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 CERTIFIC ATE OF APPEALABILITY

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

In 2008, Lee Edward Bo yd was convicted by a jury in Oklahoma st ate court of one count of first degree rape, five c ounts of lewd molestation of a child under sixteen, and one count of indecent exposure. T he victims were his nieces, V .B. and S.B., who were eight- and seven-years old, respec tively, when the most recent acts of sexual misconduct occurred. He was sentenced to 50 years in prison. The Oklahom a Court of Criminal Appeals (OCCA) affirmed on dire ct appeal. His attempts to obta in post-conviction relief in state court were unsuccessful. Boyd filed a petition for writ o f habeas corpus under 28 U.S.C. § 2254 raising various claims. He al so sought to introdu ce newly discovered e vidence which, he FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - claimed, established his actual innocence. That evidence inclu ded affidavits from (1) Raymond Boyd alleging the victim s (his daughters) had lied at t rial and (2) Frankie Boyd claiming the victims (his grandda ughters) had told him about a male babysitter that had inappropriately touched them. H e also submitted an affidavit a nd a notarized letter from V.B., one of the victims, re canting her trial testimony. 1 The judge denied relief. Relevant here, he concluded Boyd cou ld not allege a

1 V.B.’s affidav it provided: The things I stated in court abou t Lee Edward Boyd was not true . As I became an adult I do not recall having any such memory of those things ha ppening. I do not recall Lee Edward Boyd ever tou ching me improperly. I never ha d 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 s peak of that did them things t o me. Being 18 now and able to speak without f eeling scared I would like to le t anyone know it was not him. ( Id . at 384.) As the judg e aptly observed, V.B. “equivocates betw een alleging . . . that she testified falsely and . . . s uggesting 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, 10 41-42, 1044 (10th Ci r. 2013) (“Recanting tes timony has long been disfavored as the ba sis for a claim of innocence.” W e “look upon recantations with extreme suspicion” because t hey are “notoriously unreliabl e, easy to find but difficult to confirm or refute: w itnesses forget , witnesses dis appear, witnesses with personal motives change their sto ries many times, before and af ter trial.” (quotation marks omitted)); see also Dobbert v. Wainwright , 468 U.S. 1231, 1233–34 (1984) (Brennan, J., dissenting from de nial of certiorari review) (“Re cantation testimony is properly viewed with great sus picion. It upsets society’s inte rest in the finality of convictions, is very often unre liable and given for suspect mot ives, and most often serves merely to impeach cumulative ev idence rather than to undermine confidence in the accuracy of the conviction.”).- 3 - free-standing claim of actual i nnocence because such claim “is not itself a constitutional claim, but instead a gateway t hrough whic h a habeas petitioner must pass to have his otherwise barred constitutional cl aim considered on the merits. ” See Herrera v. Collins , 506 U.S. 390, 404 (1993). Boyd timely moved to reconside r under Fed. R. C iv. P. 59 (Rule 59 motion). To that motion, he att ached another affidavit from Frankie Boyd, t his time claiming V.B. told him via text message that her allegations against Boyd wer e false and her sister, S.B., “is in it with me.” (D. C t. Doc. No. 40-1.) According t o Boyd, this affidavit is further proof of his actual inno cence. He also argued for the first time that the Oklahoma state court was without jurisdic tion over his criminal case und er the Major Crimes Act, 18 U.S.C. § 1153, 2 because he is a Native American (Cherokee) and the events occu rred 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 an other Indian or other person any of the followi ng offenses, namely, murder, man slaughter, kidnapping, maiming, a felony un der chapter 109A [sexual abuse] , incest, a felony assault under section 113, an a ssault against an individual who has not attained the age of 16 years, felony child a buse or neglect, arson, burglary , robbery, and a felony under section 661 of thi s title within the Indian countr y, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jur isdiction of the United State s. (b) Any offense referred to in su bsection (a) of this section t hat is not defined and punished by Federal law in force within the exclusive jurisdict ion of the United States shall be define d and punished in acco rdance with the law s of the State in which such offense was committed a s are in force at the time of such offense.
3 Boyd’s crimes occurred in Red Rock, Noble Count y, Oklahoma. B ecause this claim is not properly before u s, 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- 4 - 896 (10th Cir. 2017) (c oncluding Congress ha d not disestablishe d the 1866 boundaries of the Creek Reservation and therefor e Murphy should have been cha rged and tried in federal court under the Major Cri mes Act because he was an Indi an and his crime occurred within in Indian country), cert. granted , 138 S. Ct. 2026 (2018). The judge denied the motion, con cluding there was “no basis fo r changing [his] decision.” (D. Ct. Doc. No. 42.) H e also denied a certificate of appealability (COA) so Boyd renews his request for a COA here. A COA is a jurisdictional prer equisite to our review of a petit ion 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 substanti al showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must s how that “reasonable jurists could debate whethe r (or, for that matter, agree that) the peti tion should have been resolved in a different manner o r that the issues presented wer e adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation marks omitted). Boyd does not challenge the de nial of his § 2 254 petition othe r than to continue to claim his newly discovered evide nce establishes his actual inno cence. But, as the judge correctly decided, Boyd cannot a llege 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 wi thin Indian country, he does not point to anything in the record or even attempt to provi de any evidence supporting these allegations, which he was required to do.- 5 - (10th Cir. 2001) (“[A]n assertion of actual innocence, although operating as a potential pathway for reaching otherwise de faulted constitutional claims, does not, standing alone, support the granting of the wr it of habeas corpus.”). Because that decision is not reasonably debatable and, in fact, correct, Boyd is not entitle d 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 moti on; he should have dismissed it for lack of jurisdiction because the motion is an unauth orized second or successive § 22 54 petition. In his Rule 59 motion, Boyd sough t to introduce new evidence in support of his previously denied actual innocen ce claim and to raise for the f irst time a claim that his convictions were void under the M ajor Crimes Act. It is not a “true” Rule 59 motion but rather a disguised second o r successive § 2254 petition. See Spitznas v. Boone , 464 F.3d 1213, 1215-16 (10th Cir. 2006) (a post-judgment motion is a sec ond or successive habeas

4 Boyd did not first present the newly discovered evidence to th e state courts. He asked the district judge to stay his § 2254 proceedings to allo w him to do so. See 28 U.S.C. § 2254(b)(1)(A) (“An app lication for a writ of habeas co rpus on behalf of a person in custody pursuant to the judgm ent of a State court shall not be granted unless it appears that . . . the applicant has exhaus ted the remedies available i n the courts of the State.”). The judge denied the request bec ause Boyd had not identified an y new claim for federal habeas relief that would warrant a llowing him to supplement his § 2254 petition with the newly discovered evidence (other than a freestanding actual inn ocence claim which is not a cognizable ground for habeas relief) and therefore no unexhau sted claims were pending. We see no abuse of dis cretion and decline to issue a COA on this issue. See Rhines v. Weber , 544 U.S. 269, 277 (2005) (“Becau se granting a stay effectivel y excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate when the distric t court determines there was g ood cause for the petitioner’s failure to exhaust hi s claims first in state court . Moreover, even if a petitioner had good cause for tha t failure, the district court would abuse its discretion if it were to grant him a stay when hi s unexhausted claims are plainl y meritless.”).- 6 - petition “if it in substance or effect asserts or reasserts a f ederal basis for relief from the petitioner’s underlying conviction” ; “examples of [post-judgmen t] 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 p etition” and those “seeking leave to present newly discovere d evidence in order to advance the merits of a claim previously denied” (qu otation marks omitted)). 5 As such, absent our authorization, the judge was without juri sdiction to address it. See 28 U.S.C. § 2244( b)(3)(A) (“Before a second or successive [§ 2254] a pplication . . . is filed in the district court, the applicant shall move in the appropriate c ourt of appeals for an order aut horizing 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 hav e jurisdiction to address the me rits of a second or successive . . . § 2254 claim until this court has granted the required authorization.”). We therefore vacate the order denyi ng the Rule 59 mo tion and const rue 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 trea ted 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 j urisdiction and construe th e petitioner’s appeal as an application to file a second or successive petition.”).

5 Although Spitznas addressed motions to reconsid er 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).- 7 - In order to receive authorizatio n to file a second § 2254 petit ion, an applicant must show the petition (1) “relies on a new rule of constitutional l aw, made retroactive to cases on collateral review by the Suprem e Court, that was previously unavailable” or (2) is based on newly discovered eviden ce that “if proven and viewed i n light of the evidence as a whole, would be sufficient to establish by clear and convi ncing evidence that, but for constitutional error, no reasonabl e 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 revi ew by the Supreme Court .”
See 28 U.S.C. § 2244(b)(2) (emphasi s added). It is, instead, base d on our decision in Murphy , where we applied existing Supreme Court precedent, Solem v. Bartlett , 465 U.S. 463 (1984), as “clearly establis hed federal law” requiring habe as 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 convin cing evidence that, but for constitutional error, no reasonabl e factfinder wou ld 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 again st [Boyd] from [V.B.] that wasn’t true.” (D. Ct. Doc. No. 40-1 (emphasis added).) Only t wo counts of conviction— indecent exposure and lewd moles tation of a child under sixteen —involved V.B.; those

6 The affidavit is signed on Octob er 25, 2017, yet refers to tex t messages dated December 15, 2017. If the affidavit meant to refer to text mes sages dated December 15, 2016, then Boyd has failed to exp lain why it took him over ten months to discover them.- 8 - counts resulted in a 10-year sen tence. The remaining five coun ts of conviction, including first degree rape, involved S.B . and resulted in a 40-year sent ence. S.B. has not recanted and the affidavit does not refute S.B.’s testimony.
We DENY a COA to the extent Boyd is ch allenging the denial of his § 22 54 petition (his actual innocence claim). We VACATE the district court’s order denying the Rule 59 motion because that mot ion was a second or successive § 2254 petition which the court was without jurisdic tion to consider. We construe Bo yd’s COA application as a request for authorization to file a second or successive petiti on and DENY authorization. The judge denied Boyd’s request to proceed on appeal without p repayment of fees ( in forma pauperis or ifp ). Boyd renews his ifp request with this Court. Because we have reached the merits of his COA a pplication, his renewed request to proceed on appeal without prepayme nt of fees is DENIED AS MOOT

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Entered by the Court:

Terrence L. O’Brien United States Circuit Judge