UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSEPH MEDINA, Petitioner - Appellant,

v. LOU ARCHULETA; THE ATTORNEY GENERAL OF COLORADO, Respondents - Appellees. No. 16-1063 (D.C. No. 1:15- CV-01334-LTB) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ The district court dism issed Joseph Medina’s 28 U.S.C. § 2254 petition as untimely. Medina now seek s a certificate of appealab ility (“COA”). We deny a COA and dismiss the appeal.
I In 1996, Medina was convicted of first degree murder in Colo rado state court. The state appellate court affirmed his c onviction on direct appeal, and the state supreme court denied a writ of certiorari on July 19, 1999. Although he did not petition for a writ of certiorari in the Unite d States Supreme Court, the time for filing

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 3, 2016
Elisabeth A. Shumaker Clerk of Court2 such a petition expired on October 17, 1999, see Supreme Ct. R. 13, from which date the one-year statute of limitations for a federal habeas pe tition began to run, § 2244(d)(1)(a); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Although filing a petition for post-conviction relief in state court would have tolled the federal limitations period, § 2244(d)(2), Medina di d not file for state post-conviction relief until June 2, 2003. 1 The state district court de nied Medina’s post-conviction application, and the state appellate cour t affirmed on August 16, 2012. In a September 29, 2012 letter, Me dina’s counsel advised him that a petition for writ of certiorari in the state suprem e court would be futile. Th e letter also advised that Medina was “already beyond the time bar to file the federal writ” and that he should “file it as quickly as possible.” Medina filed his § 2254 petition nearly three years later, on June 22, 2015. The district cour t held that the petition was not timely, and denied equitable tolling. This request for a COA followed. 2

II “When the district court denies a ha beas petition on pr ocedural grounds without reaching the prisoner’s underlying constitutional cl aim, a COA should issue

1 The district court noted that the state trial docket demonstrat ed that Medina’s petition was filed on June 2, 2003, and not Ju ly 2, 2003. On appeal, Medina again asserts that he filed the pe tition on July 2, 2003. Whet her the petition was filed on June 2 or July 2, 2003 does not change th at his petition was filed long after the oneyear limitations period expired in October 2000.

2 Although Medina filed hi s notice of appeal more than 30 days after the district court entered judgme nt, the district court gran ted his motion to reopen the time to appeal under Fed. R. App. P. 4(a)(6 ). We thus consider the appeal timely filed.3 when the prisoner shows, at least, that jurists of r eason would find it debatable” whether: (1) “the petition states a valid cl aim of the denial of a constitutional right”; and (2) “the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). On appeal, Medina does not contest that his petition was untimely, and instead asks the court to apply equitable tolling. 3 The one-year limitation period in § 2244(d) is not jurisdictional and may be tolled for equitable reasons, although “only in rare and exceptional circumstances.” Gibson v. Klinger, 232 F. 3d 799, 808 (10th Cir. 2000) (quotation omitted). Among the circ umstances warranting equitable tolling is a petitioner’s tenable claim of actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). In the context of an innocence claim, a petitioner must “support his allegations of constitu tional error with new reliabl e evidence—whether it be exculpatory scientific eviden ce, trustworthy eyewitness acc ounts, or critical physical evidence—that was not presented at tria l.” Schlup v. Delo, 513 U.S. 298, 324 (1995); see McQuiggin, 133 S. Ct. at 1936 (applying Schlup te st to § 2244(d) limitations period). A petitioner must also pe rsuade the court that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Mc Quiggin, 133 S. Ct. at 1928.

3 Medina suggests that we should equita bly toll the limitations period while a prisoner is “attempting” to pursue state post-conviction remedies. But § 2244(d)(2) requires that the state application must be “properly filed” and “pending” to toll the limitations period. Time spen t anticipating or preparing a state court filing does not toll the statute of limitati ons. See Hoggro v. Boone, 1 50 F.3d 1223, 1226 n.4 (10th Cir. 1998) (we “subtract time only for th e period when the pe titioner’s ‘properly filed’ post-conviction appli cation is being pursued”).4 Medina asks us to toll the limita tions period due to actual innocence. However, he does not identify any new evid ence to support his claim. Instead, Medina rehashes evidence that was available at trial. Sp ecifically, he argues that the murder weapon was not found in his posse ssion and is not traceable to him, no fingerprints or DNA were found on the wea pon or bullet casings, the clothes he was wearing the night of the murder did not match eyewitness accounts from certain witnesses, and gun powder resi due tests revealed no gun powder on Medina. He also argues that the prosecution did not s ubmit any evidence—aside from witness testimony—linking him to the murder. Each of these ar guments relies on evidence— or the absence of evidence—wh ich was available at trial. This assessment finds support in Medina’s argumen t that if trial counsel ha d “expounded more” upon these issues, he would have been acquitted. Medi na’s statement compel s an inference that trial counsel did, in fact, pr esent this evidence at trial. 4 Because Medina does not identify any new evidence to support his clai m of actual innocence, reasonable jurists cannot debate that the district court corre ctly denied equitable tolling on this ground. Medina also argues that inadequate as sistance of trial a nd appellate counsel constituted extraordinary circumstances wa rranting equitable tolling. See Doe v. Menefee, 391 F.3d 147, 174 (2d Cir. 2004). For extraordinary ci rcumstances to toll

4 Medina does assert that trial counsel “did not expound” on the lack of DNA or fingerprint evidence. But even if this evidence was not presented at trial, the lack of identifying information on the murder w eapon does not demonstr ate that no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. McQuiggin, 133 S. Ct. at 1928.5 the limitations period, a petitioner must esta blish that he diligentl y attempted to file his petition on time. Miller v. Marr, 141 F.3d 9 76, 978 (10th Cir. 1998). Medina does not offer any argument th at he diligently pursued hi s claims between October 2000 and June 2003, or be tween August 16, 2012—when the state appellate court affirmed the denial of postconviction reli ef—and June 22, 2015 when he filed his § 2254 petition. The latter delay is particul arly troublesome, give n that his attorney advised him in a September 29, 2012 letter that he was “already beyond the time bar to file the federal writ” and that he should “file it as qu ickly as possible.” Because Medina has not alleged with specificity a ny steps he took to diligently pursue his federal claims, reasonable jurists cannot c ontest the district court’s judgment that extraordinary circumstances would not warra nt tolling the limitations period. Yang v. Archuleta, 525 F.3d 925, 930 (10th Cir. 2008).
III We DENY a COA and DISMISS the appeal. Medina’s motion to proceed in forma pauperis on appeal is GRANTED

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Entered for the Court

Carlos F. Lucero Circuit Judge