Johnson v. Harpe: Jurisdictional Limits on Second-or-Successive § 2254 Petitions and the Demanding Actual Innocence Gateway

I. Introduction

In Johnson v. Harpe, No. 25-6123 (10th Cir. Nov. 17, 2025) (unpublished order), the United States Court of Appeals for the Tenth Circuit addressed a recurrent and technically intricate problem in federal habeas litigation:

• What happens when a state prisoner files a second federal habeas petition under 28 U.S.C. § 2254 without first obtaining authorization from the court of appeals?
• Can claims of “actual innocence” and ineffective assistance of counsel open a gateway around both the statute of limitations and the bar on second-or-successive petitions?
• How should a district court respond when it mistakenly treats a successive habeas petition as a first petition and dismisses it on timeliness grounds?

The petitioner, Lavonte Johnson, a state prisoner in Oklahoma, sought a certificate of appealability (COA) after the federal district court dismissed his November 2024 § 2254 petition as time-barred. Johnson alleged that his guilty plea was entered by counsel without his presence or consent, that he received ineffective assistance of counsel, and that he was actually innocent of the offense—using a vehicle to facilitate the intentional discharge of a firearm.

The Tenth Circuit denied a COA, denied authorization to file a second-or-successive habeas petition, and—critically—remanded with instructions that the district court vacate its orders because it lacked jurisdiction to entertain the petition in the first place. In doing so, the court:

• Reinforced the jurisdictional nature of the second-or-successive bar under 28 U.S.C. § 2244(b);
• Clarified the demanding standards for actual innocence claims and for “newly discovered” evidence in the successive-petition context; and
• Illustrated how guilty plea admissions undermine later factual innocence arguments.

Although issued as a non-precedential order, Johnson v. Harpe is citable for its persuasive value (Fed. R. App. P. 32.1; 10th Cir. R. 32.1), and it neatly assembles key Supreme Court and Tenth Circuit authorities governing COAs, timeliness, second-or-successive petitions, and actual innocence gateways.

II. Summary of the Opinion

A. Procedural Background

The relevant chronology is as follows:

• 2014 State Conviction and Deferred Sentence: Johnson was convicted in Oklahoma state court of “using a vehicle to facilitate the intentional discharge of a firearm” under Okla. Stat. tit. 21, § 652. He initially received a five-year deferred sentence.
• 2018 Acceleration and Imprisonment: In March 2018, that deferred sentence was accelerated to a 27-year prison term based on Johnson’s failure to comply with the terms of his deferred sentence, including the commission of new offenses.
• First Federal Habeas Petition (2020): In May 2020, Johnson filed his first federal habeas petition under § 2254. Among other things, he claimed that his guilty plea was involuntary and that he had received ineffective assistance of counsel. The district court denied relief, and the Tenth Circuit denied a COA in his counseled appeal. See Johnson v. Crowe, No. 21-6093, 2022 WL 97080 (10th Cir. 2022).
• Second Federal Habeas Petition (2024): In November 2024, Johnson filed the petition at issue here. He alleged:
  • Counsel entered the plea without his presence or consent;
  • Denial of due process;
  • Ineffective assistance of counsel; and
  • “Actual innocence” based on new witness statements.

On initial screening, the district court treated the petition as though it were Johnson’s first § 2254 petition and dismissed it as untimely under the one-year limitation period in 28 U.S.C. § 2244(d)(1)(A). The court:

• Raised timeliness sua sponte pursuant to Day v. McDonough, 547 U.S. 198 (2006);
• Gave Johnson an opportunity to respond;
• Found no basis for statutory or equitable tolling; and
• Rejected Johnson’s assertion of actual innocence as insufficient to excuse the untimeliness.

Neither the magistrate judge nor the district court mentioned Johnson’s prior federal habeas litigation.

B. Tenth Circuit’s Disposition

The Tenth Circuit panel (Judges Eid, Kelly, and Carson) identified a threshold jurisdictional defect:

• Because Johnson had previously sought § 2254 relief challenging the same conviction, his 2024 petition was second or successive within the meaning of 28 U.S.C. § 2244(b).
• Under § 2244(b)(3)(A), a prisoner must obtain authorization from the court of appeals before the district court may exercise jurisdiction over such an application.

The panel therefore:

1. Denied a COA because reasonable jurists would not debate either the procedural ruling or the validity of the underlying claims (applying Slack v. McDaniel, 529 U.S. 473 (2000));
2. Denied authorization to file a second-or-successive § 2254 petition because Johnson could not satisfy the strict statutory requirements of § 2244(b)(2); and
3. Remanded with instructions for the district court to vacate its prior orders dismissing the petition as untimely, on the ground that the district court lacked jurisdiction in the absence of prior authorization.

In assessing Johnson’s assertion of actual innocence and his claim of newly presented evidence, the court examined:

• Two statements from purported eyewitnesses, Zaquitta Bible and Shaquante Elix, asserting that the supposed “drive-by” shooting either did not occur as charged or did not involve Johnson; and
• A later statement by the victim, Edward Lynch, to the effect that he was standing outside Johnson’s Pontiac when he fired a single shot and then got into the car, suggesting a factual scenario less consistent with the charged drive-by offense.

The panel weighed this against Johnson’s own sworn guilty plea form, in which he stated under oath:

The court held that this sworn admission “seriously undercuts” Johnson’s new evidence and that:

• The supposed “new” witness evidence was not actually new—the witnesses were known and listed in the information, and Johnson had previously alleged counsel’s failure to call them; and
• Johnson failed both the “new evidence” and “no reasonable factfinder” elements under § 2244(b)(2)(B), as well as the demanding standards for gateway actual-innocence claims under Schlup v. Delo, House v. Bell, and McQuiggin v. Perkins.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Slack v. McDaniel, 529 U.S. 473 (2000)

The panel recited the familiar two-pronged standard for issuing a COA where a habeas petition has been dismissed on procedural grounds:

In Johnson’s case:

• The procedural ruling actually at issue on appeal was not timeliness (the district court’s basis) but lack of jurisdiction due to the second-or-successive bar.
• Nonetheless, under Slack, Johnson had to show that reasonable jurists could debate both:
  • Whether the jurisdictional ruling was correct; and
  • Whether his underlying constitutional claims (involuntary plea, IAC, actual innocence) were at least debatable.

The Tenth Circuit effectively concluded that neither prong was satisfied: the jurisdictional defect was clear, and the underlying claims lacked any viable pathway through the stringent standards of § 2244(b) and the actual innocence doctrine.

2. Day v. McDonough, 547 U.S. 198 (2006)

The district court had relied on Day to raise the statute of limitations issue sua sponte and dismiss Johnson’s petition as untimely under § 2244(d)(1)(A). Day permits a district court to:

• Raise the one-year habeas limitation period on its own initiative; and
• Dismiss a petition as untimely provided that the petitioner has notice and an opportunity to respond.

The Tenth Circuit did not suggest any error in the Day procedure itself; instead, it held that Day presupposes jurisdiction. A court may not reach timeliness if it never had jurisdiction to consider the successive petition. Thus, any reliance on Day was misplaced once the successive nature of Johnson’s filing came into focus.

3. 28 U.S.C. § 2244(b)(3)(A); Panetti v. Quarterman, 551 U.S. 930 (2007); In re Cline, 531 F.3d 1249 (10th Cir. 2008)

Section 2244(b)(3)(A) provides:

Relying on § 2244(b)(3)(A), Panetti, and In re Cline, the panel underscores that:

• This authorization requirement is jurisdictional. Without appellate authorization, the district court has no power to adjudicate a second-or-successive § 2254 application at all.
• Where a prisoner files such an application directly in the district court, the district court must either:
  • Dismiss it for lack of jurisdiction; or
  • Transfer it to the court of appeals to be treated as an implied application for authorization.

Panetti notably held that not all later-in-time habeas petitions are “second or successive” (for example, a Ford incompetency-to-be-executed claim that was not ripe earlier). Here, however, Johnson’s 2024 petition clearly challenged the same conviction and sentence already attacked in 2020 and did not fall into any “not yet ripe” exception.

In re Cline reinforces the practice—followed in this case—of the court of appeals construing filings as requests for authorization and then applying § 2244(b)(2) to determine whether the prisoner may proceed with another petition.

4. United States v. Springer, 875 F.3d 968 (10th Cir. 2017)

In a footnote, the panel cited Springer for the proposition that:

This reflects a pragmatic approach: where it is clear that a jurisdictional bar (such as the second-or-successive rule) will defeat any relief, a district court may:

• Deny a COA; and
• Note the jurisdictional defect without resolving (or perhaps even fully analyzing) the authorization question.

In Johnson, however, the district court did not recognize the successive nature of the petition at all. The Tenth Circuit therefore had to correct this by both:

• Addressing the implicit authorization issue under § 2244(b)(3)(A); and
• Ordering vacatur of the district court’s timeliness-based orders as void for lack of jurisdiction.

5. House v. Bell, 547 U.S. 518 (2006); Schlup v. Delo, 513 U.S. 298 (1995); McQuiggin v. Perkins, 569 U.S. 383 (2013); Bousley v. United States, 523 U.S. 614 (1998); Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004)

These cases frame the stringent standard for actual innocence as a gateway around otherwise conclusive procedural barriers.

• Schlup v. Delo: A gateway actual innocence claim requires “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial” and that makes it “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
• House v. Bell: Reiterated that actual innocence is a “demanding” standard reserved for the “extraordinary case” and that courts must consider all the evidence, old and new, incriminating and exculpatory, to gauge its likely effect on a reasonable jury.
• McQuiggin v. Perkins: Held that a credible showing of actual innocence may allow a petitioner to overcome the one-year statute of limitations under § 2244(d), though unexplained delay in presenting the new evidence is a factor bearing on the reliability of the claim.
• Bousley v. United States: Emphasized that “actual innocence” means “factual innocence, not mere legal insufficiency.”
• Doe v. Menefee (2d Cir.): Cited here for the “presumptions favoring the veracity of a defendant’s sworn plea of guilty” and the need to carefully assess the reliability of recantations or later contradictory statements.

Drawing on these authorities, the Tenth Circuit concluded that Johnson’s purported new eyewitness evidence:

• Did not qualify as “new” under the relevant statutory standard;
• Did not satisfy the demanding “no reasonable factfinder” threshold under § 2244(b)(2)(B); and
• Was substantially undermined by his prior sworn admission of guilt in his plea form.

B. The Court’s Legal Reasoning

1. Jurisdiction and the Second-or-Successive Petition Bar

The central structural point of the opinion is jurisdictional. Because Johnson had already filed a § 2254 petition challenging the same conviction, his 2024 petition was second or successive. Under § 2244(b)(3)(A), the Tenth Circuit must first authorize the filing of such a petition before the district court may consider it.

The court thus reorders the analytical sequence:

1. Step One: Is the petition second or successive?
2. Step Two: If so, has the court of appeals authorized the filing under § 2244(b)(3)?
3. Step Three: If not authorized, the district court lacks jurisdiction and must do nothing beyond dismiss or transfer.
4. Step Four: Only if authorized does the district court reach merits or procedural issues such as timeliness, exhaustion, or procedural default.

Here, step one was plainly satisfied: Johnson had previously attacked the same conviction in Johnson v. Crowe. There was no ripeness-based exception like that recognized in Panetti. Because Johnson never obtained prior authorization, step two was unsatisfied; the district court, therefore, lacked jurisdiction to conduct any merits or timeliness analysis.

The Tenth Circuit then effectively treats Johnson’s notice of appeal and filings as an implicit application for authorization to file a second-or-successive petition, as contemplated by In re Cline. Evaluating that implied application under § 2244(b)(2), the panel concludes that Johnson fails to satisfy the statutory gatekeeping requirements.

2. The § 2244(b)(2) Successive-Petition Standard

Section 2244(b)(2) restricts second-or-successive § 2254 applications to two narrow categories:

• § 2244(b)(2)(A): Claims based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
• § 2244(b)(2)(B): Claims based on newly discovered facts that:
  1. Could not have been discovered previously through the exercise of due diligence; and
  2. If proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty of the underlying offense.

Johnson did not invoke any new Supreme Court constitutional rule; his claims arose from longstanding due process and ineffective assistance doctrines. Thus, § 2244(b)(2)(A) was unavailable.

His only plausible avenue was § 2244(b)(2)(B), based on his assertion of newly presented witness statements and his claim of actual innocence. The panel rejected this on both prongs:

• Due diligence and “new” evidence:
  • The witnesses (Bible and Elix) were identified in the original charging information.
  • Johnson had previously alleged, including in the state plea-withdrawal proceedings, that counsel was ineffective for failing to call defense witnesses—specifically pointing to at least Bible and Elix.
  • The magistrate judge (whose finding the panel endorsed) observed that the witnesses’ statements “are based on contemporaneous events by witnesses to the events as they unfolded on March 18, 2014,” indicating that their testimony was plainly available long ago.
  • Accordingly, the factual predicate for Johnson’s current claim “could have been discovered previously through the exercise of due diligence.”
• No reasonable factfinder standard:
  • Even assuming the credibility of the witness statements, Johnson’s own sworn plea admission—“I purposely drove a car and allowed Edward Lynch to shoot out of the car while I was driving”—directly contradicts them.
  • Applying the presumption of veracity accorded to sworn guilty pleas (citing Doe v. Menefee), the panel found that the new statements did not clearly overcome the plea’s reliability.
  • Accordingly, Johnson failed to show, by clear and convincing evidence, that no reasonable factfinder would have found him guilty.

Because Johnson could not satisfy § 2244(b)(2)(B), the panel denied authorization to file a second-or-successive petition and instructed the district court to vacate its orders for want of jurisdiction.

3. Actual Innocence and the Statute of Limitations

Although the jurisdictional analysis was sufficient to dispose of the case, the panel also commented on the one-year limitation period and the timing of actual innocence claims.

Section 2244(d)(1) sets out four possible starting points for the one-year habeas limitations period. For claims predicated on newly discovered facts, § 2244(d)(1)(D) provides that time runs from:

The panel noted that the one-year limitation period on actual innocence claims runs from that (D) start date, citing McQuiggin v. Perkins. Although McQuiggin held that a credible actual innocence claim can, in rare circumstances, allow a petitioner to bypass the statute of limitations, the Court also made clear that:

• Unexplained delay in presenting the supposed new evidence undermines its credibility; and
• The standard for gateway innocence remains extraordinarily demanding.

In Johnson’s case:

• The alleged “new” eyewitness statements were from individuals known since 2014, identified in the charging documents, and already central to prior ineffective assistance arguments.
• This meant, for statutory purposes, that the factual predicate for his claims existed—and could have been discovered with diligence—years earlier, well before the 2024 filing.
• His delay, combined with his sworn plea statements, significantly undercut the credibility and sufficiency of his actual innocence assertion.

Thus, even if jurisdiction had existed, Johnson’s claim would have faltered on both the statute of limitations and the actual innocence gateway standard.

4. Effect of the Sworn Guilty Plea

A central theme is the tension between Johnson’s present factual narrative and his earlier sworn admission during the plea colloquy and plea paperwork. The court gave heavy weight to the “Plea of Guilty Summary of Facts,” which Johnson signed under oath and which contained the specific admission:

The panel viewed this as critically undermining Johnson’s new accounts:

• The new eyewitness statements claimed essentially that either:
  • The charged drive-by shooting did not occur at all, or
  • Johnson was not driving the vehicle from which the shot was fired.
• The victim’s later statement (Lynch being outside the car when he fired) likewise conflicted with Johnson’s earlier admission.

Relying on Doe v. Menefee, the court noted:

This approach reinforces a broader doctrinal point: Guilty pleas are powerful barriers to later factual innocence claims, especially where the petitioner offers recanting witnesses or alternative narratives years after the fact. To succeed, such new evidence must be exceptionally reliable and compelling.

C. Impact and Implications

1. Reinforcing Jurisdictional Discipline in Habeas Practice

The decision underscores a foundational rule: once a prisoner has litigated one § 2254 petition challenging a conviction, any later challenge to that same conviction is presumptively “second or successive” and triggers § 2244(b)’s jurisdictional requirements.

Key practice points include:

• For district courts:
  • Always check whether the petitioner has filed prior federal habeas actions challenging the same conviction or sentence.
  • If the petition is successive and no prior authorization exists, do not reach timeliness, merits, or other procedural bars; instead, dismiss for lack of jurisdiction or transfer under Cline.
  • If the court inadvertently adjudicates such a petition on the merits or a non-jurisdictional procedural ground, that ruling is vulnerable to vacatur on appeal, as happened here.
• For habeas practitioners and pro se litigants:
  • Any post-judgment challenge after an initial § 2254 petition must be preceded by a motion in the court of appeals requesting authorization to file a second-or-successive petition.
  • Failure to do so will typically result in dismissal for lack of jurisdiction and, as in Johnson, denial of authorization if the strict statutory test is not met.

2. Clarifying the “New Evidence” Requirement Under § 2244(b)(2)(B)

Johnson provides a concrete example of what does not count as “new” evidence for successive-petition purposes:

• The fact that a petitioner only later obtains written statements from known witnesses does not make their testimony “new” if those witnesses were previously identified and available.
• If the petitioner had already complained that counsel failed to call those witnesses, this strongly suggests that:
  • The petitioner knew of their existence; and
  • The substance of their testimony could have been obtained through diligence much earlier.

Thus, “new evidence” in § 2244(b)(2)(B) is not simply evidence newly memorialized or newly emphasized—it must be evidence that could not have been discovered earlier even with reasonable diligence.

3. The Demanding Nature of Actual Innocence as a Gateway Doctrine

While McQuiggin recognized that actual innocence can excuse untimeliness, Johnson demonstrates that:

• Courts will scrutinize such claims extremely closely, especially when:
  • There is substantial delay in presenting the evidence; and
  • The prisoner previously gave sworn admissions (as in a plea colloquy) inconsistent with the later story.
• The gateway demands “new reliable evidence” (per Schlup) which, combined with the old evidence, makes it more likely than not that no reasonable juror would convict.

In practical terms:

• Eyewitness statements from friends or associates, produced years after the crime and contradicting the record and plea admissions, are often viewed skeptically.
• Courts will consider the timing of the evidence’s presentation, the reasons for delay, the witness’s relationship to the petitioner, and whether their account is corroborated or contradicted by other evidence.

For attorneys litigating innocence claims, Johnson is a reminder that:

• Any plausible actual innocence claim should be raised as early as possible; and
• The evidentiary showing must meet both:
  • The gateway standard under Schlup/House/McQuiggin, and
  • Where a petition is successive, the even more exacting clear-and-convincing standard under § 2244(b)(2)(B).

4. The Role of Guilty Pleas in Collateral Review

The case also illustrates how a guilty plea significantly raises the bar for later habeas relief:

• Factual innocence claims must contend with the petitioner’s sworn admissions at the plea hearing and in plea paperwork.
• Courts apply a presumption of veracity to these admissions, making it difficult to later recant or contradict them without especially powerful evidence.

In Johnson’s situation, not only had he admitted facts amounting to the offense (“I purposely drove a car and allowed Edward Lynch to shoot out of the car while I was driving”), but he also pursued prior post-conviction proceedings contesting the voluntariness of his plea and counsel’s performance. The panel notes that his present version of events was “relatively recent,” emphasizing how late changes in factual narrative undermine credibility.

IV. Complex Concepts Simplified

A. What is a Certificate of Appealability (COA)?

A COA is a kind of “permission slip” a prisoner must obtain from a court of appeals before they can appeal the denial of a habeas petition. Under 28 U.S.C. § 2253(c) and Slack v. McDaniel:

• If the district court denied the petition on procedural grounds, the petitioner must show that:
  • Reasonable jurists could debate whether the petition states a valid constitutional claim; and
  • Reasonable jurists could debate whether the procedural ruling was correct.

Without a COA, the court of appeals has no jurisdiction to entertain the appeal.

B. What Is a “Second or Successive” Petition?

In habeas practice, a “second or successive” petition is essentially a repeat federal attack on the same conviction or sentence after a prior § 2254 petition (or § 2255 motion in federal cases) has already been adjudicated.

Congress tightly restricts such litigation:

• Before filing in the district court, the prisoner must first get authorization from the court of appeals under § 2244(b)(3)(A).
• The court of appeals will grant such authorization only if the petition meets the narrow standards in § 2244(b)(2).

If a prisoner skips this step and files directly in the district court, the court lacks jurisdiction to rule on the merits.

C. What Does “Actual Innocence” Mean in This Context?

“Actual innocence” in the habeas context is a specialized term. It does not mean simply that there were legal errors in the trial or plea process. It means:

• The petitioner is factually innocent—i.e., did not commit the acts that constitute the crime.

To use actual innocence as a gateway to overcome a procedural bar (like timeliness or procedural default), a petitioner must:

• Present new, reliable evidence (e.g., DNA, credible new eyewitnesses, exculpatory scientific tests) that was not presented at trial; and
• Show that, in light of all the evidence, old and new, it is more likely than not that no reasonable juror would have convicted.

For successive petitions, the standard is even tougher: the petitioner must show by clear and convincing evidence that no reasonable factfinder would find guilt.

D. What Is “Newly Discovered Evidence” Under § 2244(b)(2)(B)?

“Newly discovered evidence” here does not mean simply “evidence presented for the first time.” It means:

• Evidence that could not have been discovered earlier, even with reasonable efforts (due diligence); and
• Evidence so powerful that, if accepted as true, it would convince a court that no reasonable juror could convict.

In Johnson, the witnesses were known from the outset, were listed in the charging information, and had already been invoked in prior ineffective assistance arguments. Their later written statements did not satisfy the “newly discovered” requirement.

E. How Does a Guilty Plea Affect Habeas Claims?

When a defendant enters a guilty plea:

• They typically admit the factual elements of the offense.
• Courts treat these admissions as highly reliable because they are made under oath, in open court, with judicial oversight.

Later attempts to recant these admissions or claim factual innocence must overcome a strong presumption that the plea statements were truthful. That presumption weighs heavily against the credibility of subsequent contradictory witness statements, particularly where those statements emerge many years later.

V. Conclusion

Johnson v. Harpe is not a landmark decision creating new doctrine, but it is a clear and instructive application of several well-established principles in federal habeas law:

• Jurisdiction Comes First: Before a district court may entertain a habeas petition challenging a state conviction that has already been the subject of a prior § 2254 action, § 2244(b) requires prior authorization from the court of appeals. Absent such authorization, the district court lacks jurisdiction, and any merits or timeliness rulings must be vacated.
• Strict Limits on Second-or-Successive Petitions: The gatekeeping mechanisms in § 2244(b)(2) and (b)(3) severely constrain repeat habeas filings. New rules of constitutional law must be retroactive and announced by the Supreme Court; new facts must be truly undiscoverable earlier and must clearly exonerate the petitioner.
• Actual Innocence as an Extraordinary Gateway: Drawing on Schlup, House, and McQuiggin, the Tenth Circuit reiterates that actual innocence is a demanding and rare path, reserved for extraordinary cases with compelling new evidence.
• “New Evidence” Must Really Be New: Claims based on witness statements from individuals known since the time of the crime, particularly when those witnesses were already identified in charging documents and previously invoked by the petitioner, will seldom qualify as “newly discovered” for purposes of § 2244(b)(2)(B) or § 2244(d)(1)(D).
• Guilty Pleas Carry Substantial Weight: Sworn admissions in plea proceedings form a strong barrier against later factual innocence claims, especially when those claims arise years afterward and contradict the plea’s factual basis.

For courts, practitioners, and prisoners alike, Johnson v. Harpe serves as a cautionary example: repeat habeas petitions must pass through a narrow statutory gate, and attempts to revitalize old claims with repackaged evidence or late-arising theories will almost always fail. The case thereby reinforces the integrity of the one-petition rule, the finality of criminal judgments, and the limited, exceptional role that actual innocence plays in overcoming procedural obstacles.