UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THOMAS JOSEPH CHRISMAN, 

 Petitioner - Appellant, 

v. 

LARRY BENZON, 

 Respondent - Appellee.

No. 19-4137 

(D.C. No. 2:17-CV-00985-TC) 

(D. Utah) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges.**

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Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the 

District of Utah asserting claims of ineffective assistance of counsel, prosecutorial 

misconduct, actual innocence based on newly discovered evidence, and double 

jeopardy. The district court dismissed Petitioner’s § 2254 habeas petition as untimely

and denied Petitioner a certificate of appealability. Exercising jurisdiction under 28 

 

* This order is not binding precedent, except under the doctrines of law of the case, res 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.

** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

March 26, 2020

Christopher M. Wolpert

Clerk of Court
2 

U.S.C. § 2253(a), we deny Petitioner a certificate of appealability and dismiss 

Petitioner’s appeal. 

If the district court denies a habeas petition on procedural grounds without 

reaching the petitioner’s underlying constitutional claim, a certificate of appealability 

will issue when the petitioner shows “jurists of reason would find it debatable whether 

the petition states a valid claim of the denial of a constitutional right” and “jurists of 

reason would find it debatable whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). The petitioner must satisfy 

both parts of this threshold inquiry before we can hear the merits of the appeal. Gibson 

v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).

Here, the district court dismissed Petitioner’s habeas petition as time-barred. 

After carefully reviewing Petitioner’s brief, the district court’s order of dismissal, and 

the record on appeal, we agree with the district court that Petitioner’s claims are 

untimely. Petitioner’s attempt to show actual innocence is without support in the 

record, and Petitioner raises no other grounds supporting equitable tolling. See Bullock 

v. Franklin, 201 F. App’x 644, 645 (10th Cir. 2006) (unpublished) (denying a 

certificate of appealability when claims of actual innocence are not supported by the 

record). For substantially the same reasons set forth in the district court’s order, we 

hold that no reasonable jurist would find it “debatable whether the district court was 

correct in its procedural ruling.” Slack, 529 U.S. at 478.
3 

Accordingly, we GRANT Petitioner’s motion to proceed in forma pauperis, 

DENY Petitioner a certificate of appealability, and DISMISS this appeal. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge