UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MICHAEL STOVALL, Petitioner - Appellant,

v. JOHN CHAPTELAIN, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 16-1286 (D.C. No. 1:16- CV-00618-LTB) (D. Colorado)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE, GORSUCH , and McHUGH , Circuit Judges.

________________ _________________ Michael Stovall, a Colorado stat e prisoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a habeas petition). Mr. Stovall al so requests leave to

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel.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

1 Because Mr. Stovall is proceeding pro se , we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.” United States v. Pinson , 584 F.3d 972, 97 5 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### September 16, 2016 Elisabeth A. Shumaker Clerk of Court2 proceed in forma pauperis . Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss the appeal. BACKGROUND I. Mr. Stovall pled guilty in Colorado st ate court to first-degree murder and several other felonies after shooting and killing a police o fficer. He was sentenced on November 2, 2001, and did not appeal; howev er, the state appealed because the trial court did not order restitution. The Colo rado Court of Appeals reversed on this ground and remanded for the trial court to consider restitution. On May 6, 2004, the trial court ordered Mr. Stovall to pay restituti on to the victim’s fa mily. Again, he did not appeal. On July 30, 2012, Mr. Stovall filed a postconviction motion in state court. See Colo. R. Crim. P. 35(c). The trial court de nied the motion as vague. Mr. Stovall filed a notice of appeal after th e deadline. The Colorado Court of Appeals dismissed his notice as untimely and with prejudice because he failed to show cause for filing late. Mr. Stovall did not file a petition for writ of certiorari with the Colorado Supreme Court. On October 9, 2013, Mr. Stovall filed another postconviction motion in state court, which the court denied as successive. After filing a nother late notice of appeal, the Colorado Court of Appeals again dism issed the appeal w ith prejudice because Mr. Stovall did not establish good cause. This time he filed a petition for writ of certiorari with the Co lorado Supreme Court, which was denied on November 23, 2015.3 On March 26, 2016, Mr. Stovall filed a habeas petition under 28 U.S.C. § 2254, alleging eight claims for relief: (1) ineffective assistance of plea counsel, (2) involuntary guilty plea, (3) illegal arrest, (4) illegally obtained evidence, (5) failure to preserve exculpatory evidence, (6) lack of subject matter jurisdiction, (7) evidence obtained from an illegal arrest, and (8) illeg ally assessed restitution. The district court dismisse d the petition as untimely, as Mr. Stovall did not file within the one-year li mitation period required by 28 U.S. C. § 2244(d). Further, the court found that Mr. Stovall did not meet the requirements for equitable tolling, under either the extraordin ary circumstances doctrin e or actual innocence. The district court declined to issue a C OA, determining that “jurists of reason would not debate the correctne ss of this procedural ru ling and Mr. Stovall has not made a substantial s howing of the denial of a cons titutional right.” The court also denied Mr. Stovall in forma pauperis status for the purpose of appeal. 28 U.S.C. § 1915(a)(3). DISCUSSION II. A COA is a jurisdictional prerequisite to appellate review of the district court’s decision to di smiss a § 2254 petition. See Miller-El v. Cockrell , 537 U.S. 322, 335–36 (2003); Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006). When a district court denies a pe tition on procedural grounds w ithout reaching the underlying claims, we will only issue a COA if the pr isoner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the4 district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). In this case, we conclude th at reasonable jurists would not debate the correctness of the district court’s procedur al dismissal of Mr. Stovall’s claims as untimely. We therefore need not decide whether reasonable jurists would disagree with Mr. Stovall’s underlying claims. Id. The district court correctly found that Mr. Stovall’s claims fell outside the oneyear limitation period. 28 U.S.C. § 2244(d )(1). The one-year limitation period runs from the latest of four possible accrual dates. See id. The accrual date relevant to Mr. Stovall’s petition is “the da te on which the judgment b ecame final by the conclusion of direct review or the expiration of the time for seek ing such review.” Id. § 2244(d)(1)(A). A conviction becomes final when the time for seeking review in the state court expires and the defendant has not appeal ed. 28 U.S.C. § 2244(d)(1)(A). Mr. Stovall had forty-five days under Colorado law to appeal the judgment. Colo. App. R. 4 (2004). In an “abundance of caution,” th e district court used the date of resentencing—not the date of the original sentencing— to determine the date on which the one-year clock began to run. Mr. Stovall was resent enced on May 6, 2004 and did not appeal. The judgment became fi nal on June 21, 2004, the first business day after the forty-five day deadline. Mr. Stovall had one year (until June 21, 2005) to file any postconviction mo tions, which he did not do. In fact, Mr. Stovall did not submit his first postconviction motion until Ju ly 30, 2012, several years after the oneyear habeas deadline.5 On appeal, Mr. Stovall does not disput e the district court’s calculations. Rather, he argues that this court s hould abolish the one-y ear limitation as unconstitutional because “there is no time limit to exert ones rights ,” and because it is “fundamentally unfair” to not receive a ruling on the merits. The Supreme Court has “expressed a clear deference to the rules that Congress has fashioned concerning habeas.” Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998); Lonchar v. Thomas , 517 U.S. 314, 32 2–23 (1996) (“Congress, the Rule writers, and the courts have developed more complex pr ocedural principles that regularize and thereby narrow the discre tion that individual judges can freely exercise. Those principles seek to mainta in the courts’ freedom to issue the writ, aptly described as the ‘highest safeguard of liberty,’ while at the same time avoiding serious, improper delay, expens e, complexity, and interferen ce with a State’s interest in the ‘finality’ of it s own legal processes.” (citations omitted)). Further, the one-year limitation is not a complete jurisdicti onal bar to review. Petitioners may still have their claims hear d if they qualify fo r equitable tolling. Miller , 141 F.3d at 978. Equitable tolling is a ppropriate if the petitioner (1) proves actual innocence, (2) is prevented from ti mely filing because of an adversary’s conduct or other exceptional circumstances, or (3) actively pursues his claims but files a defective pleading dur ing the statutory period. Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000). In addition to showing one of the above, the petitioner must also show that he “diligently pur sue[d]” his claims. Id. Because “equitable tolling should not be used to thwart the inte ntion of Congress in establishing a statute6 of limitations for habeas claims, . . . we have limited equitable tolling of the one-year limitations period to ‘rare and exceptional’ circumstances.” Burger v. Scott , 317 F.3d 1133, 1141 (10th Cir. 2003) (citation omitted). The district court found that Mr. Stova ll did not qualify for equitable tolling under either actual innocen ce or extraordinary circumst ances. First, although Mr. Stovall argued he should be granted equ itable tolling to prevent a fundamental miscarriage of justice, this only occurs when “a constitu tional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier , 477 U.S. 478, 496 (1986). The district court found that Mr. Stovall “provide[d] no specific allegations of new reliable eviden ce to support a credible claim of actual innocence.” On appeal, Mr. Stovall does not a ppear to challenge th e district court’s ruling against him on actual innocence. Second, although Mr. Stovall argued in th e district court that he was prevented from timely filing because he was in lockdown for ten years and had no access to computer research or legal advice, he did not show how he “diligently pursued his claims between his resentenci ng date of May 6, 2004 and the time he filed his first postconviction motion on July 30, 2012.” On a ppeal, he again asse rts that the filing deadline should be tolled because he wa s on lockdown for ten years “without access to any legal assistance.” We have held that “insuffi cient access to relevant la w . . . is not enough to support equitable tolling.” Gibson , 232 F.3d at 808. Indeed, solitary confinement, on its own, is not enough to justify equitable tolling. Although “confinement in7 administrative segregation may qualify as an extraordin ary circumstance beyond [a prisoner’s] control, . . . equitable tolli ng is justified only where the prisoner has shown that despite his segregated confin ement he diligently pursued his habeas claims and his confinement p revented him from filing on time.” Green v. Kansas , 190 F. App’x 682, 684–85 (10th Cir. 2006); see also United States v. Buckaloo , 257 F. App’x 88, 90 (10th Cir. 2007). Mr. Stovall did not below or on appeal “a llege with specific ity ‘the steps he took to diligently pursue hi s federal claims’” while in solitary confinement. Yang v. Archuleta , 525 F.3d 925, 930 (1 0th Cir. 2008) (citation omitted). Therefore, the district court correctly found that Mr. Stova ll did not show that he was entitled to equitable tolling based on exceptional circumstances. Because Mr. Stovall did not file his feder al habeas petition within the one-year statutory limitation period articulated in § 2244(d) and does not qualify for equitable tolling, the district court pr operly denied his petition. CONCLUSION III. Reasonable jurists could not debate whet her the district c ourt was correct to dismiss Mr. Stovall’s habeas petition as untimely. Accordi ngly, we DENY Mr. Stovall’s request for a COA and DISMISS this appeal. And because we agree with8 the district court that this appeal was not taken in g ood faith, we DENY Mr. Stovall’s request to proceed in forma pauperis on appeal. ENTERED FOR THE COURT
Carolyn B. McHugh Circuit Judge