F I LED

United States Court of Appeals

Tenth Circuit

August 30, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY JOE PRICE,

Petitioner - Appellant, No. 07-4094

v. (D. Utah)

CLINT FRIEL, Warden, Utah State

Prison,

Respondent - Appellee.

(D.C. No. 2:05-CV-800-DB)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Billy Price, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the denial by the United States District Court for

the District of Utah of his application for relief under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 application). 

The district court ruled that the application was untimely. We deny a COA and

dismiss the appeal.

Mr. Price was sentenced on April 5, 1993, in Utah state court to an

indeterminate term of five years to life imprisonment for first-degree murder. His

petition for a writ of certiorari from the Utah Supreme Court was denied on

April 9, 1996; and on May 12, 1997, the trial court entered an amended judgment
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of conviction nunc pro tunc, correcting Mr. Price’s sentence with respect to a

firearms enhancement. It appears from the record that Mr. Price did not seek

certiorari review from the United States Supreme Court.

On September 26, 2005, Mr. Price filed his § 2254 application. The district

court denied his application because it had not been filed within the one-year

limitations period established by the Antiterrorism and Effective Death Penalty

Act of 1996, 28 U.S.C. § 2244(d)(1). The court computed that the limitations

period began to run on July 3, 1996, when Mr. Price’s time for seeking review in

the United States Supreme Court expired, see Rhine v. Boone, 182 F.3d 1153,

1155 (10th Cir. 1999); Sup. Ct. R. 13(1) (petition for writ of certiorari must be

filed within 90 days of entry of judgment). It further found that even assuming

that the limitations period had not begun to run until the trial court had entered its

nunc pro tunc order in 1997 (or 30 days afterwards, when the time for seeking

review by the Utah Supreme Court had expired), Mr. Price’s 2005 application had

still been filed over seven years after the limitations period had expired. Also,

the district court denied equitable tolling. It rejected Mr. Price’s contention that

he had discovered new evidence showing that he was actually innocent, ruling

that the evidence was not new because it had been available and known to

Mr. Price before his trial. 

“When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should
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issue when the prisoner shows, at least, 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 the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Mr. Price does not, and could not, challenge the district court’s

determination that he failed to file his § 2254 application within the one-year

limitations period. He does argue, however, that he has provided sufficient

grounds for requiring equitable tolling. We disagree. Equitable tolling for

habeas corpus relief may be available in extraordinary circumstances, such as

when “a constitutional violation has resulted in the conviction of one who is

actually innocent.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Prisoners

asserting actual innocence must produce “new evidence” establishing that “it is

more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.” House v. Bell, 126 S. Ct. 2064, 2076–77 (2006). 

Mr. Price contends that a psychological report finding him mentally

incapable of forming the necessary intent for first-degree murder is new evidence

of his actual innocence. We do not agree that this evidence is new. Mr. Price

was told at the time of the psychological interview that a report of the evaluation

would be made and sent to the court for use by both the prosecution and the

defense. Although he may not have read its ultimate conclusion until well after

trial, he certainly knew of the report’s existence before trial. 
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Mr. Price also contends in this court that he did not discover until 2005 that

his sentence had been amended in 1997, and that he filed his § 2254 application

within one year of this discovery. But even if we assume that the one-year

limitations period should be calculated from the 1997 amendment, his application

was untimely by several years. And he fails to explain how not being aware of

the sentence amendment caused him to delay filing his application. 

Finally, Mr. Price argues that his application should not be barred by the

one-year limitations period because Warden Friel waived an untimeliness defense. 

But there was no such waiver. The passage in Warden Friel’s district-court brief

upon which Mr. Price relies merely says that Mr. Price’s claim of ineffective

assistance of appellate counsel is not procedurally barred by failure to raise the

claim on direct appeal in state court.

No reasonable jurist could debate the district court’s conclusion that

Mr. Price’s application was untimely. We DENY a COA, GRANT his request to

proceed in forma pauperis, and DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge