UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TERRY DALE LOMACK, Petitioner - Appellant,

v. JIM FARRIS, Warden, Respondent - Appellee. Nos. 16-6232 & 16-6284 (D.C. No. 5:03- CV-01008-C) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before KELLY , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Terry Dale Lomack, an Oklahoma prisoner proceeding pro se, 1 requests a certificate of appealability (COA) so he can a ppeal the district cour t’s orders dismissing his successive 28 U.S.C. § 2254 habeas applic ation and denying his subsequent Fed. R. Civ. P. 59(e) motion. 2 Lomack also moves for leave to proceed on appeal in forma pauperis (IFP). We grant Loma ck’s motion for IFP status. But because Lomack doesn’t

* This order isn’t bindi ng precedent, except under the do ctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings. But we do not make arguments for pro se litigants or otherwise advocate on their behalf. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005)

. 2 Lomack filed two separate notices of appeal—one designating each district court order—and we granted Lomack’s motion to consolidate the resulting appeals. FILED United States Court of Appeals Tenth Circuit 

### May 30, 2017
Elisabeth A. Shumaker Clerk of Court2 make the requisite showing to obtain a COA, we deny his COA request and dismiss this

matter. I Lomack is currently serving a 200-year pr ison sentence for kidnaping, feloniously pointing a firearm, and possessing a firearm after a felony conviction. In March 2015, Lomack filed a pro se motion in this court seeking authorization to file a successive § 2254 habeas application. See 28 U.S.C. § 2244(b)(3)(A) (requi ring applicant seeking to file successive habeas applica tion to “move in the appropri ate court of appeals for an order authorizing the district court to consid er the application”). Lomack attached a pro se proposed § 2254 application to the motion for authorization. In the proposed application, Lomack assert ed that the state violated his Fourteenth Amendment right to due process by (1) obta ining his convictions without sufficient evidence, (2) withholding exculpatory evidence, and (3) soliciting and knowingly presenting perjured testimony at trial. Lo mack predicated these claims on newly discovered evidence that the vi ctim and key prosecu tion witness, Darrell Shaver, recanted his trial testimony through statements he made in a 2012 affidavit and through testimony he provided during a 2013 evidentiary hear ing on Lomack’s application for state postconviction relief. A panel of this court, with one judge di ssenting, determined that Lomack made a prima facie showing that he met § 2244(b)’s requirements and authorized Lomack to file his proposed application. Order, dated April 3, 2015; see § 2244(b)(3)(C) (“The court of appeals may authorize the filing of a sec ond or successive application only if it3 determines that the application makes a prima facie showing that the application satisfies” § 2244(b)’s requirements). After docketing this court’s authorizati on order, the district court sua sponte appointed counsel for Lomack and referred the case to a magistrate judge. Lomack’s appointed counsel filed an am ended § 2254 application, re fining Lomack’s due process claims into one claim focu sing on the state’s alleged withholding of exculpatory evidence, namely (1) a handwritten statement that Shav er provided to Officer Mike Atchley on the date of the ki dnaping, wherein Sh aver identified his attacker only as “a Black male,” Doc. 35, Att. 6; and (2) evidence th at Shaver negotiated a deal with the prosecutor in exchange for providing alle gedly false preliminary hearing and trial testimony positively identifying Lomack as his attacker. The Respondent moved to dismiss the § 22 54 application, arguing that Lomack failed to satisfy § 2244(b)’s requirements. In a thorough report an d recommendation, the magistrate judge agreed and recommended dism issing Lomack’s application. The district court adopted the report and recommendation in its entirety, over Lomack’s pro se objections, and dismissed Lomack’s applicat ion for failure to satisfy § 2244(b)’s requirements. See § 2244(b)(4) (“A district court sha ll 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 cl aim satisfies the requirements of [§ 2244(b)].” ). The court denied as moot Lomack’s motions fo r appointment of substitute counsel 3 and for IFP

3 After Lomack filed pro se objections que stioning his counsel’s actions, counsel sought and obtained permission to withdraw from the case.4 status. The court also denied Lomack’s subse quent pro se Rule 59(e) motion to alter or amend the judgment of dismissal.
II Lomack requests a COA to appeal four i ssues. Specifically, he asserts that the district court (1) failed to liberally construe his objections to the magistrate judge’s report and recommendation, (2) abused its discretion by sua sponte appointing counsel, (3) erred in considering the amended habeas applicati on that his appointed counsel filed because this court granted him authorization to file only his original pro se habeas application, and (4) abused its discretion by denying his Rule 59 motion. But before we can address these i ssues, Lomack must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A) (requiring certificate of appealability to appeal from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court”). 4 And because the district court dismissed Lomack’s § 2254 application without re aching its merits, we will grant a COA only if Lomack demonstrates both “[1] that ju rists of reason would find it de batable whether [his § 2254 application] states a valid clai m of the denial of a constitutional right and [2] that jurists

4 Lomack doesn’t need a COA to appeal the district court’s order appointing counsel because that order isn’t a final orde r disposing of Lomack’s § 2254 application. See Harbison v. Bell , 556 U.S. 180, 183 (2009). But Lom ack fails to cite any authority to support his claim that the district court ab used its discretion by sua sponte appointing habeas counsel. And his complaint, it seems, is more with counsel’s performance than with the court’s decision to appoint counsel. Thus, we affirm the district court’s order appointing counsel.5 of reason would find it debatable whether the di strict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We conclude that Lomack fails to make the requisite showing because he doesn’t identify any aspect of the district court’s proc edural ruling—i.e., its determination that he failed to satisfy § 2244(b)’s requirements—that would cause reasonable jurists to debate the correctness of that ruling. See id. ; Garrett , 425 F.3d at 840 (expla ining that pro se appellants, like all other appellants, must state contentions of error and supporting arguments). When a state prisoner seeks authorization to file a successive ha beas application to assert claims based on newly di scovered facts, he or she must demonstrate that (1) “the factual predicate for the claim could not ha ve been discovered previously through the exercise of due diligence,” and (2) “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, w ould be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant gu ilty of the underlying offens e.” § 2244(b)(2)(B)(i)-(ii). And the applicant must make this sh owing twice, by “pass[ing] through two gates.” Case v. Hatch , 731 F.3d 1015, 1027 (10th Cir. 2013); see id. at 1026 (explaining that § 2244(b) “expressly establishe[s] a tw o-step ‘gate-keeping’ mechanism for the consideration of second or suc cessive habeas corpus applications in federal courts”). At the first gate, this court conducts a pr eliminary—and expedite d—assessment of the habeas application to determine whether th e applicant has made a prima facie showing that the application meets § 2244(b)’s requirements. Id. at 1026-27; see § 2244(b)(3)(C)6 (requiring applicant to make prima f acie showing to obtain authorization); § 2244(b)(3)(D) (requiring court of appeals to grant or deny motion for authorization “not later than 30 days after the filing of the motion”); see also Ochoa v. Sirmons , 485 F.3d 538, 541 (10th Cir. 2007) (noting that this court’s inquiry focuses “solely on the conditions specified in § 2244(b) that justify raising a ne w habeas claim,” and that this court doesn’t “engage in a preliminary merits assessment”). 5 Thus, even when this cour t grants authorization to file a successive habeas application, as it did here, that means only th at the applicant has sh own “possible merit to warrant a fuller exploration by the district cour t” as to whether the applicant has, in fact, made the requisite showings under § 2244(b). Case , 731 F.3d at 1028 (quoting Bennett v. United States , 119 F.3d 468, 469 (7th Cir. 1997)); see also id. at 1028-29 (noting that to grant authorization, circuit court need only decide “it appears reasonably likely that the application satisfies the stringe nt requirements for the filing of a second or successive petition” (quoting Bennett , 119 F.3d at 469-70)). The applicant must then make a more convincing s howing to pass through the second gate at the district court level. At th e second gate, the district court’s task is to consider each claim and determine whether they “in fact, satisfy the requirements of § 2244(b).” Id. at 1030; see LaFevers v. Gibson , 238 F.3d 1263, 1265 n.3 (10th Cir.

5 In Ochoa , we pointed out that “what is of ten referred to as the ‘innocence’ component in § 2244(b)(2 )(B) imposes a merits-type cond ition to which the prima facie showing attaches.” 485 F.3d at 542 n.4. Bu t even this component “does not directly concern the merit of the constitutional claim it self but rather the extent to which its predicate facts undercut the jury’s finding of guilt.” Id.7 2001) (citing cases explaining district court’ s independent duty to examine each claim and dismiss any claim that doesn’t sa tisfy § 2244(b)’s requirements). In Case , we explained that § 2244(b)(2)(B )(ii) “requires the applican t to identify a constitutional violation and show that he wo uld not have been found guilty ‘but for’ the violation.” 731 F.3d at 1032. In considering whether the app licant has made this showing, the district court’s task is to “determine whether the ne wly discovered evidence, based on the record as a whole, would lead every reasonable juror to a conclusion of ‘not guilty.’” Id. If the district court determines that the app licant’s claims don’t satisfy § 2244(b)’s requirements, the second gate remains closed and the district court “must dismiss” those claims “without reaching the merits.” Id. at 1029 (quoting Bennett , 119 F.3d at 470); see § 2244(b)(4). Here, Lomack alleged in his amended app lication that the prosecutor violated his due process rights by (1) withholding a handw ritten statement that Shaver provided to Officer Atchley in February 2000 and (2) w ithholding evidence that Shaver allegedly negotiated a deal with the prosecutor to provi de false testimony at Lomack’s preliminary hearing and trial in exchange for the dism issal of Shaver’s own pending charge or charges. These claims rested on Lomack’s newly discovered evidence that Shaver recanted his trial testimony thr ough a 2012 affidavit and th rough testimony he provided at a 2013 evidentiary hearing on Lomack’s application for state post-conviction relief. The district court, by ad opting the magistrate judg e’s report and recommendation in its entirety, thoroughly co nsidered Lomack’s newly discovered evidence in light of the trial evidence as a whole. Regarding the pros ecutor’s alleged withholding of Shaver’s8 February 2000 handwritten statem ent, the district court conc luded that Lomack (1) failed to show that “the factual predicate for [h is] claim could not have been discovered previously through the exercise of due diligence,” R. vol. 2, 410 (alteration in original) (quoting § 2244(b)(2)(B )(i)), and (2) failed to show “by clear and convincing evidence that but for the prosecution’s alleged failu re to disclose Mr. Shaver’s handwritten statement to Officer Atchley no reasonabl e factfinder would have found him guilty,” id. Significantly, the district cour t found no evidence that the prosecutor withheld Shaver’s handwritten statement. Rather, the evidence established that Lomack’s trial counsel explicitly questioned Shaver about his handwr itten statement at trial, and that Shaver testified that he hadn’t identified Lomack by name in that statem ent because Shaver’s family and Lomack’s family “were close.” Id. at 397. Thus, reasonable jurists wouldn’t debate the correctness of the district court’ s determination that Lo mack failed to show that but for the alleged due process viola tion arising from the prosecutor’s purported failure to disclose Shaver’s handwritten st atement, no reasonable factfinder would have convicted him. The district court further concluded that even assuming Lomack could show that the factual predicate for his perjured-testim ony claim could not ha ve been discovered previously through the exerci se of due diligence, Lomack failed to show “by clear and convincing evidence that, but for the prosecution’s failure to disclose the alleged negotiated perjury agreemen t, no reasonable juror would have found him guilty.” Id. at 416. Specifically, the court cited the state court’s finding that Sh aver’s recantation testimony lacked credibility given inconsistenc ies between Shaver’s statements in his9 2012 affidavit and his 2013 te stimony. The court also cited evidence that the prosecutor and detective with whom Shav er allegedly negotiated a perj ury agreement both testified at the state evidentiary hearing th at no such agreement existed. In sum, the district court determined that Lomack’s newly discovered facts arising from Shaver’s recantation fell far short of satisfying § 2244(b)(2 )(B)(ii)’s clear-andconvincing-evidence requirement. See Gonzalez v. Crosby , 545 U.S. 524, 530 (2005) (noting that new facts supporting successive application must show “a high probability of actual innocence”). And Lomack fails to demons trate that reasonable jurists would debate the correctness of the district court’s determ ination. Lomack’s failu re to identify any alleged errors in the district court’s analysis of the § 2244(b) requirements is fatal to his request for a COA. 6 Because we conclude that reasona ble jurists would not debate the

6 Rather than attacking the district cour t’s § 2244(b) analysis, Lomack primarily asserts that the district court lacked “habeas ‘subject-matter’ jurisdiction” to consider the claim in his amended habeas application beca use it differed from the claims he asserted in his pro se proposed application—i.e., the a pplication that this court authorized him to file. Aplt. Br. 19. But this argument misunders tands the nature of § 2244(b)’s two-step gatekeeping mechanism. As we’ve discussed, this court’s task is to quickly assess whether any claim asserted in a proposed successive habeas application might arguably satisfy § 2244(b)’s requirements. If so, we authorize the filing of a successive application. Case , 731 F.3d at 1027-28. It th en falls to the district cour t to closely scrutinize each claim asserted in the applica tion to determine whether each claim does, in fact, satisfy § 2244(b)’s requirements. LaFevers , 238 F.3d at 1265 n.3. Moreover, while Lomack’s habeas counsel did reframe his pro se claims by filing the amended a pplication, it’s clear that the district court’s § 2244(b) analysis addressed the substance of Lomack’s pro se claims. At bottom, Lomack seeks habeas relie f because he alleges that Shaver falsely identified him at trial as a resu lt of the prosecutor offering Sh aver a deal for his perjured testimony. Thus, Lomack’s original and ame nded claims all rest on the same factual predicate: Shaver lied, and the prosecutor knew he lied. And, as we’ve discussed, Lomack fails to demonstrate that reasonable jurists would debate the district court’s determination that this factual predicate isn’t sufficiently clear or convincing to undermine Lomack’s convictions.10 correctness of the district court’s determinat ion that Lomack didn’t satisfy § 2244(b)’s requirements, we deny Lomack’s request for a COA and dismiss this matter. Nevertheless, we grant his IFP motion.

Entered for the Court
Nancy L. Moritz Circuit Judge