UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOHN ANTHONY WILSON, Petitioner - Appellant,

v. JANET DOWLING, Warden, Respondent - Appellee. No. 17-6040 (D.C. No. 5:16- CV-00343-D) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Appellant John Wilson, an Okla homa state prisoner appearing pro se , seeks a certificate of appealability (COA) allowi ng him to appeal the district court’s dismissal of his application fo r a writ of habeas corpus under 28 U.S.C. § 2254. We deny Appellant’s request for a COA and dismiss this matter. In 2010, Appellant pleaded guilty to mu ltiple drug and theft charges. He initially appealed to the Oklahoma Court of Criminal Appeals (OCCA) but later moved to dismiss the appeal . The OCCA granted his request to dismiss on May 13, 2011. Three years later on July 14, 2014, Appellant fi led an application for postconviction relief with the Okla homa state district court, asking the court to allow him

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel.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. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 25, 2017
Elisabeth A. Shumaker Clerk of Court2 to file his direct appeal out of time on multiple different ba ses. The Oklahoma district court denied his request, and the OCCA affirm ed on December 11, 2015. Thereafter, on April 11, 2016, Appellant filed his § 2254 ha beas petition in the U.S. District Court for the Western District of Oklahoma. The district court denied Appellant’s petition as untimel y under 28 U.S.C. § 2244(d). Appe llant now seeks a
COA. To start, 28 U.S.C. § 2244(d)(1) states that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 1 At the very latest , this limitation period started on August 12, 2011, which in cludes the 90-day window during which Appellant could have filed a petition for certiorari. See Locke v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, absent tolling or a cr edible assertion of actual innocence, Appellant had until Au gust 13, 2012, to file his application in the district

1 Section 2244(d)(1) states that the li mitation period “shall run from the latest of” the following: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seek ing such review; (B) the date on which the impediment to filing an application created by State action in violation of the cons titution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constituti onal right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and ma de retroactively applicable to cases on collateral review; or (D) the date on which the factual pr edicate of the claim or claims presented could have been discove red through the exercise of due diligence.3 court. But Appellant did not file his pos t-conviction relief until July 14, 2014, which was over two years after the day the one -year limitation period had expired. Appellant’s application is therefore unt imely under § 2244(d) unless some other statute or legal principle can circ umvent the limitation period. One potential avenue is 28 U.S.C. § 2244(d)(2), whic h provides for statutory tolling of a habeas petition. Section 2244(d )(2) states that “[t] he time during which a properly filed application for State post-c onviction or other collateral review with respect to the pertinent judgm ent or claim is pending shall not be counted toward any period of limitation.” Furthe r, “[o]nly state petitions fo r post-conviction relief filed within the 1-year allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma , 468 F.3d 711, 714 (10t h Cir. 2006). We see no evidence of any pending applications for state post-c onviction relief between 2011 and 2012 that would have tolled the one-year statute of limitations. In fact, Appellant did not seek postconviction relief until July 14, 2014. Th us, § 2244(d)(2) cannot toll the limitation period. Neither does the concept of equita ble tolling assist the Appellant. See Holland v. Florida , 560 U.S. 631, 645, 649 (2 010) (holding that § 2244(d) “is subject to equitable tolling”). Equitable tolling require s Appellant to show “(1) that he has been pursuing his rights dilig ently, and (2) that some extraordinary circumstance stood in his way and prev ented timely filing.” Id. at 649 (quoting Pace v. Diglielmo , 544 U.S. 408, 418 (2005)). But Appellant did not present any evidence that shows us he diligently pursued his rights, and we s ee no extraordinary circumstance that kept4 him from filing a timely motion. We ar e therefore at a loss in finding any circumstances that shoul d equitably toll the one-y ear limitation period. Finally, a claim of actual innocence does not help Appellant overcome the statute of limitations set out in § 2244(d). “A credible showing of actual innocence provides an outright equitable exception to AEDPA’s statute of limitations.” Doe v.
Jones , 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins , 133 S. Ct. 1924, 1931–33 (2013)). Appellant must provide “new reliable evidence— whether it be exculpatory scientific evid ence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo , 513 U.S. 298, 324 (1995). But Appellant’s only al legations arise from deficient performance of trial and appellate counsel; he does not present any new evidence that suggests he was actually innocent. Therefore, A ppellant does not have a claim for actual innocence. Because no form of tolling applies a nd because Appellant has not made a credible claim that he is actually innocent, his petiti on is time-barred by AEDPA’s one-year statute of limitation. See 28 U.S.C § 2244(d)(1). Fu rther, this conclusion is not debatable. See Slack v. McDaniel , 529 U.S. 473, 484 (2000) (“[A] COA should issue when the prisoner shows, at least, th at jurists of reason would find it debatable whether the petition states a valid claim of th e denial of a constitutional right and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.”). We therefore DENY Appellant’s request for a COA and5 DISMISS this matter. Appellant ’s motion for leave to proceed in forma pauperis is denied.

Entered for the Court
Bobby R. Baldock Circuit Judge