UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

ALVIN PARKER,

Movant.

No. 14-6246

(D.C. No. 5:96-CV-00335-T)

(W.D. Okla.)

ORDER

Before PHILLIPS, EBEL, and McHUGH, Circuit Judges.

Alvin Parker, a state prisoner proceeding pro se, seeks authorization to file a 

successive 28 U.S.C. § 2254 habeas application concerning his Oklahoma conviction 

for second degree murder. We deny the motion for authorization. 

In 1990, Parker was convicted of second degree murder and sentenced to 

199 years in prison. His conviction was affirmed on direct appeal. His numerous 

state court post-conviction proceedings and efforts to obtain federal habeas relief 

were unsuccessful. Most recently, this court denied Parker’s request for a certificate 

of appealability that would have allowed him to appeal from the district court’s order 

denying an unauthorized successive § 2254 habeas application. In that proceeding, 

Parker argued that a key witness, Glenn Briggs, had recanted his trial testimony 

naming Parker as the murderer, and the prosecution knew that Briggs’ testimony was 

false. Parker v. Martin, Nos. 14-6111 & 14-6174, 2014 WL 5462360, at *2-3 

FILED

United States Court of Appeals

Tenth Circuit

January 29, 2015

Elisabeth A. Shumaker

Clerk of Court

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(10th Cir. Oct. 29, 2014). This court held that even assuming Briggs’ testimony was 

false, Parker had failed to show that the prosecution knew the testimony was false.

Parker now seeks authorization from this court to file a second or successive 

§ 2254 habeas application on the same grounds raised and rejected in his recent

§ 2254 proceeding. To obtain authorization Parker must show that “the factual 

predicate for the claim could not have been discovered previously through the 

exercise of due diligence,” and “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.” 28 U.S.C. 

§ 2244(b)(2)(B)(i), (ii). We focus our analysis on the second prong, which requires a 

showing of constitutional error. 

To tie a recanting witness to a constitutional error, Parker “must show that 

(1) [the witness’s] testimony was in fact false, (2) the prosecution knew it to be false,

and (3) the testimony was material.” United States v. Caballero, 277 F.3d 1235, 

1243 (10th Cir. 2002). Parker must establish all three elements. See id. at 1244. 

Lacking any direct evidence that the prosecution knew Briggs’ testimony was false, 

Parker asks us to infer such a fact. We addressed and rejected this argument in 

Parker’s most recent appeal. See Parker, 2014 WL 5462360, at *3. 

Attached to Parker’s amended motion for authorization is a letter allegedly 

written by Briggs and sent to Parker on or about November 25, 2014. In this letter, 

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Briggs provides additional details about the “false” story he gave to the police. 

These additional “facts,” even if true, do nothing to establish that the prosecution 

knew that Briggs’ testimony was false, nor do they support any such inference.

Last, Parker appears to argue that Briggs’ recantation is sufficient to establish 

his actual innocence. However, without a link to an underlying constitutional 

violation (and there is none), Parker’s argument is nothing more than a stand-alone 

claim of actual innocence, which does not meet the test under § 2244(b)(2)(B)(ii). 

[T]he universe of facts that enter into the subparagraph (B)(ii) analysis 

consists only of evidence presented at the time of trial, adjusted for 

evidence that would have been admitted or excluded “but for 

constitutional error” during trial proceedings. The factual universe does 

not encompass new facts that became available only after trial and that 

are not rooted in constitutional errors occurring during trial. 

Case v. Hatch, 731 F.3d 1015, 1038 (10th Cir.), cert denied, 134 S. Ct. 269 (2013). 

The motion for authorization is denied. This denial of authorization “shall not 

be appealable and shall not be the subject of a petition for rehearing or for a writ of 

certiorari.” 28 U.S.C. § 2244(b)(3)(E). We deny Parker’s Motion to Incorporate 

Records on Former Appeal because this court can take judicial notice of his prior 

proceedings, as appropriate. 

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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