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

                                    TENTH CIRCUIT                              August 28, 2018

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 LEE EDWARD BOYD,

               Petitioner - Appellant,
                                                             No. 17-6230
 v.                                                  (D.C. No. 5:15-CV-01236-HE)
                                                             (W.D. Okla.)
 JIMMY MARTIN,

               Respondent - Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.


       In 2008, Lee Edward Boyd was convicted by a jury in Oklahoma state court of one

count of first degree rape, five counts of lewd molestation of a child under sixteen, and

one count of indecent exposure. The victims were his nieces, V.B. and S.B., who were

eight- and seven-years old, respectively, when the most recent acts of sexual misconduct

occurred. He was sentenced to 50 years in prison. The Oklahoma Court of Criminal

Appeals (OCCA) affirmed on direct appeal. His attempts to obtain post-conviction relief

in state court were unsuccessful.

       Boyd filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 raising

various claims. He also sought to introduce newly discovered evidence which, he
claimed, established his actual innocence. That evidence included affidavits from (1)

Raymond Boyd alleging the victims (his daughters) had lied at trial and (2) Frankie Boyd

claiming the victims (his granddaughters) had told him about a male babysitter that had

inappropriately touched them. He also submitted an affidavit and a notarized letter from

V.B., one of the victims, recanting her trial testimony.1

       The judge denied relief. Relevant here, he concluded Boyd could not allege a


       1
           V.B.’s affidavit provided:

       The things I stated in court about Lee Edward Boyd was not true. As I became an
       adult I do not recall having any such memory of those things happening. I do not
       recall Lee Edward Boyd ever touching me improperly. I never had bad memories
       about my uncle.

(R. at 359.) Her notarized letter stated:

       To whom it may concern. Lee Boyd did not ever in any way touch me. There was
       another man I would like to not speak of that did them things to me. Being 18
       now and able to speak without feeling scared I would like to let anyone know it
       was not him.

(Id. at 384.) As the judge aptly observed, V.B. “equivocates between alleging . . . that
she testified falsely and . . . suggesting she cannot remember the events that were the
basis for her testimony.” (R. at 390.)
       That observation highlights just one of the many problems with recantations. See
Case v. Hatch, 731 F.3d 1015, 1041-42, 1044 (10th Cir. 2013) (“Recanting testimony has
long been disfavored as the basis for a claim of innocence.” We “look upon recantations
with extreme suspicion” because they are “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.” (quotation
marks omitted)); see also Dobbert v. Wainwright, 468 U.S. 1231, 1233–34 (1984)
(Brennan, J., dissenting from denial of certiorari review) (“Recantation testimony is
properly viewed with great suspicion. It 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.”).

                                            -2-
free-standing claim of actual innocence because such claim “is not itself a constitutional

claim, but instead a gateway through which a habeas petitioner must pass to have his

otherwise barred constitutional claim considered on the merits.” See Herrera v. Collins,

506 U.S. 390, 404 (1993).

       Boyd timely moved to reconsider under Fed. R. Civ. P. 59 (Rule 59 motion). To

that motion, he attached another affidavit from Frankie Boyd, this time claiming V.B.

told him via text message that her allegations against Boyd were false and her sister,

S.B., “is in it with me.” (D. Ct. Doc. No. 40-1.) According to Boyd, this affidavit is

further proof of his actual innocence. He also argued for the first time that the Oklahoma

state court was without jurisdiction over his criminal case under the Major Crimes Act,

18 U.S.C. § 1153,2 because he is a Native American (Cherokee) and the events occurred

within “Indian country.”3 He relied on our recent decision in Murphy v. Royal, 875 F.3d



       2
           18 U.S.C. § 1153 provides:
       (a) Any Indian who commits against the person or property of another Indian or
       other person any of the following offenses, namely, murder, manslaughter,
       kidnapping, maiming, a felony under chapter 109A [sexual abuse], incest, a felony
       assault under section 113, an assault against an individual who has not attained the
       age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a
       felony under section 661 of this title within the Indian country, shall be subject to
       the same law and penalties as all other persons committing any of the above
       offenses, within the exclusive jurisdiction of the United States.
       (b) Any offense referred to in subsection (a) of this section that is not defined and
       punished by Federal law in force within the exclusive jurisdiction of the United
       States shall be defined and punished in accordance with the laws of the State in
       which such offense was committed as are in force at the time of such offense.
       3
         Boyd’s crimes occurred in Red Rock, Noble County, Oklahoma. Because this
claim is not properly before us, we do not address whether his crimes occurred “within
Indian country.” 18 U.S.C. § 1153. Moreover, while he alleges he is a Native American

                                            -3-
896 (10th Cir. 2017) (concluding Congress had not disestablished the 1866 boundaries of

the Creek Reservation and therefore Murphy should have been charged and tried in

federal court under the Major Crimes Act because he was an Indian and his crime

occurred within in Indian country), cert. granted, 138 S. Ct. 2026 (2018).

       The judge denied the motion, concluding there was “no basis for changing [his]

decision.” (D. Ct. Doc. No. 42.) He also denied a certificate of appealability (COA) so

Boyd renews his request for a COA here.

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

We will issue a COA “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must show that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation marks omitted).

       Boyd does not challenge the denial of his § 2254 petition other than to continue to

claim his newly discovered evidence establishes his actual innocence. But, as the judge

correctly decided, Boyd cannot allege a free-standing claim of actual innocence. See

Herrera, 506 U.S. at 400, 404; see also LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4



and that the crimes occurred within Indian country, he does not point to anything in the
record or even attempt to provide any evidence supporting these allegations, which he
was required to do.

                                            -4-
(10th Cir. 2001) (“[A]n assertion of actual innocence, although operating as a potential

pathway for reaching otherwise defaulted constitutional claims, does not, standing alone,

support the granting of the writ of habeas corpus.”). Because that decision is not

reasonably debatable and, in fact, correct, Boyd is not entitled to a COA on this claim.4

       He also argues the judge erred in denying his Rule 59 motion. We agree that the

judge erred in denying that motion; he should have dismissed it for lack of jurisdiction

because the motion is an unauthorized second or successive § 2254 petition.

       In his Rule 59 motion, Boyd sought to introduce new evidence in support of his

previously denied actual innocence claim and to raise for the first time a claim that his

convictions were void under the Major Crimes Act. It is not a “true” Rule 59 motion but

rather a disguised second or successive § 2254 petition. See Spitznas v. Boone, 464 F.3d

1213, 1215-16 (10th Cir. 2006) (a post-judgment motion is a second or successive habeas




       4
           Boyd did not first present the newly discovered evidence to the state courts. He
asked the district judge to stay his § 2254 proceedings to allow him to do so. See 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in the courts of the State.”).
The judge denied the request because Boyd had not identified any new claim for federal
habeas relief that would warrant allowing him to supplement his § 2254 petition with the
newly discovered evidence (other than a freestanding actual innocence claim which is not
a cognizable ground for habeas relief) and therefore no unexhausted claims were
pending. We see no abuse of discretion and decline to issue a COA on this issue. See
Rhines v. Weber, 544 U.S. 269, 277 (2005) (“Because granting a stay effectively excuses
a petitioner’s failure to present his claims first to the state courts, stay and abeyance is
only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are plainly meritless.”).

                                             -5-
petition “if it in substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction”; “examples of [post-judgment] motions that should be

treated as second or successive habeas petitions” include those asserting “a claim of

constitutional error omitted from the movant’s initial habeas petition” and those “seeking

leave to present newly discovered evidence in order to advance the merits of a claim

previously denied” (quotation marks omitted)).5 As such, absent our authorization, the

judge was without jurisdiction to address it. See 28 U.S.C. § 2244(b)(3)(A) (“Before a

second or successive [§ 2254] application . . . is filed in the district court, the applicant

shall move in the appropriate court of appeals for an order authorizing the district court to

consider the application.”); see also In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)

(“A district court does not have jurisdiction to address the merits of a second or

successive . . . § 2254 claim until this court has granted the required authorization.”). We

therefore vacate the order denying the Rule 59 motion and construe Boyd’s COA

application as a request to file a second or successive § 2254 petition. See Spitznas, 464

F.3d at 1219 (“If . . . the district court has incorrectly treated a second or successive

petition as a true [post-judgment] motion and denied it on the merits, we will vacate the

district court’s order for lack of jurisdiction and construe the petitioner’s appeal as an

application to file a second or successive petition.”).



       5
        Although Spitznas addressed motions to reconsider under Fed. R. Civ. P. 60(b),
we have also applied it to Rule 59 motions. See United States v. Pedraza, 466 F.3d 932,
933 (10th Cir. 2006); see also United States v. Moreno, 655 F. App’x 708, 713 (10th Cir.
2016) (unpublished); Richardson v. Ploughe, 577 F. App’x 771, 777 (10th Cir. 2014)
(unpublished).

                                              -6-
       In order to receive authorization to file a second § 2254 petition, an applicant must

show the petition (1) “relies on a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable” or (2) is

based on newly discovered evidence that “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). Boyd’s petition satisfies neither prong.

       His claim under the Major Crimes Act is not based on “a new rule of

constitutional law made retroactive to cases on collateral review by the Supreme Court.”

See 28 U.S.C. § 2244(b)(2) (emphasis added). It is, instead, based on our decision in

Murphy, where we applied existing Supreme Court precedent, Solem v. Bartlett, 465 U.S.

463 (1984), as “clearly established federal law” requiring habeas relief. See Murphy, 875

F.3d at 921-22. Moreover, Frankie Boyd’s affidavit, even if it could be considered newly

discovered evidence,6 does not “establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found [him] guilty of the

underlying offense[s].” See 28 U.S.C. § 2244(b)(2). Not only is the affidavit based on

inadmissible hearsay, it also addresses only the “charges against [Boyd] from [V.B.] that

wasn’t true.” (D. Ct. Doc. No. 40-1 (emphasis added).) Only two counts of conviction—

indecent exposure and lewd molestation of a child under sixteen—involved V.B.; those



       6
        The affidavit is signed on October 25, 2017, yet refers to text messages dated
December 15, 2017. If the affidavit meant to refer to text messages dated December 15,
2016, then Boyd has failed to explain why it took him over ten months to discover them.

                                            -7-
counts resulted in a 10-year sentence. The remaining five counts of conviction, including

first degree rape, involved S.B. and resulted in a 40-year sentence. S.B. has not recanted

and the affidavit does not refute S.B.’s testimony.

       We DENY a COA to the extent Boyd is challenging the denial of his § 2254

petition (his actual innocence claim). We VACATE the district court’s order denying the

Rule 59 motion because that motion was a second or successive § 2254 petition which

the court was without jurisdiction to consider. We construe Boyd’s COA application as a

request for authorization to file a second or successive petition and DENY authorization.

       The judge denied Boyd’s request to proceed on appeal without prepayment of fees

(in forma pauperis or ifp). Boyd renews his ifp request with this Court. Because we have

reached the merits of his COA application, his renewed request to proceed on appeal

without prepayment of fees is DENIED AS MOOT.




                                          Entered by the Court:



                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                            -8-
