                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                              October 2, 2019
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 LAWRENCE L. BARRIENTEZ,

       Petitioner - Appellant,

 v.                                                            No. 19-6047
                                                        (D.C. No. 5:18-CV-01020-C)
 JIMMY MARTIN, Warden,                                         (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY ∗
                   _________________________________

Before EID, KELLY, and CARSON, Circuit Judges.
                    _________________________________

       Lawrence L. Barrientez seeks a certificate of appealability (COA) to challenge a

district court order that dismissed for lack of jurisdiction his second or successive habeas

petition claiming prosecutorial misconduct. We deny a COA and dismiss this matter for

substantially the same reasons identified in the magistrate judge’s February 26, 2019,

report and recommendation.

                                      BACKGROUND

       In 2008, Barrientez was convicted in Oklahoma State Court of first-degree robbery

and assault with a dangerous weapon. The convictions were supported by the trial



       ∗
         This order is not binding precedent except under the doctrines of law of the case,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.
testimony of the robbery victim, Loretta Cowan, and the assault victim, Cleo Kelley, both

of whom identified Barrientez as their assailant.

       In 2010, Barrientez challenged the identifications in 28 U.S.C. § 2254 habeas

proceedings. He argued that there was insufficient evidence showing he was the

perpetrator and that Cowan’s identification was unreliable because she had seen him right

before his preliminary hearing being escorted by a sheriff’s deputy. The district court

denied relief.

       In 2015, Kelley recanted his testimony. Additionally, he claimed that a prosecutor

coerced Cowan into identifying Barrientez when she saw him before the preliminary

hearing and that he (Kelley) went along to give Cowan “some closure.” Aplt. App., Vol.

II at 182. This court preliminarily authorized the filing of a second or successive § 2254

petition so Barrientez could pursue “Kelley’s recantation and the alleged prosecutorial

misconduct.” Id., Vol. I at 128.

       Subsequently, in federal district court, Barrientez sought final approval to proceed

with his prosecutorial-misconduct claim. But a magistrate judge recommended that the

claim be dismissed for lack of jurisdiction because the factual predicate for the claim

could have with due diligence been discovered previously. See 28 U.S.C.

§ 2244(b)(2)(B)(i).

       The magistrate judge reasoned:

       [A]s early as the preliminary hearing in November 2007, [Barrientez would
       have known] Mrs. Cowan and Mr. Kelley were falsely identifying him as
       the perpetrator. And, Mrs. Cowan admitted at [the] preliminary hearing
       that she discussed [Barrientez’s] identification with the prosecutor out in
       the hall before the hearing. Then, at [Barrientez’s] [first] trial, Mr. Kelley

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       testified that he was sitting in the hall with Mrs. Cowan and the prosecutor
       the first time he saw [Barrientez]. Finally, at [Barrientez’s] second trial in
       November 2008, Mrs. Cowan testified at length about discussing her
       identification of [Barrientez], with the prosecutor, out in the hall before
       [the] preliminary hearing.
               Under the circumstances, the Court finds that a reasonable person in
       [Barrientez’s] position – knowing that both witnesses lied, and both
       witnesses had been in the hallway with the prosecutor before lying – would
       have had ample reason to investigate possible prosecutorial coercion.
       [Barrientez] did not, however, and the Court finds he has not established
       that he could not have discovered the alleged prosecutorial misconduct
       through due diligence.

Aplt. App., Vol. I at 29 (footnote and citations omitted). Over Barrientez’s objections,

the district judge adopted the recommendation in full and dismissed the petition.

                                        DISCUSSION

       To obtain a COA where, as here, the district court’s ruling rests on procedural

grounds, Barrientez 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). Barrientez argues that

the debatability of the district court’s § 2244 ruling is apparent from the fact that a

three-judge panel of this court authorized the filing of a second or successive habeas

petition. “But this was only a preliminary determination, demonstrating possible merit to

warrant a fuller exploration by the district court.” Case v. Hatch, 731 F.3d 1015, 1028

(10th Cir. 2013) (citation and internal quotation marks omitted). We conclude that the

district court’s “final assessment,” id. at 1029, that Barrientez has not met the gate-

keeping requirements of § 2244, is not debatable among jurists of reason.


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       Nevertheless, Barrientez asserts that a COA should issue because Kelley’s

recantation and the alleged prosecutorial misconduct show he is actually innocent, and

therefore, he can bring a second or successive claim regardless of whether “the factual

predicate for [his misconduct] claim could not have been discovered previously through

the exercise of due diligence,” 28 U.S.C. § 2244(b)(2)(B)(i). He is mistaken. In enacting

the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Congress adopted a

stringent actual-innocence exception in the context of second and successive habeas

petitions, requiring both undiscoverability, id. § 2244(b)(2)(B)(i), and “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)(ii). See Case,

731 F.3d at 1031, 1037 (noting the conjunctive nature of § 2244(b)(2)(B) and

differentiating second or successive habeas claims from procedurally defaulted habeas

claims).

                                       CONCLUSION

       We deny a COA and dismiss this matter for substantially the same reasons

identified by the magistrate judge in his February 26, 2019, report and recommendation.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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