                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          April 12, 2013
                                         PUBLISH
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                       UNITED STATES COURT OF APPEALS

                              FOR THE TENTH CIRCUIT


 CARL CASE,

        Petitioner - Appellee,

 v.                                                           No. 11-2094
                                                  (D.C. No. 1:08-CV-00542-MV-WDS)
 TIM HATCH, Warden, Guadalupe
 County Correctional Facility,

        Respondent - Appellant.



                                          ORDER



Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.



       This matter is before the court on the appellee’s Petition for Rehearing and

Suggestion for Rehearing En Banc. We also have a response from the appellant. Upon

consideration by the judges assigned to this appeal originally, the petition for panel

rehearing is granted in part to the extent of the amendments found in the Opinion now

attached to this order. The petition for panel rehearing is otherwise denied. The Clerk is

directed to vacate the court’s original decision and concurrence, and to replace it with the

Opinion and concurrence attached to this order.
       The petition, response and amended Opinion were also transmitted to all of the

judges of the court who are in regular active service. As no member of the panel and no

judge in regular active service requested that the court be polled, the request for en banc

rehearing is denied.


                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER
                                                 Clerk of Court




                                             2
                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 12, 2013
                                       PUBLISH
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                  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. CIV-08-00542-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

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.


                                               2
       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.

       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

                                            3
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. 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


                                               4
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 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

       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.

                                              5
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 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


                                              6
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 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


                                             7
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.

              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


                                              8
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.

       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


                                              9
stated that they saw Mitchell several weeks after January 1, implying that the medical

examiner’s date of death estimation was incorrect. But 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


                                                10
two of the three eyewitnesses, Knight and Dunlap, signed affidavits 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 death. She


                                             11
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 scripted his testimony from

         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.

                                             12
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

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.”


                                             13
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 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


                                              14
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 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


                                              15
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 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.



       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.

                                             16
       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 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

                                             17
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 . . . 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


                                              18
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)).

       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


                                             19
petitioner make a prima facie showing at the circuit level that no reasonable factfinder

would have found him guilty but for constitutional error at 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.



                                               20
       But this was only a “preliminary determination,” id. at 70, demonstrating “possible

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


                                             21
              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 re Holladay, 331 F.3d

1169, 1173–74 (11th Cir. 2003); Bell v. United States, 296 F.3d 127, 128 (2d Cir. 2002);



                                               22
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).

       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

       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.

                                               23
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 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.


                                              24
       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).

       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


                                              25
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.

       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.,


                                              26
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 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,


                                              27
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.

       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).


                                              28
                     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 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


                                              29
within a successive application.”).

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


                                             30
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.

       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



        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.

                                             31
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). 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


                                             32
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).

       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


                                             33
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 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


                                            34
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

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.


                                             35
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 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

       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.

                                              36
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). 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 court—old and new;




       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.

                                              37
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 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

       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)).

                                             38
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 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

       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.

                                             39
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

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.


                                                40
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 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.


       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,
that evidence was before the court. See R. Vol. I at 351, 354.

                                             41
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.12

       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 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

       12
         We recognize that the Fourth and Eighth Circuits permit courts to
consider the entire universe of available evidence at this stage. See Nooner, 689
F.3d at 933; MacDonald, 641 F.3d at 610. We believe the reasoning employed in
those decisions fails to appreciate two important considerations. First, § 2244 is
not a form of relief—it is a procedure for determining whether a court may hear a
second-or-successive § 2254 petition on its merits. Second, if a court hears a
second-or-successive § 2254 petition on its merits, the standards are no different
than hearing a first § 2254 petition on its merits. The petitioner must present a
claim of error under federal law, and—perhaps AEDPA’s most significant
deviation from previous law and practice—the state court decision is entitled to
significant deference. Under the Fourth and Eighth Circuits’ approach, a second-
or-successive petitioner can state a “constitutional error,” such as a Brady claim,
and then have it evaluated in light of every bit of evidence presently available
(which of course untethers it from a Brady claim). If that satisfies
§ 2244(b)(2)(B)(ii)—meaning that “no reasonable factfinder would have found
the [petitioner] guilty”—then the court must go on to § 2254(d) analysis, which
(by design) rarely leads to overturning convictions.

                                              42
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 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


                                             43
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.

       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


                                             44
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. 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


                                             45
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:

              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

                                              46
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 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

                                             47
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 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.

                                             48
       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 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 was arrested as a

                                             49
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 do not believe Autry’s February 3 statement, when evaluated in the

context of the evidence presented at trial as a whole, meets even the Brady materiality

standard, which requires only “a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S.

                                             50
Ct. 627, 630 (2012) (internal quotation marks omitted). And if Autry’s February 3

statement does not satisfy this lower standard, it certainly does not satisfy

§ 2244(b)(2)(B)(ii)’s call for “clear and convincing evidence” such that “no reasonable

factfinder would have found [Case] 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.13

       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.14 But because we

find that Case fails the § 2244(b)(2)(B)(ii) standard, we need not explore the analysis

       13
         Working from our decision in Daniels v. United States, 254 F.3d 1180
(10th Cir. 2001) (en banc), Case argues in the alternative that applying
§ 2244(b)(2)(B) to him is an impermissible retroactive application of AEDPA
given that he filed his first federal habeas petition before AEDPA. Assuming
arguendo we agreed with Case’s interpretation of Daniels, it would simply
require us to perform a traditional Brady analysis at this stage. As already
discussed, Case would fail at least the Brady materiality test. We therefore need
not reach Daniels or the remaining Brady elements.
       14
          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.

                                              51
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.

       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

                                             52
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.” 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 §

                                              53
2244(b)(2)(B)(ii).

                                  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.




                                           54
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 Brady1 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 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

1
    Brady v. Maryland, 373 U.S. 83 (1963).
                                               1
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.

          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

                                               2
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 (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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