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 CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before MATHESON, BRISCOE, and EID, Circuit Judges. 

_________________________________ 

Larenzo Gabourel, a federal prisoner proceeding 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 request 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 This order is not binding precedent except under the doctrines of law of the case, 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, 1315 (10th Cir. 2013). 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 24, 2023

Christopher M. Wolpert 

Clerk of Court

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2 

I. BACKGROUND 

A. Underlying Criminal Case 

A federal grand jury indicted Mr. Gabourel for (1) conspiracy to possess with 

intent to distribute phencyclidine (“PCP”), (2) possession of PCP with intent to distribute 

(or aiding and abetting the same), and (3) possessing 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(10th Cir. 2017) (unpublished).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 insufficient to support his 

convictions. Id. at 531. In June 2017, we affirmed, noting that “Mr. Gabourel ha[d] 

failed to show that no rational 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 for relief under § 2255 claiming he had 

obtained new exculpatory evidence: Mr. Alvin Norman’s sworn statement dated January 

17, 2022 “attesting to [Mr. Gabourel’s] alleged innocence of all charges and explaining 

[Mr. Gabourel’s] presence at the apartment where 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 relies on § 2255(f)(4) to toll the deadline based 

on when he could have discovered his new evidence. The Government has not 

challenged the timeliness of his § 2255 motion. 

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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 demonstrate “that jurists 

of reason could disagree with the district court’s resolution of his constitutional claims or 

that jurists could conclude the issues presented are adequate to deserve 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 allow habeas review of procedurally-barred 

constitutional claims, but neither the Supreme Court 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 innocence’ 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, 

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does not, standing alone, support the granting 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 innocence.” 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 relief 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) (unpublished) (applying the same in a § 2255 

proceeding) (cited for persuasive value under Fed. 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 federal 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 querela 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). 

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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 erred in not holding an evidentiary hearing 

under 28 U.S.C. § 2255(b), which provides that a district court must hold an evidentiary 

hearing on a § 2255 motion “[u]nless the motion and the files and records of the case 

conclusively show that the prisoner 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 accepted a formulation of “the 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 omitted). Where, as here, a habeas 

claim is capable of being resolved on the existing 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 district court abused its discretion in not holding 

an evidentiary hearing. We decline to grant a COA on this issue. 

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