UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MICHAEL D. GAINES, 

 Petitioner - Appellant, 

v. 

JANET DOWLING, 

 Respondent - Appellee. 

No. 18-6136 

(D.C. No. 5:18-CV-00001-W) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING A CERTIFICATE OF APPEALABILITY

_________________________________ 

Before HARTZ, McHUGH, and CARSON, Circuit Judges. 

_________________________________ 

Michael D. Gaines, a state prisoner proceeding pro se, seeks a certificate of 

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

Western District of Oklahoma of his application for relief under 28 U.S.C. § 2254. See

28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a prisoner in state custody to appeal 

from the denial of a writ of habeas corpus). We deny a COA and dismiss the appeal. 

I. BACKGROUND 

On January 14, 2004, Mr. Gaines pleaded guilty to first-degree murder in the 

District Court for Comanche County, Oklahoma, and was sentenced to life imprisonment 

without parole. Because Mr. Gaines did not appeal or move to withdraw his plea within 

the 10 days allotted under Oklahoma law, see Clark v. Oklahoma, 468 F.3d 711, 713 

(10th Cir. 2006), his conviction became final 10 days later on January 24. Nearly 13 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 19, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

years later, on October 11, 2016, Mr. Gaines filed an unsuccessful application for state 

postconviction relief. He appealed, and the Oklahoma Court of Criminal Appeals 

affirmed in December 2017. On January 2, 2018, Mr. Gaines filed his § 2254 

application. He claimed that he had uncovered evidence supporting an involuntaryintoxication defense to the murder charge, relying on an affidavit from a codefendant 

dated June 30, 2016, stating that the marijuana he gave Mr. Gaines to smoke before the 

murder had—unbeknownst to Mr. Gaines—been laced with PCP. The district court 

denied Mr. Gaines’s application as untimely and declined to issue a COA. Mr. Gaines 

now seeks a COA from this court. 

II. DISCUSSION 

A COA will issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a 

demonstration that . . . includes showing that reasonable jurists could debate whether (or, 

for that matter, agree that) the petition should have been resolved in a different manner or 

that the issues presented were adequate to deserve encouragement to proceed further.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other 

words, the applicant must show that the district court’s resolution of the constitutional 

claim was either “debatable or wrong.” Id. If the application was denied on procedural 

grounds, the applicant faces a double hurdle. Not only must the applicant make a 

substantial showing of the denial of a constitutional right, but he must also show “that 

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

procedural ruling.” Id. “Where a plain procedural bar is present, and the district court is 
3 

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either 

that the district court erred in dismissing the petition or that the petitioner should be 

allowed to proceed further.” Id. 

No reasonable jurist could debate the district court’s denial of Mr. Gaines’s 

application as untimely. A prisoner pursuing relief under § 2254 generally must file his 

application in federal court within one year of “the date on which the judgment became 

final by the conclusion of direct review or the expiration of the time for seeking such 

review.” 28 U.S.C. § 2244(d)(1)(A). For Mr. Gaines that period expired on January 24, 

2005, long before he sought relief in federal court. 

The time limit may be equitably tolled if the prisoner shows “(1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 

way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal 

quotation marks omitted). The only possible circumstance that would warrant equitable 

tolling here would be “actual innocence.” Laurson v. Leyba, 507 F.3d 1230, 1232–33 

(10th Cir. 2007). Mr. Gaines appears to disclaim tolling on this ground, but any actualinnocence claim would fail anyway. “[A]ctual innocence,” means “factual innocence,” 

as opposed to legal innocence. Id. at 1233. And the crux of Mr. Gaines’s claim appears 

to be that he could not assent to or participate in the murder given his intoxication—a 

legal defense. See Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (claim that 

defendant was “not guilty of first degree murder because he was intoxicated” went to 

“legal innocence, as opposed to factual innocence”); Long v. Peterson, 291 F. App’x 209, 
4 

213 (10th Cir. 2008) (claim that defendant “did not act with the requisite intent, namely, 

malice aforethought” was not one of factual innocence).

Mr. Gaines does, however, assert that the start of his limitations period was 

delayed under § 2244(d)(1)(B)–(D). But § 2244(d)(1)(B)—which postpones the start of

the limitations period until “the date on which the 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”—is 

inapplicable because Mr. Gaines points to no state-created impediment to filing his § 

2254 application. Likewise, he cannot rely on § 2244(d)(1)(C), which delays the start of 

the limitations period until “the date on which [a] constitutional right asserted was 

initially recognized by the Supreme Court, if the right has been newly recognized by the 

Supreme Court and made retroactively applicable to cases on collateral review.” This 

provision is inapplicable because Mr. Gaines fails to point to any “newly recognized” 

constitutional right asserted in his application; the “new” rulings in the cases he cites—

Class v. United States, 138 S. Ct. 798 (2018); Buck v. Davis, 137 S. Ct. 759 (2017); 

Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1 (2012)—were not 

based on the Constitution. 

That leaves § 2244(d)(1)(D), which delays the start of the limitations period until 

“the date on which the factual predicate of the claim or claims presented could have been 

discovered through the exercise of due diligence.” But Mr. Gaines has made no showing 

of due diligence in obtaining the affidavit on which he relies. He does not explain how 

he acquired the affidavit in 2016, nor does he provide any explanation of why he could 
5 

not have obtained it sooner. (He suggests that this evidence was hidden from him by the 

government, but he provides no evidence that the government ever knew about the PCP.) 

In any event, even if Mr. Gaines has satisfied § 2244(d)(1)(D), he is still not 

entitled to a COA unless he makes a “substantial showing of the denial of a constitutional 

right,” 28 U.S.C. § 2253(c)(2), on the ineffective-assistance claim to which the 

purportedly “new” evidence is relevant. Although Mr. Gaines claims that his counsel 

was ineffective in failing to discover before his plea the evidence that he was drugged, he 

does not show how his counsel could have made the discovery. It is unusual for counsel 

to interview a codefendant. And it is highly unlikely that the codefendant would have 

revealed this information to Mr. Gaines’s counsel before sentencing even if interviewed, 

as it would have shifted culpability from Mr. Gaines to his codefendant (who ultimately 

received a lighter sentence than Mr. Gaines did). Further, Mr. Gaines makes no 

showing of prejudice from counsel’s alleged deficiency, as he does not assert that he 

would not have pleaded guilty had counsel obtained this information. See Hill v. 

Lockhart, 474 U.S. 52, 59 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement [of an 

ineffective-assistance claim], the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have pleaded guilty and would 

have insisted on going to trial.”); see also United States v. Jansen, 884 F.3d 649, 659 (7th 

Cir. 2018) (defendant failed to show prejudice from counsel’s alleged failure to 

investigate when he did not “come forward with objective evidence” that had counsel 

investigated “he would not have pleaded guilty” (internal quotation marks omitted)). 
6 

This falls well short of the “substantial showing” needed to grant a COA. See 28 U.S.C. 

§ 2253(c)(2). 

III. CONCLUSION 

We DENY a COA and DISMISS the appeal. 

Entered for the Court 

Harris L Hartz 

Circuit Judge