 485 F.3d

538, 541 (10th Cir. 2007) (noting that this courts inquiry focuses solely on the

conditions specified in 2244(b) that justify raising a new habeas claim, and that this

court doesnt engage in a preliminary merits assessment).5

Thus, even when this court grants authorization to file a successive habeas

application, as it did here, that means only that the applicant has shown possible merit to

warrant a fuller exploration by the district court as to whether the applicant has, in fact,

made the requisite showings under 2244(b). Case, 731 F.3d at 1028 (quoting Bennett v.

United States, 119 F.3d 468, 469 (7th Cir. 1997)); see also id. at 1028-29 (noting that to

grant authorization, circuit court need only decide it appears reasonably likely that the

application satisfies the stringent requirements for the filing of a second or successive

petition (quoting Bennett, 119 F.3d at 469-70)).

The applicant must then make a more convincing showing to pass through the

second gate at the district court level. At the second gate, the district courts task is to

consider each claim and determine whether they in fact, satisfy the requirements of

2244(b). Id. at 1030; see LaFevers v. Gibson, 238 F.3d 1263, 1265 n.3 (10th Cir.

5
In Ochoa, we pointed out that what is often referred to as the innocence
component in 2244(b)(2)(B) imposes a merits-type condition to which the prima facie
showing attaches. 485 F.3d at 542 n.4. But even this component does not directly
concern the merit of the constitutional claim itself but rather the extent to which its
predicate facts undercut the jurys finding of guilt. Id.

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2001) (citing cases explaining district courts independent duty to examine each claim

and dismiss any claim that doesnt satisfy 2244(b)s requirements). In Case, we

explained that 2244(b)(2)(B)(ii) requires the applicant to identify a constitutional

violation and show that he would not have been found guilty but for the violation. 731

F.3d at 1032. In considering whether the applicant has made this showing, the district

courts task is to determine whether the newly discovered evidence, based on the record

as a whole, would lead every reasonable juror to a conclusion of not guilty. Id. If the

district court determines that the applicants claims dont satisfy 2244(b)s

requirements, the second gate remains closed and the district court must dismiss those

claims without reaching the merits. Id. at 1029 (quoting Bennett, 119 F.3d at 470); see

2244(b)(4).

Here, Lomack alleged in his amended application that the prosecutor violated his

due process rights by (1) withholding a handwritten statement that Shaver provided to

Officer Atchley in February 2000 and (2) withholding evidence that Shaver allegedly

negotiated a deal with the prosecutor to provide false testimony at Lomacks preliminary

hearing and trial in exchange for the dismissal of Shavers own pending charge or

charges. These claims rested on Lomacks newly discovered evidence that Shaver

recanted his trial testimony through a 2012 affidavit and through testimony he provided

at a 2013 evidentiary hearing on Lomacks application for state post-conviction relief.

The district court, by adopting the magistrate judges report and recommendation

in its entirety, thoroughly considered Lomacks newly discovered evidence in light of the

trial evidence as a whole. Regarding the prosecutors alleged withholding of Shavers

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February 2000 handwritten statement, the district court concluded that Lomack (1) failed

to show that the factual predicate for [his] claim could not have been discovered

previously through the exercise of due diligence, R. vol. 2, 410 (alteration in original)

(quoting 2244(b)(2)(B)(i)), and (2) failed to show by clear and convincing evidence

that but for the prosecutions alleged failure to disclose Mr. Shavers handwritten

statement to Officer Atchley no reasonable factfinder would have found him guilty, id.

Significantly, the district court found no evidence that the prosecutor withheld Shavers

handwritten statement. Rather, the evidence established that Lomacks trial counsel

explicitly questioned Shaver about his handwritten statement at trial, and that Shaver

testified that he hadnt identified Lomack by name in that statement because Shavers

family and Lomacks family were close. Id. at 397. Thus, reasonable jurists wouldnt

debate the correctness of the district courts determination that Lomack failed to show

that but for the alleged due process violation arising from the prosecutors purported

failure to disclose Shavers handwritten statement, no reasonable factfinder would have

convicted him.

The district court further concluded that even assuming Lomack could show that

the factual predicate for his perjured-testimony claim could not have been discovered

previously through the exercise of due diligence, Lomack failed to show by clear and

convincing evidence that, but for the prosecutions failure to disclose the alleged

negotiated perjury agreement, no reasonable juror would have found him guilty. Id. at

416. Specifically, the court cited the state courts finding that Shavers recantation

testimony lacked credibility given inconsistencies between Shavers statements in his

8
2012 affidavit and his 2013 testimony. The court also cited evidence that the prosecutor

and detective with whom Shaver allegedly negotiated a perjury agreement both testified

at the state evidentiary hearing that no such agreement existed.

In sum, the district court determined that Lomacks newly discovered facts arising

from Shavers recantation fell far short of satisfying 2244(b)(2)(B)(ii)s clear-and-

convincing-evidence requirement. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005)

(noting that new facts supporting successive application must show a high probability of

actual innocence). And Lomack fails to demonstrate that reasonable jurists would debate

the correctness of the district courts determination. Lomacks failure to identify any

alleged errors in the district courts analysis of the 2244(b) requirements is fatal to his

request for a COA.6 Because we conclude that reasonable jurists would not debate the

6
Rather than attacking the district courts 2244(b) analysis, Lomack primarily
asserts that the district court lacked habeas subject-matter jurisdiction to consider the
claim in his amended habeas application because it differed from the claims he asserted
in his pro se proposed applicationi.e., the application that this court authorized him to
file. Aplt. Br. 19. But this argument misunderstands the nature of 2244(b)s two-step
gatekeeping mechanism. As weve discussed, this courts task is to quickly assess
whether any claim asserted in a proposed successive habeas application might arguably
satisfy 2244(b)s requirements. If so, we authorize the filing of a successive application.
Case, 731 F.3d at 1027-28. It then falls to the district court to closely scrutinize each
claim asserted in the application to determine whether each claim does, in fact, satisfy
2244(b)s requirements. LaFevers, 238 F.3d at 1265 n.3. Moreover, while Lomacks
habeas counsel did reframe his pro se claims by filing the amended application, its clear
that the district courts 2244(b) analysis addressed the substance of Lomacks pro se
claims. At bottom, Lomack seeks habeas relief because he alleges that Shaver falsely
identified him at trial as a result of the prosecutor offering Shaver a deal for his perjured
testimony. Thus, Lomacks original and amended claims all rest on the same factual
predicate: Shaver lied, and the prosecutor knew he lied. And, as weve discussed,
Lomack fails to demonstrate that reasonable jurists would debate the district courts
determination that this factual predicate isnt sufficiently clear or convincing to
undermine Lomacks convictions.
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correctness of the district courts determination that Lomack didnt satisfy 2244(b)s

requirements, we deny Lomacks request for a COA and dismiss this matter.

Nevertheless, we grant his IFP motion.

Entered for the Court

Nancy L. Moritz
Circuit Judge

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