(D.C. No. 5:13-CV-01365-D) (W.D. Okla.).
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT [*]
Gregory A. Phillips, Circuit Judge.
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. Because we 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 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. 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.
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. 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 § 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 ...