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

                                      TENTH CIRCUIT                       October 29, 2014

                                                                         Elisabeth A. Shumaker
ALVIN PARKER,                                                                Clerk of Court
            Petitioner - Appellant,
                                                       Nos. 14-6111 and 14-6174
v.                                                    (D.C. No. 5:13-CV-01365-D)
TERRY MARTIN, Warden,                                        (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT 


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


     Alvin Parker, a state prisoner proceeding pro se, seeks a certificate of appealability

(“COA”) that would allow him to appeal from the district court’s order denying his

habeas corpus petition under 28 U.S.C. § 2254. As an initial matter, we grant Parker’s

motion to consolidate this appeal with his other appeal, No. 14-6174.1 Because we




      After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist this appeal, so the case is
ordered submitted without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). This order and judgment is not binding precedent except under the doctrines of
law of the case, claim preclusion, and issue preclusion. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
     1
    In that appeal, he argues that the district court should have granted his motion to
amend or alter the judgment under Rule 59(e). The grounds for granting relief from a
judgment under Rule 59(e) include: (1) an intervening change in the controlling law; (2)
new evidence previously unavailable; and (3) the need to correct clear error or prevent
manifest injustice. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). The district court found that Parker had not established any ground for relief from
conclude that Mr. Parker has failed to make a substantial showing of the denial of a

constitutional right in both appeals, we deny his request for a COA in each, and we

dismiss this consolidated appeal.

   Parker was convicted of second degree murder and sentenced to 199 years in prison.

His conviction was affirmed on direct appeal. State court post-conviction relief was

unsuccessful, as were his efforts to obtain federal habeas relief.

   The current appeal involves Parker’s filing of a successive § 2254 habeas corpus

petition, claiming that a key witness, Glenn Briggs, has recanted his testimony naming

Parker as the murderer. In December 2013, this court authorized Parker to file a

successive § 2254 application, explaining that it was a close question of whether he had

made the necessary showing under 28 U.S.C. § 2244(b). We concluded that it was

unclear from the record whether this evidence related to a constitutional error as required

by § 2244(b)(2)(B)(ii). Given that our order was only a preliminary determination, we

left it to the district court to determine whether the petition actually satisfied the

requirements of § 2244(b).

   At the district court, a magistrate judge issued a report and recommendation,

recommending that the successive habeas corpus petition be dismissed because it failed

to meet the requirements of § 2244(b)(1)(B)(ii). The recommendation concluded that

Parker’s allegation of a constitutional error was baseless, and it recommended that the

successive petition be dismissed because it failed to make the requisite showing to invest


the judgment under Rule 59(e). The district court denied Parker’s motion. We affirm the
district court.

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the district court with jurisdiction to hear his claim on the merits. The magistrate judge

also notified Parker of his right to object and explained that the failure to properly object

would waive the right to appellate review of the factual and legal issues addressed in the

report.

   Parker objected to the magistrate judge’s report and recommendation, arguing that his

simultaneously submitted amended habeas corpus petition would “cure the jurisdictional

defect in petitioner’s original habeas corpus petition . . . .” The amended petition would

ostensibly add the following constitutional claim: “The prosecutor’s knowing use of

perjured testimony violated petitioner’s due process rights.” The amended petition went

on to explain that through a variety of inferences, it was supposedly clear that the

prosecution had to know from the outset that Briggs had lied. The district court found that

Parker’s objection had failed to identify any error in the magistrate judge’s analysis and

presented no issue for decision. The district court adopted the magistrate’s

recommendation, discussing in depth the requirements of § 2244(b) and Parker’s claims.

It also denied Parker a COA under 28 U.S.C. § 2253(c)(2).

   The denial of a motion for relief under § 2254 may be appealed only if the district

court or this court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA

only if the applicant has made a substantial showing of the denial of a constitutional right.

Id. § 2253(c)(2). To make such a showing, a petitioner must demonstrate that reasonable

jurists could debate whether the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed further.




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Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Parker has not made the requisite

showing, and accordingly, we deny his request for a COA.2

   The district court correctly dismissed Parker’s petition under § 2244(b)(2)(B)(ii).

Both the petition and the amended petition (filed with the objection to the magistrate

judge’s recommendation) alleged the same constitutional error: the prosecution’s

knowing use of false testimony. The district court concluded that Parker “lacks any

credible facts to establish the second element of a due process claim, that is, the

prosecutor knew Briggs’ identification of Petitioner was false.” It found that Parker’s

allegations regarding perceived “inconsistencies in the evidence [and] deficiencies in the

investigation” as insufficient to establish the prosecution’s knowledge.

   In his request for a COA from this court, Parker alleges to us the same set of

circumstances and facts that he did to the district court, explaining that they raise “an

inference that the prosecutor knew that Briggs falsely accused petitioner of murder . . . .”

Under § 2244(b)(2)(B)(ii), Parker must show by clear and convincing evidence that but

for the constitutional error, no reasonable jury would have found him guilty of the

murder. To tie a recanting witness to a constitutional error, Parker must show that (1) the

witness’s testimony was in fact false; (2) the prosecution knew it to be false; and (3) the

testimony was material. United States v. Caballero, 277 F.3d 1235, 1243–44 (10th Cir.


   2
     There is a dispute regarding whether Parker waived his right to appeal the magistrate
judge’s recommendation. Without deciding the issue, we exercise our discretion to
address the merits of whether Parker’s claim warrants COA. Even if the district court
improperly found that Parker had waived his right to appeal by not filing meritorious
objections, our conclusion regarding a COA would be the same.


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2002). Parker must establish all three elements. See id.; see also, e.g., Romano v. Gibson,

239 F.3d 1156, 1175 (10th Cir. 2001) (“Even assuming the truth of [the recantation],

however, [the defendant] has failed to assert any evidence indicating prosecutors knew

[the] testimony was false.”).

   As to the first element, Parker offers a statement from Briggs, allegedly “signed under

penalty of perjury,” indicating “that he lied about petitioner having committed the

murder.” Regarding the second element, Parker admits there is no direct evidence

establishing that the prosecution knew that the testimony was false. Instead, he relies “on

inferences from established facts to establish that the prosecutor knew that the testimony

was false.” The district court found that the proposed inferences were “inconsistent with

the trial evidence.” We agree. As to the last element, Parker argues that absent the

testimony from Briggs, he would not have been convicted of the murder, making it

material.

   Even assuming arguendo that Briggs’ testimony at trial was false, we conclude that

Parker has nonetheless failed to produce any evidence tending to show that the

prosecution knew Briggs was lying. Bare conclusions are insufficient to meet the

evidentiary requirement. See, e.g., Graham v. Zavaras, 127 F.3d 1109, No. 96-1494, at

*2 (10th Cir. Oct. 17, 1997) (unpublished) (“[I]n all of the various documents petitioner

has filed in this court and the district court, he has failed to allege more than his bare

conclusion that the prosecution knew the testimony was perjured.”); Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991) (“[C]onclusory allegations without supporting factual

averments are insufficient to state a claim on which relief can be based.”). Under


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§ 2244(b)(2)(B)(ii), the facts underlying the claim must be “proven and viewed in light of

the evidence as a whole.”

   Parker alleges a variety of inferences that can be made from the trial testimony,

arguing they show the prosecution knew Briggs’ testimony was false. However, there are

equally (if not more) plausible inferences that can be made, tending to show that the

prosecution did not know the testimony was false. Given that the prosecution had

multiple eyewitnesses linking Parker to the scene and identifying Parker as having the

same characteristics as the murderer and that he was found hiding the murder weapon,

the prosecution had every reason to believe that Briggs was telling the truth when he

identified Parker as the murderer. Given the competing inferences, we conclude that, in

light of the evidence as a whole, Parker’s evidence does not meet the standard required

for § 2244(b)(2)(B)(ii). Because we conclude that Parker has not provided sufficient

evidence establishing that the prosecution knew Briggs’ testimony was false, we need not

reach a conclusion as to the first or third elements for a due process claim. See Cabellero,

277 F.3d at 1243–44.

   In his second appeal, consolidated here, Parker argues that the trial court wrongly

denied his motion to be released on personal recognizance. As explained above, we must

grant a COA in order to hear this appeal. Because he makes no argument whatsoever

regarding the denial of a constitutional right, we deny his request for a COA as to this

issue.

   Accordingly, we deny his request for a COA from this court. We grant Parker’s

motion to supplement the record with the original habeas corpus petition. We deny


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Parker’s “motion to advance cause,” seeking an early hearing, because the issue is moot.

We deny Parker’s request to proceed in forma pauperis. We dismiss this consolidated

appeal.


                                        ENTERED FOR THE COURT


                                        Gregory A. Phillips
                                        Circuit Judge




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