No. 08-6058.United States Court of Appeals, Tenth Circuit.
September 9, 2008.
Appeal from the United States District Court for the Western District of Oklahoma, 2008 WL 619311.
Page 908
Keith L. Brown, Granite, OK, pro se.
Donald D. Self, Oklahoma Attorney General, Oklahoma City, OK, for Respondents-Appellees.
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
DEANELL REECE TACHA, Circuit Judge.
Petitioner-Appellant Keith L. Brown, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal from the district court’s denial of his habeas corpus petition brought under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a final order disposing of a § 2254 petition unless the petitioner first obtains a COA). We take jurisdiction under 28 U.S.C. § 1291, DENY Mr. Brown’s request for a COA, and DISMISS this appeal.
On May 18, 2000, Mr. Brown was sentenced in Oklahoma state court to life in prison for shooting with intent to kill. He filed a timely appeal with the Oklahoma Court of Criminal Appeals, which affirmed both his conviction and sentence on April 16, 2001. He then had ninety days to pursue a writ of certiorari with the U.S. Supreme Court, see 28 U.S.C. § 2101(d), Sup. Ct. R. 13, which he did not do. Accordingly, his judgment and sentence became final for limitations purposes on July 15, 2001, and his one-year habeas filing period under 28 U.S.C. § 2244(d)(1)(A) expired one year later. Se Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000).
On February 13, 2007, Mr. Brown filed a § 2254 habeas petition in federal district court, attacking his state-court conviction. After the magistrate judge ordered Mr. Brown and the respondents to address the timeliness of the petition, the district court adopted the magistrate judge’s report and recommendation and dismissed the petition as time-barred. Mr. Brown now seeks a COA from this Court.
A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”28 U.S.C. § 2253(c)(2). This standard requires Mr. Brown to show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). When, as here, the district court’s ruling is based on procedural grounds, the petitioner must demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478, 120 S.Ct. 1595.
Because Mr. Brown did not file his § 2254 petition until February 2007, more than four years after the limitations period had run, [1] his petition is time-barred unless it meets the high standard we have established for equitable tolling. Equitable tolling of the one-year limitations period is
Page 909
permitted “only in rare and exceptional circumstances,”Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations omitted), and “only . . . when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). To the extent Mr. Brown argues that he is entitled to equitable tolling because of ineffectiveness of counsel at trial, we disagree. Even if we assume that Mr. Brown’s counsel was ineffective, that does not excuse Mr. Brown’s extended delay in seeking federal post-conviction relief in this case. We agree with the magistrate judge and district court that Mr. Brown has not alleged the required “specificity [regarding] the steps he took to diligently pursue his federal claims.” Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (quotations omitted).
Mr. Brown further asserts his actual innocence as an equitable basis for avoiding the limitations period altogether. Although we have recognized actual innocence as equitable grounds for not applying the § 2244(d) limitations period, see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), the demonstration of actual innocence merely provides a gateway to allow federal habeas review of a procedurally defaulted claim. Herrera v. Collins, 506 U.S. 390, 405, 113 S.Ct. 853, 122 L.Ed.2d 203
(1993). It is not itself a basis upon which habeas relief may be granted. Id.
Moreover, a petitioner “asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 536-537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (quotations omitted); Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999) (quotations omitted). Mr. Brown’s introduction of new evidence about his whereabouts on the morning of the crime would not cause a rational juror to doubt Mr. Brown’s guilt.[2] Equitable tolling of the one-year limitations period is therefore inappropriate based on Mr. Brown’s claim of actual innocence.
After carefully reviewing Mr. Brown’s brief, the magistrate judge’s report and recommendation, and the record on appeal, we conclude that reasonable jurists could not debate whether the district court was
Page 910
correct to dismiss Mr. Brown’s petition as time-barred. We therefore DENY Mr. Brown’s request for a COA and DISMISS this appeal.