UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

LEE EDWARD BOYD, 

Petitioner - Appellant, 

v. 

JIMMY MARTIN, 

Respondent - Appellee. 

No. 17-6230 

(D.C. No. 5:15-CV-01236-HE) 

(W.D. Okla.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY 

Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges. 

In 2008, Lee Edward Boyd was convicted by a jury in Oklahoma state court of one 

count of first degree rape, five counts of lewd molestation of a child under sixteen, and 

one count of indecent exposure. The victims were his nieces, V.B. and S.B., who were 

eight- and seven-years old, respectively, when the most recent acts of sexual misconduct 

occurred. He was sentenced to 50 years in prison. The Oklahoma Court of Criminal 

Appeals (OCCA) affirmed on direct appeal. His attempts to obtain post-conviction relief 

in state court were unsuccessful. 

Boyd filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 raising 

various claims. He also sought to introduce newly discovered evidence which, he 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 28, 2018

Elisabeth A. Shumaker 

Clerk of Court
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claimed, established his actual innocence. That evidence included affidavits from (1) 

Raymond Boyd alleging the victims (his daughters) had lied at trial and (2) Frankie Boyd 

claiming the victims (his granddaughters) had told him about a male babysitter that had 

inappropriately touched them. He also submitted an affidavit and a notarized letter from 

V.B., one of the victims, recanting her trial testimony.1

 

 The judge denied relief. Relevant here, he concluded Boyd could not allege a 

 

1

 V.B.’s affidavit provided: 

The things I stated in court about Lee Edward Boyd was not true. As I became an 

adult I do not recall having any such memory of those things happening. I do not 

recall Lee Edward Boyd ever touching me improperly. I never had bad memories 

about my uncle. 

(R. at 359.) Her notarized letter stated: 

To whom it may concern. Lee Boyd did not ever in any way touch me. There was 

another man I would like to not speak of that did them things to me. Being 18 

now and able to speak without feeling scared I would like to let anyone know it 

was not him. 

(Id. at 384.) As the judge aptly observed, V.B. “equivocates between alleging . . . that 

she testified falsely and . . . suggesting she cannot remember the events that were the 

basis for her testimony.” (R. at 390.) 

 That observation highlights just one of the many problems with recantations. See 

Case v. Hatch, 731 F.3d 1015, 1041-42, 1044 (10th Cir. 2013) (“Recanting testimony has 

long been disfavored as the basis for a claim of innocence.” We “look upon recantations 

with extreme suspicion” because they are “notoriously unreliable, easy to find but 

difficult to confirm or refute: witnesses forget, witnesses disappear, witnesses with 

personal motives change their stories many times, before and after trial.” (quotation 

marks omitted)); see also Dobbert v. Wainwright, 468 U.S. 1231, 1233–34 (1984) 

(Brennan, J., dissenting from denial of certiorari review) (“Recantation testimony is 

properly viewed with great suspicion. It upsets society’s interest in the finality of 

convictions, is very often unreliable and given for suspect motives, and most often serves 

merely to impeach cumulative evidence rather than to undermine confidence in the 

accuracy of the conviction.”).
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free-standing claim of actual innocence because such claim “is not itself a constitutional 

claim, but instead a gateway through which a habeas petitioner must pass to have his 

otherwise barred constitutional claim considered on the merits.” See Herrera v. Collins, 

506 U.S. 390, 404 (1993). 

Boyd timely moved to reconsider under Fed. R. Civ. P. 59 (Rule 59 motion). To 

that motion, he attached another affidavit from Frankie Boyd, this time claiming V.B. 

told him via text message that her allegations against Boyd were false and her sister, 

S.B., “is in it with me.” (D. Ct. Doc. No. 40-1.) According to Boyd, this affidavit is 

further proof of his actual innocence. He also argued for the first time that the Oklahoma 

state court was without jurisdiction over his criminal case under the Major Crimes Act, 

18 U.S.C. § 1153,2

 because he is a Native American (Cherokee) and the events occurred 

within “Indian country.”3

 He relied on our recent decision in Murphy v. Royal, 875 F.3d 

 

2

 18 U.S.C. § 1153 provides: 

(a) Any Indian who commits against the person or property of another Indian or 

other person any of the following offenses, namely, murder, manslaughter, 

kidnapping, maiming, a felony under chapter 109A [sexual abuse], incest, a felony 

assault under section 113, an assault against an individual who has not attained the 

age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a 

felony under section 661 of this title within the Indian country, shall be subject to 

the same law and penalties as all other persons committing any of the above 

offenses, within the exclusive jurisdiction of the United States. 

(b) Any offense referred to in subsection (a) of this section that is not defined and 

punished by Federal law in force within the exclusive jurisdiction of the United 

States shall be defined and punished in accordance with the laws of the State in 

which such offense was committed as are in force at the time of such offense. 

3

 Boyd’s crimes occurred in Red Rock, Noble County, Oklahoma. Because this 

claim is not properly before us, we do not address whether his crimes occurred “within 

Indian country.” 18 U.S.C. § 1153. Moreover, while he alleges he is a Native American 
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896 (10th Cir. 2017) (concluding Congress had not disestablished the 1866 boundaries of 

the Creek Reservation and therefore Murphy should have been charged and tried in 

federal court under the Major Crimes Act because he was an Indian and his crime 

occurred within in Indian country), cert. granted, 138 S. Ct. 2026 (2018). 

 The judge denied the motion, concluding there was “no basis for changing [his] 

decision.” (D. Ct. Doc. No. 42.) He also denied a certificate of appealability (COA) so 

Boyd renews his request for a COA here. 

A COA is a jurisdictional prerequisite to our review of a petition for a writ of 

habeas corpus. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 

We will issue a COA “only if the applicant has made a substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must show that “reasonable jurists 

could debate whether (or, for that matter, agree that) 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, 484 (2000) 

(quotation marks omitted). 

 Boyd does not challenge the denial of his § 2254 petition other than to continue to 

claim his newly discovered evidence establishes his actual innocence. But, as the judge 

correctly decided, Boyd cannot allege a free-standing claim of actual innocence. See 

Herrera, 506 U.S. at 400, 404; see also LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 

 

and that the crimes occurred within Indian country, he does not point to anything in the 

record or even attempt to provide any evidence supporting these allegations, which he 

was required to do. 
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(10th Cir. 2001) (“[A]n 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.”). Because that decision is not 

reasonably debatable and, in fact, correct, Boyd is not entitled to a COA on this claim.4

He also argues the judge erred in denying his Rule 59 motion. We agree that the 

judge erred in denying that motion; he should have dismissed it for lack of jurisdiction 

because the motion is an unauthorized second or successive § 2254 petition. 

In his Rule 59 motion, Boyd sought to introduce new evidence in support of his 

previously denied actual innocence claim and to raise for the first time a claim that his 

convictions were void under the Major Crimes Act. It is not a “true” Rule 59 motion but 

rather a disguised second or successive § 2254 petition. See Spitznas v. Boone, 464 F.3d 

1213, 1215-16 (10th Cir. 2006) (a post-judgment motion is a second or successive habeas 

 

4

 Boyd did not first present the newly discovered evidence to the state courts. He 

asked the district judge to stay his § 2254 proceedings to allow him to do so. See 28 

U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person 

in custody pursuant to the judgment of a State court shall not be granted unless it appears 

that . . . the applicant has exhausted the remedies available in the courts of the State.”). 

The judge denied the request because Boyd had not identified any new claim for federal 

habeas relief that would warrant allowing him to supplement his § 2254 petition with the 

newly discovered evidence (other than a freestanding actual innocence claim which is not 

a cognizable ground for habeas relief) and therefore no unexhausted claims were 

pending. We see no abuse of discretion and decline to issue a COA on this issue. See 

Rhines v. Weber, 544 U.S. 269, 277 (2005) (“Because granting a stay effectively excuses 

a petitioner’s failure to present his claims first to the state courts, stay and abeyance is 

only appropriate when the district court determines there was good cause for the 

petitioner’s failure to exhaust his claims first in state court. Moreover, even if a 

petitioner had good cause for that failure, the district court would abuse its discretion if it 

were to grant him a stay when his unexhausted claims are plainly meritless.”). 
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petition “if it in substance or effect asserts or reasserts a federal basis for relief from the 

petitioner’s underlying conviction”; “examples of [post-judgment] motions that should be 

treated as second or successive habeas petitions” include those asserting “a claim of 

constitutional error omitted from the movant’s initial habeas petition” and those “seeking 

leave to present newly discovered evidence in order to advance the merits of a claim 

previously denied” (quotation marks omitted)).5

 As such, absent our authorization, the 

judge was without jurisdiction to address it. See 28 U.S.C. § 2244(b)(3)(A) (“Before a 

second or successive [§ 2254] application . . . is filed in the district court, the applicant 

shall move in the appropriate court of appeals for an order authorizing the district court to 

consider the application.”); see also In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) 

(“A district court does not have jurisdiction to address the merits of a second or 

successive . . . § 2254 claim until this court has granted the required authorization.”). We 

therefore vacate the order denying the Rule 59 motion and construe Boyd’s COA 

application as a request to file a second or successive § 2254 petition. See Spitznas, 464 

F.3d at 1219 (“If . . . the district court has incorrectly treated a second or successive 

petition as a true [post-judgment] motion and denied it on the merits, we will vacate the 

district court’s order for lack of jurisdiction and construe the petitioner’s appeal as an 

application to file a second or successive petition.”). 

 

5

 Although Spitznas addressed motions to reconsider under Fed. R. Civ. P. 60(b), 

we have also applied it to Rule 59 motions. See United States v. Pedraza, 466 F.3d 932, 

933 (10th Cir. 2006); see also United States v. Moreno, 655 F. App’x 708, 713 (10th Cir. 

2016) (unpublished); Richardson v. Ploughe, 577 F. App’x 771, 777 (10th Cir. 2014) 

(unpublished). 
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In order to receive authorization to file a second § 2254 petition, an applicant must 

show the petition (1) “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) is 

based on newly discovered evidence that “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.” 28 U.S.C. § 2244(b)(2). Boyd’s petition satisfies neither prong. 

His claim under the Major Crimes Act is not based on “a new rule of 

constitutional law made retroactive to cases on collateral review by the Supreme Court.” 

See 28 U.S.C. § 2244(b)(2) (emphasis added). It is, instead, based on our decision in 

Murphy, where we applied existing Supreme Court precedent, Solem v. Bartlett, 465 U.S. 

463 (1984), as “clearly established federal law” requiring habeas relief. See Murphy, 875 

F.3d at 921-22. Moreover, Frankie Boyd’s affidavit, even if it could be considered newly 

discovered evidence,6

 does not “establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found [him] guilty of the 

underlying offense[s].” See 28 U.S.C. § 2244(b)(2). Not only is the affidavit based on 

inadmissible hearsay, it also addresses only the “charges against [Boyd] from [V.B.] that 

wasn’t true.” (D. Ct. Doc. No. 40-1 (emphasis added).) Only two counts of conviction—

indecent exposure and lewd molestation of a child under sixteen—involved V.B.; those 

 

6

 The affidavit is signed on October 25, 2017, yet refers to text messages dated 

December 15, 2017. If the affidavit meant to refer to text messages dated December 15, 

2016, then Boyd has failed to explain why it took him over ten months to discover them. 
- 8 - 

counts resulted in a 10-year sentence. The remaining five counts of conviction, including 

first degree rape, involved S.B. and resulted in a 40-year sentence. S.B. has not recanted 

and the affidavit does not refute S.B.’s testimony. 

We DENY a COA to the extent Boyd is challenging the denial of his § 2254 

petition (his actual innocence claim). We VACATE the district court’s order denying the 

Rule 59 motion because that motion was a second or successive § 2254 petition which 

the court was without jurisdiction to consider. We construe Boyd’s COA application as a 

request for authorization to file a second or successive petition and DENY authorization. 

 The judge denied Boyd’s request to proceed on appeal without prepayment of fees 

(in forma pauperis or ifp). Boyd renews his ifp request with this Court. Because we have 

reached the merits of his COA application, his renewed request to proceed on appeal 

without prepayment of fees is DENIED AS MOOT. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge