PUBLISH UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

KENT ERIC LEBERE, Petitioner – Appellant,

v. JAMES ABBOTT, Warden; JOHN W. SUTHERS, the Attorn ey General of the State of Colorado, Respondents – Appellees. No. 11-1090

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:03-CV-01424-WDM)
James L. Volling, Faegre & Benson LLP, Minneapolis, Mi nnesota, (Jesseca R.F. Cockson, Martin S. Chester, Christina C. Semmer, and Daniel G. Prokott, Faegre & Benson LLP, Minneapolis, Minnesota; Lauren ce W. DeMuth, III, Faegre & Benson LLP, Boulder, Colorado; and Jennifer K. Harrison, Faegre & Bens on LLP, Denver, Colorado, with him on the briefs), for Petitioner – Appellant. John D. Seidel, Senior Assist ant Attorney General, (John W. Suthers, Attorney General, with him on the brief), State of Colora do, Denver, Colorado, for Respondents – Appellees.

Before KELLY , O'BRIEN , and MATHESON , Circuit Judges.

O’BRIEN , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### October 18, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Kent LeBere is serving a 60-year term of imprisonment imposed by a Colorado court as a result of his convic tion for second-degree murder and second-degree arson. In his 28 U.S.C. § 2254 pe tition for habeas relief, he conten ds the State relied on perjured testimony and withheld potentially exculpator y evidence material to his defense in violation of Brady v. Maryland , 373 U.S. 83 (1963). The only question presented is whether federal courts may consider his claim. 1 It involves the interplay between state and federal procedural rules. The procedural history of this case is somewhat convoluted (as we will detail) but it can be succinctly summarized. After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere promptly moved for a new trial based upon th at newly discovered evidence. His new trial motion became a collateral part of his direct appeal and, after a hearing, it was denied. LeBere then brough t this habeas petition expressly claiming, for the first time, a Brady violation based on the undisclo sed acts of a detective who allegedly encouraged Archuleta to lie at the tr ial. The district judge abated these habeas proceedings to permit LeBere to exhaust his newly minted clai m in the state courts. He then filed a petition for post-co nviction relief with the Colora do trial court asserting the Brady claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was, sub silento , part and parcel of his newly discovered

1 We granted a certificate of appealability on this issue.- 3 - evidence claim, which was addressed and deci ded on direct appeal. Importantly, the Brady issue was not considered to have been procedurally barred because it was not timely raised (waiver or forfeiture); it was cons idered to have been subsumed in the new trial motion and, in effect, decided when the new trial motion was denied. And since it had been decided on direct a ppeal, under Colorado procedures it could not be revisited in post-conviction proceedings (successive bar). LeBere returned to fe deral court with the Brady claim front and center. The district judge concluded it was procedurally barred by Colorado’s successive bar rule. LeBere contends Colorado’s successive bar has no effect on the availability of habeas review of his particular cl aims. He is correct. We reverse. FACTUAL BACKGROUND On October 16, 1998, Linda Richards’s van was set ablaze from the inside and abandoned at a car wash on the west side of Colorado Springs, Colorado. Her partially clothed remains were found wedged between th e two front seats of the van. An autopsy confirmed she had died from strang ulation before the fire was set. The State of Colorado charged LeBere with Richards’s mu rder. He pled not guilty and the case went to trial. The prosecution’s case was primarily ci rcumstantial. LeBere was observed leaving a bar on the east side of town with Richards hours before her death. Later, he was viewed on the store’s security camera as he caught a cab ride home from a convenience store located seve ral blocks from the car wash. The cab driver identified- 4 - him as the man he picked up at the convenience store at 2:45 a.m., less than an hour after witnesses spotted the burning van. Although LeBere admitte d to leaving the bar with Richards, he initially provided conflicting storie s about what happened next. He told the police two stories (he walked home from the bar and Richards drove him home) and told his aunt a third (Richards had driven him across town to go to another bar, he became sick, left her car, walked arou nd until he found th e convenience store, got something to eat and called a cab). There was no physical evid ence linking LeBere to th e murder. In addition, Yvonne Castro, the only witne ss who actually saw the van prio r to the fire, testified to observing a man standing next to it. She desc ribed the man as wearing light clothing and a fishing hat. LeBere, howeve r, was wearing dark clothing and no hat. Tellingly, Castro viewed the convenience store’s surveillance footage of LeBere on the night of the murder and did not identify LeBere as th e man she saw at the car wash. The State’s only direct evidence was the te stimony of Ronnie Archuleta, an inmate who had been housed with LeBere shortly after his arrest. Archuleta’s testimony included a story LeBere had related to him. In that story, LeBere admitted to raping Richards, strangling her to death, and bu rning her van to conceal the evidence. According to Archuleta, LeBere said he k illed Richards so she would not be able to identify him from a distin ctive tattoo on his arm. As part of his defense, LeBere pr esented evidence about another person— Richards’s fiancé, Russell Herring. In hi s testimony, Herring admitted the couple’s- 5 - relationship had been tumultu ous, poisoned by infidelity a nd punctuated by bouts of violence, and he confessed to having physically assaulted Rich ards in the past. He also testified as follows: The co uple argued the evening of Richards’s death resulting in Herring telling Richards he was considering e nding their relationship. When Richards left the house Herring figured, correctly, she wa s headed for a bar. He stayed home that night. Herring’s testimony about staying home wa s challenged. The defense presented evidence of his car having been driven the night of the murder. Specifically, a neighbor heard a noise which sounded like a truck leavi ng the house. Moreover, Richards’s father saw the vehicle the following morning and noticed an accumulation of water on the windshield. He described it as dew, but a meteorologist testified the weather conditions made it scientifically impossible for de w to have formed. According to the meteorologist, there could be only two explanations for the water: either someone had placed it on the windshield or someone had been breathing inside the car. The jury convicted LeBere of second-degree murder an d second-degree arson, but acquitted him of the remaining counts: first- degree murder committed after deliberation, felony murder arising from sexua l assault, and manslaughter. 2 The trial court sentenced

2 LeBere tells us he was also acquitted of sexual assault, but his statement is not supported by the state court f ilings. It is irrelevant to our decision in any event.- 6 - him to 48 years imprisonment on the murd er conviction and 12 years on the arson conviction, to be se rved consecutively. PROCEDURAL BACKGROUND In February 2000, while LeBere’s case was pending on direct appeal, Archuleta contacted LeBere’s attorney and recanted his trial testimony. He said the whole story was fabricated; LeBere had neve r confessed. Worse, he said his false testimony had been induced by the lead detectiv e on the case, J.D. Walker, who visited him in jail and promised to push for favorable treatment in his pending criminal case if he would implicate LeBere in the Richards murder. According to Archuleta, Walker knew the testimony Archuleta gave at trial was fals e—LeBere had never confessed. Moreover, Walker furnished Archuleta w ith a copy of the police reports, presumably so he could come up with a plausible confession story. Relying on the recantation, LeBere m oved for a new trial based on newly discovered evidence. See Colo. R. Crim. P. 33(c). The Colorado Court of Appeals abated the appeal and remanded the case to the trial court to resolve issues regarding the newly discovered evidence. The trial judge he ld an evidentiary hearing. Archuleta did not appear, fearing arre st on outstanding warrants. 3 The judge concluded the new

3 The record is unclear as to how Arch uleta’s recantation was presented at the hearing. He did not produce an affidavit attesting to the information he provided to LeBere’s attorney until June 2004. The affida vit appears to have been first presented to any court as an attachment to LeBere’s am ended § 2254 petition, f iled in August 2009. (Continued . . .)- 7 - evidence would not have changed the outco me of the trial and denied the motion. 4 Significant, in his view, was LeBere’s acquitt al on the counts of first-degree murder with deliberation and felony murder arising from sexual assault, the two charges for which Archuleta’s testimony provided di rect support. This indicated the jury did not believe Archuleta’s testimony. He also concluded there was substan tial other evidence of guilt. The appellate court upheld the decision and affirmed the convicti on. The Colorado Supreme Court declined review. He did not seek review from the United States Supreme Court, thus ending his direct appeal. LeBere initiated pro se federal habeas pr oceedings in July 2003. He raised, inter alia , error in the state courts’ denial of his motion for new trial based on newly discovered evidence. The Stat e responded, claiming dismissa l was appropriate for failure to allege a violation of federal law, see Estelle v. McGuire , 502 U.S. 62, 67-68 (1991), and even assuming such a federal claim could be divined from his petition, it was

4 To receive a new trial ba sed on newly discovered ev idence, the defendant must show: (1) the new evidence wa s unknown to the defendant pr ior to trial; (2) the defense must have exercised due dilig ence in finding favorable evid ence prior to trial; (3) the newly discovered evidence is material to th e issues and not cumulative or impeaching; and (4) on retrial the newly di scovered evidence would proba bly result in an acquittal. People v. Gutierrez , 622 P.2d 547, 559-60 (Colo. 1981). The trial judge determined the first two factors had been satisfied. He wa s less clear as to the third factor—first suggesting Archuleta’s recantation was merely impeachment evidence but then indicating it was material to the defense theory of polic e misconduct. In any event, he was clear the fourth factor had not been met.- 8 - unexhausted. 5 Counsel for LeBere entered thei r appearance and moved to stay the federal proceedings to allow LeBere to return to state court and exhaust his claims. The district judge granted the motion. 6 With the assistance of new counsel, Le Bere filed a motion for post-conviction relief in state court pursuant to Colo. R. Crim. P. 35(c). This time, and for the first time, LeBere couched his claim rega rding Archuleta’s recantation and Walker’s misconduct as a federal Brady claim. “A review of the Moti on,” the judge stated, “leads to the conclusion that the basis of the Motion invol ves the purported recanted testimony of Ronnie Archuleta . . . . [T]he grounds of this Motion [are] the same as those previously raised and determined on appeal.” (App’x Vo l. 2 at 351-52.) Th e Colorado Court of Appeals affirmed, relying on Colo. R. Crim. P. 35(c)(3)(V I), which requires dismissal of any claim that was raised previously (a bsent two circumstances not present here). 7 While

5 LeBere’s pro se habeas petition included three claims, including error regarding the denial of his motion for new evidence. The State argued all three claims were unexhausted. 6 When counsel made their appearance fo r LeBere, they sought a stay of the habeas proceedings to allow LeBe re to exhaust his claims in state court. However, when LeBere returned to state court, he did not seek to exhaust any of the legal theories raised in his pro se habeas petition; he inst ead raised new legal theories, including Brady . When LeBere sought to amend his ha beas petition, the State opposed the amendment. It argued that while it had not opposed a st ay to allow exhaustion of the claims raised in the pro se petition, it did oppose a stay for exhausting new claims. See infra n.8.

7 LeBere’s Rule 35(c) post-conviction mo tion was filed April 21, 2004. Rule 35(c)(3)(VI), which imposes a ma ndatory bar for claims “raise d and resolved” in a prior appeal or post-conviction proc eeding, became effective July 1, 2004, and governs only (Continued . . .)- 9 - recognizing the legal basis fo r the claim was “superficially different,” it decided the factual basis for the Brady claim duplicated the factual basis supporting the motion for new trial. ( Id. at 358.) Thus, the Brady claim was “merely a rephrasing of the motion for new trial,” and it would “not revisit what is essentially the same issue in a second appeal.” ( Id. ) To no avail, LeBere petitioned for review by the Colorado Supreme Court. LeBere then returned to federal court with an amended 28 U.S. C. § 2254 petition. For the first time in the federa l proceedings, LeBere raised a Brady claim. 8 The district judge traced the history. LeBere’s newly discovered evidence claim was presented and decided as part of his direct appeal. But the judge correctly concluded that claim sounded exclusively in state law; it was insufficien t to give notice of the federal claim—a Brady violation. See Anderson v. Harless , 459 U.S. 4, 6 (1982) (“It is not enough that all the facts necessary to support the fe deral claim were before the stat e courts . . . .”). In short, LeBere failed to exhaust his Brady claim on direct appeal. He did, however, raise it to petitions filed after that date. See People v. Versteeg , 165 P.3d 760, 763 (Colo. App. 2006) (noting that the amended version of Ru le 35 applies only to motions filed after the amendment’s effective date—July 1, 2004); People v. Wenzinger , 155 P.3d 415, 418-19 (Colo. App. 2006) (discussing amendments to Rule 35 and applying Rule 35(c)(3)(VI) to a petition filed after July 1, 2004). Neverthe less, the Colorado Court of Appeals applied the new rule to LeBere’s motion. In li ght of our disposition it makes no difference. 8 The State opposed the amendment, claiming the Brady claim was untimely because the district court had only stayed the acti on to allow LeBere to return to state court to exhaust those claims raised in his initial pro se § 2254 petition and the Brady claim was not a claim in that petition and did not relate back to that petition under Fed. R. Civ. P. 15. The district judge saw it differently. He decided the Brady claim related back to the newly discovered evid ence claim in the original petition and allowed amendment of the § 2254 petition to include the Brady claim. The State does not appeal from that decision.- 10 - the Colorado courts on collateral review. Th e judge nevertheless decided it was not fairly presented because the post-conviction cour t concluded it was an impermissible, successive claim (one that ha d already been decided). Th us, it was not exhausted. See Coleman v. Thompson , 501 U.S. 722, 731-32 (1991); Castille v. Peoples , 489 U.S. 346, 351 (1989) (exhaustion requi rement requires the federal claim to have been “ fairly presented ” to the state courts). In that regard he erred; if the claim had been earlier decided by the Colorado court it was, necessarily, exhausted. DISCUSSION We review a state court’s decision under ap propriate habeas standards. If the state court, in fact, reached the merits our review is deferential; otherwise it is de novo. See Mitchell v. Gibson , 262 F.3d 1036, 1045 (10th Cir. 2 001). However, “[w]hen a state court declines to review the merits of a pe titioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review.” Cone v. Bell , 556 U.S. 449, 466 (2009). In his Rule 35(c) post-conviction proceedings, LeBere presented his Brady claim to the state courts. But the post- conviction court did not resolve the Brady claim on the merits. Instead, it declined review under a Colorado rule barring po st-conviction review of a claim raised and resolved in a previous proceeding. See Colo. R. Crim. P. 35 ( c)(3)(VI). Generally, when a state court dism isses a federal claim on an “independent and adequate” procedural ground, the doctrine of procedural default forecloses federal- 11 - review. Coleman , 501 U.S. at 729-32. The question, then, is whether the application of the state’s successive bar presents a barri er to federal review. Not necessarily.
In Cone , the Supreme Court decided a state cour t’s refusal to consider the merits of a claim because the claim wa s previously determined is not a proper basis for denying federal habeas review. Cone , 556 U.S. at 466. This is not a novel proposition. We are among several circuits to have previo usly reached the same conclusion, Page v. Frank , 343 F.3d 901, 907 (7th Cir. 2003); Brecheen v. Reynolds , 41 F.3d 1343, 1358 (10th Cir. 1994); Bennett v. Whitley , 41 F.3d 1581, 1582-83 (5th Cir. 1994); Silverstein v. Henderson , 706 F.2d 361, 368 (2d Cir. 1983), and the Supreme Court had implied as much nearly two decades earlier in Ylst v. Nunnemaker , 501 U.S. 797, 804 n.3 (1991).
Cone’s contribution was to confirm that the pr inciple applies with equal force where a state court refuses to consider a federal clai m on the erroneous premise that it had already been adjudicated. Cone , 556 U.S. at 466-67. The facts in Cone are on all fours with this case. After he was convicted and sentenced to death, Gary Cone appealed his conviction, ar guing prosecutors had violated state law by failing to disclose evidence st rengthening his defense—he committed the murders while in the throes of a drug-induced psychosis. Id . at 454, 457. His appeal was unsuccessful, and the Tennessee courts denied post-conviction relief. Id. at 457. Later, Cone filed a second petition for post-conviction relief in whic h he argued the prosecution had violated Brady by failing to disclose evidence bol stering his insanity defense and mitigating the prosecution’s case for the death penalty. Id . at 457-60.- 12 - The post-conviction court denied re view because, it concluded, the Brady claim had been previously determined on direct ap peal; the appellate court affirmed and the state supreme court and United States Supreme Court denied review. Id . at 460-61. Cone then raised his Brady claim in a § 2254 petition in federal court. Id. at 461. The district judge denied relief, concluding the Brady claim had been waived (not timely presented in state court) and was th erefore procedurally defaulted. Id. The Sixth Circuit affirmed on a slightly different ground, expl aining it was barred from reaching the merits of the claim because the state post-convicti on courts had deemed the claim “previously determined or waived” under Tennessee law. Id . at 462 (quotations omitted). The Supreme Court vacated the Sixth Ci rcuit’s decision and remanded to the district court. Id. at 452. While there was some confusion as to whether the state appellate court had refused to reach the merits of the Brady claim because it had been previously determined or b ecause it had been waived, the Supreme Court concluded the basis for the decision was the former— it had been previously determined. Id. at 467-68. The state court’s decision rested on a “fal se premise,” the Supreme Court explained, because the claim Cone raised on direct appeal arose under state law, not Brady

. Id . at 466. In any event, the application of Tenn essee’s successive bar did not preclude federal review: “When a state court refuses to adju dicate a claim on the gro und that it has been previously determined, the court’s decision do es not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has- 13 - already been given full consideration by the state courts and thus is ripe for federal adjudication.” Id . at 467. The Court’s decision in Cone controls the outcome of this case. As in Cone , LeBere raised a state-law nondisclosure clai m on direct appeal and, based on the same facts, a Brady claim on post-conviction review. And, as in Cone , the post-conviction court applied the state bar on successive claims in declining to reach the merits. If the application of the successive bar in Cone did not affect the availa bility of federal review, the same should be true for a nearly identical rule here. We can discern only one potentially mate rial distinction between the two cases, and it relates to the scope of th e applicable successive bars. In Cone , hearings on petitions for post-conviction relie f could not be based on clai ms “previously determined,” meaning a court had “ruled on the merits of the claim after a full and fair hearing.” Id. at 458 n.8 (quotations omitted). The Colorado successive bar appears to sweep more broadly, if only slightly. The rule limits revi ew to claims not “raised and resolved” in a prior proceeding. See Colo. R. Crim. P. 35(c)(3)(VI). Colorado co urts have provided clarification—the rule prohib its not only claims previous ly decided on the merits, but also claims where review “would be nothing more than a second appeal addressing the same issues on some recently co ntrived constitutional theory.” People v. Rodriguez , 914 P.2d 230, 249 (Colo. 1996) (quotations omitted). In other words, it precludes claims raising new legal theories based on old facts. Id. (citing Sanders v. United States , 373 U.S. 1, 16 (1963)); see also People v. McDowell , 219 P.3d 332, 336-37 (Colo. Ct. App.- 14 - 2009) (Rule 35 prevented defendant’s outrage ous governmental conduct claim based on police officers’ and the district attorney’s interrogation because it wa s previously decided on direct appeal although couche d in terms of a violation of Miranda v. Arizona , 384 U.S. 436 (1966)). The apparent distinction di sappears upon closer examin ation of the two rules. Like Colorado’s Rule 35, Tennessee’s successive bar rule was designed in the mold of its federal counterpart concerning successive § 2255 motions. See 28 U.S.C. § 2255(h); People ex. rel. Wyse v. Dist. Court In and For Twentieth Judicial Dist. , 503 P.2d 154, 156 (Colo. 1972); People v. Sherman , 172 P.3d 911, 915 (Colo. Ct. App. 2006); Johnson
v. State , No. 02C01-9111-CR-00237, 1994 WL 90483 , at *13 & n.4 (Tenn. Crim. App. Mar. 23, 1994) (unpublished); Gary L. Anderson, Post-Conviction Relief in Tennessee— Fourteen Years of Judicial Administrati on Under the Post-Conviction Procedure Act , 48 Tenn. L. Rev. 605, 609-610, 659 (1981). And like the Colorado rule, the Tennessee provision has been interpreted to cover cl aims that couch old facts under new legal principles. Aaron v. State , No. M2006-01983-CCA-R3-PC , 2008 WL 203394, at *4-5 (Tenn. Ct. App. Jan. 22, 2008) (unpublished) (finding claim based on sufficiency of the evidence was previously determ ined on direct appeal despite petitioner’s attempt to couch it in different legal terms); Payne v. State , No. 02C01-9703-CR-00131, 1998 WL 12670, at *10 (Tenn. Crim. App. Jan. 15, 1998) (unpublished) (claims were previously determined even though not previously addre ssed in terms of ineffective assistance of counsel); Bates v. State , No. 03C01-9208-CR- 00279, 1993 WL 144 618, at *5 (Tenn.- 15 - Crim. App. May 6, 1993) (unp ublished) (“[F]acts which ar e presented and ruled upon on the merits . . . are . . . ‘p reviously determined.’”). Notw ithstanding some minor textual differences, then, the two rules are coextensive. More than that, they are cu t from the same cloth. Both rules represent legislative tweaks on the common law doctrine of res j udicata, both are modeled on the Supreme Court’s decision in Sanders v. United States , 373 U.S. 1 (1963), and both were created to serve the same principle—finality. Rodriguez , 914 P.2d at 249; Sherman , 172 P.3d at 916; Bledsoe v. State , No. W2000-02701-CCA-R3-PC, 2001 WL 10 78269, at *3-4 (Tenn. Crim. App. Sep. 14, 2001) (unpublished); Johnson , 1994 WL 90483, at *13;
Bates , 1993 WL 144618 at *5; Anderson, supra , 48 Tenn. L. Rev. at 607 n.3, 611, 626, 659. Much like the doctrine of res judicat a, their application goes to a previous determination of the merits of a case, wh ich is what the Court was driving at in Cone when it said a procedural bar covers claims that have not been fairly presented, not claims that have been presented more than once. See Cone , 556 U.S. at 467. The State’s attempt to limit Cone to its facts is misguided. In several places it simply misreads the decision. Elsewhere it c onjures up distinctions either not there or otherwise having no bearing on the application of Cone to this case. For instance, it stakes its argument on the incorrect premise that Cone “assumed the very fact in dispute here,” namely, “the claims presented ea ch of two times to state courts were federal in

nature and identical .” (Respondent’s Supp. Br. at 7, 9.) This could not be further from the truth. Far from assuming the two cl aims were identical, the Supreme Court- 16 - concluded Cone did not present a Brady claim on direct appeal, and even faulted the State for “conflating” Brady with the state-law nondisclosure cl aim. 556 U.S. at 459, 466. The State tries to cherry-pick excerpts from Cone that purportedly shore up its interpretation, but the passages it cites are out of context. The argument is impossible to reconcile with the unambiguous language of the Court: “T he Tennessee post-conviction court denied
Cone’s Brady claim after concluding it had been prev iously determined following a full and fair hearing in state court. That conclusi on rested on a false prem ise: Contrary to the state courts’ finding, Cone had not presented his Brady claim in earlier proceedings and, consequently, the state cour ts had not passed on it.” Id. at 466 (citation omitted). The State tries to distinguish Cone by pointing to uncerta inty as to which procedural bar—the waiver rule or the bar on successive claims —had been invoked by the Tennessee courts. While initially there may have been some uncertainty in this regard, in reaching its decision the Suprem e Court concluded th e Tennessee appellate court had applied the successive bar, not the waiv er rule, in declining to reach the merits of the Brady claim. Id. at 467-69. It was by way of this conclusion that the Court arrived at its broader holding—a state court’s dete rmination that a claim has already been adjudicated does not preclude federal habeas review. The State makes much of the fact that Colorado’s successive bar mirrors the one applied by federal courts under fo rmer Rule 9(b) of the Rule s Governing § 2254 Cases in the United States District C ourts, which allowed dismissal of a second or successive § 2254 petition if it failed to allege new or different grounds for relief and the prior- 17 - determination was on the merits. 9 Under the Supreme Court’s decision in Sanders , the Rule encompassed new legal theories based on previously asserted facts. 10 373 U.S. at 16. It is “inconceivable,” the State contends, that Cone “intended to tell states that their version of the Sanders rule is inadequate to prevent habeas review, when federal courts use it every day for that precise purpos e.” (Respondent’s Supp. Br. at 13.)

9 The State cites Rule 9(b) of the Rule s Governing § 2254 Cases in the United States District Courts. That rule was ame nded in 2004. Prior to 2004, subsection (b) allowed dismissal of a second or successive petition “if the judge finds that it fails to allege new or different grounds for relie f and the prior determination was on the merits . . . .” The 2004 amendments change d subsection (b) to reflect provisions in 28 U.S.C. § 2244 which re quire a petitioner to obtain approval from the appropriate court of appeals before filing a sec ond or successive petition. See Rule 9 of the Rules Governing Section 2254 Cases in the Unite d States District Courts a dvisory committee’s notes to 2004 amendments. Under § 2244 a court of appe als may authorize the filing of a second or successive application only if the applicant shows (1 ) “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) “the f actual predicate for the claim could not have been previously discovered through the ex ercise of due diligence” and “the facts underlying the claim . . . w ould be sufficient to estab lish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder w ould have found the applicant guilty of the underlying offense.” See 28 U.S.C. § 2244(b)(2),(3)(C).

10 Sanders involved the interpretati on of 28 U.S.C. § 2255 a nd its bar on second or successive § 2255 motions. 373 U. S. at 3-4, 12. Nevertheless, Rule 9(b) of the Rules Governing § 2254 Cases appears to have been modeled after Sanders

. See Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts advisory committee’s notes to 1976 adop tion. And we have applied Sanders when applying Rule 9(b) of the Rules Governing § 2254 Cases. See, e.g., Parks v. Reynolds , 958 F.2d 989, 994 (10th Cir. 1992); Robison v. Maynard , 958 F.2d 1013, 1015-1 6 (10th Cir. 1992); Truitt v. Hargett , 986 F.2d 1430, No. 92-6329, 1993 WL 53577, *2 (10th Cir. Feb. 16, 1993) (unpublished).- 18 - There is, admittedly, a shallow logic at work here: if federal law precluded review of federal claims arising from facts determin ed in earlier federal habeas proceedings, should not an iden tical state bar operate to a similar effect? The wisps of logic dissolve when one considers the contours of the proc edural default doctrine; the federal habeas rules do not inform a debate animated by an en tirely different set of principles. When a district court invoked the successive bar in Ru le 9(b) and declined to entertain a federal prisoner’s request for habeas relief, it did so knowing the prisoner ha d a fair opportunity to present his claim in federa l court. But no such assurance attends a decision declining review of a state prisoner’s request for habeas relief on the ground that a state court decided it was previously determined. Whethe r the federal claim was previously decided, as opposed to being waived, must ultimately be determined by a federal court. The federal court must determine wh ether the state court’s refusal to revisit the claim excuses its obligation under § 2254(a) to decide whether the petitioner is in lawful custody. 11 See Cone, 556 U.S. at 465.

11 If there are lessons to be drawn from th e federal successive bar, they support LeBere’s position on procedural defau lt, not the State’s. The federal rule is a doctrinal relative of common law res judicata, the applic ation of which rests on the premise that the prior determination was a decision on the merits. Sanders , 373 U.S. at 16. As the Supreme Court suggested in Cone , a successive bar does not sound in procedure the way claim-processing rules do. In the Court’s word s, “[a] claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration—not when the claim has been presen ted more than once.” Cone , 556 U.S. at 467.- 19 - Given the posture of this case there is no procedural bar to habeas review. The irony has not escaped us. 12 Had the Colorado cour ts decided LeBere’s Brady claim was waived or forfeited because it c ould have been but was not rais ed on direct appeal (as is clearly the case—he was aware of the per tinent facts but neither made mention of Brady nor fairly alluded to it), see Colo. R. Crim. P. 35(c)(3)(V II), federal courts would be bound to honor its procedural default holding , absent a showing of cause for the default and actual prejudice or that failure to cons ider the claim will re sult in a fundamental miscarriage of justice. 13 See Coleman , 501 U.S. at 750. Instead, the Colorado Court of Appeals concluded the Brady claim had been decided because it was necessar ily included in the new tria l motion. However, while the new trial motion was based on the same facts as the later-raised Brady claim, Brady was

12 And the supreme irony may be yet to come. If the Brady claim had, in fact, been previously determined, ex plicitly or implicitly, federal habeas review would not be foreclosed if timely requested. Bu t it would be deferential review. See Mitchell, 262 F.3d at 1045. On the othe r hand, if the Colorado Court of Appeals was incorrect in equating the test for newly discover ed evidence with the test for a Brady violation (as appears to be the case) then the state courts failed to address the merits of the Brady claim. That would, seemingly, trigger de novo review by the federal courts. Mitchell , 262 F.3d at 1045. 13 We have yet to decide in a publis hed case whether Colorado’s rule barring claims that could have been but were not previously ra ised is an independent and adequate state ground precluding federal habeas review. We have, however, indicated as much in several unpublished cases. See, e.g., Rea v. Suthers , 402 F. App’x 329, 331 (10th Cir. 2010) (unpublished); Burton v. Zavaras , 340 F. App’x 4 53, 454 (10th Cir. 2009) (unpublished); Williams v. Broaddus , 331 F. App’x 560, 563 (10th Cir. 2009) (unpublished).- 20 - not raised in the new trial motion. For starters, a Brady claim is grounded in the constitutional principle of due process, whic h is not true of a motion based on newly discovered evidence. Compare Brady , 373 U.S. at 87, with Farrar v. People , 208 P.3d 702, 706 (Colo. 2009). Additionally, im peachment evidence falls within the Brady rule; on the other hand, for newly di scovered evidence to constitute grounds for a new trial, it must be more than impeaching. Compare United States v. Bagley , 473 U.S. 667, 676 (1985) with Farrar , 208 P.3d at 707, and People v. Gutierrez , 622 P.2d 547, 559-60 (Colo. 1981). Moreove r, the materiality standa rd is comparatively more stringent under Colorado’s newly discovered evidence law, es pecially as it relates to recantations. Compare Bagley , 473 U.S. at 682, with Farrar , 208 P.3d at 706. REVERSED and REMANDED

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