Lomack v. Farris
693 F. App'x 757
| 10th Cir. | 2017Background
- Lomack, an Oklahoma inmate serving a 200-year sentence, sought authorization from the Tenth Circuit to file a successive 28 U.S.C. § 2254 habeas petition based on newly discovered recantation evidence from key witness Darrell Shaver.
- The Tenth Circuit granted authorization under § 2244(b)(3)(C), finding a prima facie showing that the successive petition might meet statutory gatekeeping requirements.
- The district court appointed counsel, who filed an amended § 2254 petition focusing on alleged Brady/perjury claims tied to (1) a February 2000 handwritten statement by Shaver and (2) an alleged prosecutor/defense deal inducing false testimony.
- The magistrate judge recommended dismissal for failure to satisfy § 2244(b) gatekeeping; the district court adopted that recommendation, concluding Lomack did not show the factual predicate was undiscoverable with due diligence nor that the new evidence met the clear-and-convincing actual-innocence standard.
- Lomack’s Rule 59(e) motion was denied; he appealed and sought a certificate of appealability (COA) and in forma pauperis (IFP) status.
- The panel granted IFP but denied a COA, holding Lomack failed to show reasonable jurists would debate the correctness of the district court’s procedural ruling under § 2244(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether COA should issue to review district court’s § 2244(b) dismissal | Lomack contends the district court erred in dismissing his amended successive § 2254 petition and in denying his Rule 59(e) motion | Respondent argues Lomack failed to meet § 2244(b)’s gatekeeping requirements for successive petitions | COA denied: reasonable jurists would not debate the district court’s § 2244(b) dismissal |
| Whether district court abused discretion by sua sponte appointing counsel | Lomack claims appointment was improper and counsel’s amended petition exceeded the authorized pro se claims | Respondent defends appointment as within court’s discretion; amended petition still concerned same factual predicate | Appointment affirmed; Lomack cited no authority showing abuse, and claim more about counsel performance than court action |
| Whether the district court considered improper claims because counsel amended the pro se petition | Lomack argues the court lacked subject-matter jurisdiction over claims not in his original pro se filing | Respondent: appellate authorization only requires prima facie showing; district court must scrutinize all claims in the filed petition | Court rejects Lomack’s jurisdictional attack; original and amended claims shared the same factual predicate and were properly considered |
| Whether newly discovered recantation evidence satisfies § 2244(b)(2)(B)(i)-(ii) (due diligence and clear-and-convincing actual innocence) | Lomack argues Shaver’s 2012 affidavit and 2013 testimony recantations show prosecutorial nondisclosure/perjured testimony that would have led to acquittal | Respondent points to trial cross-examination about the handwritten statement, state-court findings that recantation lacked credibility, and witness testimony denying any deal | District court correctly found Lomack failed both due-diligence and clear-and-convincing showing; new evidence would not lead every reasonable juror to acquit |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (COA standards where district court denies habeas on procedural grounds)
- Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir.) (pro se pleadings liberally construed but appellants must present arguments)
- Case v. Hatch, 731 F.3d 1015 (10th Cir.) (explains § 2244(b) two-step gatekeeping and standards for prima facie and district-court review)
- Ochoa v. Sirmons, 485 F.3d 538 (10th Cir.) (focus of appellate authorization is § 2244(b) conditions, not merits)
- LaFevers v. Gibson, 238 F.3d 1263 (10th Cir.) (district court’s independent duty to examine each claim under § 2244(b))
- Bennett v. United States, 119 F.3d 468 (7th Cir.) (discusses threshold authorization showing for successive petitions)
- Gonzalez v. Crosby, 545 U.S. 524 (successive-petition new evidence must show a high probability of actual innocence)
- Harbison v. Bell, 556 U.S. 180 (appointment of counsel order is not a final appealable order in habeas proceedings)