UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LARENZO GABOUREL, Defendant - Appellant. No. 22-6190 (D.C. Nos. 5:22-CV-00598-D & 5:15-CR-00172-D-2) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ Larenzo Gabourel, a federal prisoner pr oceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. 1 See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal an order denying a § 2255 motion). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Gabourel’s re quest for a COA and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Gabourel is proceeding pro se , we construe his filings liberally, but do not serve as his advocate. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam); James v. Wadas, 724 F.3d 1312, 13 15 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### February 24, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 12 I. BACKGROUND
A. Underlying Criminal Case A federal grand jury indicted Mr. Gabour el for (1) conspira cy to possess with intent to distribute phencyclid ine (“PCP”), (2) possession of PCP with intent to distribute (or aiding and abetting the same), and (3) po ssessing a firearm in furtherance of a drug trafficking crime. A jury found him guilty of all charges. The district court sentenced him to 180 months in prison. See United States v. Gabourel , 692 F. App’x 529, 533-34 (10th Cir. 2017) (unpublished). On direct appeal, Mr. Gabourel argued the evidence was insuffici ent to support his convictions. Id. at 531. In June 2017, we affirm ed, noting that “Mr. Gabourel ha[d] failed to show that no rationa l juror could have convicted him of” the charged offenses based on the evidence adduced at trial. Id. at 549.
B. Section 2255 Motion In July 2022, Mr. Gabourel moved fo r relief under § 2255 claiming he had obtained new exculpatory evidence: Mr. Alvi n Norman’s sworn statement dated January 17, 2022 “attesting to [Mr. Gabourel’s] allege d innocence of all charges and explaining [Mr. Gabourel’s] presence at the apartment wh ere PCP was kept and his association with the codefendants selling PCP.” ROA, Vol. IV at 103. 2 Mr. Norman was a codefendant

2 Although Mr. Gabourel filed his motion well beyond the one-year statute of limitation in 28 U.S.C. § 2255(f)(1), he relie s on § 2255(f)(4) to toll the deadline based on when he could have di scovered his new evidence. The Government has not challenged the timeliness of his § 2255 motion. Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 23 and had fled prosecution. He was a fugitive at the time of Mr. Gabourel’s trial. He later pled guilty to a drug distribution charge. Id. at 102, 104. The district court denied Mr. Gabourel’s § 2255 motion because (1) he “assert[ed] only a freestanding claim of actual innocence, which cannot provide a substantive basis for relief from his convictions,” id. at 105; and (2) his new evidence failed to establish actual innocence, id. at 105-06. The court also denied Mr. Gabourel a COA. Id. at 107.
II. DISCUSSION A federal prisoner must obtain a COA to appeal a denial of habeas relief. 28 U.S.C. § 2253(c)(l)(B). A COA requires “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The movant must demo nstrate “that jurists of reason could disa gree with the district court’s resolu tion of his constitutional claims or that jurists could conclude the issues presen ted are adequate to de serve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Mr. Gabourel argues that new evidence demonstrating actual innocence entitles him to relief. Actual innocence may allo w habeas review of procedurally-barred constitutional claims, but neither the Supreme Co urt nor this court has recognized it as a freestanding ground for relief. In Herrera v. Collins , 506 U.S. 390 (1993), the Supreme Court held that “a claim of ‘actual innocen ce’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id . at 404; see LaFevers v. Gibson , 238 F.3d 1263, 1265 n.4 (10th Cir. 2001) (“[A]n assertion of actual innocence, although operating as a potential pathway for reaching otherwise defaulted constitutional claims, Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 34 does not, standing alone, support the granti ng of the writ of habeas corpus.”); see also Farrar v. Raemisch , 924 F.3d 1126, 1130 -31 (10th Cir. 2019). Mr. Gabourel, citing McQuiggin v. Perkins , 569 U.S. 383 (2013), argues “the Supreme Court has made clear . . . that a[ n innocence] claim such as [his] should be avai[l]able through habeas corpus .” Aplt. Br. at 7. But in McQuiggin , the Court said it had “not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual inno cence.” 569 U.S. at 392; see also Case v. Hatch , 731 F.3d 1015, 1036 ( 10th Cir. 2013) (“[I]n Herrera , the Court refused to endorse [a freestanding actual innocence] habeas claim, and, as yet, it is an open question whether such a federal right exists.”). We have consistently denied habeas re lief based on actual innocence alone. See, e.g., Farrar , 924 F.3d at 1131 (“[A]ctual innocence does not constitute a freestanding basis for habeas relief.”); Vreeland v. Zupan , 906 F.3d 866, 883 n.6 (10th Cir. 2018) (same) (citing LaFevers , 238 F.3d at 1265 n.4); United States v. Toki , 822 F. App’x 848, 853-54 (10th Cir. 2020) (unpub lished) (applying the same in a § 2255 proceeding) (cited for persuasive value under Fe d. R. App. P. 32.1; 10th Cir. R. 32.1(A)), vacated on other grounds , sub nom. Maumau v. United States , 142 S.Ct. 57 (2021). 3

3 When no relief is available under federa l statute, we have left open whether a prisoner may attempt to seek relief from a final criminal conviction when new cause arises through a writ of audita quer ela pled under the All Writs Act, see 28 U.S.C. § 1651(a). See United States v. Torres , 282 F.3d 1241, 1245 n.6 (10th Cir. 2002); Rawlins v. Kansas , 714 F.3d 1189, 1192- 93 (10th Cir. 2013). Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 45 Mr. Gabourel has not shown that jurists of reason could disagree with the district court’s denial of his § 2255 motion. 4
III. CONCLUSION We deny Mr. Gabourel’s application for a COA and dismiss this matter.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

4 Mr. Gabourel asserts the district court e rred in not holding an evidentiary hearing under 28 U.S.C. § 2255(b), whic h provides that a district court must hold an evidentiary hearing on a § 2255 motion “[u]nless the mo tion and the files and records of the case conclusively show that the pr isoner is entitled to no relief.” Because a district court’s denial of an evidentiary hearing would be reviewed for abuse of discretion during a merits appeal, the Supreme Court has accepte d a formulation of “t he COA question” as “whether a reasonable jurist could conclude that the District Court abused its discretion.” Buck v. Davis , 580 U.S. 100, 123 (2017) (citation om itted). Where, as here, a habeas claim is capable of being resolved on the ex isting record, there is no entitlement to an evidentiary hearing. See Torres v. Mullin , 317 F.3d 1145, 1161 (10th Cir. 2003). A reasonable jurist could not conclude the distri ct court abused its discretion in not holding an evidentiary hearing. We dec line to grant a COA on this issue. Appellate Case: 22-6190 Document: 010110817548 Date Filed: 02/24/2023 Page: 5