source: Caselaw Access Project

author: PHILLIPS, Circuit Judge.

license: Public Domain

text:
    R. Dane SHARP, individually and on behalf of all similarly situated employees; Alejandro Espinoza; Mariano Espinoza, Jr.; Cordius Hickmon; Gabriel J. Galvan; Seydina Sylla; Jordan Photbaupha; Juan R. Romero; Todd M. Delancey; William Simon Sewando; Diane K. Sterk; Corey D. Sanders; Eulogio Solano Martinez; Barry Collins, Jr.; Elias Davila; Edgar Trebotich; John Washam; Alejandro Mon-cada; Rodolfo Ramirez; Gary Wyatt; Deron Scott; Emilio Rubio; Ralph Wilson; Johnathon Nunnery; Dexter Thompson; William Wilson; Jerry Anderson; Dietrich Jackson; Germaine Wilson; Landrix Jackson; Gilberto Bonilla; Santiago Bonilla; Richard Farr; Timothy Garcia; Jesus Rodriquez; Juan Estrada; Ambrocio Rosales; Seferino Saldana; Ramon Moreno; Antonio Mora-Armaga; Jeremiah Hart; Donnell Harris; Jorge Campos; Taylor Ellis; Alfonso Cardoza, Jr.; Joe L. Ruffin; Ratheal Ba-teaste; Jose A. Martinez; Donald Guidry; Oljuwan Tobias; Koua Xiong; Helio S. Rodriquez; Carlos Torres; Joseph Tilden; Juan M. Urbinaf; Ismael Mendoza, Jr.; Octavio Mendoza; Jeffrey Douglas; Leonard Johnson; Alejandro Moncada; Todd Touchet; Daniel Wetherby; Santiago Canales; Larry Wilson; Robert L. Jefferson, Jr.; Oscar Williams; Terry White; Ji-reh L. Monroe, Sr.; Juan Carrillo; Donntel Dion Bailey; Juan Hernandez; Wayne Burns; Jeremy Frazier; Kevin Resendez; Gregory Penatzer; Norberto Hernandez; Daryl Smith; James Walker; Mateos Garcia; Darrick Weathersby; Jared Leggett; Caleb Weatherspoon; Charlie Lee, Jr.; Marcus Price; Damion Walker; Le-broderick Jones, Sr.; Rolando Bates; Shon M. Phillips; Shawn Brown; Eric L. Burroughs; Jose Cardenas; Pablo Cavallero; Tramaine Chapman; Francisco Diaz; Paul Dutchover; Martin Garza; Jose G. Gomez; John L. Granger; Lekeith Handy, Sr.; Robert Hoaglin; Michael Holmes; Kaluna Kovin; Darius LeBlanc; Daryl Mccray; Dennis R. Mills; J. Mark Morgan; Jose Alberto Navaez; David Perez; Arturo Ramirez; Ardell Robinson, Jr.; Arturo Saenz, Jr.; Khammala Sy; Raymond A. Thiele; Robert Van Den Brink; Southep Vongkhamchan; Daokham Xaysy; Bassirou M. Baye; Jalante M. Brown; Noble Campbell; Pao X Chang; Andres B. Cortez; Christopher Demartin; Shawn Dickerson; Eddie Gonzalez; Luis R. Garcia; Eric Hand; Kunta Hickmon; George Hunt; Roderick Jefferson; Tony Jenkins; Charles Johnson; Soukhy Keo-manivong; Phra Manidone; Nikita Minor; Jorge L. Narvaez; Phetsomone Navongsa; Pho Ngeune; Ricky V. Norris, Jr.; Arthur L. Nunnery; Derrick Pope; Jesus S. Rodriguez; John Rodriguez; Robert A. Smith; George Stinson; Nick Stinson; Soulivanh Sylaphet; Marqus Turner; Bruce Williams; Edward D. Baity; Edgar Cerda; Montreal Chapman; Russell Chapman; Josef Deblanc; Desmond Dennis; Jorge Franco; Bryan Godi-nez; Edson Gonzalez; Victor Gutierrez; Travis Gregory Hammonds; Rogelio Hernandez; Shawn L. Jackson; Tyrone D. Jackson; Alan Roy Johnson, Sr.; Sergio Juarez; Kongvieng Khammala; Leslie R. Lippert; Christopher A Martin; Cergio Martinez; Jaime Martinez; Arthur Mendoza; Justin Merillat; John Nick-erson, Jr.; Manuel Ortiz; Brandon S. Parrish; Damian Smith; Boubacar Mberry Sylla; Carl Toti; Julio Velasquez; Eddie Lee White, Jr.; Joseh De-blanc; Bryan Godinez; Cesar O. Cani-zales; Emilio Delacruz; David Dellar; Eleazor Gutierrez; Diondrick Hurst; Barthelemy Kassi; Jim Keomorakoth; Armando Loya; Mary Olzweski; Tevin L. Pittinger; Mara Priestely; Boun-leuth Rasavongsy; Francisco Javier Rios-Favela; Papa Robinson; Joseph Ryals; Christopher Smith; Anthony Weeks; Robert Byers; Sean Allison; Jose Lazaro Yanes; Alan Roy Johnson, Sr.; Octavio Esparza Alvarez; Roderrick Brown; Ronald O. Bates; Jason T. Engle; Harry L. McGhee, Jr.; Freddie L. Ruffin; Jesus E. Oje-da, Jr.; Fred E. Trueblood; Jose F. Scott; Ursula Spring Weekly, as executor for son Jordan Kyle Gatte; Francisco Contreras Hernandez; Bermar-do Zacarias; Juan M. Esparaza; Julio C. Ferrufino; Frederick M. Felton; Eduardo A. Perez, Jr.; James Lorell Downs; Joe Lewis Mars; Luis Bene-tiz, Sr.; Chad A. Knieper; Dereck J. Smith; Jose Angel Guevera-Gomez; Sengkham Manivong; Jaime Medina; Omero Garcia, Jr.; Omar Aguirre; Sit-thisak Meuangkhot, Plaintiffs-Appellants, v. CGG LAND (U.S.) INC., Defendant-Appellee.
    No. 15-5113
    United States Court of Appeals, Tenth Circuit.
    Filed November 4, 2016

      J. Vince Hightower, Law Offices of J. Vince Hightower, Tusla, Oklahoma, for Plaintiffs-Appellants.
    Laurence E. Stuart, Stuart PC, Houston, Texas (Hollie Leanne Reiminger, Stuart PC, Houston, Texas, with him on the brief), for Defendant-Appellee.
    Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
   PHILLIPS, Circuit Judge.

CGG Land (U.S.) Inc.’s employees (Employees) brought this collective action alleging violations of the Fair Labor Standards Act (FLSA). The FLSA generally requires employers to compensate overtime hours at one and one-half times the employee’s “regular rate” of pay. See 29 U.S.C. § 207(a)(1) (2012). Employees claim that CGG violated the FLSA by not including ih their-regular rates reimbursement payments' for $35 of daily meal expenses while Working away from home. Thus, Employees claim that CGG undervalued their pay in calculating their overtime compensation. We hold that 29 U.S.C. § 207(e)(2) exempts such payments from -the regular rate as travel expenses incurred in furtherance of the employer’s interest. We affirm the district court’s grant of summary judgment in favor of CGG.

BACKGROUND

The Parties stipulated to the following undisputed facts. Employees are former hourly employees of CGG. CGG provides seismic-mapping services at remote locations throughout the United States. To ■reach the remote locations, CGG required its employees to travel away from home and stay in hotels near remote job sites for four-to-eight-week intervals. Employees then returned home for about two-to-four-week intervals before again traveling to remote locations.

Employees often worked moré than forty hours per week while at the remote locations, and CGG paid them overtime based on Employees’ regular rates of pay. When CGG’s employees worked away from home, CGG also provided them a $35 per diem for meals, including on days spent traveling to and from the remote job locations. In the district court, the Parties stipulated- that- $35 “was a reasonable amount for meal expenses incurred by the Plaintiffs while living and working on CGG Land business at work locations away from their home locations.” Appellant’s App. vol. I at 64. CGG didn’t pay the $35 when employees worked from their home locations or when food was provided at the remote locations.

In ■ determining Employees’ regular rates of pay, CGG didn’t include the daily $35 payments. Contesting this calculation method, Employees filed a collective action against CGG asserting that CGG. violated the FLSA by calculating their overtime pay on undervalued regular rates of pay. After stipulating to material facts in the district court, the Parties each sought summary judgment. The district court granted. summary judgment for CGG, agreeing with CGG that the $35 payments were exempt from the regular rates of pay under 29 U.S.C. § 207(e)(2).

On appeal, Employees argue that the district court erred in treating the $35 payments as exempt travel expenses under § 207(e)(2). First, Employees claim that travel expenses are not exempt for days when they traveled to or from remote job sites because they didn’t do any work for CGG oh those days. And second, Employees claim that the $35 payments remained not exempt for all days they worked at the remote job site because for those days they wére no longer traveling over the road. In addition, Employees claim that CGG has waived all defenses except its claim that the $35 payments are exempt under § 207(e)(2).

STANDARD OF REVIEW

“We review the district court’s summary judgment decision de novo,. applying the same standard as the district court.” McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 703 (10th Cir. 2012) (internal quotation marks omitted). Under this standard, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to. any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Here, the Parties stipulated to the material facts in the district court, so the sole issue is whether those facts justify granting CGG summary judgment.

DISCUSSION

“The purpose of FLSA overtime is ‘to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.’” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011) (quoting Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948)). An employer must compensate overtime hours “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1). “ ‘The proper determination of that [regular] rate is therefore of prime importance’ in calculating the amount of overtime wages due.” Albers v. Bd. of Cty. Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 704-05 (10th Cir. 2014) (quoting Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945)).

The first step in resolving this FLSA dispute is to determine Employees’ regular rates. Chavez, 630 F.3d at 1304. The regular rate “shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee,” subject to eight exceptions. 29 U.S.C. § 207(e). One exception exempts “reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment.” Id. § 207(e)(2). This exception applies “[wjherean employee incurs expenses on his employer’s behalf or where he is required to expend sums solely by reason of action taken for the convenience of his employer.” 29 C.F.R. § 778.217(a) (2016). For instance, this exception includes the “reasonably approximate amount expended by an employee, who is traveling ‘over the road’ on his employer’s business, for ... living expenses away from home.... ” Id. § 778.217(b)(3).

Here, the Parties stipulated that CGG’s $35 payments were reasonable amounts to compensate Employees for their approximate meal expenses while away from home. Further, they agree that CGG’s employees received the $35 payments only when CGG required them to work away from home. Employees traveled away from home because CGG required them to do so. So the issue is whether the $35 reimbursement for meals is a living expense away from home.

While conceding that living expenses are exempt from the regular rate, Employees argue that the phrase “living expenses” doesn’t include the cost of food. But the Department of Labor (DOL) has rejected this argument, concluding that “the phrase ‘living expenses’ includes the cost of food, and the necessity of eating meals away from home is an additional expense that the employee incurs for the employer’s benefit.” Wage and Hour Division Opinion Letter, FLSA 2004-3 (May 13, 2004); see McBride, 688 F.3d at 705 (“Given their provenance and legal effect, [DOL] opinion letters are entitled to great weight when they interpret the DOL’s own (ambiguous) regulations.” (internal quotation marks omitted) (quoting In re Wal-Mart Stores, Inc., Fair Labor Standards Act Litig., 395 F.3d 1177, 1184 (10th Cir. 2005))). We agree with the DOL that the cost of food away from home is an additional expense that the employee incurs while traveling for the employer’s benefit and is thus exempt as a living expense.

Despite this, Employees argue that they were no longer “traveling over the road” once they reached their remote job site, so the $35 cannot be excluded. We agree with the district court that “this is a hyper-literal interpretation of the term ‘traveling.’ ” Appellant’s App. vol. I at 192. The term “traveling” includes more than the time spent in transit to or from the remote job site. See Wage and Hour Division Opinion Letter, FLSA 2004-3 (May 13, 2004) (explaining that all meals would be excluded as living expenses away from home when an employee travels for work). Instead, we must read “traveling” more broadly as time “away from home,” not just time in transit. 29 C.F.R. § 778.217(b)(3). So the proper focus under section 778.217(b)(3) is whether the $.35 payments are for reimbursement of travel expenses incurred' in furtherance of the employer’s interests—not whether the employee is in transit at any given .moment when the employee has traveled to a remote job site requiring that the employee be away from home during mealtimes. See 29 U.S.C. § 207(e).

Finally, despite stipulating that the $35 per diem payment is a reasonable meal allowance, Employees still suggest that CGG paid the $35 -as part of a scheme to set an artificially low hourly pay rate to underpay overtime pay. Employees’ stipulation defeats this argument.

And Employees’ cited cases on this issue are easily distinguishable—they involve instances where employers tied per diem payments to the amount of hours that employees worked. For example, in Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 39 (1st Cir. 2014) and Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1042 (5th Cir. 2010), the courts disallowed employers from excluding per diem payments from employees’ regular rates when the per diem payments depended on the number of hours worked. See 29 U.S.C. § 207(e)(2) (exempting expenses “incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer” but not excluding payments made “as compensation for his hours of employment”). In contrast, here, Employees do not receive higher per diem payments after working longer hours. And it bears repeating that the Parties stipulated that the payments were reasonable payments for meals.

Here, Employees traveled to remote job sites away from home to perform lengthy work stints for CGG. While away from home, Employees incurred meal expenses while serving CGG as employees and while furthering CGG’s interests. For all the reasons stated, these travel expenses are exempt under 29 U.S.C. § 207(e)(2).

CONCLUSION

The district court’s decision granting summary judgment in favor of CGG is AFFIRMED.

      . Because we affirm the district court’s grant of summary judgment in favor of CGG, Employees’ argument that CGG waived its other affirmative defenses is moot and we refrain from addressing that argument.


author: KELLY, Circuit Judge.

text:
    HARDSCRABBLE RANCH, L.L.C., f/k/a Farley Ranch, L.L.C., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 15-1438
    United States Court of Appeals, Tenth Circuit.
    Filed November 7, 2016

      James Cage (and Bethany A. Johnson, Esq. of Moye, White, L.L.P, on the briefs), Denver, Colorado, for Plaintiff-Appellant.
    Jacob Licht-Steenfat, Assistant U.S. Attorney, (and John F. Walsh, United States Attorney, on the brief), Denver, Colorado, for Defendant-Appellee.
    Before KELLY, BRISCOE, and GORSUCH, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-Appellant Hardscrabble Ranch, L.L.C. appeals from the district court’s grant of summary judgment in favor of the government. Hardscrabble sued the government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, in connection with the Forest Service’s response to the Sand Gulch Fire, which damaged Hardscrabble’s land. The district court held that the discretionary function exception to the FTCA barred jurisdiction. Hardscrabble Ranch, LLC v. United States, No. 14-cv-00426-REB-MJW, 2015 WL 5307992, at *6 (D. Colo. Sept. 11, 2015). Finding jurisdiction to hear the appeal under 28 U.S.C. § 1291, we affirm.

Background

On April 26, 2011, lightning ignited a wildfire in the Wet Mountains of Colorado, in a remote area of the San Carlos Ranger District in the Pike and San Isabel National Forests, and the Cimarron and Comanche National Grasslands (“PSICC”), When the United States Forest Service (“USFS”) responded, the fire was still small and could have been extinguished then and there.

The USFS instead instituted a partial suppression strategy, with the twin goals of allowing the fire to continue burning on Forest Service land while at the same time containing the fire from spreading onto private property, which bordered about half a mile to the east. This decision was made for a number of reasons: the area was remote, so the danger to firefighters would be high if the fire took off; there were already control features such as rock formations and a nearby highway that would help contain the fire; and a snow storm was predicted to arrive on April 29, which would help suppress the fire. Additionally, because the area had not burned in thirty to sixty years, a significant amount of fuels had accumulated in the form of matee ponderosa pines and continuous undergrowth and mountain brush. The USFS thought that a controlled burn of this area would be helpful in reducing the amount of fuel available for a subsequent fire. These decisions, and the reasons for them, were documented in a formal Incident Decision on April 29.

Later that same day, high winds in advance of the snow storm caused the fire to jump the containment lines the USFS had created, and the fire grew from covering 25-30 acres to a size of more than 200 acres. The USFS issued a new Incident Decision on April 30 to change to a full suppression strategy. That evening the predicted snow came and partially smothered the fire. By the time the fire was declared fully contained on May 4, it had burned 496 acres. About 154 of those were owned by Hardscrabble Ranch.

Hardscrabble contends that the USFS failed to follow numerous policies, regulations, and protocols in its handling of the fire, and that as a result the government is responsible for the harm caused to the Ranch. The parties disagree about which documents controlled, whether they were followed, and what amount of discretion each document gave to the USFS.

According to Hardscrabble Ranch, two main documents controlled: (1) the amended 1984 Land Resource Management Plan for the PSICC (“LRMP”), and (2) the PSICC Fire Management Plan. Aplt. Br. at 8. The LRMP provides general guidance for land and resource management activities for a particular forest, including the underlying basis for fire management objectives. 3 Aplt. App. 000317. In 2008, the LRMP was amended to specify that “naturally-ignited wildland fire may be used in predetermined areas under specified conditions” to achieve ecological objectives and to reduce the adverse impacts of potential wildfires over the long-term. Id. The areas in question were designated “predetermined areas,” as were all USFS lands in the Wet Mountains. Id. The LRMP itself did not, however, define what the “specified conditions” were.

As part of the 2008 amendment process, the USFS completed an Environmental Assessment (“EA”) to evaluate the proposal of changing from a model where all wildfires are fully suppressed to one where, under certain conditions, lightning-ignited fires could be used to accomplish resource management objectives. 8 Aplt. App. 000884-95. Specifically, the EA noted that “[t]he purpose of this action is to reintroduce, where desirable and feasible, the natural role of fire in maintaining the proper functioning and health of natural communities, and to reduce the long-term threat of catastrophic wildfires. The proposed action may allow some naturally ignited fires to reduce fuel loading and reintroduce lower-intensity fires back into forest and grassland ecosystems.” Id.

In response to public concern that a wildfire might get out of hand under this new method, the EA included a Design Checklist from the 2005 Implementation Guide to help Forest Service personnel respond appropriately:

Decision Checklist for considering [wild-land fire use]
Is there a threat to life, property, or public and firefighter safety that cannot be mitigated? [Yes / No]
Are potential effects on cultural and natural resources outside the range of acceptable effects? [Yes / No]
Are relative risk indicators and/or risk assessment results unacceptable to the appropriate Agency Administrator? [Yes /No]
Is there other proximate fire activity that limits or precludes successful management of this fire? [Yes / No]
Are there other Agency Administrator issues that preclude wildland fire use? [Yes/No]

Id. at 000893. According to the EA, “[a] “Yes’ response to any element on the checklist indicates that the appropriate management response should be suppression-oriented.” Id. (emphasis omitted). Additionally, even if a fire meets the above criteria, the fire must be “monitored and managed under a specific Wildland Fire Implementation Plan (WFIP) and evaluated daily for conformance to that plan. If negative resource impacts start to occur, or if the fire moves into areas where it is not desired[,] suppression actions will be initiated on all, or portions of[,] the fire.” Id.

The other document Hardscrabble Ranch points to is the PSICC Fire Management Plan. Aplt. Br. at 11. This document is referenced in the summary of the EA for the amendment to the LRMP: the USFS “propose[s] to manage lightning ignited fires to accomplish specific resource management objectives in pre-determined areas and under pre-approved conditions as outlined in a Fire Management Plan.” 8 Aplt. App. 000884. According to certain deposition testimony, however, the applicable Fire Management Plan was not updated along with the LRMP to specify the “pre-determined area[s]” and “pre-ap-proved conditions” necessary for wildland fire use. 7 Aplt. App. 000740-42; 8 Aplt. App. 000842-43.

Discussion

We review the district court’s grant of summary judgment de novo. Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011). Summary judgment is appropriate when there is no genuine issue as to any material fact and the mov-ant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In applying this standard, we view the evidence in the light most favorable to the nonmoving party— here, Hardscrabble Ranch. Fowler, 647 F.3d at 1237.

In the FTCA, Congress waived aspects of the government’s sovereign immunity so that the United States can be held liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Then Congress carved out exceptions to this waiver. Id. § 2680. Relevant here is the discretionary function exception, which excepts from the waiver “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the. Government, whether or not the discretion ■ involved be abused.” Id. § 2680(a). As the Supreme Court has explained, this exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

Because the discretionary function exception is jurisdictional, the burden is on Hardscrabble Ranch to prove that it does not apply. See Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002); see also 28 U.S.C. § 1346(b)(1). To do this, Hardscrabble must satisfy the two-part test of Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, it must show that the action was not “a matter of choice for the acting employee.” M. at 536, 108 S.Ct. 1954. For example, if a regulation or policy “specifically prescribes a course of action for an employee to follow,” there would be no discretion for the employee: he would have no choice but to follow the directive, so the discretionary function exception would not apply. Id. Second, even if the conduct in the first step was discretionary, it must nevertheless be the kind of discretionary judgment the exception was “designed to shield.” Id. That is, the discretionary action or decision must be based on considerations of public policy. Id. at 537, 108 S.Ct. 1954. If it is not, then even though the conduct might be discretionary, it would not be excepted from the waiver of immunity. “In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Id.

A. Discretionary Action

Hardscrabble Ranch contends that the USFS did not have discretion in this case about how to respond to the Sand Gulch Fire. It argues that this is not because the USFS would never have discretion in how to fight a fire, but because that discretion would only come into play after certain mandatory procedures were followed. Aplt. Br. at 24. And here, Hardscrabble Ranch says, the USFS never followed those procedures, so it never got to the point where it could take discretionary action. Id.

Hardscrabble Ranch specifically points to the Decision Checklist contained in the EA to the LRMP amendment as an example of the kind of mandatory procedure the USFS failed to apply. According to the argument, the USFS was required to complete this checklist before responding to a fire because the answers to the checklist questions would tell the USFS what discretionary action was allowed. That is, if the answer to the first question—“Is there a threat to life, property, or public and firefighter safety that cannot be mitigated?”—is “yes,” then no discretion would exist; the only response allowed would be suppression-oriented. Conversely, if the answer to that question was “no,” then the USFS might have discretion in how to proceed, depending on the answers to the other questions and the applicable policies in other documents.

Hardscrabble Ranch relies on this construct to make three arguments. First, the USFS did not have discretion as to whether to complete the checklist before responding to the fire, yet the USFS never completed the mandatory checklist. Aplt. Br. at 24-25. Second, even if the checklist had been completed, the answer to at least one of the questions would be “yes,” and therefore no discretion would exist from that point on about what kind of strategy to pursue. The Forest Service would have no choice but to pursue a suppression-oriented approach. Id at 25-26. And third, even if. the answers to the checklist had been such to allow discretion to use the fire for forest-management objectives, the ability to do that was still subject to .a list of pre-determined areas and pre-approved conditions that were to be found in the Fire Management Plan. Id. at 11. But because the Forest Service had not updated its Fire Management Plan to specifically detail a list of such areas and conditions, no areas where the fire occurred could be used for forest-management objectives. Id.

Though the USFS disputes whether the Decision Checklist applied at the time of the fire, for purposes of summary judgment the district court assumed that it did, and then concluded that the Checklist did not remove discretion from the USFS. Hardscrabble Ranch, 2015 WL 5307992, at *4. We agree. As to Hardscrabble Ranch’s first point, the Checklist itself conférred discretion on the USFS decisionmakers. Indeed, this is evidenced by the discussion in the USFS’s Incident Decision published on April 29. Though not specifically mentioning the Checklist, the “Rationale” section of the Decision considers just what the Checklist warrants: the threat to life, property, and public and firefighter safety; the acceptability of potential effects on natural resources; the degree of risk involved, arid whether that risk was acceptablé to the Forest Service; the degree to which firefighting resources might be taken up by other fire activity; and any othér issues USFS personnel - thought pertinent. Throughout, the language of the Decision evinces the strong discretionary nature of the assessment:

The least exposure to fire fighters ■ in managing this fire at this time is to implement suppression actions on the east and north flank and utilize State Hi[gh]way 96 as the control feature on [the] south flank....
Given the departure from historic conditions, the fuels reduction accomplished by the fire in terms of total volume reduced ... will be beneficial,....
Mitigation actions employed thus far through the construction of control lines on the north and east flanks are expected to keep the fire on NFS lands_
The risk of utilizing fire in the area is less than the potential long term risk of fire exclusion.

3 Aplt. App. 000275.

We quote from the Incident Decision not as a substitute for the Checklist, but to illustrate the various considerations necessary in answering the questions posed by the Checklist. Those considerations, and their weighing, are inherently discretionary. The Checklist simply did not remove USFS employees’ choice or judgment regarding what measures to take; it did not “specifically prescribe[ ] a course of action for an employee to follow.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954; see also Elder, 312 F.3d at 1178.

This would remain true even if the USFS abused its discretion in its determination of how to fight the fire. 28 U.S.C. § 2680(a). Thus, Hardscrabble Ranch’s argument that a “yes” answer was warranted to one or more of the Checklist questions is unavailing; at most, this would be an abuse of discretion to answer the question “no.” Yet that abuse is explicitly protected by the FTCA. Id.

As for Hardscrabble’s third contention, that there .simply was no area within the PSICC that could be- used for forest-management goals, the LRMP specifically designated the Pike and San Isabel National Forests, as well as all USFS lands in the Wet Mountains, as “predetermined areas” for resource management objectives. Regarding the alleged pre-approved condition requirement, the EA does not specifically prescribe a course of action mandating the creation of these conditions, and USFS practice is that their mention simply means that a Forest Service unit can specify conditions in a fire plan but that it is not required to do so. See 6 Aplt. App. •000655. In any event, since no document clearly mandates .or specifies their creation, what those conditions are would themselves be matters of discretion for the USFS. See Weiss v. United States, 787 F.2d 518, 528 (10th Cir. 1986) (explaining that “if a duty is not mandatory or not clearly specified then it is discretionary”).

Finally, Hardscrabble Ranch also argues that the USFS failed to follow the mandatory directive to conduct daily monitoring of the fire in the Wildland Fire Decision Support System. Aplt. Reply Br. at 5. Though the USFS only released two Incident Decisions in that system—one .on April 29 and one oh April 30—it is clear from those reports, from the change in tactics, and from the minute-by-minute incident log recorded in the WildCAD system, that the USFS was monitoring the fire sufficiently and in accordance with its discretion. Again, the Checklist did not remove all discretion in how the USFS was to monitor the fire.

In sum, neither the Checklist nor other procedures identified by Hardscrabble explicitly told “the Forest Service to suppress the fire in a specific manner and within a specific period of time. The existence of some mandatory language does not eliminate discretion when the broader goals sought to be achieved necessarily involve an element of discretion.” Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998).

B. Policy Judgment

That the USFS had discretion in how to fight the fire is not the end of the matter, for we must still consider whether that judgment is the kind the FTCA intended to shield. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. The FTCA protects decisions that “implieate[] the exercise of a policy judgment of a social, economic[,] or political nature.” Duke v. Dep’t of Agric., 131 F.3d 1407, 1411 (10th Cir. 1997). In other words, the discretionary action must be based on the purposes of the applicable regulatory regime. United States v. Gaubert, 499 U.S. 315, 325 n.7, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Though not all discretionary acts fit this criteria, we presume that a government agent’s discretionary actions are grounded in policy, and it is up to the challenger to allege facts showing that the actions were actually not policy-oriented. Id. at 324-25, 111 S.Ct. 1267.

Hardscrabble Ranch contends that it has rebutted the Gaubert presumption by presenting evidence that the USFS did not use the Checklist, that the initial decision to not fully suppress the fire was made quickly after the fire’s discovery, and that the formal publication of the decision-making did not appear until two days after that initial decision was actually made. Aplt. Br. 26-28. But none of this actually addresses the “focus of the inquiry,” which “is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; see also Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir. 1993).

The nature of the USFS actions in fighting the Sand Gulch Fire are susceptible to a policy analysis grounded in social, economic, or political concerns. Cf. Green v. United States, 630 F.3d 1245, 1251 (9th Cir. 2011). Indeed, the balancing of the needs to protect private property, ensure firefighter safety, reduce fuel levels, and encourage natural ecological development—the very concerns raised by the Checklist and addressed by the USFS in its Incident Decision—are precisely the kind of social, economic, and political concerns the discretionary function exception was designed to shield from “judicial second guessing.” Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954 (internal quotation marks and citation omitted).

AFFIRMED.

      . As explained below, because the USFS claims that Hardscrabble Ranch has not identified a policy or regulation that precludes the exercise of discretion so as to fit within the bounds of the FTCA, and because we can resolve the case on this basis, it is unnecessary to detail here the additional documents the USFS says applied.

      . The USFS agrees that the Land Resource Management Plan applied, but disagrees that the Fire Management Plan was a "decision-making document”; instead, the USFS contends that the Fire Management Plan simply consolidated all the guidance from other plans into a single document. Aplee. Br. at 14-15.


author: HARTZ, Circuit Judge

text:
    IN RE: Kenneth Eugene BARRETT, Movant.
    No. 16-7035
    United States Court of Appeals, Tenth Circuit.
    Filed November 7, 2016

      David B. Autry, Oklahoma City, OK, Joan M. Fisher, Office of Federal Defender for Eastern- District of California, Sacramento, CA, for Movant. ■
    Linda A. Epperley, Christopher Wilson, Office of the United States Attorney, Muskogee, OK, Jeffrey Bradford Kahan, United States Department of Justice, Washington, DC, for Respondent United States of America. ■
    Before KELLY, HARTZ, and MATHESON, Circuit Judges.
   ORDER

HARTZ, Circuit Judge

A federal jury convicted Defendant Kenneth Eugene Barrett of three capital offenses arising out of a shootout when law-enforcement officers came to his home to serve arrest and search warrants. We affirmed the convictions and his death' sentence on direct appeal. See United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) (Barrett I). The district court then denied relief on his motion under 28 U.S.C. § 2255. On appeal we affirmed the denial except that we reversed and remanded for further proceedings on a claim of ineffective assistance of counsel at the trial’s penalty phase. See United States v. Barrett, 797 F.3d 1207, 1211-12 (10th Cir. 2015) (Barrett II), cert. denied, Barrett v. United States, 2016 WL 1046930, — U.S. —, 137 S.Ct. 36, 196 L.Ed.2d 48 (2016).

Defendant now seeks authorization to file a second § 2255 motion challenging his convictions on the basis of “a Single Claim, namely, that the continuous,’ pervasive egregious prosecutorial and police misconduct in this case including altering, fabricating and destroying evidence, misrepresentation of the facts by omission and commission through lying, perjury, suborning perjury, planting evidence, witness intimidation and presentation of and reliance on junk science is a violation of due process.” Mot. for Pre-Filing Authority, at 1-2. In his reply to the government’s response to-his motion for authorization he states that “[t]he heart of the claim presented here is the declaration of confidential informant, Charles Sanders,” Reply at 3, in which Sanders makes assertions contrary to his trial testimony and to- statements allegedly made by him in support of the search warrant for Defendant’s home.

The statutory provision Defendant invokes in support of authorization requires him to make a prima facie showing that his proposed § 2255 motion contains “newly discovered evidence that, 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 [him] guilty of the [challenged] offense[s].” 28 U.S.C. § 2255(h)(1); see also id. § 2244(b)(3)(C). We hold that he has not met that standard. His conviction is still well supported by eyewitness accounts of law-enforcement officers, the testimony of multiple acquaintances of Defendant, and physical evidence at the scene of the crime.

I. BACKGROUND

The following excerpt from this court’s opinion on appeal from the denial of Defendant’s first § 2255 motion describes the events underlying his convictions:

In January 1999 a warrant was issued for Defendant’s arrest for failure to appear at a state criminal trial on drug charges. That September an agent for Oklahoma’s District 27 Drug Task Force learned from a confidential informant that Defendant had methamphetamine at his residence. The confidential informant also told the agent that Defendant had promised to kill any officer who came to arrest him and that he was operating his drug business at night because of his belief that law enforcement could not execute a search warrant at night. The agent obtained a no-knock, day-or-night search warrant for Defendant’s residence. Viewing the execution of the two warrants as high-risk, he obtained assistance from the .Oklahoma Highway Patrol Tactical Team (the Tact Team).
On the evening of September 23 three troopers surveilled Defendant’s residence in a white, unmarked Ford Bronco. Travis Crawford, Defendant’s cousin, was with him at the time. According to Crawford, Defendant saw a white vehicle pass by and recognized it as belonging to law enforcement, but he said that he did not care and that he “was going out in a blaze of glory.”
Shortly after midnight on September 24 the Tact Team met with members of the Task Force, who planned to follow two minutes after the Tact Team. The Tact Team then began to execute its plan. The lead Bronco approaching from the east was driven by Trooper John Hamilton with Trooper David “Rocky” Eales as passenger. Its emergency lights were not on. [A] second Bronco and [a] patrol car followed closely behind. The patrol car and perhaps the second Bronco had emergency lights on. As the vehicles drove toward the residence, the lead Bronco began receiving gunfire at “approximately head level, middle of the windshield.” The gunfire intensified as the vehicle drew closer. Hamilton was struck in the face with glass or bullet fragments.
The lead Bronco continued to receive gunfire until it reached the residence. The driver, Hamilton, ducked between the bucket seats. The passenger, Eales, exited and was shot three times while attempting to get behind the Bronco. Hamilton threw a “flashbang” stun grenade out the window, which temporarily stopped the gunfire. He exited the Bronco and was shot in the shoulder as he moved toward Eales, who was lying face-down. Trooper Ricky Manion joined him behind the vehicle. Hamilton saw Defendant standing in his doorway holding a rifle, and Manion saw him entering the house. Hamilton fired two shots at Defendant that missed, but Manion shot him through a window and hit his legs. Defendant was dragged out to the front yard. He tried to move his hand toward the front of his body, where he had a pistol in his waistband, but he was subdued and the gun removed.
Eales was fatally wounded. An autopsy indicated that one of the three bullets entered his upper back, broke four ribs, and perforated his left lung and aorta.
Later investigation showed that 18 bullets struck the lead Bronco and that Defendant probably fired 19 shots from a Colt Sporter .223 rifle (there were 72 rounds remaining in a set of three magazines taped together to hold 90 rounds, and one could have been in the chamber to start). A search of the premises revealed several firearms, including two that were loaded, and various items used to manufacture methamphetamine. A later search of Defendant’s clothes at a police laboratory revealed $2120.10 in cash and plastic bags holding red phosphorus, an ingredient for manufacturing methamphetamine.

Barrett II, 797 F.Sd at 1211-12 (citations omitted).

Defendant was initially prosecuted by the state. After his first state trial ended with a hung jury, he was convicted of manslaughter and assault and battery with' a deadly weapon. See Barrett I, 496 F.3d at 1086. Defendant was then prosecuted federally and convicted of three offenses: using and carrying a firearm during and in relation to drug-trafficking crimes, resulting in the death of a state law-enforcement officer, see 18 U.S.C. § 924(c)(1)(A), (j); using and carrying a firearm during and in relation to the killing of a state law-enforcement officer engaged in or on account of the performance of official duties, see id.; and intentionally killing, during the commission of a drug-trafficking crime, a state law-enforcement officer engaged in the performance of his official duties, see 21 U.S.C. § 848(e)(1)(B). See Barrett I, 496 F.3d at 1082. He was sentenced to life imprisonment without the possibility of parole on the two § 924(c) convictions and to death on the § 848(e) offense. See id. We affirmed his convictions and sentences on direct appeal. See id.

Defendant’s initial motion for relief under § 2255 failed in all respects but one. On appeal from the denial of the motion, we reversed and remanded his death sentence “for the district court to hold an evidentiary hearing on whether the performance of trial counsel was deficient in not investigating Defendant’s background and mental health and whether Defendant suffered prejudice ■ from any deficiency during the penalty phase of his trial.” Barrett II, 797 F.3d at 1232. Proceedings in the district court were abated pending disposition of a petition for certiorari in the United States Supreme Court, see Barrett v. United States, E.D. Okla. No. 09-CIV-105-JHP, Doc. 237 (Order filed Dec. 17, 2015); which was recently denied.

II. SCOPE OF § 2255(h)(1) INQUIRY

In determining whether to authorize the filing of a second § 2255 motion, our concern is not with the merits of Defendant’s claim of prosecutorial misconduct but solely with whether he has proffered “newly discovered evidence that, 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 [him] guilty of the [challenged] offense[s].” 28 U.S.C. § 2255(h)(1); see Case v. Hatch, 731 F.3d 1015, 1028-30 (10th Cir. 2013). In our review, “we must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” United States v. Williams, 790 F.3d 1059, 1077 (10th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 136 S.Ct. 604, 193 L.Ed.2d 482 (2015). In particular, “[t]he legality of a search and admissibility of any seized evidence is not relevant to our analysis under ... [§] 2255(h)(1).” Id. at 1081 n.17. Defendant’s challenges, to the validity of the arrest and search warrants executed on the night of the shooting are therefore immaterial.

Defendant suggests that the alleged invalidity of the warrants undermined the executing officers’ authority and thus is relevant to his innocenee because he was charged with killing a law-enforcement officer “engaged in, or on account of, the performance of such officer’s official duties.” 21 U.S.C. § 848(e)(1)(B). But executing warrants is undeniably a part of an officer’s official duties. Defendant cites no authority for the proposition that killing an officer executing a warrant does not violate the federal law under which he was prosecuted if the warrant is later found to be invalid. And we have held that improper service of a summons (by ah IRS agent) “would not mean that ..[the agent] was somehow acting outside his official duties” when assaulted by the defendant, in violation of 18 U.S.C. § 111. United States v. Young, 614 F.2d 243, 244 (10th Cir. 1980) (citing holding in United States v. Heliczer, 373 F.2d 241 (2d Cir. 1967), “that an agent who has made an arrest does not lose his official capacity ... simply because the arrest be subsequently adjudged unlawful” (internal quotation marks omitted)). Thus, Defendant’s warrant-related arguments are irrelevant to whether we should authorize his second § 2255 motion.

Also irrelevant are Defendant’s complaints about various misconduct of law-enforcement officers in the execution of the warrants. He does not demonstrate any connection between his allegations— that Oklahoma Highway Patrol (OHP) personnel unreasonably relied on dubious warrants, used excessive force against him after he was shot, and delayed his medical treatment after the incident—and his alleged innocence of the crimes for which he was convicted. Equally irrelevant are his allegations that OHP officers engaged in intimidating conduct during the state trials that preceded his federal prosecution. Those allegations are not tied to anything that occurred during his federal prosecution.

III. MATTERS ASSUMED BUT NOT DECIDED

Before assessing the motion for authorization, we note two issues that we are not resolving. First, we assume without deciding that evidence can be “newly discovered” under § 2255(h)(1) even if Defendant was not diligent in discovering it. Some courts have observed that § 2255(h)(1) does not have an explicit diligence requirement while 28 U.S.C. § 2244(b)(2)(B)(i) requires that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.” See United States v. MacDonald, 641 F.3d 596, 610 & n.7 (4th Cir. 2011); United States v. Lopez, 577 F.3d 1053, 1061 & n.6 (9th Cir. 2009). But a diligence requirement in § 2244(b)(2)(B)(i) needed to be expressly stated because the provision does not use the term of art newly discovered evidence, which is commonly understood to include a diligence requirement. See, e.g., United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir. 2015) (construing the term neivly discovered evidence in Fed. R. Crim. P. 33(a), (b)(1)), cert. denied, — U.S. -, 136 S.Ct. 1700, 194 L.Ed.2d 801 (2016); see also Restatement (Second) of Judgments § 74 (relief from judgment requires reasonable diligence in discovering the ground for relief). At least one circuit has expressly read a diligence requirement into § 2255(h)(1). See Herrera-Gomez v. United States, 755 F.3d 142, 147-48 (2d Cir. 2014). We leave resolution of the issue for another day. Even affording Defendant the benefit of all the evidence he contends is newly discovered, regardless of any lack of diligence on his part in failing to obtain it sooner, he still has not made the showing necessary to warrant authorization of his proposed § 2255 motion.

Second, we need not resolve whether the “evidence as a whole” that we consider under § 2255(h)(1) includes posttrial evidence that is not newly discovered. We have no precedent directly addressing the matter. Again, however, we can leave the issue to a future panel of this court. Defendant’s newly discovered evidence, even buttressed with all the other trial and posttrial evidence to which he refers, is not sufficient to meet the innocence standard in § 2255(h)(1). We therefore deny authorization without deciding whether á defendant may rely on previously discovered posttrial evidence to bolster a request for authorization based on other newly discovered evidence.

IV. DEFENDANT’S SHOWING

At the-outset it is important to emphasize two points to put Defendant’s allegations in context. First, Defendant has never contended, now or at his trial, that someone other than he shot Trooper Ea-les. The core of his defense is that he did not know he was shooting at law-enforcement officers and, secondarily, that there was insufficient evidence of his manufacture and distribution of methamphetamine to support the search warrant for his home and the drug element of two of his offenses. Second, much of the evidence Defendant now relies on, particularly in seeking to undermine the testimony of various officers and experts presented by the prosecution, was available to his trial counsel— who evidently considered some of it not worth raising to' impeach the witnesses. And, of course, the evidence that was used in this way did not persuade -the jury to reject the prosecution’s case.

A. Confidential Informant Sanders

Defendant states that the heart of his motion for authorization is the newly obtained recantation of confidential informant Sanders. We assume the recantation is “newly discovered.” In his reply to the government’s respohse to his motion for authorization, Defendant states that his investigator “attempted to interview Mr. Sanders in a timely manner before the original § 2255 filing and was turned away;” Reply at 6.

In light of the evidence as a whole, however, Sanders’s declaration falls far short of a prima facie showing of “clear and convincing evidence that no reasonable factfinder would have found [Defendant] guilty of the offense[s] of conviction,” as required by § 2255(h)(1). Postconviction recantations are to be viewed with “extreme suspicion” and “ha[ve] long been disfavored as the basis for a claim of innocence.” Case, 731 F.3d at 1041-42 (internal quotation marks omitted). And in any event the recantation is quite limited in scope; and the testimony from other witnesses, as well as physical evidence, independently substantiates the gist of the recanted testimony.

Because the recantation relates to unlawful drug activity at Defendant’s residence, we begin with a summary of the trial evidence relevant to that activity. Sanders testified that he obtained methamphetamine from Defendant on • more than five occasions in the three or four months leading up to the shooting. He also testified that.he converted pseudoephed-rine for use in the methamphetamine manufacturing process and had it delivered to Defendant. Other witnesses provided further detail about Defendant’s manufacturing and distributing methamphetamine. Randy Turman testified that he obtained methamphetamine from Defendant by paying in cash, trading for it, or working off the debt. He said he learned the basics of methamphetamine manufacture by watching Defendant make the drug at his home; on occasion he purchased ephedrine pills at Defendant’s request for use in the process. He saw Defendant manufacture methamphetamine within three or four months of the murder. Other witnesses who obtained methamphetamine from Defendant were Karen Real, who also saw Defendant sell drugs to others inside and outside his home, and Randall Weaver.

Physical evidence corroborated this testimony regarding the manufacture of methamphetamine at Defendant’s residence. According to expert testimony at trial, the three primary ingredients in a typical clandestine methamphetamine lab in Oklahoma at the relevant time were red phosphorus, ephedrine or pseudoephed-rine, and iodine. Some 51 grams of red phosphorus was found on Defendant’s person. In one pants pocket was a pill bottle containing a baggie with 15 grams, a paper filter with 2.8 grams, and two .moist filters with residue. In another pocket was a Ziploc bag with 33 grams. Defendant’s clothing was removed as he was transported to the hospital and these items were later sent to a lab for testing. The red phosphorus in the bags contained traces of methamphetamine, indicating it had been used in the manufacturing process. (Red phosphorus is not consumed in the process. It acts as a catalyst and can be reused.) The red phosphorous on the filters contained traces of phenyl acetone, a byproduct of the methamphetamine manufacturing process. A search of Defendant’s residence uncovered a bag containing 1426 pseu-doephedrine tablets secreted in the ceiling, and two bottles of iodine with a net weight of 144.3 grams hidden inside a camera. In addition, officers found a cup with 72 pills containing nicotinamide, a substance used to cut methamphetamine. Finally, the search of Defendant’s property also “resulted in the seizure of a variety of materials related to the production and use of methamphetamine (e.g., coffee filters, hypodermic needles, digital scales, ... plastic tubing, toluene).” Barrett I, 496 F.3d 1079, 1085.

With this background we can see the limited import of Sanders’s recantation. Defendant’s proposed § 2255 motion describes the portion of Sanders’s .testimony that he recanted.

Sanders testified against [Defendant], claiming to have been at his residence a “couple of days” before the issuance of the search warrant and to have observed a drug transaction. [Sanders] testified he did not know that he was the informant on the search warrant at the time it was procured by [Agent] Johnson, but learned of it later. On cross-examination, Mr. Sanders testified that when he went out to [Defendant’s] house shortly before the raid, he saw guns but did not do or see any drugs other than a joint that he, his nephew and [Defendant] smoked. He testified that he had told DTF Agent Johnson. After a ■ break called by the AUSA Michael Littlefield, Sanders reversed course on re-direct and said that he. was uncertain of the times he had been to [Defendant’s] and that he had observed drug activity. He admitted, when questioned, that Agent Johnson was more likely than he to know the dates. Mr. Sanders admitted that Mr. Littlefield had talked to him during the break about the dates he was at [Defendant’s]. He testified, however, that they did not discuss the nature of his testimony.

Proposed § 2255 motion at 20-21 (citations omitted). The pertinent portion of Sanders’s declaration relates whát happened during the break:

12. In the middle of my testimony, Mr. Littlefield asked to stop the trial, to take a break, a recess I think they call it.
13. Mr. Sperling [co-counsel to AUSA Littlefield] came to my holding cell and Mr. Littlefield said I can’t be testifying the way I was, which was telling the truth, although I don’t recall exactly what I was testifying about at the time. He said that instead I should be saying “I don’t recall.” Mr. Sperling spoke up and said to Mr. Littlefield that I needed to be truthful, but Mr. Littlefield said to me “no,” that we had a deal, and that I needed to say that I didn’t recall, which is what I said on the witness stand when the trial resumed. They had me lying on the witness stand.

Proposed § 2255 motion, Ex. 21, at 3-4. In short, the recantation does not concern Sanders’s trial testimony that he had purchased methamphetamine from Defendant repeatedly during the three or four months before the murder , or that he had assisted in Defendant’s manufacture of methamphetamine. It concerns only whether he had seen a drug transaction a few days before the murder. Although the declaration may call into question the factual basis for the search warrant obtained by Agent Johnson, the validity of the warrant, as we have explained, is irrelevant to our innocence inquiry. And the declaration has little impact on the proof-that Defendant killed a law-enforcement officer while committing a drug offense, as required for two of Defendant’s convictions. That allegation was amply supported by the testimony and physical evidence described above. In particular, the presence of the red phosphorus on his person is compelling evidence of contemporary methamphetamine manufacture.

Sanders’s declaration also discusses Lit-tlefield’s pretrial efforts to get him to testify. But that discussion does not concern the content of his testimony, just whether he would testify at all.

In sum, Sanders’s recantation has little impact on the strength of the prosecution’s case. Its limited scope leaves much of his testimony unaffected, and the key allegations against Defendant were further supported by testimony from other witnesses and by physical evidence. In terms of § 2255(h)(1), Defendant does not make a prima facie showing that Sanders’s declaration, “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 [Defendant] guilty of the [challenged] offense[s].”

B. Agent Clint Johnson

Clint Johnson was the Drug Task Force Agent who obtained the search warrant for Defendant’s home. We need not address the merits of much of what Defendant alleges about Agent Johnson (and his superior, Allen Franklin Lloyd, who did not testify at trial) because it challenges only (1) the search warrant obtained for Defendant’s home and (2) the good faith of the officers who planned the execution of the warrant. As explained above, neither of those issues is relevant to our inquiry under § 2255(h)(1). There remain, however, two issues to address.

1. Allegedly planting evidence (red phosphorus in pill bottle)

Defendant claims that'Agent Johnson may have planted some of the red phosphorus attributed to Defendant that supported the government’s allegation of methamphetamine manufacture and sale. Noting that some (unspecified) quantity of red phosphorus was found in Agent Johnson’s car after he left the Task Force, some seven years after the murder, Defendant suggests this “newly discovered evidence of Johnson’s possession of the precursor raises the specter of [his] having planted the same,’-’ providing false eviden-tiary support for the drug-related charges against him. Proposed § 2255 motion, at 53. This is rank speculation. We agree with the government that:

a single discovery of phosphorus in 2006 does not establish, by any evidentiary standard, a pattern of behavior by Johnson or a motive for planting evidence during a 1999 homicide investigation, years before the federal government pursued a drug charge. And even if it did, it would not clearly and convincingly show that Johnson did so here, or that [Defendant] was innocent of murdering Trooper Eales.

Resp. at 12.

Defendant attempts to bolster his evidence-planting theory by casting doubt on the provenance of the 15 grams of red phosphorus found in a baggie inside the pill bottle discovered in Defendant’s clothing when searched at the crime lab after his arrest. He-'Claims no witness testified about the pill bottle and the baggie during the state homicide trials and insists its appearance at the federal trial is so suspect “that any juror who knew of [Agent Johnson’s] misconduct alleged here would undoubtedly have believed that the red phosphorus [in the baggie] was planted.” Proposed § 2255 motion at 54. But drug manufacture and distribution were not elements of any of the charges against Defendant in the state trials. There was no reason to present evidence of the baggie or bottle.

Moreover, Defendant offers nothing to suggest either motive or opportunity for Johnson’s alleged planting of the baggie. It would have been obvious to Johnson that Defendant faced very serious charges (at least attempted murder) from the shootings, and Johnson could not have known how much evidence of drug manufacture or trafficking would be found in the residence. It is beyond speculation that Johnson could have anticipated the state-court acquittals and the materiality of the red phosphorus to the federal prosecution. This was not a street-level bust where planting drugs would clearly make a difference. As for opportunity, when Johnson arrived at the scene after the shooting, he went directly to assist in Eales’s'emergen-cy treatment and removal by ambulance and then accompanied the ambulance to the hospital. Meanwhile, Trooper Hash, who initially had custody of Defendant at the scene, turned him over to the Sequo-yah County Sheriff. When the ambulance to take Defendant to the hospital arrived, the sheriff and a deputy removed Defendant’s clothes in the ambulance; the deputy placed them in a biohazard bag, which he handed to an Oklahoma State Bureau of Investigation criminologist near the crime scene. Johnson thus had no access to Defendant before Defendant’s clothes were removed, and there is no evidence that he had access to the clothes after they were removed and later taken to the crime lab.

Finally, we note that the baggie with red phosphorus in the pill bottle was not essential to Defendant’s conviction on the drug-related federal charges. The 33 grams of red phosphorus found in the Ziploc bag, and all the other physical evidence and testimony recounted earlier, supported the government’s case of methamphetamine manufacture at Defendant’s home. Even without the questioned baggie a reasonable jury would hardly have been compelled to acquit Defendant.

2. Trial testimony

Agent Johnson also testified at trial regarding the execution of the search and arrest warrants. He explained that he thought that execution of the warrants was high risk because of reports over the previous six months that Defendant had been making methamphetamine and had threatened to kill law-enforcement officers who came to his home. And he stated that as his vehicle approached the scene after the shooting was over, he could see flashing red and blue lights (lending some support to other evidence that Defendant knew he was firing on law enforcement during the shootout). Yet Defendant does not specifically direct his attacks' at any of this testimony. All he says is that “Johnson w[as] testifying falsely at trial” and that the evidence of Agent Johnson’s misconduct “would have been admissible to impeach” him. Proposed §-2255 motion at 88. Such nonspecific and perfunctory statements cast no doubt on the verdict since Johnson’s testimony was cumulative and insignificant in light of much other evidence on these matters.

C. AUSA Michael Littlefield

Defendant claims AUSA Michael Little-field conspired with Agent Johnson to violate his constitutional rights. He cites evidence that the two worked together on a number of cases and that Johnson had helped Littlefield avoid a DUI: arrest. Defendant frames the alleged conspiracy in broad terms, but the focus of this claim is Littlefield’s reliance on Johnson’s confidential informant Charles Sanders to bolster the case against Defendant at trial, which we have already addressed. Conspiratorial acts of Littlefield and Johnson may be important in establishing a constitutional violation on which a § 2255 claim could be based, but they add nothing to the factual-innocence claim that this court must now resolve. Likewise, evidence of bullying behavior by Littlefield is at most relevant only to bolster Defendant’s claim that Lit-tlefield bullied Sanders into committing perjury. But we have already rejected Defendant’s claim based on Sanders’s recantation (even accepting its truth); and the alleged bullying is not itself evidence exculpating Defendant of anything. The bullying allegation adds nothing helpful to Defendant.

D. Oklahoma Highway Patrol (OHP) Officers

Much of Defendant’s criticism of the conduct of OHP officers is irrelevant to our inquiry under § 2255(h)(1), because it does not relate to his guilt or innocence. Thus, we do not address his claims that officers beat him after the. shooting and interfered with his medical treatment, or his claim that some officers engaged in intimidation tactics at his earlier state criminal proceedings. We discuss the merits of only the innocence argument.

1. Investigator Paul Gordon

OHP internal-affairs Investigator Paul Gordon expressed the opinion that because of the flawed manner in which the officers approached Defendant’s home, he would not have known he was shooting at law-enforcement officers. (Gordon’s criticism of the execution of the warrants is otherwise irrelevant to our innocence inquiry, as is his complaint of official hostility toward him after he issued his critical report.). He wrote:

OHP [Officers] failed to follow the handbook protocol, at the very least, in this regard: the Broncos [in which the lead members of the team arrived at the scene] were unmarked and the troopers did not activate their emergency lights to warn [Defendant] he was dealing with the police.... Under the circumstances admitted to me and observed by me, [Defendant] would not have known the incoming vehicles were law enforcement.

Gordon Declaration, Ex. 18 at 9 (par. 23) (emphasis added). But his underlying assumption—the lack of emergency lights— was contrary to substantial evidence at trial. As we said on Defendant’s direct appeal:

[Although the lead Bronco did not exhibit any flashing lights (because [Defendant] began shooting at it before the two officers inside had an opportunity to turn on the lights), the second Bronco did. More specifically, the second Bronco had a flashing strobe-type light on the sun visor and “wig-wag” headlights, all of which had been activated. The third vehicle to enter [Defendant’s] property, immediately following the two lead Broncos, was a marked Oklahoma Highway Patrol ear with its emergency lights activated (including a standard light bar on top and “wig-wag” headlights).

Barrett, 496 F.3d at 1113 (citations omitted); see also id. n.14 (noting that while testimony was conflicting as to precisely when the lights of the marked patrol car were activated, “[i]t is clear, nevertheless, that a substantial portion of the shots fired by [Defendant] occurred after the lights of this vehicle were activated”). We went on to say, “[Defendant’s] conduct in shooting at the officers that night clearly would have allowed the jury to reasonably find that he intended to kill one or more of th[e] officers, including Eales.” Id. at 1114 (recounting conduct during the shooting reflecting Defendant’s intent to kill officers); see also id. at 1113 (discussing additional evidence relevant to Defendant’s intent, including his awareness of the outstanding warrant and his threats of violence should law enforcement attempt to serve it). Gordon’s critique may be helpful to Defendant, but Defendant again fails even to approach a prima facie case that Gordon’s opinion would persuade, much less clearly and convincingly compel, a jury to acquit Defendant.

2. OHP Troopers

Defendant’s § 2255 motion contains a hodgepodge of allegations under the heading “Trooper by trooper, they lied and misled the jury.” Proposed § 2255 motion at 66. Some OHP troopers gave statements to police officials, testified at the state trials, and testified at the federal trial. Defendant alleges that their testimony “relatfing] to the question of notice and self-defense” changed over time and “[t]he evolution of that testimony makes clear that -the OHP’s interest was not in the truth but in securing a verdict of death.” Id. As the government points out, however, “inconsistent statements made over the course of multiple investigations and trials” are matters “[Defendant] could have identified long ago.” Resp. at 14. In some instances, trial counsel did bring out the inconsistencies before the jury, but to no demonstrable effect; in other instances, counsel evidently deemed them not worth pursuing. This reinforces our assessment that the few minor inconsistencies identified here are too insignificant to play a material role in the innocence inquiry under § 2255(h)(1).

Defendant points to testimony on two occasions by Agent Ben Rosser (who interviewed officers shortly after the shooting): (1) “At the [state] preliminary hearing, Agent Rosser testified that when he arrived on the scene [after the shooting] the only emergency lights on were on Trooper Hash’s marked unit”; (2) “At the first [state] trial Agent Rosser admitted that he had listened to the Troopers’ testimony at the preliminary hearing and the first trial and in ‘many many instances, that the testimony concerning emergency lighting differed from the sworn statements given under oath to [Investigator] Paul Gordon.” Proposed § 2255 motion at 66. But Defendant fails to explain the relevance of what Rosser saw after the shooting or how any inconsistency (he does not identify what the “many many” instances were) was material to the verdict.

Defendant accuses Trooper John Hamilton of telling two lies. First, he says: “Hamilton maintained that he had damaged the push guards on the [lead] Bronco by hitting a post at the driveway. It was a lie. Agent Rosser testified [at the state preliminary hearing] the push guards were bent at the same height as the porch [on Defendant’s home].” Id. at 67. But the height of the porch is hardly conclusive. And although Defendant notes the dispute at trial about where the Bronco was when shooting began, he does not explain how that dispute would be resolved by determining where the Bronco was damaged; all agree that ultimately the Bronco ended up at or near the porch. The second allegation is based on a misreading of the record. Defendant asserts that Hamilton initially stated in investigative interviews that he did not shoot his gun and admitted he did so only when confronted with a ballistics report confirming that fact. But in the interviews Hamilton did not deny shooting his weapon. In one, he was asked but his answer on the recording was inaudible. In the other, he seems to indicate that he had used his sidearm. See Ex. 47 at 45 (“The only firearm that HAMILTON had immediately available and in use during the time that he was receiving gun fire was his Sig Sauer sidearm.”). In any event, Defendant does not explain the relevance of these statements to his guilt or why Hamilton would intentionally provide false information on these matters.

Next, Defendant complains about testimony from Trooper Raymond Greninger (who was in the second Bronco approaching Defendant’s home) as to when the gunfire started. Defendant states:

Greninger told Agent Rosser that the gunfire began [when the lead Bronco was] at the front porch; thereafter, he advised [Investigator] Gordon that he ‘drew a blank’ from the ditch until they -pulled up and heard gunfire. In the first state trial, Greninger maintained his ‘memory block’ story; in the second state trial, he testified the gunfire began as the Bronco approached the house. By the federal trial, Trooper Greninger again claims he had a memory block from the ditch to the stopping of [his] car.

Proposed § 2255 motion at 67-68 (citations omitted). Defendant’s point appears to be that he should have the benefit of Greninger’s earlier statements indicating the lead Bronco was near the front porch when gunfire began. But the jury heard from the driver of the lead Bronco, Trooper Hamilton, whose testimony was summarized in our Barrett I opinion:

[Defendant] began shooting at the lead vehicle, a Ford Bronco driven by Trooper Hamilton, as soon as the vehicle cleared á ditch that ran between [Defendant’s] house and a property to the east.... As Hamilton continued driving the Bronco westward towards [Defendant’s]‘residence, the gunfire intensified and the windshield of the Bronco began to disappear. The gunfire continued after Hamilton stopped the Bronco near the edge of the front porch of [Defendant’s] residence.

Barrett I, 496 F.3d at 1114 (citations omitted). Even if Greninger’s statements contradicted Hamilton’s account, a reasonable jury would certainly not be required to accept those statements over the trial testimony of the lead Bronco’s driver.

Defendant notes in one sentence that Trooper Gene Hise (driver of the fourth vehicle approaching Defendant’s home) testified his headlights were off as he entered Defendant’s property, although Hise had testified in state proceedings that they were on. It is not evident what Defendant’s point is. Hise’s testimony on this matter at the federal trial was, if anything, more favorable to Defendant, contrary to Defendant’s theory that the officers lied to obtain a death sentence.

Defendant then focuses on Trooper Steven Hash’s testimony about feeling a pill bottle in Defendant’s pocket when 'he frisked him for weapons at the crime scene. Defendant notes that although Hash testified about this at the federal trial and the first state trial, he did not mention it during his internal interviews, at the second state trial, or at the preliminary hearing. Defendant does not say, however, that Hash was asked and denied feeling the bottle on the latter occasions. Moreover, the Sequoyah County Sheriff and his deputy testified about finding the pill bottle in Defendant’s pocket and putting it back before Defendant’s clothes were bagged as evidence. In light of that testimony, and all the other (admittedly untainted) evidence of methamphetamine manufacture and sale by Defendant discussed earlier, a reasonable jury would hardly be compelled to find him innocent of the charges based on drug- trafficking due to any inconsistency in Hash’s testimony.

Defendant also alleges a discrepancy between Officer Danny Oliver’s trial testimony and a handwritten statement he gave after the shooting. Oliver was with Hash in the third vehicle approaching the scene. At trial he testified he first heard gunfire when “[t]he first Bronco was already through the ditch and the second was nearly through.” Id. at 69 (internal quotation marks omitted). But his earlier handwritten statement, for which Defendant provides neither a copy nor a citation, to our record, purportedly said: “As soon as the first vehicle stopped in front of the residence I heard automatic weapon fire and could see a great deal of gun smoke in front of the residence.” Id. at 68 (internal quotation marks omitted). We are not persuaded that every reasonable juror would infer from the handwritten statement that all the officers must have lied at trial about when the gunfire began.

Finally, Defendant states that Lieutenant Kerry Pettingill testified inconsistently about whether his headlights were on or off as he drove his vehicle onto the drive of the adjacent property of Defendant’s mother; But the alleged inconsistency is between Pettingill’s testimony in the first and second state trials and is wholly irrelevant to Defendant’s guilt.

In sum, Defendant’s objections regarding minor discrepancies in testimony by OHP officers do not materially advance his case for innocence.

3. Destruction of evidence

Defendant complains about the destruction of a partially recorded interview with a now-deceased trooper after the shootout. It was ordered destroyed per official policy against recording officers immediately after an incident. Defendant does no more than speculate that “[blecause of the duplicity and timing of the destruction, it is fair to say that there was exculpatory evidence on that tape.” Id. at 72 (emphasis added). There is no evidence that .the taped interview would in fact have supported Defendant’s claim of innocence.

4. Failure to preserve crime scene

Defendant’s proposed § 2255 motion raises several alleged failures to preserve the crime scene. The principal one is the alleged movement of the lead Bronco from its location during the shooting. Defendant contends this undermines the testimony of government expert Iris Dailey about the trajectory of bullets fired by Defendant at the oncoming vehicle and supports his position “that the Bronco came barreling up to his .porch, and-he was shooting into headlights without knowing who he was shooting at.” Id. at 72. But any uncertainty about the vehicle’s position must be viewed in light of the eyewitness testimony of the vehicle’s position and, more importantly, the testimony regarding the shooting itself. This is a far cry, from the sort of physical evidence that can conclusively establish the inaccuracy of eyewitness testimony.

Likewise for Defendant’s remaining crime-scene issues: (1) Dailey’s alleged testing of a load bearing vest rather than a “turtle shell” vest worn by Eales in making trajectory calculations; (2) removal of one of the officers’ weapons from the scene for 12 hours; (3) the movement on and off the scene of such items as the pin of a flashbang device and the ignition key of the lead Bronco; (4) the failure of state criminalists to collect all the bullet casings at the scene, analyze blood on the porch or fingerprints on the baggies of red phosphorus or the pill bottle containing one of the baggies claimed to have been in Defendant’s pockets, and calculate the trajectory of all shots to the lead Bronco and a shot likely fired by Trooper .Hamilton into Defendant’s cabin; and (5) an allegedly deficient determination of the number of shots that were fired and by whom. Defendant objects generally that “[t]he failure to manage the crime 'scene in a scientifically responsible manner left the sequence of events, critical to [Defendant’s] defense, in a muddle.” Id. at 77. But he ignores the eyewitness accounts of what happened, and he points to nothing inconsistent with the officers’ accounts. His argument amounts to nothing more than that the corroboration of these accounts by physical evidence and expert testimony may not be as strong as the prosecution contended. That is not a ground for relief under § 2255(h)(1).

E. Ballistics Expert Higgs

Ballistics expert Terrance Higgs tied the bullet fragment that killed Eales to Defendant’s .223 Colt H Bar Sporter rifle, “to the exclusion of all guns that are made or that will be made.” Trial Tr. at 3703-05. Defendant challenges this finding in two ways. First, he says that Higgs’s testimony at the state trials was not as definitive as at the federal -trial because at the state trials Higgs used a preponderance-of-the-evidence standard in- testifying that the fragment matched. Defendant’s gun. But he does not claim that if Higgs had testified at the federal trial in terms of a preponderance, no reasonable jury would have convicted him. Such a claim would be absurd.

Defendant’s second challenge concerns chain of custody. He claims that “the government did not and cannot establish an unbroken chain of custody,” id. at 83, for the fragment between its removal during the autopsy and its testing by Higgs, and that “[without an unbroken chain from Eales’ autopsy, no reasonable juror could find that it was [Defendant’s] bullet that killed Trooper Eales,” id. at 85. Such hyperbole is singularly unpersuasive. The evidence ' of chain of custody was solid, and Defendant’s carping in his proposed § 2255 motion is based on a misreading of the record. He points to no evidence indicating tampering. Moreover, Defendant again ignores that the bullet fragment was merely physical evidence ■ to corroborate eyewitness testimony. And there was no evidence, or even argument, at trial that anyone but Defendant shot Eales.

F. Reconstruction Expert Dailey

Finally, Defendant returns to his criticism of expert Iris Dailey. He suggests that another expert would testify that Dai-ley “lacked sufficient knowledge of ballistics, vehicle construction, and the necessity of using consistent, accurate terms of reference when reconstructing a scene to render reliable, credible opinions about a shooting scene involving a vehicle and did not follow widely accepted protocol used in shooting incident reconstruction.” Proposed § 2255 motion at 86 (internal quotation marks omitted). He also alleges that near the time of her testimony in this case, Dailey was “chastised” by the Oklahoma Court of Criminal Appeals for “dressing] up her personal opinions in the guise of ‘science.’ ” Id. at 86 (citing Dunkle v. State, 139 P.3d 228, 249-51 (Okla. Crim. App. 2006)).

But, as this court pointed out in reviewing Defendant’s first § 2255 motion, Dailey was thoroughly and effectively cross-examined at trial (one of her lawyers thought her testimony turned out to be embarrassing for the government, see Barrett II, 797 F.3d at 1216), yet the jury convicted. Dai-ley’s testimony was intended only as corroboration of the officers’ eyewitness testimony. Defendant has not made a prima facie showing that any reasonable jury made aware of the alleged deficiencies in Dailey’s testimony would have acquitted him.

y. CONCLUSION

In addressing Defendant’s request for authorization, we have necessarily discussed his allegations in a serial manner. But we have also considered them cumulatively. And we must conclude that Defendant has not presented a prima facie case that in light of the evidence he presents, no reasonable factfinder could find him guilty of the charged offenses. There is too much evidence that a jury could credit concerning both the shooting and Defendant’s manufacture and distribution of methamphetamine.

We therefore deny authorization to file the proposed second § 2255 motion. This decision is “not ... 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); see In re Clark, No. 16-5081, 837 F.3d 1080, 2016 WL 5210887, at *3 (10th Cir. Sept. 21, 2016) (§ 2244(E) applies to denials of authorization under § 2255(h)). Defendant’s motion to proceed in forma pauperis is denied as unnecessary “because there is no filing fee for the motion for authorization.” In re Alvarado, No. 10-4205, 2010 WL 9531122, at *2 (10th Cir. Dec. 2, 2010) (unpub.).

      . In contrast, when considering authorization for a second-or-successive claim under § 2254 because of new evidence, see 28 U.S.C. § 2244(b)(2)(B), our inquiry "does not encompass new facts that became available only after trial and that are not rooted in constitutional errors occurring during trial.” Case, 731 F.3d at 1038.

      . This is also in contrast to the treatment of habeas claims under § 2244(b)(2)(B), which requires a link between the prisoner’s constitutional claims and the evidence demonstrating his innocence. See Case, 731 F.3d at 1034, 1038.

      , One apparent error should be quickly -disposed of. At times it seems that the government objects to Defendant’s arguments based on the weakness of the evidence against him at trial. But the original trial evidence is obviously included in the reference to “old” evidence in Williams, 790 F,3d at 1077; it would be absurdly prejudicial to the government if it were not. The defendant is supposed to explain why his new evidence establishes his innocence notwithstanding the strength (or because of the weakness) of the case against him at trial. •

      . Sanders also testified about matters unrelated to drugs. On direct examination he recounted Defendant’s talking about the warrant for his arrest and referring to it as the reason he was reluctant to leave his cabin. When asked what Defendant had said "in relation to what he expected law enforcement to do because of the warrant,” Sanders testified that Defendant told him "that if the police ever came to his house that he would shoot the first police that came through his door.” Trial Tr. at 2515.
      These points were supported by other witnesses who knew Defendant. Randy Turman testified that he never saw Defendant leave his property and that Defendant was aware of the warrant and expected law enforcement to come to his home to execute it. When asked what Defendant "sa[id] that he was intending to do if the laws came to his place,” Turman replied that Defendant declared "[t]here was going to be a shootout” and "he was going to take out as many as he could before they got him.” Id. at 412-13. Cindy Crawford testified that Defendant stayed at home because of the warrant; that Defendant said there was a chance law enforcement would come to his home and "that's why ... he had protection”; and that Defendant boasted if "Police, or anyone, [came to his home] that he would go out in a blaze of glory.” Id. at 3068-69. Karen Real testified that Defendant said "if they [cops] ever come out he would shoot them” (although she did not believe him at the time). Id. at 3106-07. Finally, Brandi Price testified that when discussing the warrant, Defendant told her and some friends that if they were there when law enforcement showed up they were to "either grab a gun or hit the floor" and that "[h]e was going to open fire on them and ... [t]ake as many of them bastards with him as he could.” Id. at 3492-93. Defendant’s cousin, Travis Crawford, also testified to the same effect, but he recanted in a declaration submitted with Defendant’s first § 2255 motion.
      In addition, several eyewitnesses provided testimony showing that Defendant must have known that he was shooting at law-enforcement officers. See Barrett I, 496 F,3d at 1113-14. We concluded pn Defendant's direct appeal that the "evidence was more than sufficient to allow the jury to reasonably find that [Defendant] knew that [Trooper] Eales and the other persons approaching his residence were law enforcement officers and that he intended to kill Eales." Id. at 1115. We address that evidence further below, in connection with Defendant's allegations regarding the conduct of the state officers executing the warrant.

      . Here, and elsewhere, Defendant improperly refers to testimony in state proceedings for which he has not provided a transcript.