UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE L. RENTERIA, Petitioner - Appellant,

v. JASON BRYANT, Warden, Respondent - Appellee. No. 18-6042 (D.C. No. 5:16- CV-01333-D) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Pro se state prisoner Jose L. Renteria 1 seeks a certificat e of appealability (COA) to appeal the district cour t’s denial of his federal habe as petition pursuant to 28 U.S.C. § 2254. Exercising ju risdiction under 28 U.S.C. § 12 91, we deny Renteria’s request for a COA a nd dismiss the appeal because Ren teria cannot

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.

1 Because Renteria is proceeding pr o se, we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (200 7) (per curiam); Garza v. Davis , 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). FILED United States Court of Appeals Tenth Circuit 

### May 22, 2019
Elisabeth A. Shumaker Clerk of Court2 demonstrate that reasonable juri sts would find the district cou rt’s assessment of his constitutional claims debatable or wrong.
I. On March 16, 2011, Renteria ente red a guilty plea to the crimes of FirstDegree Rape and Sexual Battery . He had previously been convict ed of two felonies. Renteria was sentenced to thirty -two years’ imprisonment. His conviction became final on March 28, 2011. On July 22, 2011, Renteria filed a petition for judicial review in Oklahoma district court. On December 11, 2 013, he filed an application for post-conviction relief in Oklahoma district cour t. The district court denied R enteria’s request for post-conviction relief, and the Ok lahoma Court of Criminal Appe als affirmed the district court. On January 25, 2 016, Renteria filed a second a pplication for postconviction relief in Oklahoma district cour t. The district cou rt denied the request, and the Oklahoma Court of Crimina l Appeals affirmed the distric t court. On November 21, 2016, Renteria fi led the § 2254 habeas petition underlying this appeal. Respondent-Appellee , Warden Jason Bryant, moved t o dismiss the petition on the grounds that the petition was barred by the one -year statute of limitations contained in the Antit errorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). The matter was referred to a United State s Magistrate Judge, who issued a report and recomme ndation recommending that the di strict court grant Bryant’s motion and dismis s the petition as untimely.3 The report and recommendation conc luded that Renteria’s July 20 11 state court petition for judicial rev iew was not “prope rly filed” und er Oklahoma law and therefore did not statutorily tol l the federal habeas limitatio ns period. ROA at 164. The report and recommendation al so concluded that Renteria’s De cember 2013 and January 2016 applications for s tate post-conviction relief did not toll the AEDPA limitations period because they we re filed after the limitation s period had expired. Id. Lastly, the report and recommenda tion concluded that Renteria d id not prove that “extraordinary circumstances” ex isted to warrant equitable toll ing, nor did he satisfy his burden to prove actual innocence. Id. at 169. Without any basi s for statutory or equitable tolling, Renteria’s de adline for filing his habeas pe tition was March 28, 2012. Id. Because Renteria did not file h is petition until November 21, 2016, the Magistrate Judge recommended thatdismissal of his petition was appropriate. Id. The district court adopted the m agistrate judge’s report and re commendation, dismissed the petition, and denied Renteria a COA. Id. at 211–12. The district court entered judgment against Rent eria by separate order. Id. at 214.
II. A state prisoner’s right to app eal a denial of habeas relief is conditioned on the grant of a COA. 28 U.S.C. § 225 3(c)(1)(A). A COA may issue on ly if the prisoner has made “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitu tional claims on the merits, “the petitioner must d emonstrate that reasonable jurist s would find the district court’s assessment of the const itutional claims debatable or wr ong.” Slack v.4 McDaniel , 529 U.S. 473, 484 (20 00). “Where a plain procedural bar is p resent and the district court is correct t o invoke it to dispose of the ca se, a reasonable jurist could not conclude that either t he district court erred in dism issing the petition or that the petitioner should be allo wed to proceed further.” Id. In this appeal, Renteria conte nds that the district court belo w: (1) erred in concluding that his state applica tion for judicial review was n ot “properly filed” and denying statutory tolling on that basis; (2) erred in denying e quitable tolling of his petition based on attorney misc onduct, actual innocence, and fa ilure to waive the one-year limitation period pursuan t to the Oklahoma Post Convic tion DNA Act; and (3) erred by failing to hold an e videntiary hearing regarding f urther DNA testing that would allow Renteria to develop facts to support his claim of a ctual innocence. Pursuant to AEDPA, petitions forwrit of habeas corpus by a per son in custody are governed by a one-year s tatute of limitations. See 28 U.S.C. § 2244(d). Section 2244(d)(1)(A), the onl y subsection at issue here, states: “A 1 -year period of limitation shall apply to an appl ication for a writ of habeas c orpus by a person in custody pursuant to the judgment of a State court. The limitat ion period shall run from . . . the date on which the judgment became final by concl usion of direct review or the expiration of the time for seeking such review.” A. Statutory Tolling The AEDPA one-year limitations per iod is tolled while “a proper ly filed application for State post-convict ion or other collateral revie w with respect to the pertinent judgment or claim is p ending.” 28 U.S.C. § 2244(d)(2 ). To satisfy the5 tolling requirements, a petitione r’s application must be “prope rly filed,” meaning “its delivery and acceptance are in compliance with the applicable l aws and rules governing filings.” Artuz v. Bennet , 531 U.S. 4, 8 (2000). This court has held that “a ‘properly filed’ application is one filed according to the fili ng requirements for a motion for state post-conviction relief,” including “the obtain ing of any necessary judicial authorizations that ar e conditions precedent to filing . . . [and] other conditions precedent that the s tate may impose upon the filing of a post-conviction motion.” Habteselassie v. Novak , 209 F.3d 1208, 1210–11 ( 10th Cir. 2000) (footnote omitted). The district court held that Rent eria’s petition for judicial r eview was not “properly filed” because it was filed in violation of 22 Okla. Stat. § 982a. ROA at 207. Section 982a excludes the statutory remedy of judicial re view from (1) sentences of convicted felons who have been in confinement for a felony conviction during the ten-year period prece ding the date of their sentence , and (2) sentences imposed pursuant to a plea agre ement unless consent from the di strict attorney is obtained. 22 Okla. Stat. § 982a (A)(3). Renteria was convicted of felony driving under the influence on September 19, 2005. See ROA at 112, 206. Further, Renteria entered a plea of guilty for the underlying offenses in this ma tter, and there is no indication in the record that the district attorney consented t o Renteria filing the petition. Id. Renteria does not challenge the se facts on appeal. Renteria’ s petition for judicial review did not sat isfy the standard imposed by 22 Okla. Stat. § 982a; therefore, he has not shown thathis petition was “properly fil ed.”6 The two applications for post- conviction relief filed by Rente ria in December 2013 and January 2016, respectivel y, were filed outside of the one-year statute of limitations and do not qualify for statutory tolling. No reasonable jurist would find t he district court’s assessment that Renteria is not entitled to statutory to lling debatable or wrong.
B. Equitable Tolling The limitations period may also b e equitably tolled in “rare an d exceptional circumstances.” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2002) (quotation omitted). Equitable tolling is warranted when, for example, “a constitutional violation has resulted in the conviction of one who is actually innocent or incompetent,” Miller v. Marr , 141 F.3d 976, 978 (10th Ci r. 1998), or “when an adversary’s conduct—or other unc ontrollable circumstances—preve nts a prisoner from timely filing, or when a prisoner actively pursues judicia l remedies but files a defective pleading during the statutory period,” Gibson , 232 F.3d at 808. To avail himself of equitable to lling, Renteria must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely fili ng” of his federal habeas peti tion. Holland v. Florida , 560 U.S. 631, 649 (2010) (quot ation omitted). Renteria makes three arguments as to why equitable to lling should apply: (1) his tri al attorney failed to communicate with him, and, as a result, his guilty plea was nev er withdrawn; (2) he is actually innocent of the rape charge; and (3) Oklahoma’s Pos tconviction DNA Act, 22 Okla. Stat. § 1373, waives th e one-year limitation period be cause he has requested7 Touch DNA Testing. Aplt. Br. a t 9–11. The district court reje cted each of these bases for applying equitable tolling. ROA at 208–11. We addre ss each argument below. As to Renteria’s claim of atto rney misconduct, this court has held that “sufficiently egregious misconduc t on the part of a habeas peti tioner’s counsel may justify equitable tolling of the AEDPA limitations period.” Fleming v. Evans , 481 F.3d 1249, 1256 (10th Cir. 2007) (recognizing that an attorney’ s negligence or mistake is not gener ally a basis for equitable tolling). Renteria had ten days from Marc h 16, 2011 to file a motion to w ithdraw his guilty plea. Clayton v. Jones , 700 F.3d 435, 441 (10th Cir . 2012) (citing Rule 4.2, Rules of the Oklahoma Court of C riminal Appeals, Title 22, Ch. 18, App. (2011)). As the basis for his ineffective assistance of counsel argument , Renteria asserts that, after he entered a guilty plea, his family contacted his attorn ey and asked him to visit Renteria because he wanted to w ithdraw his plea, but the attorn ey failed to communicate with Renteria and di d not withdraw his plea. Aplt. Br. at 9. The district court noted its doub t that Renteria had diligently pursued this argument, given that he waited nearly four years to argue that his trial counsel had been ineffective in f ailing to withdraw his plea. ROA at 208 n .3. Assuming that the diligent pursuit requirement was m et, however, the district cou rt held that Renteria had not shown that extraordinary circumstances prevented him fr om filing a timely habeas petition because he knew of the circumstances underlying the alleged attorney misconduct shortly after his convi ction but did not file the ha beas petition for four8 years. Id. at 208. Given these circumstanc es, we conclude that reasonabl e jurists would not find the district cour t’s determinati on erroneous or debatable. Renteria also argues that he is actually innocent of rape. “[A ] sufficiently supported claim of actual inno cence creates an exception to pro cedural barriers for bringing constitutional claims, regardless of whether the petit ioner demonstrated cause for the failure to bring th ese claims forward earlier.” Lopez v. Trani , 628 F.3d 1228, 1230–31 (10th Cir. 2010). E quitable tolling is warranted when the petitioner can show that “a constitutional vi olation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo , 513 U.S. 298, 327 (1995) (quotation omitted). “To establish actual innocence, petitioner must demo nstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States , 523 U.S. 614 (1998) (qu otations omitted). To be credible, a claim of actual innocence “requires petitione r to support his allegations of constitutional er ror with new reliable evidence . . . that was not presented at trial.” Schlup , 513 U.S. at 324. Renteria claims that his innocen ce is established by a forensic report that excluded him as a contributing s ource of DNA on the victim. As suming that the forensic report is “new reliable evidence,” the district court found that Renteria cannot show that no reasonable ju ror would have convicted him b ased on the DNA evidence because “neith er of the crimes for which Petitioner wa s convicted required the presence of seminal fluid.” ROA at 210. Furthermore, the DNA evidence does not establish that Renteria did not “(1) engage in an act of se xual intercourse with9 someone incapable of giving lega l consent through mental illnes s, in violation of Oklahoma’s rape statute, . . . or (2) touch, maul or feel the v ictim’s body or private parts in a lewd and lascivious m anner, in viola tion of the sexu al battery statute.” Id. Renteria failed to show that it w as more likely than not that n o reasonable juror would have convicted him of the crimes for which he was convict ed. For the reasons addressed by the magistrate judge and district court, we hold t hat no reasonable jurist would find the district court’s conclusion debatable or wrong. Lastly, to support his claim of actual innocence, Renteria asse rts that his request for “Touch” DNA testing under Oklahoma’s Postconviction DNA Act waives the AEDPA limitations period. To toll the one-year limitations period, a properly filed application for state post- conviction or collateral revie w must be pending. 28 U.S.C. § 2244(d)(2). Renteria did not request DNA testing unti l several years after the limitations period had expire d. Furthermore, claims of act ual innocence must be supported by “new reliable evidence,” Schlup , 513 U.S. at 324, and a request for DNA testing does not qualify, see Chavez v. Trani , 534 F. App’x 799, 801 (10th Cir. 2013) (unpublished) (recognizing that a “blanket assertion that DNA testing would exonerate [petitioner] of his crim es” is not sufficient evidenc e to support a claim of actual innocence). Renteria has not provided “new reliable evi dence” sufficient to waive the AEDPA limitations period. After carefully reviewing Renter ia’s brief, the district court order, and the record on appeal, we conclude tha t Renteria has not raised an i ssue that warrants granting a COA. For substantiall y the same reasons discussed i n the magistrate10 judge’s report and re commendation and the di strict court’s orde r, we conclude that reasonable jurists would not debat e “whether the district court was correct in its procedural ruling” that Renter ia’s petition is barred by the AE DPA limitations period. Slack , 529 U.S. at 484. C. Application to Proceed In Forma Pauperis Renteria sought permission from t he district court to proceed o n his appeal in forma pauperis . The district court denied Ren teria’s application for leave t o proceed in forma pauperis , finding that Renteria’s app eal of his § 2254 petition was nottaken in good faith. Renteria re newed his motion to proceed in forma pauperis on appeal with this court. A showing of go od faith requires “the existen ce of a reasoned, nonfrivolous argument on the law and facts in support of the is sues raised on appeal.” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10t h Cir. 1997) (citing DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir . 1991)). Because Renteria did not identify a reasoned, nonfri volous issue or supporting argum ent to present on appeal we deny his application to proceed in forma pauperis

. See Coppedge v. United States , 369 U.S. 438, 446 (1962).11 III. Based on the foregoing, we DENY Renteria’s request for a certi ficate of appealability, DENY hi s motion to proceed in forma pauperis , and DISMISS the appeal.

Entered for the Court

Allison H. Eid Circuit Judge