                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                   PUBLISH                 February 26, 2013
                                                          Elisabeth A. Shumaker
                  UNITED STATES COURT OF APPEALS              Clerk of Court

                             TENTH CIRCUIT



CARL CASE,

            Petitioner-Appellee,

v.                                                  No. 11-2094

TIM HATCH, Warden, Guadalupe
County Correctional Facility,

            Respondent-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                 (D.C. NO. 1:08-CV-00542-MV-WDS)


James W. Grayson, Assistant Attorney General (Gary K. King, Attorney General
of New Mexico, and Nicole Beder, Assistant Attorney General, with him on the
briefs), Office of the Attorney General of New Mexico, Santa Fe, New Mexico,
for Respondent-Appellant.

Todd A. Coberly, Coberly Law Office, Santa Fe, New Mexico (Marc M. Lowry,
Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP,
Albuquerque, New Mexico, with him on the brief) for Petitioner-Appellee.


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.
      In this appeal we consider our gate-keeping role for second or successive

habeas petitions under 28 U.S.C. § 2244. We conclude that petitioner Carl Case

has not met the legal requirements for challenging his conviction, and therefore

reverse the district court’s conditional grant of habeas relief.

      This appeal arises from a crime committed over thirty years ago—the rape

and murder of a teenager near an isolated dam outside of Carlsbad, New Mexico.

Several young men were convicted of the crime, including Case. Those

convictions were upheld by the state courts in New Mexico both on direct and

collateral review, and Case’s first habeas petition in federal court was denied.

      In 2008, Case filed an application for permission to file a second habeas

petition in this court. He claimed constitutional error occurred at trial based on

the discovery of new and previously undisclosed evidence involving a trial

witness, and the recantation of trial testimony by two prosecution witnesses

nearly twenty years after the trial.

      In this appeal we are required to review what happened at trial. Through

that perspective we are satisfied that Case’s due process rights were not violated

and that he received a fundamentally fair trial. We are also satisfied that the

newly discovered evidence he points to does not require a new trial, a point of

agreement we have with the New Mexico Supreme Court.

      Case cannot therefore satisfy the requirements of § 2244(b)(2)(B) that he

“establish by clear and convincing evidence that, but for constitutional error, no

                                          -2-
reasonable factfinder would have found the applicant guilty of the underlying

offense.” Because of that, his application for permission to file a second or

successive habeas petition must be denied.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we VACATE the

district court’s conditional grant of habeas relief and remand for the court to

DISMISS for lack of jurisdiction.

                                 I. Background

      On January 30, 1982, the body of Nancy Mitchell, a local teenager, was

discovered in Eddy County, New Mexico, near an area known locally as Six Mile

Dam, just outside of Carlsbad, New Mexico. The medical evidence at trial

indicated she died of exposure and had been dead for several weeks prior to the

discovery of her body. She had bruises on her upper body and a fractured skull.

      Mitchell ran away from her Carlsbad home in early December 1981, staying

with friends and occasionally in motels in Carlsbad. Throughout the month of

December there were a number of sightings of Mitchell around town, but the last

uncontested sighting took place on December 21. On December 21, Mitchell was

seen at Ricky and Mary Worley’s apartment; they were trying to convince

Mitchell that she should return home to her parents, and they believed she was

planning to do so later that evening. Mitchell eventually left the apartment with

Bobby Autry, who drove around with her for some time until he dropped her off

at a Dairy Queen in Carlsbad.

                                         -3-
      Although some of the events after December 21 are disputed, Case testified

at trial that he was at Six Mile Dam with four other young men and Mitchell on

New Year’s Day 1982. While there, he said, several of the men attacked

Mitchell, attempting to engage in sexual intercourse with her, but she resisted and

the attack eventually ceased. Case further testified that Mitchell walked onto the

dam a few minutes later to go to the bathroom, where she fell and rolled down the

side. When she did not reemerge from the bushes and underbrush at the dam’s

base, Case and his friends left and drove back to town.

      Mitchell’s body was discovered four weeks later, on January 30, 1982. A

police investigation resulted in the arrest of six young men, including Case, for

the rape and murder of Mitchell.

      A. Pre-Trial Statements and Trial Testimony

      At Case’s trial, three local teenagers—Audrey Knight, Bobby Autry, and

Paul Dunlap—testified they had seen Mitchell with Case and a group of local

young men on the night of January 1, 1982. While other witnesses testified they

had seen Mitchell before and after this date, at the time of trial, the majority of

evidence indicated that she was present at Six Mile Dam on New Year’s Day with

a group that included Case.

      During the course of the initial investigation and at trial, the three

eyewitnesses told inconsistent stories, but all three stated that Case was present at

Six Mile Dam and participated in a physical attack and sexual assault on Mitchell.

                                         -4-
The inconsistent stories were explored at trial during both direct and cross

examinations.

             1. Audrey Knight

      Audrey Knight was a friend of several of the men implicated in the attack.

Knight gave two statements to the police implicating six men in Mitchell’s death.

Her initial statements and her trial testimony varied slightly, but the essence of

her testimony was that, at a party the night of January 1, she heard Curtis Worley,

Carl Case, Mike Tweedy, Joe Brown, Paul Dunlap, and Randy Davis talk about

“gang banging” Mitchell. R., Vol. IV, Doc. 9, Trial Transcript at 819. Shortly

thereafter, she saw the six men and Mitchell leave the party in Worley’s car.

Knight, concerned for Mitchell’s safety, left the party about fifteen minutes later

in her truck, in an attempt to find the group. She saw Worley’s car parked near

Six Mile Dam and pulled up to it. When she stopped, she saw Mitchell with her

shirt off, pinned across the seat of the car by Mike Tweedy. Case then walked up

to Knight’s truck and told her to leave. Knight said that Mitchell saw her and

called out for Knight’s help, but Knight left and spent the rest of the evening by

herself.

      The next day, she heard Case and Worley talking about stabbing and raping

Mitchell. She denied seeing Autry leave the party with the other six men, and

denied seeing him at the scene of the rape. Knight also said that she had received




                                         -5-
anonymous phone calls threatening her if she told anyone what she had seen. She

believed these calls came from Case.

             2. Bobby Autry

      Bobby Autry was an 18-year old friend of Mitchell and several of the men

implicated in the attack. Autry was interviewed by police four times—January

30, February 3, March 5, and March 12, 1982. 1 The crux of Case’s claim of

undisclosed evidence discussed below concerns the February 3 interview.

Although each of the interviews was tape recorded, Case argues that at the time of

trial, only three of the interviews had been transcribed, and the February 3

interview had not been. In the interviews, Autry originally denied having any

knowledge of the crime, and denied ever having any sexual encounters with

Mitchell. But in his February 3 statement, he admitted that he and Mitchell had

gotten undressed in his car on December 19, and that he had partially penetrated

her before she pushed him away. Autry told the police that he lied initially

because he was unsure whether Mitchell had been raped, but if she had been, he

did not want to be implicated. In both his January 30 and February 3 statements,

Autry stated that the last time he saw Mitchell was when he dropped her off at the

Dairy Queen in Carlsbad on December 21. In his March 5 statement, Autry stated

      1
         We deny all motions by both parties to supplement the record on appeal,
with the exception that we grant the state’s request to include exhibit 29, a tape-
recorded version of Autry’s March 5, 1982 interview. This exhibit corrects an
error in the transcript prepared for the record, which left out an important word.
This appears to be a scrivener’s error.

                                        -6-
that he might have seen Mitchell in town a few days later, but was unsure. On

March 12, Autry took and failed a polygraph examination. After receiving the

results and consulting with his father, Autry agreed to give a truthful statement in

exchange for immunity.

      Autry’s final statement, on March 12, was that he was in town on January 1

when Curtis Worley picked him up in his car. Also in the car were Case,

Mitchell, Tweedy, Brown, and Dunlap. After driving around town, they drove to

Six Mile Dam to drink beer. Autry denied that they went to a party before

arriving at the dam. Once at the dam, Worley hit Mitchell with his fist, knocked

her to the ground, and tore her pants open. Autry did not see anyone remove

Mitchell’s shirt. Someone else, possibly Brown, hit Mitchell in the back of the

head with a stick or pipe. At this point, Autry ran away, but heard Mitchell

yelling for help and saw the others on top of her. Autry did not see anyone else

arrive at the scene, including Knight, but did see the others attacking Mitchell on

the ground and then putting her back into the car. Autry also stated that he

received threatening phone calls telling him not to discuss what he had seen.

             3. Paul Dunlap

      Paul Dunlap was initially accused of attacking Mitchell at the dam.

Dunlap, who was 17 years old at the time, was arrested in March 1982 for the

rape and murder of Mitchell, and the prosecution moved to try him as an adult.

The motion was denied and the state appealed the decision. After six months in

                                         -7-
jail, and on the day before the appeals court issued its opinion affirming the

denial of the motion, Dunlap accepted the state’s offer of complete immunity in

exchange for his testimony against Case and the others charged with raping and

murdering Mitchell. Dunlap told police that he attended a party near Six Mile

Dam on the night of January 1, 1982. He had received a ride to the party and,

when he saw Curtis Worley leaving, he asked for a ride back into town. Dunlap

stated that Brown, Autry, Worley, Mitchell, and Case were in Worley’s car; he

stated that Tweedy was not in the car and was not at the scene of the crime.

      Dunlap said that the car stopped somewhere near Six Mile Dam and,

immediately upon stopping the car, Worley grabbed Mitchell out of the car and

slapped her to the ground. At that point, Brown and Case attacked Mitchell,

ripping Mitchell’s shirt off. The group saw headlights coming up the road, later

determined to be from Knight’s truck, and they put Mitchell back into the car.

Dunlap stated that he had gotten back into the car once the attack began, but that

when Knight arrived, he and Case went to speak with her. Dunlap stated that he

never heard Mitchell call to Knight for help, and that while Knight was present,

Mitchell was in the car with her shirt off, but was still wearing her pants. After

Knight left, Dunlap got back into the car and did not participate in the attack on

Mitchell. He also testified that he had been threatened by the others to not tell

anyone what had occurred.




                                         -8-
             4. Additional Evidence

      In addition to the eyewitness testimony, the state presented evidence

detailing the physical condition of Mitchell’s body when it was recovered.

Mitchell’s clothing was “disarranged,” with her shirt inside out, her pants sitting

below her hips, unsnapped and with a broken zipper, and both pockets were

pulled out. Trial Tr. at 642. Her body was in a state of moderate to severe

decomposition; any injuries to the genital area were undetectable because the

organs were “semifluid” from exposure to the elements. Id. at 719. The autopsy

revealed numerous contusions to the head, neck, and upper chest, deep

hemorrhages on the face, and a fracture at the base of the skull, sufficient to

produce unconsciousness or death. The body also had injuries consistent with

dragging inflicted while she was dying or after death. The ultimate cause of

death was exposure to the elements.

             5. Case’s Defense at Trial

      Case initially denied any involvement with Mitchell’s death, and directed

his attorney to prepare an alibi defense. But just before trial, Case’s attorney

informed him that there was very little evidence to support an alibi defense, so

Case chose to testify at trial in his own defense. Case admitted that he gave

conflicting pre-trial statements to the police because he “didn’t want to get

involved,” and did not want to potentially ruin his “good reputation.” Id. at 1375.




                                          -9-
      Case testified he had been present at the dam with Worley, Brown, Dunlap,

Tweedy, and Mitchell, but that no rape had occurred, and no physical assault

occurred other than Worley striking Mitchell one time. Case testified that Autry

was not at the dam at any time that evening, but he admitted seeing Knight and

telling her to leave. Case stated he wanted no part of Worley’s fight with

Mitchell. At some point after Worley struck Mitchell, Mitchell stated that she

had to go to the bathroom and walked out onto the dam. At that point, according

to Case, Mitchell fell down the hill she was standing on and tumbled into the

weeds and grass below, where he lost sight of her. Case stated it was not a

particularly hard fall, but she did not get up. Worley called out to Mitchell one

time, but when she did not respond, the men left and drove back into town.

According to Case, he left with Worley because Worley “was out of his head,”

and Worley wanted Mitchell to “walk back to town because she [had] made a fool

out of him.” Id. at 1395. Case’s theory was that Mitchell hit her head during the

fall, ultimately leading to her death.

      Case also presented character witnesses, who testified that he was a “nice”

and “pretty decent kind of guy,” who was liked by “[a] lot of girls” who “thought

a lot of him.” Id. at 1155, 1157, 1171. He also presented testimony from two

individuals who stated that they saw Mitchell several weeks after January 1,

implying that the medical examiner’s date of death estimation was incorrect. But




                                         -10-
during the rebuttal, the state’s expert testified that he could “absolutely exclude”

the possibility that Mitchell was alive at that time. Id. at 1482–83.

      Case was convicted by a jury on October 26, 1982 of first-degree murder

and first-degree criminal sexual penetration, and sentenced to life imprisonment

plus eighteen years.

      B. Post-Trial Activities and First Habeas

      The New Mexico Supreme Court affirmed Case’s convictions on direct

appeal. State v. Case, 676 P.2d 241 (N.M. 1984) (Case I). Case then filed a

habeas petition in federal court pursuant to 28 U.S.C. § 2254. The district court

entered an order conditionally granting the petition on the grounds that the trial

court abused its discretion by refusing to declare a mistrial or voir dire jurors

following an allegation of juror misconduct. The state appealed, and we

remanded for an evidentiary hearing. On remand, the district court again

conditionally granted Case’s petition on the jury misconduct claim, but denied

relief on a separate denial-of-continuance claim. We affirmed the district court’s

denial of relief on the denial-of-continuance claim, but reversed, thereby denying

relief, on the jury misconduct claim. Case v. Mondragon, 887 F.2d 1388 (10th

Cir. 1989) (Case II).

      C. Alleged Brady Violation and Subsequent State Proceedings

      In 2004, Case filed a petition for a writ of habeas corpus in state district

court, after two of the three eyewitnesses, Knight and Dunlap, signed affidavits

                                         -11-
recanting their trial testimony. While the petition was pending, Case’s

investigators discovered an audio tape in the government’s case file, which

contained an untranscribed, pre-trial statement by Autry, made on February 3,

1982. Case then supplemented his petition with a Brady claim, arguing that, if it

had been available at trial, the February 3 statement would have undermined

Autry’s credibility and could have ultimately implicated Autry in the crime. See

Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the suppression by the

prosecution of evidence favorable to an accused . . . violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution”). While the petition was pending, Case also

had additional DNA testing done. The DNA testing could detect no male DNA or

sperm cells in the evidence taken from Mitchell’s body and clothing.

      On November 29–30, 2005, and February 9, 2006, the state district court

held evidentiary hearings on Case’s petition. Extensive testimony was heard from

a number of witnesses, including the two recanting witnesses, Case’s trial

counsel, the trial prosecutor, and Case himself.

             1. Witness Recantations

      Knight and Dunlap both recanted their testimony in open court during the

hearings.

      Knight testified she had lied at trial, she was never at Six Mile Dam that

evening, and she did not know anything about the events leading up to Mitchell’s

                                         -12-
death. She explained she felt pressured by police because they interviewed her on

multiple occasions and told her they had information about her truck at the scene.

She stated that once Case changed his story and admitted to being at Six Mile

Dam, she changed her story as well and provided a fabricated story to the police. 2

         Dunlap testified that, while he was in custody on murder and rape charges,

he initially told police he did not have any knowledge about the events leading up

to Mitchell’s death. He was then given a polygraph test and told by police he

failed the test. He claims that, once he realized other witnesses were lying, he

decided to fabricate a story, hoping to strike a deal with the prosecution. He

         2
             A friend of Knight’s who saw Mitchell on New Year’s Eve testified at
trial:

                        Q: [D]id Audrey Knight ever talk to you about
                 what happened to Nancy Mitchell?
                        A: Yes.
                        Q: When did she talk to you about that?
                        A: Just–I guess it was right after it was in the
                 paper she told me.
                        Q: What did she tell you about it?
                        A: Well, she just said that she knew who did it,
                 and she was out there because she followed, I guess it
                 was, Curtis’ car out there. And she just told me that
                 what they did to her.
                        Q: All right. Do you know if Miss Knight had
                 gone and talked to the police before she talked to you?
                        A: No, she didn’t.
                        Q: What did you tell her to do after she told you
                 this story?
                        A: I told her if it was the truth, to go tell the
                 police.

Testimony of Mary Sue Tate, R., Trial Transcript at 1523–24.

                                           -13-
scripted his testimony from information he had learned at his bail hearing and

from police questioning. Once he memorized the script, he destroyed it and

notified the district attorney he would testify truthfully in exchange for an offer of

immunity. Dunlap stated he was never told to lie, and he never informed anyone

that he was lying, but the entirety of his testimony was a fabrication.

                2. Autry’s February 3 Statement

       With respect to the February 3 statement by Autry, an investigator testified

that, while reviewing the state’s files, he found a taped interrogation of Autry of

which he was unfamiliar and that had, to his knowledge, not been a part of the

trial record.

       In the February 3 statement, Autry admitted that in mid-December 1981, he

had “fooled around” with Mitchell and attempted to have intercourse with her.

R., Vol. IV, BA, February 3 Stmt. at 11. Specifically, Autry stated, “I got fixed

up about half way in, and she said no, she pushed back, and I said alright.” Id.

Admitting that his penis went partially into her vagina, but that he did not

ejaculate, Autry went on to say that “she pushed me back—she shoved me back

when I tried to make out with her . . . . She got mad, said let’s go to the party.”

Id. at 11–12. The detective asked Autry to explain the discrepancy between his

story and his answer to a prior question asking whether he had previously had

intercourse with Mitchell. Autry explained that at the time, he did not know if

Mitchell had been raped and he did not want anyone to “point the finger at me

                                         -14-
cause I didn’t do it.” Id. at 15. Autry then explained that, in any event, he did

not consider this an act of intercourse because “I barely got in and she just pushed

me back.” Id. at 16. While he admitted to being “mad . . . but not, not that mad,”

he stated that it was “no great big loss to get turned down by a girl.” Id.

      Case’s trial counsel, Gary Mitchell, testified that he is “convinced [he]

didn’t have [the Autry tape].” Ev. Hear. Tr. at 259. “Because if [he] had it, [he]

would have cross-examined differently and [he] would have used it . . . .

[because] the big thing in this case for [him] . . . was trying to find somebody that

did this other than [Case].” Id. at 259–60. He classified himself as “young” and

“aggressive” during this time period, and concluded that “if I had that

information” and did not use it, “I was incompetent . . . . I would have used it. I

would have hit him over the head with it, if I had had it.” Id. at 259, 261.

      The prosecutor, James Klipstine, testified that he did not have any specific

recollection of having disclosed the February 3 statement to the defense, but that

he was familiar with the substance of the interview. Admittedly, he was unable to

say whether his knowledge of the subject matter “came from this interview or

other conversations with the witness or where it [had] c[o]me from,” but he had

knowledge of the “facts that are set out” in the statement. Id. at 334.

      Case testified his testimony was a fabrication, that he “wasn’t at Six Mile

Dam and [that he] didn’t hurt anybody.” Id. at 240. But unfortunately his

attorney had been unable to develop an alibi defense based on the names of the

                                         -15-
non-cooperating witnesses that Case had supplied, so he fabricated a story based

on “what everybody was saying” in the state’s case at trial and tried to mimic

their testimony to his advantage. Id. at 245–46.

      Ultimately, the state district court denied the petition, finding that the

“State did not illegally suppress evidence that was materially favorable to” Case,

and that the “recantations of Paul Dunlap and Audrey Knight do not constitute

newly discovered evidence.” See R., Vol. I at 16.

      Case was granted certiorari review by the New Mexico Supreme Court.

The court denied relief in a written opinion. Case v. Hatch, 183 P.3d 905 (N.M.

2008) (Case III). The court found Knight’s and Dunlap’s recanted testimony was

cumulative evidence, on the basis that their inconsistent stories were previously

before the jury and at this point, they were attempting to “revert to the original

statements they gave to the police that they did not know anything about the

events leading to Mitchell’s death.” Id. at 917. The court also found that “Case

was aware of these [inconsistent] statements, as evidenced by cross-examination

of each witness at trial. The defense strategy . . . was that the witnesses were

pressured by the police; they were scared of the police; and therefore they

conformed their testimony in such a way as to incriminate Case and others.” Id.

“Despite inconsistencies in the details, each witness incriminated Case. Case

himself testified about his presence and that of Knight and Dunlap. Although he




                                         -16-
attempted to minimize what had happened to Mitchell, he did confirm that Worley

had struck her and had removed her shirt.” Id.

      With respect to Autry’s February 3 statement, the court found there was no

suppression of materially favorable evidence in violation of Brady. The Brady

claim failed for lack of materiality because Autry’s “credibility was already put

into question at the trial, not only through an aggressive cross-examination

showing prior inconsistent statements, but through character witnesses who

testified that Autry had a reputation for untruthfulness.” Id. at 919–20. Thus, the

tape would have been cumulative impeachment evidence, and was not material for

Brady purposes.

      D. Second Federal Habeas

      Case then sought permission from this court to file a second habeas petition

in federal court pursuant to the Anti-Terrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2244(b)(3)(A), which requires this court to authorize a

second or successive application for habeas relief before the district court may

consider the application. We concluded Case had made a prima facie case

showing that the February 3 Autry statement qualified as “newly-discovered

evidence under 28 U.S.C. § 2244(b)(2)(B)(i)” and that Case had sufficiently




                                        -17-
alleged constitutional Brady error. R., Vol. I at 66. We left open the question of

whether this evidence was material. 3

      Once authorized to receive the petition, the magistrate judge below

concluded that Case failed to “establish by clear and convincing evidence that,

but for constitutional error, even when taking into consideration the recantations,

no reasonable factfinder would have found [Case] guilty.” R., Vol. I at 575.

Accordingly, the magistrate judge recommended the petition be dismissed.

      After receiving this recommendation, the district court instead chose to

hold an additional evidentiary hearing to determine whether Knight’s and

Dunlap’s recantations were credible, an issue not reached in Case III. The district

court found the recantations credible, determined that constitutional Brady error

occurred at Case’s trial, and, reviewing the evidence as a whole, ruled that Case

satisfied the procedural hurdle erected by 28 U.S.C. § 2244(b)(2)(B).

      Once the district court concluded Case satisfied the “gate-keeping”

requirements of § 2244, the court reviewed the merits of Case’s Brady claim de

novo, finding the state court decision, Case III, contravened clearly established

federal law. The district court found the state court failed to holistically evaluate


      3
         The order of authorization was an unsigned order entered by the Clerk of
this court and is not a published decision of this court. Therefore, it has no
precedential value, but the panel will consider its persuasive value in line with
10th Circuit Rule 32.1. In any event, given our de novo standard of review, we
have reviewed the entirety of the record in this case and any conclusions we reach
are independent of our prior authorization.

                                         -18-
the impact of the suppressed evidence and improperly used an abuse of discretion

standard when evaluating Case’s Brady claim. Applying AEDPA deference, the

court also determined that Case III unreasonably applied Brady law by holding

the Autry interrogation was cumulative impeachment evidence and Case could not

have used the evidence to present an alternate defense theory. The district court

granted Case a conditional writ of habeas corpus. Case v. Hatch, 773 F. Supp. 2d

1070 (D.N.M. 2011) (Case IV).

                                 II. Discussion

      The filing of a second or successive § 2254 application is tightly

constrained by the provisions of AEDPA. Congress expressly established a two-

step “gate-keeping” mechanism for the consideration of second or successive

habeas corpus applications in federal courts. Before a court can consider a

second claim, an applicant must first “move in the appropriate court of appeals

for an order authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to

grant the authorization to file. Id. § 2244(b)(3)(D).

      If the court of appeals finds the applicant “makes a prima facie showing

that the application satisfies the requirements of [§ 2244(b)],” id.

§ 2244(b)(3)(C), the applicant may pursue a claim in district court. The district

court must then review the proffered evidence, and “shall dismiss any claim . . .



                                         -19-
that the court of appeals has authorized to be filed unless the applicant shows that

the claim satisfies the requirements of [§ 2244(b)].” Id. § 2244(b)(4).

      Section 2244’s gate-keeping requirements are jurisdictional in nature, and

must be considered prior to the merits of a § 2254 petition. Panetti v.

Quarterman, 551 U.S. 930, 942–47 (2007). Jurisdictional statutes “speak to the

power of the court rather than to the rights or obligations of the parties.”

Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (internal quotation

omitted). In other words, a rule is jurisdictional when “it governs a court’s

adjudicatory capacity.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.

1197, 1202 (2011). Claim-processing rules, by contrast, “promote the orderly

progress of litigation by requiring that the parties take certain procedural steps at

certain specified times.” Id. at 1203.

      Section 2244(b) provides that a successive habeas corpus application “shall

be dismissed” unless the gate-keeping requirements are met and clearly speaks to

the power of the court to entertain the application, rather than any procedural

obligation of the parties. This statutory language mandating dismissal also sets

forth a “threshold limitation on [the] statute’s scope,” providing further indication

that the gate-keeping requirements are jurisdictional rules, not mere claim-

processing rules. Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quoting

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)).




                                         -20-
      Additionally, one purpose of AEDPA is to enforce Congress’s preference

for a state’s interest in finality of judgment over a prisoner’s interest in additional

review. See Calderon v. Thompson, 523 U.S. 538, 557 (1998). “This purpose

suggests that the elements of § 2244(b)(2)(B) must be resolved prior to, and

independently of, consideration of the similar elements of a Brady claim.”

Johnson v. Dretke, 442 F.3d 901, 909 (5th Cir. 2006). All of these considerations

are equally applicable at each of § 2244’s gates. See Goldblum v. Klem, 510 F.3d

204, 217 (3d Cir. 2007) (“We have made it clear that unless both the procedural

and substantive requirements of § 2244 are met, the District Court lacks authority

to consider the merits of the petition.”) (emphasis added) (citation and quote

omitted).

      Accordingly, we must first determine whether Case satisfies the

requirements of § 2244(b)(2)(B), and our review owes no deference to the rulings

of the state courts.

      A. First Gate—Court of Appeals

       Reviewing the statutory scheme as a whole is helpful, even though Case

already received authorization from this court to proceed in the district court. As

described above, § 2244 requires an applicant to pass through two gates. The first

gate requires the petitioner make a prima facie showing at the circuit level that no

reasonable factfinder would have found him guilty but for constitutional error at




                                          -21-
trial. The second gate requires the petitioner to back up the prima facie showing

at the district court level with actual evidence to show he can meet this standard.

      In particular, § 2244(b)(2) provides:

             A claim . . . not presented in a prior application shall be
             dismissed unless

             (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 the applicant guilty of the underlying
             offense.

28 U.S.C. § 2244(b)(2).

      A three-judge panel of this court concluded Case satisfied his burden at the

first gate by making a prima facie showing he could meet the requirements of

§ 2244, and, thus, authorized him to file in district court a second or successive

application. See R., Vol. I at 71; 28 U.S.C. § 2244(b)(3)(A). Again, we

concluded Case made a prima facie showing that the February 3 Autry statement

qualified as “newly-discovered evidence under 28 U.S.C. § 2244(b)(2)(B)(i)” and

Case had sufficiently alleged constitutional Brady error. R., Vol. I at 66. We left

open the question of whether this evidence was material.

      But this was only a “preliminary determination,” id. at 70, demonstrating

“possible merit to warrant a fuller exploration by the district court.” Bennett v.

                                         -22-
United States, 119 F.3d 468, 469 (7th Cir. 1997). It is important to note that our

prima facie finding was not a “preliminary merits assessment,” but rather a

determination focused “solely on the conditions specified in § 2244(b) that justify

raising a new habeas claim . . . not to any assessment regarding the strength of

the petitioner’s case.” Ochoa v. Sirmons, 485 F.3d 538, 541–42 (10th Cir. 2007)

(emphasis added). This authorization was made under the limited statutory

deadline—within 30 days after the filing of the motion—and we concluded that

we were “not in a position to fully evaluate the strength of Mr. Case’s claim.” R.,

Vol. I at 69.

                The distribution of judicial responsibility reflected in the
                plain language of the statute—by which the appellate
                court makes an expedited assessment of whether a new
                habeas claim falls within a formally defined category
                and, if it does, then leaves the adjudication of that claim
                to the district court in the first instance—is clearly in
                keeping with the respective roles of appellate and trial
                courts in our system.

Ochoa, 485 F.3d at 542.

      As discussed above, a previous panel determined Case made a prima facie

showing that he could satisfy the gate-keeping requirements of § 2244. But we

have never decided the exact contours and effect of this determination, though

many of the other circuits have.

      The most widely-adopted analysis is from the Seventh Circuit’s decision in

Bennett, where the court explained the limited scope of a prima facie showing:


                                            -23-
             By “prima facie showing” we understand (without
             guidance in the statutory language or history or case
             law) simply a sufficient showing of possible merit to
             warrant a fuller exploration by the district court. All
             that we usually have before us in ruling on such an
             application, which we must do under a tight deadline
             (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself
             and documents required to be attached to it, consisting
             of the previous motions and opinions in the case. We do
             not usually have a response from the government,
             though such a response is authorized. . . . If in light of
             the documents submitted with the application it appears
             reasonably likely that the application satisfies the
             stringent requirements for the filing of a second or
             successive petition, we shall grant the application.

119 F.3d at 469–70. But the court went on to explain the district court must

not defer to that preliminary determination:

             The grant is, however, it is important to note, tentative
             in the following sense: the district court must dismiss
             the motion that we have allowed the applicant to file,
             without reaching the merits of the motion, if the court
             finds that the movant has not satisfied the requirements
             for the filing of such a motion. 28 U.S.C. § 2244(b)(4).
             The movant must get through two gates before the merits
             of the motion can be considered.

Id. at 470 (emphasis added). Thus, gate one is at the circuit court level where a

preliminary assessment occurs based on the application; gate two is at the district

court level where a record is made and a final assessment occurs.

      At least eight other circuit courts have adopted this interpretation. See

Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir. 2007); In re Lott, 366 F.3d 431,

432–33 (6th Cir. 2004); In re Williams, 330 F.3d 277, 281–82 (4th Cir. 2003); In


                                        -24-
re Holladay, 331 F.3d 1169, 1173–74 (11th Cir. 2003); Bell v. United States, 296

F.3d 127, 128 (2d Cir. 2002); Reyes-Requena v. United States, 243 F.3d 893,

898–99 (5th Cir. 2001); Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir.

1998); Rodriguez v. Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st

Cir. 1998), abrogated on other grounds by Bousley v. United States, 523 U.S. 614

(1998).

      We have referenced this standard in dicta, Ochoa, 485 F.3d at 542 n.4, but

never formally adopted it ourselves. We join the other circuits in adopting

Bennett’s understanding of what is required to make a “prima facie showing.” 4

This adoption is important because it clarifies our position with respect to the

authorization we previously gave to Case, allowing him to file his successive

petition in the district court. As § 2244(b)(3) states: only after the appropriate

court of appeals has granted an order authorizing the district court to consider the

application will the district court be able to proceed. If we had denied Case’s

request for authorization, then the matter would have ended. See id.

§ 2244(b)(3)(E) (stating that the denial of authorization is not subject to a petition

for rehearing or for a writ of certiorari).



      4
         We are careful to observe that adopting this standard does not modify our
cautionary statement in Ochoa, where we noted that the phrase “possible merit to
warrant a fuller exploration by the district court” does not refer to the underlying
constitutional claim but to the petitioner’s showing on the statutory requirements
the district court will consider at the second gate. See 485 F.3d at 542 n.4.

                                          -25-
      But since we granted authorization, it is important to note that we were

merely making an initial gate-keeping ruling, and that the district court was still

required to determine, at the second gate, whether Case had met § 2244’s

jurisdictional requirements. If either the district court, or this court—reviewing

the district court’s determination de novo—finds that Case’s petition fails at this

second gate, his petition will be dismissed. See 28 U.S.C. § 2244(b)(4); see also

In re Morris, 328 F.3d 739, 741 (5th Cir. 2003) (per curiam) (explaining that

authorization is “tentative in the following sense: the district court must dismiss

the motion that we have allowed the applicant to file, without reaching the merits

of the motion, if the court finds that the movant has not satisfied the requirements

for the filing of such a motion”); id. (Higginbotham, J., concurring) (“It is

difficult to make informed judgments without the development of the facts [of

this particular case] in some form of hearing. While skeptical of [the applicant’s]

ability to do so . . . I will not dissent from an order allowing the district court to

make a more informed judgment than is available to us, as a second gate to leave

to file a successive writ.”).

      In sum, once a petitioner makes a prima facie showing, he still must pass

through the second gate erected by § 2244. At that stage, the district court must

determine whether the petition did, in fact, satisfy the requirements of § 2244(b).

See LaFevers v. Gibson, 238 F.3d 1263, 1265 (10th Cir. 2001); Bennett, 119 F.3d

at 470 (“The movant must get through two gates before the merits of the motion

                                           -26-
can be considered.”). See also 28 U.S.C. § 2244(b)(4) (“A district court shall

dismiss any claim . . . that the court of appeals has authorized to be filed unless

the applicant shows that the claim satisfies the requirement of [§ 2244].”). In this

case, after our authorization at the prima facie stage, the district court found Case

had successfully made the required showing at § 2244’s second gate, Case IV, 773

F. Supp. 2d at 1093, and subsequently—reaching the merits—found Case was

entitled to habeas relief under § 2254.

      We review the district court’s determinations de novo. Ochoa v. Workman,

669 F.3d 1130, 1141 (10th Cir.), cert. denied, 2012 WL 2931319 (U.S. Oct. 1,

2012) (quoting LaFevers, 238 F.3d at 1266). Thus, we turn to the district court’s

second-gate analysis.

      B. Second Gate—District Court

      To pass through the second jurisdictional gate, Case is required to show

two things. One is that “the factual predicate for [his Brady] claim could not

have been discovered previously through the exercise of due diligence.”

28 U.S.C. § 2244(b)(2)(B)(i). Case is then required to show “the facts underlying

the [Brady] 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.” Id. § 2244(b)(2)(B)(ii).




                                          -27-
          Case’s Brady claim is premised on the contention that the state wrongfully

failed to provide Autry’s February 3 statement to the defense prior to trial. As

mentioned above, Autry gave four taped statements to the police—on January 30,

February 3, March 5, and March 12. The February 3 statement may not have been

transcribed and the record is disputed as to whether the audio tape was itself in

the government’s file prior to trial. Although the New Mexico state courts found

no reason to believe the tape or transcript had been suppressed, no one questions

that the other three statements were transcribed and provided to Case’s counsel

for use at trial. In June 2005, the February 3 statement was discovered on a

cassette tape by several student investigators, working as a part of Case’s legal

team. The tape had an interview of Autry on one side and an interview of another

witness, Joe Brown, on the other side. Ev. Hear. Tr. at 36–37.

          At the state evidentiary hearing, it was established the routine practice for

handling tapes after interviews at the time was that the tapes were turned over to

stenographers and were then transcribed. Once transcribed, the statement was

provided to the prosecutor, who maintained an “open file” policy with defense

counsel. No transcript of the recording was ever found in the files of the

prosecutor, police department, or defense counsel. And even though Autry

testified in several trials arising from Mitchell’s death, the February 3 statement

does not appear to have been produced or used to cross-examine him in the other

trials.

                                            -28-
      Additionally, Case’s trial counsel testified that, having reviewed the

substance of the tape, he did not believe that he received either the tape or a

transcription of the statement. He stated this confidently because “had this

particular statement been available to him, he would have used it to cross-

examine Autry because it showed that (1) Autry had previously had a sexual

relationship with Mitchell, and (2) he was angry because he was unable to

complete the sexual encounter.” Case III, 183 P.3d at 918.

      But much of the substance, if not the details, of Autry’s February 3

statement can be seen in his March 5 statement—which was produced prior to

trial. In the March 5 statement, Autry told police that he had “tried making out

with [Mitchell],” “[g]ot her clothes [off] and we were drunk,” and he was then

asked, “Is this when you tried to have . . . make love . . . or have sexual

intercourse with her, after that you took her home.” R., Vol. IV, BA, March 5

Stmt. at 3, 6. During the trial, the prosecutor asked Autry if he had ever had

sexual intercourse with Mitchell and Autry responded that he had not, but that he

had tried. Case’s counsel did not delve into this line of questioning on cross-

examination.

             1. 28 U.S.C. § 2244(b)(2)(B)(i)—Due Diligence

      In determining whether the factual predicate for the Brady claim could not

have been discovered previously through the exercise of due diligence, 28 U.S.C.

§ 2244(b)(2)(B)(i), the magistrate judge found the failure of defense to

                                          -29-
independently listen to all of the audio tapes after receiving transcripts was not

fatal. He found it reasonable for defense counsel to assume the transcripts

reflected all recorded interviews given the transcription procedures in place at the

time.

        The district court agreed and further concluded that “the [Autry] statement

was [in fact] suppressed, based on the overwhelming evidence in this case.” R.,

Vol. I at 786. The evidence the district court relied on included (1) the fact that

neither party discovered a transcript of the February 3 interview, and

(2) transcripts from the trials of Case’s co-defendants demonstrated that none of

their defense attorneys raised these statements in those trials, which the district

court found “all but definitively demonstrate that no defense attorney had access

to the tape.” Id.

        While the state urges us to find a lack of due diligence, we need not do so

here. Since the requirements of § 2244(b)(2)(B) are “conjunctive,” and if Case

fails at either step, we will dismiss his petition. We choose to focus our analysis

on subparagraph (B)(ii), rather than drawing a conclusion on subparagraph (B)(i).

See Spitznas v. Boone, 464 F.3d 1213, 1226 (10th Cir. 2006).

              2. 28 U.S.C. § 2244(b)(2)(B)(ii)—Constitutional Error

        We now turn to the second requirement necessary to file a second or

successive application under AEDPA, embodied in § 2244(b)(2)(B)(ii), and

conclude that Case did not satisfy its stringent standard.

                                          -30-
      Case is required to show the “facts underlying the [suppressed Brady

evidence], 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)(ii). This standard has been described as a

“strict form of ‘innocence,’ . . . roughly equivalent to the Supreme Court’s

definition of ‘innocence’ or ‘manifest miscarriage of justice’ in Sawyer v.

Whitley.” 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice

& Procedure § 28.3[e], at 1628–29 (6th ed. 2011) (citing Sawyer v. Whitley, 505

U.S. 333 (1992)).

      The New Mexico courts rejected the merits of Case’s Brady claim. See

Case III, 183 P.3d at 920. Ordinarily, when considering the merits of a state

prisoner’s claim for federal habeas relief, a federal court will defer to a state

court’s adjudication of the merits of that claim. See 28 U.S.C. § 2254(d). But, as

discussed above, at this step in the gate-keeping analysis, we will review de novo

the district court’s conclusions under the standards of § 2244. See LaFevers, 238

F.3d at 1266.

      We now turn to the additional requirements of § 2244(b)(2)(B)(ii).

                    a. “But for Constitutional Error”

      At the second gate, an applicant is required to tie his newly proffered facts

to the claimed constitutional violation. The applicant need not show whether

                                          -31-
there was in fact an error, only that “but for” the alleged constitutional error, the

applicant would not have been found guilty. This is not a merits inquiry. That

inquiry is reserved for after the applicant has passed through the second gate.

Instead, the applicant must show a linkage between the alleged constitutional

error and the new facts of innocence. As we said in Ochoa v. Sirmons, the

“innocence component in § 2244(b)(2)(B) imposes a merits-type condition” to our

analysis “though even this does not directly concern the merit of the

constitutional claim itself but rather the extent to which its predicate facts

undercut the jury’s finding of guilt.” 485 F.3d at 542 n.4.

      Other circuits have voiced support for this view—namely that it would be

placing the metaphorical cart before the horse to require that the petitioner

demonstrate a constitutional violation, when that inquiry is reserved for a

determination on the merits. See, e.g., In re Swearingen, 556 F.3d 344, 347 (5th

Cir. 2009) (“[B]efore addressing the merits of the successive petition, the district

court must independently determine whether the petition actually satisfies the

stringent § 2244(b)(2) requirements.”); Benchoff v. Colleran, 404 F.3d 812, 816

(3d Cir. 2005) (“Unless both the procedural and substantive requirements of

§ 2244 are met, the District Court lacks authority to consider the merits of the

petition.”); In re Williams, 330 F.3d 277, 281–82 (4th Cir. 2003) (“[T]he

§ 2244(b) inquiry must be resolved before the district court may consider the

merits of a claim within a successive application.”).

                                          -32-
      We review the gate-keeping analysis de novo, but when we reach the

merits, we will apply the deferential standards of § 2254 in determining whether

an actual constitutional violation occurred. To require a full showing at this stage

would collapse the § 2254 inquiry into § 2244, making § 2244 redundant. See,

e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (noting canon of construction

that statutes should be read to avoid making any provision “superfluous, void, or

insignificant”).

      In sum, subparagraph (B)(ii) requires the applicant to identify a

constitutional violation and show that he would not have been found guilty “but

for” the violation. Here, Case has successfully identified a Brady violation, so we

must determine whether the newly discovered evidence, based on the record as a

whole, would lead every reasonable juror to a conclusion of “not guilty.”

                   b. “Evidence as a Whole”

      Before evaluating the newly identified evidence, an initial consideration is

the universe of evidence we can consider in evaluating the claim.

      Two possibilities are presented: first, whether we consider only evidence

presented at the time of trial, adjusted for evidence that would have been admitted

or excluded “but for constitutional error,” or, second, whether we also consider

newly developed facts that only became available after trial and that are not

linked to constitutional errors occurring during trial. See 28 U.S.C.

§ 2244(b)(2)(B); see also Nooner v. Hobbs, 689 F.3d 921, 933 (8th Cir. 2012).

                                        -33-
We conclude that the § 2244(b)(2)(B)(ii) inquiry is only concerned with the

evidence presented at trial, properly adjusted for evidence that Case alleges was

erroneously excluded due to trial-related constitutional error.

      Accordingly, the analysis proceeds in three steps: (1) we start with the body

of evidence produced at trial, (2) add “evidence allegedly kept from the jury due

to an alleged [constitutional] violation,” Sawyer, 505 U.S. at 349, and

(3) determine whether it is “clear and convincing,” “in light of the evidence as a

whole,” that “no reasonable factfinder would have” convicted Case. 28 U.S.C.

§ 2244(b)(2)(B)(ii).

      The Supreme Court’s pre-AEDPA decision in Sawyer provides support for

this framework. In Sawyer, the petitioner claimed that he was “actually innocent

of the death penalty,” and brought a Brady claim in a successive habeas petition.

505 U.S. at 335, 347. He asserted that evidence unconstitutionally kept from the

jury established his innocence of one of the aggravating circumstances on which

the jury relied in imposing a sentence of death. Id. at 347–48. For his Brady

claim to be considered on the merits, the Court had to “determine if petitioner has

shown by clear and convincing evidence that but for constitutional error, no

reasonable juror would find him eligible for the death penalty. . . .” Id. at 348.




                                        -34-
      The Court then went on to consider “the evidence allegedly kept from the

jury due to an alleged Brady violation.” Id. at 349. 5 The Court’s analysis focused

on the probable effect introduction of this evidence would have had on a

reasonable jury—that is, on whether, in light of the other evidence introduced at

the sentencing phase, reasonable jurors would have altered their sentencing

decision in response to the new, alleged Brady evidence. Id. at 349–50.

Weighing all of the evidence together—the evidence that was before the jury and

the alleged Brady evidence—the Court concluded that “it cannot be said that no

reasonable juror would have found, in light of all the evidence, that petitioner was

guilty” of the particular aggravating circumstance that he was contesting. Id. at

350. The merits of the Brady claim were not considered. Id.

      Though Sawyer predates AEDPA and the enactment of § 2244, the “but for

constitutional error” language used in Sawyer found its way into subparagraph

(B)(ii). Section 2244(b)(2)(B) binds together a successive applicant’s claim of

actual innocence and his claim of constitutional error—a conclusion reinforced by

other language in subparagraphs (B)(i) and (B)(ii) linking “the facts” to the

applicant’s “claim.” See 28 U.S.C. § 2244(b)(2)(B)(i) (“the factual predicate for

the claim”), (B)(ii) (“the facts underlying the claim”) (emphasis added).


      5
         The Court did not assess whether there had in fact been a Brady
violation, nor even whether the facts as alleged amounted to a Brady violation.
Either of those inquiries would surely have been intertwined with the merits,
which had yet to be (and ultimately would not be) reached.

                                        -35-
Moreover, the Supreme Court hinted at this linkage requirement after the

enactment of AEDPA, reading § 2244(b)(2)(B)(ii) to require that “the facts

underlying the [constitutional] claim establish [a petitioner’s] innocence by clear

and convincing evidence.” Calderon, 523 U.S. at 558 (emphasis added). Thus, as

a textual matter, subparagraph (B)(ii) excludes the consideration of evidence

unconnected to the constitutional error at trial.

      Accordingly, we interpret subparagraph (B)(ii)’s “but for” requirement,

consistent with Sawyer, as mandating that an applicant “link [his] exculpatory

evidence to a specific constitutional error that prevented the jury from adequately

considering the evidence.” O’Dell v. Netherland, 95 F.3d 1214, 1246 n.26 (4th

Cir. 1996). The alleged constitutional error must have caused either (1) the

wrongful exclusion of evidence that the applicant was entitled to introduce, or

(2) the wrongful admission of evidence that the petitioner was entitled to exclude.

See McCleskey v. Zant, 499 U.S. 467, 502 (1991); Smith v. Murray, 477 U.S. 527,

538 (1986). If those requirements are met, a court’s task is then to engage in a

counterfactual analysis—viewing the trial evidence as a whole, and accounting

for evidence that the petitioner alleges was erroneously admitted or excluded—of

whether the applicant has shown “by clear and convincing evidence” that “no

reasonable factfinder would have found [him] guilty.” 28 U.S.C.

§ 2244(b)(2)(B)(ii).




                                         -36-
      Because of the necessary linkage between a petitioner’s probable innocence

and the alleged constitutional error, the inquiry under subparagraph (B)(ii)

excludes any consideration of evidence not rooted in constitutional error at trial.

As the Supreme Court put it in discussing a claim of actual innocence before

AEDPA, “[the newly discovered] evidence must bear upon the constitutionality of

the applicant’s detention; the existence merely of newly discovered evidence

relevant to the guilt of a state prisoner is not a ground for relief on federal habeas

corpus.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (emphasis added; other

emphasis omitted) (internal quotation omitted); see also 2 Hertz & Liebman,

§ 28.3[e], at 1629 n.149 (reading Calderon, 523 U.S. at 558, to suggest that the

Court was contrasting § 2244(b)(2)(B) “with the more expansive range of facts

upon which a petitioner can draw in showing a ‘miscarriage of justice’ under the

Court’s” prior jurisprudence).

      We find further support for that conclusion by comparing AEDPA’s

requirement for successive petitions filed by federal prisoners found in § 2255(h).

Section 2255(h) is applicable to federal prisoners, who, much like state prisoners,

are prohibited from bringing second or successive petitions unless they satisfy the

provisions of § 2255(h). As relevant here, § 2255(h)(1) permits a successive

petition if the petitioner puts forward “newly discovered evidence that, if proven

and viewed in light of the evidence as a whole, would be sufficient to establish by




                                          -37-
clear and convincing evidence that no reasonable factfinder would have found the

movant guilty of the offense.” 28 U.S.C. § 2255(h)(1).

      Although some courts have called these two provisions “materially

identical” and have interpreted them in parallel, see United States v. MacDonald,

641 F.3d 596, 610 (4th Cir. 2011) (quoting In re Dean, 341 F.3d 1247, 1249 n.4

(11th Cir. 2003)), that treatment glosses over critical linguistic distinctions

between subparagraph (B)(ii) and § 2255(h)(1). The provisions are different in at

least two ways. First, § 2255(h)(1) refers to “newly discovered evidence,”

whereas subparagraph (B)(ii) refers to “the facts underlying the claim.” And

second, § 2255(h)(1) omits the phrase “but for constitutional error,” which

appears in subparagraph (B)(ii).

      These differences are crucial. See Sosa v. Alvarez-Machain, 542 U.S. 692,

711 n.9 (2004) (“[W]hen the legislature uses certain language in one part of the

statute and different language in another, the court assumes different meanings

were intended.”) (quoting 2A Norman J. Singer, Statutes and Statutory

Construction § 46:06, at 194 (6th rev. ed. 2000)) (internal quotation marks

omitted)). Section 2255(h)(1) can be read to allow “newly discovered evidence”

to “establish” a petitioner’s innocence and omits any requirement that the new

evidence be rooted in constitutional error at trial. By contrast, subparagraph

(B)(ii) requires the “facts underlying the claim” to “establish” a petitioner’s




                                         -38-
innocence, and requires those facts to be attributable to some “constitutional

error” in the underlying trial proceedings.

      There is good reason to think that these linguistic differences reflect

purposeful action, and are not simply the product of indifferent drafting. Sections

2255(h)(1) and subparagraph (B)(ii) both govern successive collateral attacks, but

they pertain to challenges on two different types of proceedings: federal criminal

trials and state criminal trials, respectively. Reflecting AEDPA’s regulation of

federal review of state convictions, § 2244(b)(2)(B) imposes a strict standard

restricting the kinds of evidence that federal courts may consider when

entertaining a state prisoner’s successive-petition claim. And many states have

collateral review procedures to evaluate new evidence unconnected to trial error.

See, e.g., Montoya v. Ulibarri, 163 P.3d 476 (N.M. 2007) (recognizing

defendant’s right to assert free-standing claim of actual innocence based on new

evidence). By contrast, § 2255(h)(1), governing federal court review of federal

convictions, is more lenient. This makes sense in light of “AEDPA’s goal of

promoting comity, finality, and federalism,” as well as respect for state-court

judgments. Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011) (quoting Jimenez

v. Quarterman, 555 U.S. 113, 121 (2009)) (internal quotation marks omitted); see

also Calderon, 523 U.S. at 558 (“Section 2244(b) . . . is grounded in respect for

the finality of criminal judgments.”). Perhaps not coincidentally, these were the

same concerns at work in Sawyer when the Supreme Court adopted the actual

                                        -39-
innocence standard that later made its way into § 2244(b)(2)(B)(ii). See Sawyer,

505 U.S. at 338, 345.

      The distinction makes even more sense in a case such as this, where the

state courts have already passed on an applicant’s claim of innocence and were

not restricted to evidence of innocence rooted in trial-related constitutional error. 6

See Pinholster, 131 S. Ct. at 1401 (noting that AEDPA’s policies are furthered

when state courts have “the first opportunity to review [a] claim, and to correct

any constitutional violation in the first instance”) (alteration in original) (quoting

Jimenez, 555 U.S. at 121) (internal quotation marks omitted). Thus, by design,

the actual-innocence gateway is narrower for successive applicants seeking to

overturn state court convictions than it is for petitioners challenging federal

convictions.

      It is also worth noting the difference between this case and other types of

innocence cases. One type of innocence case involves free-standing claims of

actual innocence even if the “conviction and sentence were entirely fair and error

free.” Schlup v. Delo, 513 U.S. 298,314 (1995) (citing Herrera, 506 U.S. at 419).

      6
         For example, in this case in state court, the New Mexico Supreme Court
acknowledged its recent recognition that “a free-standing claim of actual
innocence entitled a defendant to habeas corpus relief under [state law], if the
petitioner proved ‘by clear and convincing evidence that no reasonable juror
would have convicted him in light of the new evidence.’” Case III, 183 P.3d at
909 (quoting Montoya v. Ulibarri, 163 P.3d 476 (N.M. 2007)). And in Case’s
petition in state court, the New Mexico Supreme Court reviewed the newly
developed evidence (including recanted testimony and DNA) as part of its
evaluation of whether Case merited a new trial.

                                          -40-
Nonetheless, in Herrera, the Court refused to endorse this type of habeas claim,

and, as yet, it is an open question whether such a federal right exists. District

Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71–72 (2009). 7

But, as mentioned above, many states, including New Mexico, allow such claims

of actual innocence.

      A second type of actual innocence case arises from constitutional claims

procedurally defaulted in state court that have never been evaluated by a state or

federal court. See Schlup, 513 U.S. at 314–15; House v. Bell, 547 U.S. 518

(2006). In those cases, the Court concluded that a procedurally defaulted claim

could be resurrected in federal court if a petitioner could pass through the

Schlup/House gateway—namely that the petitioner, in light of new evidence,

establishes it was more likely than not that no reasonable juror would have found

the petitioner guilty beyond a reasonable doubt. House, 547 U.S. at 536–37. If

such a showing is successful, it allows the petitioner to raise a defaulted claim in

federal court for initial consideration.

      The Schlup standard appears to be more forgiving than subparagraph

(B)(ii), since it allows a broader range of evidence to be evaluated by the




      7
        Case has not raised a free-standing actual innocence claim, but only a
successive habeas application under § 2244 alleging constitutional Brady error at
trial.

                                           -41-
court—old and new; admissible and inadmissible—but that is natural. 8 In those

types of cases, the petitioner faced a procedural default and has yet to have an

initial claim of constitutional error evaluated by a court. As the Supreme Court

explained in House, “[d]ismissal of a first federal habeas petition is a particularly

serious matter.” 547 U.S. at 539 (internal quotation omitted). Here we have no

procedural default.

      But it is by no means easy for a petitioner to meet the Schlup standard. A

petitioner invoking Schlup may “obtain review of [the merits of] his constitutional

claims only if he falls within the narrow class of cases . . . implicating a

fundamental miscarriage of justice.” 513 U.S. at 314–15 (internal quotation

omitted). Further, a Schlup claim “does not by itself provide a basis for relief.”

Id. at 315. Instead, the success of a Schlup claim depends entirely on the validity

of the underlying constitutional claim. Id. A Schlup claim of innocence is thus

“not itself a constitutional claim, but instead a gateway through which a habeas



      8
          Schlup requires the habeas court to

              make its determination concerning the petitioner’s
              innocence “in light of all of the evidence, including that
              alleged to have been illegally admitted (but with due
              regard to any unreliability of it) and evidence tenably
              claimed to have been wrongly excluded or to have
              become available only after the trial.”

513 U.S. at 327–28 (quoting Judge Henry J. Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).

                                         -42-
petitioner must pass to have his otherwise barred constitutional claim considered

on the merits.” Id. (quoting Herrera, 506 U.S. at 404).

       As mentioned above, the Supreme Court recognizes a difference between

Schlup/House claims and claims under subparagraph (B)(ii). As it said in House,

rejecting an argument that AEDPA superseded the Schlup standard,

§ 2244(b)(2)(B)(ii) does not “address[] the type of petition at issue here—a first

federal habeas petition seeking consideration of defaulted claims based on a

showing of actual innocence. Thus, the standard of review in these provisions is

inapplicable.” 547 U.S. at 539. In short, Schlup and House provide little

guidance here since they dealt with procedurally defaulted habeas claims, which

are evaluated under a different standard than successive habeas petitions. See 513

U.S. at 306. 9

       As for what to do with truly “new” evidence of actual innocence—e.g.,

evidence that is not linked to constitutional error at trial—the Supreme Court’s

original jurisdiction provides an answer. Even if a freestanding Herrera claim

were recognized but barred by § 2244(b)(2)(B)(ii), another path remains. For

       9
         The Fourth Circuit’s analysis in MacDonald is not to the contrary. 641
F.3d at 609–10. MacDonald compared the language in subparagraph (B)(ii) with
the language in § 2255(h)(1) and concluded these provisions were “materially
identical.” As discussed, MacDonald glossed over important differences between
§ 2255(h)(1) and subparagraph (B)(ii), particularly the former’s reference to “new
evidence” and the latter’s reference to the “facts underlying the [constitutional]
claim.” MacDonald also ignored the fact that § 2255(h)(1) applies to federal
habeas petitions, which, as we noted, are evaluated under a different standard than
state habeas petitions.

                                        -43-
example, in In re Davis, 565 F.3d 810, 823 (11th Cir. 2009) (Davis I), the

Eleventh Circuit held that a freestanding innocence claim under the Supreme

Court’s decision in Herrera cannot be brought in a successive petition governed

by § 2244(b)(2)(B)(ii). See 565 F.3d at 823–24; see also Herrera, 506 U.S. at

400–01 (“[F]ederal habeas courts sit to ensure that individuals are not imprisoned

in violation of the Constitution—not to correct errors of fact. . . . Federal courts

are not forums in which to relitigate state trials.”) (internal quotations and

citations omitted). Thus, the court concluded, as we do, that a successive

petitioner’s claim of innocence must be tethered to a claim of constitutional error

in order for the subparagraph (B)(ii) standard to be met. See id. at 823

(“§ 2244(b)(2)(B)(ii) requires both clear and convincing evidence of actual

innocence . . . as well as another constitutional violation . . . . It is, in effect, an

‘actual innocence plus’ standard.”).

       Even so, Davis I concluded a petitioner could still petition the Supreme

Court to hear his claim under its original jurisdiction. Id. at 826–27. “The

Supreme Court has made clear that the habeas corpus statute, even after []

AEDPA . . . continues to allow it to grant a writ of habeas corpus filed pursuant

to its original jurisdiction.” Id. And that is exactly what happened in Davis.

Once Davis petitioned the Supreme Court based on an actual innocence claim

arising from recanted witness testimony, the Court transferred the petition to

United States District Court in Georgia, with instructions to “receive testimony

                                           -44-
and make findings of fact as to whether evidence that could not have been

obtained at the time of trial clearly establishes petitioner’s innocence.” In re

Davis, 130 S. Ct. 1, 1 (2009) (Davis II). After a hearing was conducted, the

district court found that “executing an innocent person would violate the Eighth

Amendment . . . . [but] Davis is not innocent: the evidence produced at the

hearing on the merits of Mr. Davis’s claim of actual innocence and a complete

review of the record in this case does not require the reversal of the jury’s

judgment.” In re Davis, No. CV409-130, 2010 WL 3385081, at *61 (S.D. Ga.

Aug. 24, 2010) (Davis III) (cert. denied by 131 S. Ct. 1788 (2011)). 10

      Our opinion here does not suggest that Case should be prevented from

presenting truly “new” evidence of his actual innocence to a qualified tribunal.

He can and did so in New Mexico state courts, which considered his new

evidence. 11 See Case III, 183 P.3d at 908. And as discussed above, New Mexico

      10
          Admittedly, we do not suggest this course lightly. We acknowledge that
in the last half century, the Supreme Court has entertained original jurisdiction
petitions of this type in only a handful of cases other than Davis. See Hayes v.
Maryland, 370 U.S. 931, 931 (1962); Chaapel v. Cochran, 369 U.S. 869 (1962);
see also Lee Kovarsky, Original Habeas Redux, 97 Va. L. Rev. 61, 62–63 (2011).
In addition, there are extra-judicial avenues open to Case to challenge his
sentence, such as executive clemency from the governor of New Mexico. See
N.M. Const., Art. V, Sec. 6; see also Sellers v. Ward, 135 F.3d 1333, 1340 (10th
Cir. 1998) (recourse to executive clemency); Davis II, 130 S. Ct. at 4 (Scalia, J.,
dissenting from transfer of habeas corpus petition) (suggesting a similar course of
relief).
      11
        The New Mexico Supreme Court considered the witness recantations and
Brady evidence. Although it did not discuss Case’s DNA evidence in its opinion,
                                                                 (continued...)

                                         -45-
also recognizes a state free-standing actual innocence claim if a petitioner can

prove “by clear and convincing evidence that no reasonable juror would have

convicted him in light of the new evidence.” Id. at 909 (internal quotation

omitted). Instead, our conclusions here are merely complying with the

requirements of § 2244, which requires a linkage between constitutional error at

trial and a potential constitutional violation.

      In conclusion, the universe of facts that enter into the subparagraph (B)(ii)

analysis consists only of evidence presented at the time of trial, adjusted for

evidence that would have been admitted or excluded “but for constitutional error”

during trial proceedings. The factual universe does not encompass new facts that

became available only after trial and that are not rooted in constitutional errors

occurring during trial.

      With this understanding, we next apply the relevant evidence to

subparagraph (B)(ii)’s remaining requirements.

                    c. “Clear and Convincing Evidence”

      Case presents three forms of new evidence: alleged Brady material (the

February 3 Bobby Autry interview), DNA evidence, and recantations from two

eyewitnesses. But as explained above, we cannot consider the subsequently

produced DNA evidence, nor the post-trial witness recantations. Only the Autry


      11
        (...continued)
that evidence was before the court. See R. Vol. I at 351, 354.

                                          -46-
interview is rooted in alleged constitutional error at his trial. Accordingly, this

evidence, and this evidence alone, will enter into the subparagraph (B)(ii)

calculus. To do so, we take the body of evidence produced at trial, add back

“evidence allegedly kept from the jury due to [the] alleged Brady violation,”

Sawyer, 505 U.S. at 349, and determine whether it is “clear and convincing,” “in

light of the evidence as a whole,” that “no reasonable factfinder would have found

[Case] guilty” of Mitchell’s rape and murder, see 28 U.S.C. § 2244(b)(2)(B)(ii).

      It is also important to note that we need not determine at this stage whether

the February 3 Autry interview was “suppressed” by the prosecution, or whether

it was “material” for the purposes of a Brady analysis. See United States v.

Cooper, 654 F.3d 1104, 1119 (10th Cir. 2011). If such analysis is necessary, it

would occur as a part of the merits determination once Case has passed through

the § 2244 gateway.

      Instead, our task is to look to the evidence the jury heard at trial,

augmented by evidence from Mr. Autry’s interview on February 3, and then to

make “a probabilistic determination about what reasonable, properly instructed

jurors would do.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329

(internal quotation marks omitted)); see also LaFevers, 238 F.3d at 1267

(“assum[ing]” the existence of a Brady violation and concluding that the

petitioner could not “demonstrate by clear and convincing evidence that but for

the assumed Brady . . . violation no reasonable factfinder would have found him

                                         -47-
guilty of this murder”). “The court’s function is not to make an independent

factual determination about what likely occurred, but rather to assess the likely

impact of the evidence on reasonable jurors.” House, 547 U.S. at 538.

      Thus, Case is required to “establish by clear and convincing evidence,” that

“no reasonable factfinder would have found [him] guilty of the underlying

offense,” but for the alleged Brady violation. 28 U.S.C. § 2244(b)(2)(B)(ii).

Case argues that Autry’s February 3 statement meets this standard in four ways:

(1) it would have supplied Case with an alternate defense theory—that Autry

alone was responsible for Mitchell’s death; (2) it would have allowed Case to

highlight the weaknesses and undermine the investigatory thoroughness of the

state’s case; (3) Case would not have testified in his own defense; and (4) it

would have been valuable impeachment evidence against Autry.

      In essence, these arguments are related: if Case could have argued that

Autry was the lone killer, then Case never would have concocted a fabricated

story about Mitchell’s death as an accident, and he could have further highlighted

the weaknesses in the state’s investigation and case against him. Moreover, this

theory would have allowed Case to additionally undermine Autry’s credibility on

cross-examination. As a result of these arguments, Case urges us to conclude, as

the district court did, that the verdict would have been undermined as a result of

this counterfactual narrative.




                                        -48-
      We disagree. Case’s arguments do not meet the standard of “clear and

convincing evidence” that “no reasonable factfinder would have found [him]

guilty of the underlying offense,” which would allow him to pass through and

satisfy the jurisdictional requirements of the second gate. See 28 U.S.C.

§ 2244(b)(2)(B)(ii).

      A key theme running through Case’s legal argument is that Autry perjured

himself during direct examination at trial. It is important to evaluate this claim

because much of Case’s argument is linked to it. The January 30 statement

established that Autry and Mitchell were “pretty good friends,” and that they had

spent some time together in December. R., Vol. IV, BA, Jan. 30 Stmt. at 1. In

his March 5 statement, Autry indicated that he had “tried making out” with

Mitchell at a local business, the Flumes. R., Vol. IV, BA, March 5 Stmt. at 3.

According to Autry, he “got her clothes [off] and we was drunk.” Id. Later Autry

was asked, “is this when you tried to have . . . make love . . . or have sexual

intercourse with her?” Id. at 6. There is no indication in the first statement that

Autry ever tried to have sexual intercourse with Mitchell prior to her

disappearance—so we believe, and it seems reasonable, that after reading the

transcript of the March 5 statement, Case would have been alerted to the fact that

Autry had attempted to have a sexual relationship with the victim.

      Additionally, during direct examination at trial, the prosecutor asked Autry

if he ever had sexual intercourse with Mitchell. Autry replied, “No sir.” R., Vol.

                                         -49-
IV, Trial Tr. at 980. The prosecutor then asked whether Autry had ever tried to

have sexual intercourse with Mitchell, and Autry answered, “Yes sir.” Id.

During re-direct, the prosecutor asked Autry if Mitchell was an attractive girl, and

Autry answered yes. When asked if Mitchell was known to “sleep around,” Autry

answered that he did not know, but again acknowledged that he had

unsuccessfully tried to have intercourse with her. Id. at 1031. Case’s defense

counsel did not cross-examine Autry on these points during either cross-

examination or re-cross-examination.

      Case now argues that the more detailed account given by Autry during the

February 3 statement—whereby he describes in greater detail the December 21

encounter with Mitchell—indicates that he perjured himself on the stand because

he had, in fact, had sexual intercourse with Mitchell because he briefly penetrated

her. We think Case over-reads the statement. While this encounter goes beyond

attempt in the legal sense, Autry’s statement overall is consistent with his

testimony at trial that he tried to have intercourse with Mitchell but his advances

were rebuffed.

      This is significant because it bears on Case’s argument, since Case makes

much of the fact that, in the February 3 statement, Autry stated that he was “teed

off” and “mad” after his advances were rebuffed by Mitchell. But the full

exchange is much more equivocal:




                                         -50-
              Q: Did you get mad?

              A: No. I got—I got mad, yeah, but not, not that mad. I
              said well hell, ain’t no great big loss to get turned down
              by a girl.

              Q: You didn’t get mad because she wouldn’t let you?

              A: Well—anybody’d get mad, but—I don’t mean mad
              like in—like you’re gonna do something like that to her.
              Just get kind of teed off or something.

R., Vol. IV, BA Feb. 3 Stmt. at 16. And again, Case’s defense counsel still did

not explore, on cross-examination, Autry’s March 5 statement discussing his

attempted sexual advances, nor his trial testimony that he had tried to have

intercourse with Mitchell prior to her disappearance. Additionally, the February 3

statement indicates that there was no lasting animosity between Autry and

Mitchell; after she rebuffed him, they both got dressed and went to a party

together. Two days later, Mitchell drove around with Autry and another friend.

While these details were not necessarily known to Case at trial since they were

contained in the February 3 statement, when evaluated in the context of the

evidence as a whole, they significantly undercut Case’s arguments. In sum,

Case’s argument that Autry perjured himself during his trial testimony is

unpersuasive—let alone enough that no reasonable factfinder would have found

him guilty.

      This conclusion bears on our analysis in a number of ways—in essence,

Case’s arguments are all predicated on a finding that the suppression of the

                                          -51-
February 3 statement left them without key impeachment evidence against Autry.

But that is simply not true.

      While Case could have argued that Autry was the lone killer prior to New

Year’s Day, “evidence that another person had a motive to commit the crime for

which a defendant is on trial is generally inadmissible, absent direct or

circumstantial evidence linking the third person to the crime.” Case III, 183 P.3d

at 920; see also State v. Rosales, 94 P.3d 768 (N.M. 2004) (finding that a third

person’s motive is not admissible unless there is at least some other evidence to

connect the third person to the offense). “For Brady purposes, exculpatory

evidence cannot be purely speculative.” Case III, 183 P.3d at 920; see also

United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994) (“The mere

possibility that evidence is exculpatory does not satisfy the constitutional

materiality standard.”).

      Case makes a related argument in claiming he would have had little reason

to take “the stand to tell [his] far-fetched story” of the events that transpired at

Six Mile Dam had he known of Autry’s statement. R., Vol. I at 802. It is correct

that, in assessing a Brady claim, we will consider how Brady material “might

meaningfully alter a defendant’s choices before and during trial . . . [including]

whether the defendant should testify.” United States v. Burke, 571 F.3d 1048,

1054 (10th Cir. 2009). But as the state points out, Case’s testimony is only

“incredible” in the sense that he fabricated a story claiming that Mitchell’s death

                                         -52-
was an accident. Aplt. Rep. Br. at 17. There were multiple other eyewitnesses

who placed Case at Six Mile Dam, and, as detailed above, Case would not have

been able to argue that Autry was the lone killer because such a defense would

have been purely speculative and against the weight of the eyewitness testimony

and physical evidence presented. Additionally, had Case not testified, the

outcome of the trial would have been the same—that is, the only legitimate

defense theory based on the evidence at trial, the same one as actually presented,

was that Worley was solely responsible for Mitchell’s death.

      We are also reluctant to discredit Case’s trial testimony. While the

February 3 statement could have theoretically made a difference on his decision

to testify, he did testify under oath in his own defense. He asks us now to totally

reject his version of the facts. But he placed himself at the scene of the crime,

and we place little value in his present assertion that he was not there.

“Recanting testimony has long been disfavored as the basis for a claim of

innocence. Appellate courts, even on direct review, look upon recantations with

extreme suspicion.” Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir. 1997)

(Kosinski, J., dissenting). This admonition is even stronger when a perjurious

defendant changes his story twenty years after the fact. Given this, the

February 3 statement would have added little to further Case’s defense at trial.

      With respect to Case’s argument that Autry’s credibility could have been

undermined by the February 3 statement, the trial record is clear that Autry’s

                                         -53-
credibility was already put into question at trial, “not only through an aggressive

cross-examination showing prior inconsistent statements, but through character

witnesses who testified that Autry had a reputation for untruthfulness.” Case III,

183 P.3d at 919–20. Thus, the February 3 statement would have been cumulative

to the evidence presented at trial, falling far short of the clear and convincing

standard. See also Nuckols v. Gibson, 233 F.3d 1261, 1267 n.8 (10th Cir. 2000)

(finding that when the credibility of a witness “has already been substantially

called into question in the same respects by other evidence, additional

impeachment evidence will generally be immaterial”) (internal quotation

omitted); State v. Chavez, 867 P.2d 1189, 1195 (N.M. 1993).

      While it is true suppressed evidence that “significantly enhanc[es] the

quality of the impeachment evidence usually will” be probative, the February 3

statement did not have that effect. Douglas v. Workman, 560 F.3d 1156, 1174

(10th Cir. 2009); see also United States v. Torres, 569 F.3d 1277, 1284 (10th Cir.

2009) (“Merely because other impeachment evidence was presented does not

[necessarily] mean that additional impeachment evidence is cumulative . . . .”).

The prosecution had already presented facts about Autry during direct

examination that significantly undermined his credibility; the February 3

statement was merely more of the same.

      During direct examination, for example, Autry admitted that he failed a lie

detector test after giving a fabricated story about Mitchell’s disappearance and

                                         -54-
was arrested as a suspect in Mitchell’s death on that basis. R., Vol. IV, Trial Tr.

at 997–98. Then on cross-examination, Case’s counsel was more specific, stating

that Autry had previously been charged with “First Degree Murder and Criminal

Sexual Penetration in the First Degree” in the case, before being offered

immunity in exchange for his testimony against Case and the others. Id. at

1003–05. Defense counsel then confirmed that Autry’s entire January 30

statement was a lie, that Autry was “afraid of being in jail,” and, by implication,

that Autry would lie again in order to avoid being sent to the penitentiary. Id. at

1014, 1026–27. Then on re-direct, the prosecution again brought up Autry’s

failed attempt at sexual intercourse, and Autry’s attraction to Mitchell. Id. at

1031. And, once again, Case’s counsel failed to follow-up on that line of

questioning during his re-cross-examination. Ultimately, defense counsel’s entire

cross-examination of Autry was aimed at pointing out the inconsistencies in

Autry’s prior versions of events, undermining his credibility, and trying to paint

him as someone with an ax to grind against Case. We fail to see how the

February 3 statement would have changed this inquiry. Ultimately the February 3

statement would have “insignificantly impact[ed] the degree of impeachment,”

and “would have provided only marginal additional support for [the] defense.”

Douglas, 560 F.3d at 1174 (internal quotation omitted).

      In sum, we find that Autry’s February 3 statement, when evaluated in the

context of the evidence presented at trial as a whole, does not satisfy the clear and

                                         -55-
convincing evidence standard, such that no reasonable factfinder would have

found him guilty of the rape and murder of Nancy Mitchell. Accordingly, Case

has failed to pass through the second § 2244 gateway, which would allow us to

consider the merits of his application.

      Although a matter for another day given this disposition, we acknowledge

the foregoing approach raises questions regarding what a merits analysis would

look like where the § 2244(b)(2)(B)(ii) standard has been legitimately satisfied. 12

But because we find that Case fails the § 2244(b)(2)(B)(ii) standard, we need not

explore the analysis appropriate at the merits stage.

             3. Non-Brady Additional Evidence

      While we find § 2244 does not require an evaluation of evidence not linked

to a trial-based constitutional violation, even if we were to consider the DNA

evidence and other witness recantations, alongside Autry’s February 3 statement,

we would still not find subparagraph (B)(ii) had been satisfied.


      12
          The district court determined at the gate-keeping stage that Case
demonstrated a Brady violation and then as to the merits, “[r]ather than
repeat[ing] its analysis,” it “simply refer[red]” back to the prior portion of its
opinion, “wherein it fully evaluated Mr. Case’s Brady claim.” Case IV, 773 F.
Supp. 2d at 1148. This approach was analytically incorrect in that it treated the
gate-keeping and merits analyses as identical. Further, even if a full Brady
analysis had been appropriate at the gate-keeping phase, the district court erred in
considering post-trial witness recantations. See id. at 1147–48. Brady “requires a
prosecutor to disclose material exculpatory evidence to the defendant before
trial.” Osborne, 557 U.S. at 68. A post-trial recantation does not exist before
trial, and a prosecutor cannot make a pre-trial disclosure of evidence that does not
yet exist.

                                          -56-
      First of all, the DNA evidence presented at the state evidentiary hearing

fails to be compelling. The more sophisticated testing revealed no evidence of

male DNA or sperm cells; this evidence is neither incriminating nor exonerating.

While Case argues that, had a rape occurred, some male DNA would be present,

there was no definitive DNA evidence presented at the original trial to support the

rape conviction. Further, the uncontested physical evidence presented at trial

supported an attack of a sexual nature—Mitchell’s torn and inside-out clothing

and physical injuries. The DNA evidence developed in 2005 is similarly

inconclusive, not a “smoking gun” that exonerates Case from participation in the

attack.

      As to the recanted testimony, we agree with the well-developed analysis of

the New Mexico Supreme Court: it was no more than efforts to revert to the

original statements Knight and Dunlap gave to the police that they did not know

anything about the events leading to Nancy Mitchell's death. Case III, 183 P.3d

at 917. The fact that Dunlap received immunity for his testimony was presented

to the jury at trial. Both witnesses were vigorously cross-examined and admitted

in front of the jury that they had lied to the police. Moreover, Knight admitted

that she had falsely accused Randy Davis of being one of the attackers. And as

we noted above, recanted testimony is notoriously unreliable, “easy to find but

difficult to confirm or refute: witnesses forget, witnesses disappear, witnesses

with personal motives change their stories many times, before and after trial.”

                                        -57-
Carriger, 132 F.3d at 483; cf. Davis I, 565 F.3d at 825 (“[W]e repeatedly have

noted that recantations are viewed with extreme suspicion by the courts . . .

because . . . recantation testimony upsets society’s interest in the finality of

convictions, is very often unreliable and given for suspect motives, and most

often serves merely to impeach cumulative evidence rather than to undermine

confidence in the accuracy of the conviction.”) (internal quotation omitted).

      In addition, Autry’s eyewitness testimony at trial corroborated many of the

circumstances of the murder which, though certainly not identical to the other

witnesses, were highly similar. Case also corroborated portions of the other

witnesses’ statements by placing himself at the scene and describing Mitchell

being hit by the other men. Also, the testimony of the pathologist as to the cause

of death—a blow to the head leading to unconsciousness and death by

exposure—was also corroborative of parts of the testimony by Case and Autry.

The pathologist also testified that Mitchell’s hands, the top of her feet, and front

lower torso had scrape marks consistent with the body being dragged, which was

inconsistent with an accidental fall.

      In sum, even viewing the evidence unrelated to the Brady violation, we

cannot conclude that it rises to a level sufficient to meet the gate-keeping

requirements of § 2244(b)(2)(B)(ii).




                                          -58-
                              III. Conclusion

      Based on the foregoing analysis, we VACATE the district court’s

conditional grant of habeas corpus, and remand for the court to DISMISS for lack

of jurisdiction.




                                      -59-
Case v. Hatch, No. 11-2094
EBEL, J., concurring


      I agree with the result the majority reaches - Petitioner-Appellant Carl Case

is not entitled to federal habeas relief. I write separately to express my frustration

at the process by which we have made that determination. The majority notes that

a state prisoner such as Case must pass through dual gateways before a federal

court can consider the merits of his habeas claim asserted in a second or

successive 28 U.S.C. § 2254 petition. In truth, we have required Case to pass

through a three-part jurisdictional gauntlet.

      Initially, this court, acting pursuant to 28 U.S.C. § 2244(b)(3)(C),

authorized Case to pursue his Brady 1 claim in a second § 2254 petition, after

determining that Case had made a prima facie showing that he could meet the

procedural requirements set forth in § 2244(b)(2)(B). That determination gave

the district court jurisdiction to consider Case's second § 2254 petition. See

Burton v. Stewart, 549 U.S. 147, 149, 157 (2007) (per curiam). The district court,

in turn, properly addressed whether Case had actually met § 2244(b)(2)(B)'s

requirements. See 28 U.S.C. § 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 this section.") A district court "may not consider the merits of



      1
          Brady v. Maryland, 373 U.S. 83 (1963).
the claims alleged in the petition until" that court determines that the "application

clears the hurdles erected by § 2244(b)." Brian R. Means, Federal Habeas

Manual, 1049 (2012). In this case, after determining that Case had in fact cleared

those procedural hurdles, the district court expended significant effort and

resources addressing the merits of Case's claim for habeas relief. On appeal from

that decision, we have again reviewed de novo whether federal courts can

consider the merits of Case's habeas claim.

      This duplicative expenditure of judicial resources runs counter to the

purposes underlying the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"). Congress enacted AEDPA, not only to afford the appropriate respect

for the finality of state court proceedings, but also with the intent to conserve

judicial resources and to streamline the federal habeas process state prisoners can

invoke to challenge those state proceedings. See Panetti v. Quarterman, 551 U.S.

930, 945-46 (2007). Addressing at least three times, in two different courts, the

question of whether a state prisoner can meet the procedural requirements for

asserting a second or successive habeas petition runs counter to those

congressional interests in expediency. That is particularly true when both this

court, albeit quickly and tentatively, and the district court, more conclusively,

have determined that Case can meet those requirements and the district court has,

therefore, gone forward with an extensive analysis of his constitutional claim for

§ 2254 relief.

                                         -2-
      I acknowledge that this court has once previously provided for this third

occasion for review before moving on to consider the merits of a state prisoner's

habeas claim, although without first discussing whether we should do so. See

Ochoa v. Workman, 669 F.3d 1130, 1140-43 (10th Cir.) (upholding district court's

determination that the state prisoner met § 2244(b)(2)(A)'s procedural

requirements), cert. denied, 133 S. Ct. 321 (2012). Nevertheless, at some point,

this redundant, extensive and resource-intensive consideration of § 2244(b)(2)'s

procedural requirements must cease, and federal courts should turn to the merits

of the state prisoner's habeas claim. That time, for me, would be here and now. I

conclude, reaching the merits, that Case is not entitled to habeas relief on his

Brady claim.

      That being said, I agree with the majority's analysis of § 2244(b)(2)(B)'s

procedural requirements, with one minor exception. Although § 2244(b)(2)(B)(ii)

restricts our consideration of new evidence of a state prisoner's innocence to

evidence that is directly linked to the constitutional claim he seeks to raise in his

second or successive habeas petition, this represents a change from pre-AEDPA

law. Before AEDPA, courts applying the actual-innocence exception to most

procedural bars, see Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992), considered

all the evidence a state prisoner could muster in support of his claim that he was

factually innocent of the crime for which he was convicted. See Schlup v. Delo,

513 U.S. 298, 327-28 (1995); Kuhlmann v. Wilson, 477 U.S. 436, 454 n.17

                                          -3-
(1986). Therefore, I would not rely on pre-AEDPA case law (including Sawyer,

505 U.S. 333, as well as McCleskey v. Zant, 499 U.S. 467 (1991), and Smith v.

Murray, 477 U.S. 527 (1986)) to support our conclusion that § 2244(b)(2)(B)(ii)

restricts us to considering only new evidence that is directly linked to the state

prisoner’s current habeas claim.




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