F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOYD W. LAFEVERS,

Petitioner-Appellant,

v.

GARY E. GIBSON, Warden,

Oklahoma State Penitentiary,

Respondent-Appellee.

No. 00-6381

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-281-L)

Patrick J. Ehlers, Jr. (Susan M. Otto, Federal Public Defender, with him on the

brief) Assistant Federal Public Defender, Oklahoma City, Oklahoma, for

Petitioner-Appellant.

Jennifer B. Miller (W.A. Drew Edmondson, Attorney General, with her on the

brief), Assistant Attorney General, Oklahoma City, Oklahoma, for RespondentAppellee.

Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.
1 This court has jurisdiction to review the district court’s dismissal of

LaFevers’ second § 2254 habeas petition because the district court granted

LaFevers a certificate of appealability. See 28 U.S.C. § 2253(c).

2 This court previously affirmed the district court’s denial of LaFevers’ first

§ 2254 habeas petition. See LaFevers v. Gibson , 182 F.3d 705 (10th Cir. 1999).

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Loyd Winford LaFevers appeals 1

 the district court’s dismissal of his second

28 U.S.C. § 2254 habeas petition. 2

 The district court dismissed the petition after

concluding that it failed to satisfy the requirements of 28 U.S.C.

§ 2244(b)(2)(B)(ii). Section § 2244(b)(2)(B)(ii) requires that a claim in a second

or successive § 2254 habeas application that was not presented in a prior petition

shall be dismissed unless

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. 

A panel of this court with one judge dissenting authorized LaFevers to file

the second habeas petition. See 28 U.S.C. § 2244(b)(3)(A). That authorization,

however, merely represented this court’s determination that LaFevers had made a

prima facie showing that he could meet the requirements of § 2244(b). See id. §

2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes a prima

facie showing that the application satisfies the requirements of this subsection.”). 

Upon the filing of LaFevers’ second § 2254 petition, the district court was
3

See also Nevius v. McDaniel , 218 F.3d 940, 943-44 (9th Cir. 2000) (holding

that despite court of appeals’ grant of permission to file second or successive §

2254 petition, district court had independent “duty under § 2244(b)(1) and (2) to

examine each claim of the second petition and to dismiss the claims that did not

meet the requirements of those subsections”); United States v. Villa-Gonzalez ,

208 F.3d 1160, 1165 (9th Cir. 2000) (rejecting contention that court of appeals’

grant of permission to file second habeas petition is binding on district court and,

instead, concluding that “a district court must conduct a thorough review of all

allegations and evidence presented by the prisoner to determine whether the

motion meets the statutory requirements for the filing of a second or successive

motion”); Bennett v. United States , 119 F.3d 468, 470 (7th Cir. 1997) (holding

that grant of permission to file a second habeas petition 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 [district]

court finds that the movant has not satisfied the requirements for the filing of

such a motion”).

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obligated to determine whether the petition did, in fact, satisfy the requirements

of § 2244(b). See id. § 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.”). 3

Pursuant to this court’s grant of permission, LaFevers filed his second §

2254 petition on September 15, 2000. In his second petition, LaFevers raised the

following two claims: (1) Oklahoma knowingly adduced at trial false evidence

concerning blood stains found on a pair of jeans (“Exhibit 83”) in violation of

Giglio v. United States , 405 U.S. 150 (1972) and Brady v. Maryland , 373 U.S. 83

(1963); and (2) trial counsel was ineffective for failing to have those blood stains
4 At oral argument, counsel for LaFevers equivocated as to whether LaFevers

was attempting to raise a claim based on the DNA testing of Exhibit 83

independent of the Brady /Giglio claim. Nevertheless, an exceedingly close

review of LaFevers’ second § 2254 petition, his filings in this court, and the

entire appellate record reveals that LaFevers has never asserted that the results of

the DNA testing constitute an independent ground entitling him to habeas relief. 

Instead, LaFevers has simply asserted that those results, which demonstrate that

none of the blood on Exhibit 83 came from the murder victim, support his

assertion that Joyce Gilchrist lied at trial about both the ability to perform and the

actual performance of electrophoresis testing on Exhibit 83. Even if, however,

LaFevers’ appellate filings could be read as asserting an independent habeas

claim based solely on the results of the DNA testing, that claim would necessarily

fail. The only conceivable basis for such an independent claim, i.e. , a claim

uncoupled from LaFevers’ Brady /Giglio claim, would be an assertion that the

DNA testing demonstrates LaFevers is actually innocent of both the crime and the

death penalty. As set forth below in addressing LaFevers’ Brady /Giglio claim,

however, the absence of the victim’s blood on Exhibit 83 does not demonstrate

LaFevers’ actual innocence. Furthermore, an assertion of actual innocence,

although operating as a potential pathway for reaching otherwise defaulted

constitutional claims, does not, standing alone, support the granting of the writ of

habeas corpus. See Herrera v. Collins , 506 U.S. 390, 400 (1993) (“Claims of

actual innocence based on newly discovered evidence have never been held to

state a ground for federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal proceeding.”); id. at 401

(“Few rulings would be more disruptive of our federal system than to provide for

federal habeas review of freestanding claims of actual innocence.”); Sellers v.

(continued...)

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analyzed. The district court, after independently reviewing the petition and its

accompanying exhibits, concluded LaFevers had failed to meet § 2244(b)(2)’s

requirements; the district court, therefore, dismissed the petition. In the

alternative, the district court denied LaFevers habeas relief on the merits. 

LaFevers now appeals the district court’s dismissal and denial of relief, but only

as to his Brady/Giglio claim. 4
4

(...continued)

Ward , 135 F.3d 1333, 1338-39 (10th Cir. 1998) (discussing Herrera ).

5

It must be noted that the parties vigorously contested at trial whether the

pants actually belonged to LaFevers and, even if they did, whether they were the

pants he wore the night of the murder. In fact, defense counsel adduced

testimony from Bessie McIntire, a prosecution witness who provided damning

testimony against LaFevers, that Exhibit 83 was not the pair of pants worn by

LaFevers the night of the murder.

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LaFevers’ Brady /Giglio flows from the trial testimony of state chemist

Joyce Gilchrist. At trial, Oklahoma adduced a pair of pants, Exhibit 83, and

asserted that the pants belonged to LaFevers. 5

 Gilchrist testified that there were

two types of blood on the pants, Types O and B. In light of testimony that both

the victim and Randall Cannon, LaFevers’ co-defendant, had Type O blood,

defense counsel asked Gilchrist whether there were tests available to determine

whether the blood on the pants came from Cannon or the victim. Gilchrist

testified that it was possible that electrophoresis testing could make that

determination, but that she had not undertaken electrophoresis testing because the

blood samples were not of a sufficient size. During its closing argument,

Oklahoma asked the jury to infer as follows: (1) the pants belonged to LaFevers

because of their length; (2) the Type O blood on the pants belonged to the victim;

and (3) the existence of the victim’s blood on the pants demonstrated that

LaFevers was an active participant in the beating of the victim before she was set

on fire.
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When habeas counsel ultimately succeeded in having Exhibit 83 submitted

for DNA testing, the testing revealed that the blood on the pants actually

belonged to Cannon, not the victim. In light of those test results, LaFevers sought

access to the notes and log of Gilchrist. In his second § 2254 habeas petition,

LaFevers asserted that notes turned up during the review of Gilchrist’s files

demonstrate that she lied in the following two particulars at trial: (1) she lied

when she asserted that the blood splatters on the pants were not sufficiently large

to conduct electrophoresis testing; and (2) she lied when she testified that she had

not conducted electrophoresis testing on the pants.

In analyzing LaFevers’ Brady /Giglio claim, the district court “assume[d]

that [LaFevers] can prove the prosecutor knowingly and purposefully introduced

false and misleading testimony regarding the blood stains on State’s Exhibit No.

83 in violation of his constitutional rights.” Dist. Court Order at 7. 

Acknowledging the exceedingly high standard set out in § 2244(b)(2)(B)(ii),

however, the district court noted that it must move on “to look at the entirety of

the evidence and determine whether [LaFevers] has shown by clear and

convincing evidence that a reasonable factfinder would not have found [LaFevers]

guilty of the murder” absent the constitutional violation. Id. After an exacting

review of the record, the district court answered that question in the negative. In

so doing, the district court flatly rejected LaFevers’ contention that Exhibit 83
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was the lynchpin of the prosecution’s case. In fact, as noted by the district court,

the trial record is replete with independent, direct evidence that LaFevers was an

active participant in the murder of the victim. Accordingly, the district court

concluded that LaFevers had not satisfied the heavy statutory burden of proving

by clear and convincing evidence that but for the Brady /Giglio violation no

reasonable juror would have found him guilty of the crime. Although LaFevers

urged the district court to analyze the impact that the assumed Brady /Giglio

violation might have had on the jury’s imposition of the death penalty, the district

court declined. According to the district court, such a review is prohibited by the

express terms of § 2244(b)(2)(B)(ii) which speaks only to innocence of the

“underlying offense.”

A district court’s dismissal of a second § 2254 petition on the grounds that

the petition does not satisfy the requirements of § 2244(b) is a legal conclusion

which this court reviews de novo . See United States v. Villa-Gonzalez , 208 F.3d

1160, 1165 (9th Cir. 2000). For purposes of this appeal, the only issues presented

are whether LaFevers has shown by clear and convincing evidence that absent the

assumed Brady /Giglio violation, no reasonable factfinder would have convicted

him of first degree murder or sentenced him to death. Like the district court, we

conclude that LaFevers has failed to satisfy his statutory burden under §

2244(b)(2)(B)(ii) as to his underlying murder conviction. This court reaches the
6 On appeal, LaFevers expends substantial energy arguing that many of these

witnesses are inherently incredible. As noted by the district court, however, some

of these credibility issues were explored by the parties at trial and submitted to

the jury. The jury obviously resolved the credibility questions in favor of the

prosecution. More importantly, to the extent that LaFevers’ attacks on these

witnesses represent post-trial credibility challenges, this court fails to see how

they address LaFevers’ burden under § 2244(b)(2)(B)(ii).

7 This court notes that in addition to setting out the substantial evidence

independent of Exhibit 83 demonstrating LaFevers’ direct participation in the

murder, the district court noted that the jury had been instructed on aider and

abettor liability and concluded that the evidence relating to LaFevers’ role as an

aider and abettor was overwhelming. In light of this court’s conclusion that

LaFevers has failed to carry his burden of demonstrating that no rational juror

could conclude that he was a direct participant in the murder, even completely

factoring out the evidence relating to Exhibit 83, we need not reach the district

court’s alternate holding.

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same conclusion as to LaFevers’ sentence of death. We, therefore, find it

unnecessary to resolve whether § 2244(b)(2)(B)(ii) contemplates a claim that a

successive petitioner in LaFevers’ position can be innocent of the death penalty.

The district court set out at some length the substantial evidence

independent of Exhibit 83 demonstrating LaFevers’ direct participation in the

murder. This court will not simply repeat that thoughtful analysis. Suffice it to

say that the testimony of William Ryan, George Gaither, Cathy Baker, Lisa

Collins, Bruce Hawkins, Doris Parkey, Bessie McIntire, Roy Goolsby, and Sam

Cannon 6

 provide ample evidence of LaFevers direct participation 7 in the murder

so that even if the bloody pants are completely factored out of the equation, a

rational jury could have convicted LaFevers of first degree murder. Nor,
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alternatively, is this court clearly convinced that the evidence relating to Exhibit

83, heavily contested as it was at trial, is of such a magnitude that a reasonable

juror would rely on that evidence to the exclusion of all of the other evidence

cited above in finding LaFevers guilty of murder. Accordingly, LaFevers cannot

demonstrate by clear and convincing evidence that but for the assumed

Brady /Giglio violation no reasonable factfinder would have found him guilty of

this murder.

As noted above, the district court concluded that § 2244(b)(2)(B)(ii) did not

authorize it to consider the impact of the assumed Brady /Giglio violation on the

jury’s decision to impose the death penalty. See 28 U.S.C. § 2244(b)(2)(B)(ii)

(providing that a successive habeas petitioner must demonstrate by clear and

convincing evidence that “but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense ” (emphasis

added)). As recognized by the parties on appeal, there is a split among the three

circuits that have addressed the question. Compare Babbitt v. Woodford , 177

F.3d 744, 746 (9th Cir. 1999) (holding “underlying offense” language in §

2244(b)(2)(B)(ii) does encompass death sentence challenges), petition for cert.

filed , (U.S. May 4, 1999) (No. 98-9210), with In re Jones , 137 F.3d 1271, 1274

(11th Cir. 1998) (holding “underlying offense” language in § 2244(b)(2)(B)(ii)

does not encompass death sentence challenges) and Hope v. United States , 108
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F.3d 119, 120 (7th Cir. 1997) (same). This court need not resolve that difficult

question because even assuming § 2244(b)(2)(B)(ii) does encompass challenges to

a death sentence, LaFevers’ challenge to his death sentence would fail for the

same reasons set out above with regard to his underlying conviction. LaFevers’

primary contention on appeal is that absent the evidence regarding the pants he

could have made a “powerful” relative culpability argument that the mitigating

circumstances outweighed the aggravating circumstances. Like his argument with

regard to the underlying conviction, this argument is entirely dependent on

LaFevers’ assertion that Exhibit 83 was the central spoke in the prosecution’s

direct participation theory at trial. As noted above, however, that argument is

simply not borne out by the record, especially considering the heavy burden of

persuasion imposed upon LaFevers by § 2244(b)(2)(B)(ii). Furthermore, this

court would be remiss if it failed to mention that the facts of this murder are

particularly vile. See LaFevers , 182 F.3d at 709 (noting that the elderly victim

was both brutally beaten and then, while still alive, doused with gasoline and set

on fire). Finally, although the prosecution incorporated all of the evidence

adduced during the guilt phase into the penalty phase, our reading of the

transcript of the penalty phase leads this court to conclude that Exhibit 83 played

an even lesser role in the penalty phase than it did in the guilt phase. In sum, this

court has carefully considered LaFevers’ arguments and concludes that he has not
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carried his burden under § 2244(b)(2)(B)(ii) of demonstrating that, but for the

assumed Brady /Giglio violation, his relative culpability arguments would have

carried the day.

The judgment of the United States District Court for the Western District of

Oklahoma dismissing LaFevers’ second § 2254 petition pursuant to §

2244(b)(2)(B)(ii) is hereby AFFIRMED .