Introduction

In In re: Macklin, No. 25-6160 (10th Cir. Nov. 5, 2025), the United States Court of Appeals for the Tenth Circuit denied Oklahoma state prisoner Kevin Thomas Macklin’s motion for authorization to file a second or successive habeas petition under 28 U.S.C. § 2254. The court’s short but consequential order clarifies and reinforces a demanding statutory gatekeeping rule: a successive habeas petitioner seeking authorization under 28 U.S.C. § 2244(b)(2)(B) must present not only compelling new evidence of innocence, but must also tether that evidence to a specific constitutional violation and further demonstrate—by clear and convincing evidence—that no reasonable factfinder would have found guilt but for that constitutional error. This is the Tenth Circuit’s “actual innocence plus” standard.

The case arises from a 2002 Oklahoma City murder for which Mr. Macklin was convicted in 2005 of first-degree murder and conspiracy to commit a felony. After forgoing a direct appeal, he later sought state and federal postconviction relief on the basis of alleged newly discovered evidence: an email from a former girlfriend asserting an alibi and affidavits from two co-defendants recanting their prior identifications of Macklin as the shooter. Those efforts were repeatedly rejected by the state courts, and his prior federal habeas petition was dismissed as untimely despite an asserted “actual innocence” gateway under McQuiggin v. Perkins.

In this new round, Macklin filed a second § 2254 petition and then sought leave from the Tenth Circuit to pursue it. The panel—Chief Judge Holmes and Judges Carson and Rossman—denied authorization, holding that his freestanding innocence claim is not cognizable under § 2244(b)(2)(B) and that, even assuming a constitutional error had been identified, his new evidence (including late-breaking recantations) fell far short of the statute’s “no reasonable factfinder” threshold when evaluated alongside the trial record as a whole.

Summary of the Opinion

• The court denied Macklin’s motion for authorization to file a second or successive § 2254 petition because his claim rested on freestanding actual innocence rather than a constitutional violation, which § 2244(b)(2)(B) does not permit. Citing Case v. Hatch, the panel reaffirmed that successive petitioners must satisfy an “actual innocence plus” standard: new evidence must be linked to a constitutional error at trial, and the petitioner must show clear and convincing evidence that no reasonable factfinder would have convicted but for that error.
• Even if a constitutional violation had been articulated, the panel held Macklin failed the statute’s stringent innocence component. Under § 2244(b)(2)(B)(ii), the court “adds” the purportedly new evidence to the trial record and asks whether it is clear and convincing that no reasonable factfinder would convict. Long-delayed witness recantations are viewed with suspicion, and Macklin’s alibi email lacked persuasive explanation for the years-long delay. The trial record also included testimony of a confession to the shooting.
• The court noted Macklin’s reply gesture toward a Fourteenth Amendment “false testimony” claim, but emphasized that § 2244(b)(2)(B)(ii) demands the more exacting “no reasonable factfinder” showing, not a “reasonable likelihood” standard.
• The denial of authorization is not appealable and cannot be the subject of rehearing or certiorari under § 2244(b)(3)(E).

Analysis

A. Statutory Framework: § 2244(b) Gatekeeping for Successive § 2254 Petitions

Congress limits successive federal habeas petitions by state prisoners through § 2244(b). A petitioner must obtain authorization from the court of appeals before filing a successive application in district court. The statute provides two narrow paths:

• § 2244(b)(2)(A): a new rule of constitutional law, made retroactive by the Supreme Court to cases on collateral review, that was previously unavailable; or
• § 2244(b)(2)(B): newly discoverable facts that, despite due diligence, could not previously have been found (§ 2244(b)(2)(B)(i)), and which, if proven and viewed in light of the evidence as a whole, establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty (§ 2244(b)(2)(B)(ii)).

Macklin sought authorization only under § 2244(b)(2)(B). At the gatekeeping stage, the applicant must make a prima facie showing of eligibility. The panel held he failed on two fronts: (1) he identified no constitutional error to which his new evidence is tethered; and (2) even taking his new evidence on its own terms, it did not satisfy the statute’s stringent innocence showing when added to the trial record.

B. Precedents Cited and How They Shaped the Decision

• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): The court reiterated it construes pro se filings liberally but does not advocate for litigants or craft arguments they have not made. This principle framed the court’s refusal to recast Macklin’s freestanding innocence argument into a constitutional claim he did not assert.
• McQuiggin v. Perkins, 569 U.S. 383 (2013): Macklin invoked McQuiggin in his first federal petition to bypass AEDPA’s time bar through an “actual innocence gateway.” The panel highlighted the distinction: McQuiggin’s gateway applies to a first petition’s timeliness. Successive petitions are governed by § 2244(b)’s stricter statutory regime, which does not authorize freestanding innocence claims.
• Case v. Hatch, 731 F.3d 1015 (10th Cir. 2013): This was the linchpin. Case established (and the panel repeatedly quoted) that § 2244(b)(2)(B) imposes an “actual innocence plus” standard: new evidence must be linked to a trial-based constitutional error, and the petitioner must show, by clear and convincing evidence, that no reasonable factfinder would convict absent that error. Case also instructs that courts “add”—not subtract—recantations or new evidence to the trial record to assess whether the combined body of evidence makes it clear and convincing that no reasonable factfinder would convict. Finally, Case recognizes courts’ longstanding skepticism toward recantations.

Although not cited by name in the order, the panel’s brief discussion of “false testimony” implicitly touches Napue/Giglio principles (Fourteenth Amendment violations where the prosecution knowingly presents, or fails to correct, false testimony). The court effectively signals that even if a Napue-type claim could be articulated, § 2244(b)(2)(B)(ii)’s “no reasonable factfinder” test is more demanding than the “reasonable likelihood” materiality standard that governs Napue/Giglio on the merits.

C. The Court’s Legal Reasoning

1. No constitutional tether; freestanding innocence is insufficient.

   The court begins with the text of § 2244(b)(2)(B)(ii), stressing it requires the movant “to identify a constitutional violation and show that he would not have been found guilty ‘but for’ the violation.” Macklin’s motion relied entirely on an asserted freestanding actual innocence claim grounded in an alibi email and recantation affidavits. Under Case v. Hatch, such an untethered innocence claim is not cognizable in a successive petition; it must be linked to a specific trial-based constitutional error, such as Brady suppression, Napue false-testimony, or ineffective assistance that undermined the reliability of the verdict. Because Macklin identified no constitutional violation, he failed the statute’s “plus” requirement.

2. Even assuming a constitutional violation, the new evidence is insufficient under the statute’s clear-and-convincing “no reasonable factfinder” test.

   The panel next explains that a court assessing § 2244(b)(2)(B)(ii) does not erase recanted trial testimony and reweigh what remains. Rather, it “adds” the new evidence to the trial record to evaluate “in light of the evidence as a whole” whether it is clear and convincing that no reasonable factfinder would convict. Applying this framework:

   • Recantations are viewed with suspicion. The court “places little value” on late-breaking recantations, noting appellate courts have long treated such evidence skeptically. Before recanting years later, both co-defendants repeatedly and consistently identified Macklin as the shooter, including in police interviews, plea colloquies, and trial testimony. Macklin provided no persuasive reason to conclude every reasonable factfinder would now credit the recantations over the contemporaneous identifications.
   • Alibi evidence was unexplained and delayed. The email from Macklin’s former girlfriend stating he was with her the night of the murder was offered years after his conviction with no persuasive explanation for the delay—further undermining its probative value in the clear-and-convincing calculus.
   • Trial record included confession evidence. The prosecution’s case included testimony from Tasha Galbreath that Macklin admitted shooting the victim because the victim had seen his face; co-defendant King gave the same detail at trial. This corroborated the original identifications and weighed heavily against the proposition that no reasonable factfinder would convict.

   The court also addressed Macklin’s reply suggestion that the State presented “false testimony” regarding which co-defendants exited the car. Even if framed as a due process claim, Macklin argued only that there was a “reasonable likelihood” the falsehood affected the verdict. The statute requires more: a showing that no reasonable factfinder would convict—a decidedly higher bar than “reasonable likelihood.”

3. Procedural posture and finality.

   Although a magistrate judge recommended the district court dismiss Macklin’s already-filed petition as unauthorized, and Macklin did not object, the district court had not yet acted. Regardless, the petition cannot proceed absent appellate authorization. The panel’s denial is unreviewable under § 2244(b)(3)(E).

D. Impact and Implications

In re: Macklin reinforces several practical and doctrinal points for habeas litigants in the Tenth Circuit:

• No freestanding actual innocence in successive petitions. Successive § 2254 applicants must identify a discrete constitutional violation and then show clear and convincing evidence that, but for that error, no reasonable factfinder would convict. Innocence evidence unmoored from a constitutional defect is not enough to pass the gate.
• High evidentiary bar: “add, don’t subtract.” New affidavits—especially recantations—are added to the trial record for a holistic assessment. Courts will not strike trial evidence and reweigh. Late recantations and unexplained alibi statements typically carry diminished weight, making clear-and-convincing showings rare.
• Napue/Giglio claims must meet the statute’s tougher materiality. Even if a petitioner asserts the State knowingly presented or failed to correct false testimony (a due process claim), the gatekeeping standard remains “no reasonable factfinder” under § 2244(b)(2)(B)(ii), which is more demanding than Napue’s “reasonable likelihood” test on the merits.
• Distinguish McQuiggin’s gateway from § 2244(b). The “actual innocence gateway” can excuse untimeliness for a first petition, but it does not supply a vehicle for successive petitions. § 2244(b) imposes independent, stricter filters.
• Practice pointers. Petitioners developing innocence evidence should:
  • Pinpoint and plead the specific constitutional error (e.g., Brady suppression, Napue false testimony, Strickland ineffective assistance) to which the new evidence speaks.
  • Document due diligence and explain any delays in discovery or presentation of new evidence.
  • Anticipate the “add not subtract” framework by addressing how the new material undercuts the combined force of the trial record to the point that no reasonable factfinder would convict.
• Systemic effect. Macklin provides a current and citable Tenth Circuit application of Case v. Hatch, cementing the circuit’s skeptical stance on late recantations and reinforcing that successive habeas gatekeeping is exceptionally stringent.

Complex Concepts Simplified

• § 2254 vs. § 2244(b): Section 2254 is the vehicle for state prisoners to seek federal habeas relief. Section 2244(b) is the “gate” that controls whether a prisoner can bring a second or successive § 2254 petition at all.
• Authorization: Before filing a successive petition in district court, the prisoner must get permission from the court of appeals. Without it, the district court must dismiss or transfer the petition.
• “Actual innocence gateway” (McQuiggin): For a first petition that is late, strong innocence evidence may allow a court to reach the merits despite the time bar. That gateway does not apply in the same way to successive petitions.
• “Actual innocence plus” (§ 2244(b)(2)(B)): For successive petitions, innocence evidence must be tied to a constitutional error at trial, and the petitioner must show—by clear and convincing evidence—that no reasonable factfinder would convict but for that error.
• “Add, don’t subtract” evaluation: Courts assess innocence evidence by adding it to the trial record and asking if the combined record leaves no room for a reasonable conviction. They do not simply discard recanted testimony and reweigh what remains.
• Recantations: Courts are skeptical of recantations, especially when they arise years after trial, because they can be influenced by time, coercion, or regret and are harder to evaluate for reliability.
• Materiality standards:
  • Napue/Giglio (false testimony) merits standard: whether there is a “reasonable likelihood” the false testimony affected the verdict.
  • § 2244(b)(2)(B)(ii) successive-gatekeeping standard: whether it is clear and convincing that no reasonable factfinder would convict absent the constitutional error—a higher bar.
• Non-appealability: Denials of authorization under § 2244(b)(3)(E) cannot be appealed, reheard, or taken up by certiorari.

Conclusion

In re: Macklin underscores the Tenth Circuit’s steadfast adherence to the “actual innocence plus” requirement for successive § 2254 petitions. Merely amassing new evidence of innocence—particularly late recantations and uncorroborated, unexplained alibi statements—will not unlock the successive-petition gate. The evidence must be anchored to a concrete constitutional violation at trial, and it must be sufficiently powerful, when considered alongside the entire trial record, to make it clear and convincing that no reasonable factfinder would convict but for that error. By reaffirming the add-to-the-record analytic method from Case v. Hatch and by emphasizing the heightened statutory standard relative to familiar due-process materiality tests, the court’s decision both narrows the pathway for successive habeas relief and provides clear guidance to litigants on what a viable authorization motion must contain.