UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES MCABEE, Defendant - Appellant. No. 16-8033 (D.C. Nos. 2:15-CV-00122-ABJ and 2:12-CR-00024-ABJ-1) (D. Wyo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY AND DISMISSING APPEAL

Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.
James McAbee, a federal prisoner proceeding pro se, 1 wants to appeal from the denial of his 28 U.S.C. § 2255 motion as untimely. His request for a certificate of appealability (COA) was denied by the district judge, promp ting him to reapply in this Court. Because he has not “made a substan tial showing of the deni al of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we too deny a COA.
I. Background McAbee had child pornography on his comp uter as well as FrostWire, a peer-topeer file-sharing program. On September 19 , 2011, an agent with the Wyoming Division

1 McAbee was released from prison on July 26, 2016. But he has 12 years of supervised release yet to serve. FILED United States Court of Appeals Tenth Circuit 

### April 20, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - of Criminal Investigation us ed a peer-to-peer program to download one still image from McAbee’s computer. The image sh owed an adult male engaging in anal intercourse with a prepubescent female. A subsequent search of McAbee’s computer (with a warrant) on November 7, 2011, revealed 203 still images and one video of child pornography in the computer’s “unallocated space.” 2 McAbee was indicted for possession of child pornography (Count 1) and distribution of child pornography (Count 2). See 18 U.S.C. § 2252A(a)(2), (a)(5)(B). He pled guilty to both c ounts and was sentenced to 65 mont hs imprisonment. Judgment was entered July 26, 2012. Although he did no t waive his right to appeal, McAbee did not pursue one. Thus, his conviction became final on August 9, 2012. See United States v.
Prows , 448 F.3d 1223, 1 227–28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal conviction becomes fi nal [for purposes of § 2255(f)(1)] upon the

2 When files are “deleted” from a compute r, they are not actua lly erased from the hard drive. They are just reconfigured so they can be overwritten with new data. Both empty space on the hard drive a nd reconfigured (deleted) files make up what is called “unallocated space.” “Unallocated space” is space on a hard drive that contains de leted data, usually emptied from the operating system’s trash or recycle bin fold er, that cannot be seen or accessed by the user without the use of forensic softwa re. Such space is av ailable to be written over to store new information. Even if re trieved, all that can be known about a file in unallocated space (in addition to its c ontents) is that it once existed on the computer's hard drive. All other attribut es—including when the file was created, accessed, or deleted by the user—cannot be recovered. United States v. Flyer , 633 F.3d 911, 918 (9th Cir. 2011); see also United States v. Haymond , 672 F.3d 948, 952 n. 8 (10th Cir. 2012) (“The unallocated space of a computer’s hard drive consists of files whic h do not have a formal file structure and can include deleted files. It is where deleted data is stored before it is then overwritten with new data.” (quotation marks omitted)).- 3 - expiration of the time in which to take a dir ect criminal appeal.”); Fed. R. App. P. 4(b)(1)(A) (in general, a notice of appeal in a criminal case must be filed within 14 days of the entry of judgment). Almost three years later, on July 27, 2 015, McAbee filed this § 2255 motion. Pertinent here, he argued counsel was ineffec tive for failing to disc over relevant case law and exculpatory evidence. 3 He blamed the delay in filing his motion on his inexperience with the law. He also argued the statute of limitations should be equitably tolled because he is actually innocent and statutorily to lled under § 2255(f)(4) (newly discovered evidence). The district judge dismisse d the motion as untimely becau se it was not filed within one year from the date his conviction became final. 28 U.S.C. § 2255(f)(1). He concluded McAbee’s ignorance of the la w did not warrant equitable tolling. See United States v. Gabaldon , 522 F.3d 1121, 1124 (10th Cir. 2008) (“Equitable tolling of the limitations period is available when an inmate diligently pursues his claims and demonstrates that the failure to timely f ile was caused by extraordinary circumstances beyond his control.” (quot ation marks omitted)); see also Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that igno rance of the law, even for an incarcerated pro se petitioner, generally do es not excuse prompt filing.” (quotation marks omitted)). He did not address McAbee ’s actual innocence claim or statutory tolling argument.

3 McAbee raised two other ineffective assi stance of counsel cl aims but they are irrelevant because he has not menti oned them in his COA application.- 4 - II. Discussion A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court denies relief on procedural grounds withou t reaching the underlying constitutional claims, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition st ates a valid claim of the denial of a constitutional right and that jurists of reason woul d find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). About one thing there can be no reasona ble debate among jurists: McAbee’s § 2255 motion is untimely and he is not entitle d to equitable tolling based on ignorance of the law. See Marsh , 223 F.3d at 1220. Had the judge addressed his other tolling arguments they would have a fforded him no relief because th ey are clearly without merit; they are not even r easonably debatable.
A. Actual Innocence “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations.” See McQuiggin v. Perkins , --- U.S. ---, 133 S. Ct. 1924, 1928 (2013). But actual innocence claims are “rarely successful.” Schlup v. Delo , 513 U.S. 298, 324 (1995); see also Perkins , 133 S. Ct. at 1928. This is par ticularly so in cases like this one, where McAbee knowingly and voluntarily pled guilty. In fact, this case may be the- 5 - epitome of the “rarely successful” observation. McAbee claims he is actually innocent beca use he lacked the requisite mens rea. He says he could not have knowingly po ssessed the images or video found in the unallocated space of his computer (Count 1) because this space cannot be accessed without the use of special fore nsic software. He relies on United States v. Schaefer , where we noted in a footnote that the distri ct court had not convicted Schaefer (after a bench trial) for possessing the images found in the unallocated space of his computer because (1) the government offered no ev idence showing he knew the computer contained the images and therefore there was no evidence he had control over them; and (2) even if he possessed those images at one time, the government did not establish that he possessed them during the time frame charge d in the indictment. 501 F.3d 1197, 1199 n.5 (10th Cir. 2007), overruled on other grounds by United States v. Sturm , 672 F.3d 891 (10th Cir. 2012); see also United States v. Flyer , 633 F.3d 911, 919-20 (9th Cir. 2011) (reversing possession of child pornography conviction—government presented no evidence Flyer knew of the imag es found in his computer’s unallocated space or that he had the forensic software required to access th em and the fact that the images had been on the computer at some point in time does not establish possession on the date indicated in the indictment). McAbee also claims he did not knowingl y distribute the image downloaded by the agent (Count 2). He relies on a news rele ase from the Federal Trade Commission (FTC) reporting that FrostWire, the peer-to-peer f ile-sharing program McAbee used (at least in this case), agreed to settle FT C charges that it misled its consumers into believing their- 6 - files were not being shared with others, when in fact, they were. But unlike the de fendants in Schaefer and Flyer who went to trial, McAbee pled guilty. Thus the high hu rdle he faces in showing actual innocence becomes even higher. See Tollett v. Henderson , 411 U.S. 258, 267 (1973) (“ When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, . . . [h]e may only a ttack the voluntary and intelligen t character of the guilty plea . . . .”). During the plea colloquy, he admitted to the elements of the offenses, including that he knowingly possessed child pornogra phy on or about Nove mber 7, 2011, and knowingly distributed child po rnography on or about Septem ber 19, 2011. He was told that to act “knowingly” a person must “kno w what they’re doing, acting voluntarily and not because of mistake, accident, or some inno cent reason.” (D. Ct. Doc. 38 at 19.) He was also told that possession can be sole, joint, or constructive but defined each to require “the ability to control an object.” ( Id .) Importantly, he admitted to having installed a file-sharing software program (FrostWire) on his computer and he offered no objection when, in detailing the factual basis for the di stribution charge, the government explained: “Mr. McAbee certainly understood how th e file-sharing software worked. He understood the files were being shared from his computer to other computers that were using the same type of software .” ( Id . at 22 (emphasis added).) Th e judge found McAbee to be competent and his guilty pleas to be knowi ng and voluntary. His admission of guilt to Counts 1 and 2 belie late blooming claims of not knowingly possessing and distributing child pornography. See O’Bryant v. Oklahoma , 568 F. App’x 632, 637 (10th Cir. 2014)- 7 - (unpublished) (“[In addressing an actual innoce nce claim,] we may ta ke into account the fact that the petitioner’s conviction was ba sed on a guilty plea predicated on the petitioner’s representations of competence and voluntariness, and findings by the court.”); Johnson v. Medina , 547 F. App’x 880, 885 (10th Cir. 2013) (unpublished) (“While [Johnson] claims that his guilty plea was involuntary and coerced, the state courts rejected that argument, and his plea of guilty simply undermines his claim that another individual committed the crime to which he pled guilty.”). 4 Moreover, a viable claim of actual innocence requires a petitioner “to support his allegations of constitutional e rror with new reliable evidence —whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup , 513 U.S. at 324; see also Perkins , 133 S. Ct. at 1928 (“A petitioner does not [establish actual innocen ce] unless he persuades the district court that, in light of the new evidence , no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”) (em phasis added) (quotation marks omitted). McAbee has pointed to no new evidence—just ca se law in existence at the time of his

4 While McAbee claims he would not ha ve pled guilty ha d he known about Schaefer , Flyer , and the press release, this claim goe s to legal insufficiency, not factual innocence. Laurson v. Leyba , 507 F.3d 1230, 1233 (10th Ci r. 2007) (“A claim that [a] guilty plea was involuntary does not assert th at he did not commit the crime to which he pleaded guilty.”); see also Holden v. Addison , 606 F. App’x 469, 470 (10th Cir. 2015) (unpublished) (“[T]o the extent Holden argues he would no t have pleaded guilty had he known the DNA results were inconclusive, this claim goes to legal sufficiency, not factual innocence.”). Moreover, he fau lts his counsel for not alerting him to Schaeffer and Flyer and not discovering the FTC’s press releas e. But these arguments reiterate the ineffective assistance of counsel claims raised in his § 2255 motion. We cannot consider them because they are untimely and, as we explain, he has fail ed to excuse that untimeliness.- 8 - guilty plea and a press release dated Octobe r 11, 2011, one month prior to McAbee’s arrest and almost six months prior to his guilty plea. 5 See Perkins , 133 S. Ct. at 1935 (although habeas petitioners asserting credib le actual innocence claims need not prove diligence, “[u]nexplained delay in presentin g new evidence bears on the determination whether the petitioner has made the requisite showing”). Finally, “actual innocence means factual inno cence, not mere lega l insufficiency.” Bousley v. United States , 523 U.S. 614, 623 (1998) (quot ation marks omitted). Both Schaefer and Flyer involved the latter. And neither case establishes McAbee’s claimed innocence. Additionally, McAb ee’s claimed inability to acce ss the images and video in his computer’s unallocated spac e without special software sa ys nothing of his ability to possess those items when they were on his computer’s ha rd drive or that he did not possess them “[o]n or about November 7, 2011” or distribute th em “[o]n or about September 19, 2011,” the time fra mes alleged in the indictment. 6 (D. Ct. Doc. 1 at 1.) He makes no claim and provides no eviden ce of having purchased a used computer,

5 Even assuming that for Coun t 1 he is relying on the fact the images and video were found on his computer’s unallocated space and that space cannot be accessed without special software, there is nothing “new” about that evidence. The prosecutor’s statement, filed on the date of his plea, noted that the images and video were found in the unallocated space of McAbee’s computer. Th erefore, McAbee knew before his guilty plea (if not earlier) that the images and vide o were found on his computer’s unallocated space. And there is nothing “new” about the nature of a computer’s unallocated space, i.e., that it contains deleted material a nd cannot be accessed without special software. 6 The software is read ily available online. See , e.g. , http://www.undelete360.com/ ; http://www.ntfsundelete.com/ ; http://www.officerecovery.com/freeundelete/ . Programs to delete one’s entire Internet browsing hist ory and temporary Internet files are also available online. See , e.g. , http://www.deleteh istoryfree.com/ ; http://www.cybertronsoft.com/products/privacy-eraser/ ; http://clear-allhistory.en.softonic.com/

.- 9 - others having had access to his computer, or his comput er having been infected with malware. Similarly, the press release does not demo nstrate he did not k nowingly distribute child pornography—while FrostWire may have misled its consumers, McAbee has not set forth any evidence showing he was so misl ed. Moreover, “[a] defendant’s placement of child pornography files into a shared folder accessible to other users [is] itself sufficient for the trier of fact to conclude that the defendant had ‘distributed’ the material.” United States v. Dunn , 777 F.3d 1171, 1175 (10th Cir. 2015); see also United States v. Shaffer , 472 F.3d 1219, 1223-24 (10th Cir. 20 07) (while defendant “may not have actively pushed pornography” on other users of the file-sharing program, “he freely allowed them access to his computerized stas h of images and vide os and openl y invited them to take, or download, those items”; th is is sufficient to convict defendant of distribution). McAbee admitted as much at his change of plea hearing. In the end, McAbee’s actual innocence cl aim comes down to th is—not that he is in fact innocent but rather that the govern ment did not show he knowingly possessed and distributed child pornography. But while the government would have carried the burden of proof at a trial, he bears the burden to show he is in fact actua lly innocent by pointing to some new evidence demonstrating so. Schlup , 513 U.S. at 327 (b urden is on petitioner to establish actual innocence). None of the ev idence he points to is new or exculpatory and none of it overc omes his knowing and voluntary guilty plea.
B. Statutory Tolling McAbee tells us his motion is timely filed under § 2255(f)(4). That statute starts- 10 - the one-year limitation period on “the date on which the facts supporting the claim or claims presented could have be en discovered through the exerci se of due diligence.” For this argument to succeed, he must show that he was unable to discover the basis for his ineffective assistance of counsel claims prior to July 27, 2014, one year prior to filing his § 2255 motion. United States v. Rauch , 520 F. App’x 656, 657 (10th Cir. 2013) (unpublished). McAbee’s ineffective assistance claims ar e based on counsel’s failure to alert him

to Schaefer and Flyer and for not discovering the FTC’s press release. But Schaefer and Flyer were decided in 2007 and 2011, respec tively. He does not explain in his COA application why he di d not discover these cases prior to July 27, 2 014. Moreover, “[§] 2255(f)(4) speaks to discovery of facts suppo rting a claim, not a failure to appreciate the legal significance of those facts.” United States v. Collins , 364 F. App’ x 496, 498 (10th Cir. 2010) (unpublished). McAbee knew on the date of his plea that the images and video were found in the “unallo cated space” of his computer. See supra n.5. While Schaefer and Flyer may have helped him understand the legal significance of those historical facts, that is insufficient under § 2254(f)(4). Collins , 364 F. App’x at 498; see also United States v. Azubuike , 267 F. App’x 731, 732 (10th Cir. 2008) (“[T]he availability of a [§] 2255(f)(4) limitations pe riod is expressly limited to cases where ‘facts’—not law—are newly discovered. Mr. Az ubuike has always known all of the facts that support his claim fo r ineffective assistance . . . . What Mr. Azubuike (allegedly) did not discover until Ju ly 2007 was the legal basis on which such actions by his counsel could be deemed to comprise ineffective assistance. But, under [§] 2255’s plain terms- 11 - and our controlling precedents, ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing of [§] 2255 motions.”) (quotation marks omitted). As to the press release, McAb ee claims that he asked hi s stepfather to send him his FrostWire user agreement in early May 2015. Instead, his stepfather sent him the press release. He received it on Ma y 26, 2015. He claims he could not have discovered it earlier because he was incarcerated. But the press release is dated a month before his arrest and incarceration. And he admits hi s stepfather was able to discover it in a 30- minute basic Internet search. Moreover, he provides no explanation for why it took him until May 2015 to request his user agreement, wh ich led to the discovery of the press release. This is not due diligence under § 2255(f)(4). So there is no misunderstanding: none of McAbee’s arguments offer grounds upon which reasonable jurists might disagree as to the propriety of the result reached by the district judge. Since he pled guilty, the case s upon which he relies offer him no comfort.
We DENY a COA and DISMISS this putative appeal.

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge