UNITED STATES COURT OF APPEALS TENTH CIRCUIT

ROBERT J. FREEMAN, Petitioner - Appellant,

v.
ARISTEDES ZAVARAS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 11-1582 (D.C. No. 1:11- CV-01955-LTB) (D. Colo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before LUCERO, O’BRIEN, and MATHESON , Circuit Judges.

Robert J. Freeman, a Colorado st ate prisoner proceeding pro se, 1 seeks a certificate of appealability (“COA”) to challenge the dist rict court’s dismissa l of his 28 U.S.C. § 2254 petition. We deny his request for a COA an d dismiss this matter.

* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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.

1 Because Mr. Freeman is pro ceeding pro se, we construe his pleadings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also United States v. Pinson , 584 FILED United States Court of Appeals Tenth Circuit 

### March 9, 2012
Elisabeth A. Shumaker Clerk of Court-2- I. BACKGROUND A. Factual Background In 1996, Mr. Freeman was arrested after he attempted to murder his stepdaughter and her boyfriend by det onating a pipe bomb under their car and shooting his stepdaughter as she ran away from the ca r. Shortly after his arrest, Mr. Freeman “admitted shooting [his stepdaughter,] . . . building the bomb[,] and placing it under the
car.” ROA at 40. In January 1997, Eddie Johnson, an in mate housed with Mr. Freeman at a Colorado jail, contacted law enforcement offi cials about statements that Mr. Freeman had made to him. Mr. Johnson told the official s that Mr. Freeman had expressed regret that he had not bought a larger caliber pistol that would have killed his stepdaughter. Mr. Johnson also stated that Mr. Freeman had tr ied to draw him into a plan to kill Mr. Freeman’s stepdaughter and her boyfriend so they could not testify agai nst him at trial.
B. Procedural Background On January 3, 1997, Mr. Freeman was ch arged with multiple crimes, including attempted first-degree murder and conspiracy to commit first-degree murder. Initially, an attorney was appointed to represent Mr. Freeman . But on June 13, 1 997, the state district court determined that Mr. Freeman was not indigent and terminated representation by appointed counsel. Mr. Freeman then retained a private atto rney to represent him.

F.3d 972, 975 (10th Ci r. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction st ops, however, at the point at which we begin to serve as his advocate.”).-3- In September 1998, Mr. Freeman entered a plea of not guilty by reason of insanity. In 1999, Mr. Freeman’s jury tr ial began. During the State’s case in chief, Mr. Johnson— the jailhouse informant—testifie d about the statemen ts that Mr. Freeman had made to him. During Mr. Johnson’s testimony, he stat ed that he did not expect to receive a benefit for providing informa tion regarding Mr. Freeman. At the conclusion of the tria l, the jury rejected Mr. Fr eeman’s insanity defense and found him guilty of one count of attempted first-degree murder, two counts of attempted second-degree murder, and one co unt of conspiracy to commit first-degree murder. The state district court sentenced Mr. Freem an to 144 years of imprisonment. Mr. Freeman filed a direct appeal, which th e Colorado Court of Appeals rejected. Mr. Freeman then filed a petition for writ of certiorari in the Colo rado Supreme Court, which was denied on June 3, 2002. On August 22, 2002, Mr. Fr eeman filed pro se a petitio n for state post-conviction relief pursuant to Rule 35(c) of the Colorado Rules of Crimin al Procedure. On December 23, 2002, a state district court rejected th e motion. Mr. Freeman did not appeal. On September 18, 2002, Mr. Freeman filed pro se a petition seeking reconsideration of his sentence pursuant to Ru le 35(b) of the Colora do Rules of Criminal Procedure. On December 24, 20 02, a state district court deni ed the motion. Mr. Freeman did not appeal. On June 9, 2003, Mr. Freeman filed a mo tion in state district court requesting a loan of his trial transcripts. On August 3, 2004, the state dist rict court denied the motion.-4- On September 15, 2004, Mr. Freeman filed a second motion in state district court requesting a loan of transcripts, which also was denied. On March 21, 2005, Mr. Freeman filed pr o se a second state petition for postconviction relief pursuant to Rule 35(c). On April 26, 2005, a state district court denied the petition because Mr. Freeman had not used a proper fo rm. On May 18, 2005, Mr. Freeman refiled his second Rule 35(c) petition using the proper form. On November 3, 2008, a state district court denied the motion. On February 24, 20 11, the Colorado Court of Appeals affirmed the district court’s ru ling. Mr. Freeman filed a petition for writ of certiorari in the Colorado Supreme Court se eking to challenge the state court postconviction proceedings. On June 20, 2011, the Colorado Supreme Court denied the petition. In October 2008—after Mr. Freeman file d his second Rule 35(c) petition in state court, but before the Colorado courts had ruled on the petition—M r. Freeman discovered a letter written by Mr. Johnson on January 13, 1997, (the “Johnson Lette r”) to the district attorney’s office that prosecuted Mr. Freeman. In the letter, Mr. Johnson stated that he felt that Frank Moschetti, one of the prosecu tors in Mr. Freeman’s case “needed some help. RE: Mr. Freeman.” Freeman v. Zavaras , No. 11-cv-01955-BNB, slip op. at 8 (D. Colo. Nov. 22, 2011). Mr. Jo hnson also stated that the last time he had seen Mr. Moschetti, Mr. Moschetti “said he would see my sentence halved. That was after Mr. Fred Nichols was convicted in the Lori Ann Lowe Murders.” Id. at 8-9. 2

2 Fred Nichols was not a defendant in th e instant case, and Mr. Freeman was not involved in th e murder of Lori Ann Lowe.-5- On July 28, 2011, M r. Freeman filed a petition for writ of habeas corpus in the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 2254. In his § 2254 petition, Mr. Freeman asserted seven claims for relief. In one claim, Mr. Freeman contended that the State had suppressed, in violation of Brady v. Maryland , 373 U.S. 87 (1963), evidence relating to an a lleged deal between Mr. Johnson and the State for testifying against Mr. Freeman. The St ate argued that Mr. Fr eeman’s § 2254 petition was time-barred. It also contended th at the Johnson Letter did not support a Brady claim because the deal refere nced in the Johnson Letter relate d to the prosec ution of Fred Nichols and not the prosecution of Mr. Freeman. The federal district court denied Mr. Freeman’s petition, c oncluding that his petition was time-barred under th e one-year statute of limitations for filing a § 2254 petition. Freeman , slip op. at 18. The federal dist rict court also concluded that Mr. Freeman did not demonstrate a basis to equita bly toll the one-year statute of limitations. See id. at 14-17. Mr. Freeman filed a timely notice of appeal and a request for a COA seeking to challenge the district court’s denial of hi s § 2254 petition. Mr. Freeman also filed a motion to proceed in forma pauperis

. II. DISCUSSION A COA is a jurisdictional prerequisite to th is court’s review of a § 2254 petition. 28 U.S.C. § 2253(c)(1)(A); accord Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). To receive a COA, a petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, a district court denies a-6- habeas petition on procedural grounds, a COA may issue only when the petitioner shows that “jurists of reason would find it debatable whether the pe tition 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 corre ct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (emphasis added). The federal district court concluded that Mr. Freeman’s conviction became final on September 3, 2002, the date on which his time for filing a petition for writ of certiorari to the United States Supreme Court expired. Freeman , slip op. at 6. Mr. Freeman does not dispute that conclusion. But he argues that the one-year period for filing his § 2254 petition should be statutorily tolled either because the State impeded him from filing a claim until 2004 or because he did not discover the factual predicate on which his claims are based until 2008. Additionally, Mr. Free man argues that, even if statutory tolling does not apply, the district court should ha ve equitably tolled the period in which he could file a timely § 225 4 petition. We address each of M r. Freeman’s arguments in turn. A. Statutory Tolling The Antiterrorism and Effective Death Pena lty Act (“AEDPA”) established a oneyear statute of limitation to bring habeas petitions un der 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). In relevant part , § 2244(d)(1) states that the one-year period for filing a petition shall run from the latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;-7- (B) the date on which [an] impediment to filing an application created by State action in violation of the Constitution or laws of the Un ited States is removed, if the applicant was prevented from filing by such State action; . . . or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Mr. Freeman contends that his § 22 54 petition was timely under either § 2244(d)(1)(B) or § 2244(d)(1 )(D). The federal district c ourt rejected both of these arguments. For the reasons ex plained below, we hold that Mr. Freeman has failed to demonstrate that reasonable jurists would deba te the correctness of the district court’s procedural conclusions. 1. Withholding of Documents Title 28 U.S.C. § 2244(d)(1 )(B) provides that the one-year period for filing a habeas petition begins to run on “the date on which [an] impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed , if the applicant was prevented from filing by such State action.” (Emphases added). Mr. Freeman contends that he was prev ented from filing a timely action because the attorneys who represented him during trial and on direct appeal refused to provide him with documents from thei r files, despite several requests for the documents beginning in June 2002. Ad ditionally, he argues that he was impeded from filing a timely action because the state district cour t denied his June 20 03 and September 2004 requests to borrow his trial transcripts. Mr. Freeman therefore argues that under-8- § 2244(d)(2)(B), the one-year period for fili ng his habeas petition di d not begin to run until sometime in 2004 when he received the doc uments relating to his trial and appeal. The federal district court rejected this argument, stating: “§ 2244(d)(1)(B) . . . applies [only] in the contex t of an impediment caused by unconstitutional state action.”
Freeman , slip op. at 7. The district court concluded that Mr. Freeman had failed to demonstrate the existence of any unconstitutional state action because his attorneys were not state actors and because the denial of hi s motions for a loan of transcripts did not violate his constitutional rights. Additionally, the district court determined that, even if it were unconstitutional to deny Mr. Freeman access to hi s court records and transcripts, Mr. Freeman had failed to establish that lack of access actually preven ted him from filing a timely § 2254 petition or a timely petition for state post-conviction relie f. The latter would have tolled the time period for filing a § 2254 petition. See 28 U.S.C. § 2244(d)(2) (“ The time during which a properly filed application for State post-convic tion or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”). In support of this conclusion, the district court noted that some of the claims a sserted in Mr. Freeman’s § 22 54 petition were exhausted on direct appeal. Additionally, the district c ourt noted that in Mr. Freeman’s requests for transcripts, which he filed before receiv ing any documents from his attorneys, he “outlined the claims his sought to raise in [his] . . . postconviction proceedings.”
Freeman , slip op. at 7-8. Finally, the district court noted that “[u]nder Colorado law, ‘[a] defendant need not set forth th e evidentiary support for his allegations in his initial Crim.-9- P. 35 motion; instead, a defendant need only a ssert facts that if true would provide a basis for relief under Crim. P. 35.’” Id. at 8 (quoting White v. Denver Dist. Crt. , 766 P.2d 632, 635 (Colo. 1988)). In his application for COA, Mr. Freeman c ontends that the district court erred in concluding that his attorneys were not state actors. But Mr. Freeman has not demonstrated that his attorneys’ conduct or the denials of his motions for transcripts by the state district court constituted uncons titutional state action. Additionally, Mr. Freeman has not demonstrated how this a lleged unconstitutional state action impeded him from filing a timely habeas petition or a petition for state post-conviction relief. Mr. Freeman has therefore failed to establish that § 2244(d)(1)(B) should apply to his claims. See, e.g. , Clark v. Oklahoma , 468 F.3d 711, 714 (10th Ci r. 2006) (rejecting a habeas petitioner’s § 2244(d)(1)(B) argument because the petitioner “failed to explain why the documents held by the State we re necessary to pursue his federal claim and . . . did not show diligent pursuit of his claims even after re ceiving the material”); see also Miller v.
Marr , 141 F.3d 976, 978 (10th Cir. 1998) (pla cing the burden on the petitioner to “provide[] . . . specificity regarding the allege d lack of access [to legal materials] and the steps he took to diligently pursue his federal claims”). Accordingly, we hold that Mr. Freeman has failed to demonstrate that reasonable jurists would debate the correctness of the dist rict court’s conclusion that § 2244(d)(1)(B) does not apply in this case. 2. Discovery of the Johnson Letter-10- Mr. Freeman next argues that, pursuant to 28 U.S.C. § 2244(d )(1)(D), he had one year from the day he discovered the Johnson Letter to file a habeas petition in federal court. As noted above, § 2244(d)(1)(D) pr ovides that the one-year period for filing a § 2254 petition begins to run on “the date on which the f actual predicate of the claim or claims presented could have been discovere d through the exercise of due diligence.” The federal district court concluded that Mr. Freeman was not entitled to statutory tolling under § 2241(d)(1)(D). Th e district court first noted that the Johnson Letter was dated January 13, 1997. The court then expl ained that Mr. Freeman had not “explain[ed] the circumstances of his allege d discovery of the [Johnson] [L]etter in October 2008.”
Freeman , slip op. at 10. The cour t stated that it was therefor e “unable to conclude that Mr. Freeman could not have discovered th e [Johnson] [L]etter earlier through the exercise of due diligence.” Id. In his application for a COA, Mr. Freeman argues that when he filed his § 2254 petition, he did not understand that he needed to explain the circumstances of discovering the Johnson Letter to qualify for statutory tolli ng pursuant to § 2244(d)(1)(D). But even after the district court explained its ba sis for denying Mr. Freeman’s § 2244(d)(1)(D) argument, Mr. Freeman has not attempted to clarify how he discovered the Johnson Letter or attempted to explain why he could not ha ve discovered the Johnson Letter at an earlier date. Thus, it is unclear whether the Johnson Letter could have been discovered at an earlier date through the exer cise of due diligence. We ther efore hold that Mr. Freeman has failed to demonstrate that reasonable ju rists would debate the correctness of the district court’s conclusion that § 2244(d )(1)(D) does not apply in this case.-11- B. Equitable Tolling Finally, Mr. Freeman contends that th e time period for fili ng his § 2254 petition should be equitably tolled. AEDPA’s one-year statute of limitations is subject to equitable tolling. See Holland v. Florida , 130 S. Ct. 2549, 2560 (2010) (“[L ]ike all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). However, equitable tolling is only available in those “rare and exceptional circumstances,” Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (quotations omitted), in which application of the limitations peri od might render the habeas remedy “inadequate and ineffective,” Miller , F.3d at 978. For example, we have explained that equitable tolling is appropriate “when a prisoner is actu ally innocent, when an adversary’s conduct—or other uncontro llable circumstances—prevents a prisoner from timely filing, or when a prisoner activel y pursues judicial remedies but files a defective pleading during the statutory period.” Gibson , 232 F.3d at 808 (citations omitted). When a habeas petitioner seeks equitable to lling on actual innocence grounds, he must “show that a constitutional violation ha s probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo , 513 U.S. 298, 327 (1995) (quotations omitted). “To establish the requisite probability , the petitioner must show that it is more likely than not that no reasonabl e juror would have convicted him in the light of . . . new evidence [of actual innocence] . . . that was ei ther excluded or unavailable at trial.” Id. at 327-28.-12- Mr. Freeman contends that the one-year time period for filing his § 2254 petition should be equitably tolled be cause the Johnson Letter “evide nces an [a]ctu al [i]nnocence claim.” Aplt. Br. at 2. The district court rejected this argument, stating: The [c]ourt is not persuaded that the . . . Johnson [L]etter is new, reliable, evidence that de monstrates that Mr. Freeman is actually innocent because “act ual innocence means factual innocence, not mere le gal insufficiency.” Bousley v. United States , 523 U.S. 614, 623 (1998 ) (quotations omitted). Mr Freeman does not contend that he is factually innocent of the crimes for which he was convicted

. . . Instead, Mr. Freeman contends that the . . . Johnson [L]etter would bolster his insanity defense and would have led to his acquittal on some of the charges . . . . However, any evidence that [Mr.] Johnson actually received a benefit for his testimony would be merely impeaching evidence that doe s not demonstrate that Mr. Freeman is factually innocent. Furthermore, an insanity defense, even if justified, does not demonstrate factual innocence. See DeLalio v. Wyoming , 363 Fed. Appx. 626, 628 (10th Cir. 2010) (finding that a valid legal defense based on cognitive impairment does not suffice for factual innocence).
Freeman , slip op. at 14-15 (emphasis added). Additionally, the district court stated th at “even if the . . . Johnson [L]etter was relevant to the question of factual innocence, the [c]ourt finds that the letter does not demonstrate that it is more lik ely than not that no reasonable juror would have convicted Mr. Freeman in light of the new evidence.” Id. at 15 (quotations omitted). In his application for a COA, Mr. Freem an repeats the same equitable tolling arguments that he asserted in the district c ourt. Although he characterizes his arguments concerning the Johnson Letter as an “actual innocence claim, ” he does not argue that he is factually innocent of the crim es for which he was convicted. See Bousley , 523 U.S. at-13- 623 (“[A]ctual innocence mean s factual innocence, not mere legal insufficiency.”); United States v. Gabaldon , 522 F.3d 1121, 1124 n.2 ( 10th Cir. 2008) (noting that “[a]ctual (factual) innocence is a ground for a pplying equitable tolling,” but that “legal innocence” is not); see also Beavers v. Saffle , 216 F.3d 918, 923 ( 10th Cir. 2000) (noting that legal defenses relate to legal, not fa ctual innocence). Thus, Mr. Freeman has not demonstrated entitlement to equitable tolling based on actual innocence. After reviewing Mr. Freeman’s § 2254 pe tition, Mr. Freeman’s appellate filings, and the entire record before us, we conclude that this case does not present one of the “rare and exceptional circumstances” in wh ich the untimely filing of a § 2254 petition should be equitably excused. We therefore hold that reasonable jurists would not debate the district court’s conclusion that Mr. Freeman has failed to demonstrate he is entitled to equitable tolling.
III. CONCLUSION Mr. Freeman has failed to demonstrate th at reasonable jurists would debate the correctness of the district court’s conclusion that his § 2254 petition is time-barred. We therefore deny Mr. Freeman’s application for a COA and dismiss this matter. We also deny Mr. Freeman’s motion to proceed in forma pauperis

. ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge