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 p risoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the dismissal by the United State s District Court for the Western District of Oklahoma o f his application for relief unde r 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiri ng a COA for a prisoner in st ate custody to appeal from the denial of a writ of hab eas corpus). We deny a COA and dismiss the appeal.
I. BACKGROUND On January 14, 2004, Mr. Gaines pl eaded guilty to first-degree murder in the District Court for Comanche Coun ty, Oklahoma, and was sentenced to life imprisonment without parole. Becau se Mr. Gaines did not appeal or move to w ithdraw his plea within the 10 days allotted under Oklahoma law, see Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006), his c onviction became fina l 10 days later on January 24. Nearly 13 FILED United States Court of Appeals Tenth Circuit 

### December 19, 2018
Elisabeth A. Shumaker Clerk of Court2 years later, on October 11, 2016 , Mr. Gaines filed an unsuccess ful application for state postconviction relief. He appealed , and the Oklahoma Court of Criminal Appeals affirmed in December 2017. On Ja nuary 2, 2018, Mr. Gaines file d his § 2254 application. He claimed that he had uncovered evidence support ing an involuntaryintoxication defense to the mur der charge, relying on an affida vit from a codefendant dated June 30, 2016, stating that the marijuana he gave Mr. G aines to smoke before the murder had—unbeknownst to Mr. G aines—been laced with PCP. The district court denied Mr. Gaines’s application as untimely and declined to iss ue a COA. Mr. Gaines now seeks a COA from this court.
II. DISCUSSION A COA will issue “only if the a pplicant has made a substantial showing of the denial of a constitutional right .” 28 U.S.C. § 2253(c)(2). Th is standard requires “a demonstration that . . . includes showing that reasonable juris ts could debate whether (or, for that matter, agree that) the petition should have been reso lved in a different manner or that the issues presented were adequate to deserve encouragemen t to proceed further.”
Slack v. McDaniel , 529 U.S. 473, 484 (2000) (inte rnal quotation marks omitted). In other words, the applicant must show that the dis trict court’s resolution of the constitutional claim was either “debatable or wrong.” Id. If the application was de nied on procedural grounds, the applicant faces a dou ble hurdle. Not only must th e applicant make a substantial showing of the den ial of a constitutional right, bu t he must also show “that jurists of reason would find it de batable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar i s present, and the district co urt is3 correct to invoke it to dispose o f the case, a reasonable juris t could not conclude either that the district court erred in dismissing the petition or tha t the petitioner should be allowed to proceed further.” Id. No reasonable jurist could debate the district court’s denial o f Mr. Gaines’s application as untimely. A pri soner pursuing relief under § 22 54 generally must file his application in federal court wi thin one year of “the date on wh ich the judgment became final by the conclusion of direct review or the expiration of t he time for seeking such review.” 28 U.S.C. § 2244(d)(1 )(A). For Mr. Gaines that perio d 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, a nd (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 o nly possible circ umstance 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 inn ocence,” means “factual innoce nce,” as opposed to legal innocence. Id. at 1233. And the crux of Mr. Gaines’s claim appears to be that he could not assent t o 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 firs t 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 de fendant “did not act with th e requisite intent, namely, malice aforethought” was not one of factual innocence). Mr. Gaines does, however, assert t hat the start of his limitati ons period was delayed under § 2244(d)(1)(B)–(D ). But § 2244(d)( 1)(B)—which p ostpones the start of the limitations period until “the d ate on which the impediment to filing an application created by State action in viola tion of the Constitution or law s of the United States is removed, if the applicant was pr evented from filing by such Sta te action”—is inapplicable because Mr. Gaines poi nts to no state-created impe diment to filing his § 2254 application. Likewise, he cannot rely on § 2 244(d)(1)(C), which delays the s tart of the limitations period until “the date on which [a] constitutio nal right asserted was initially recognized by the Supr eme Court, if the right has bee n newly recognized by the Supreme Court and made retroactiv ely applicable to cases on col lateral review.” This provision is inapplicable because Mr. Gaines fails to point to any “newly recognized”
constitutional right asserted in his applicati on; the “new” rulings in the ca ses 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 limi tations period until “the date on which the factual pr edicate of the claim or claims presented cou ld have been discovered through the exercise of due diligence.” But Mr. Gaines has made no showing of due diligence in obtaining th e affidavit on which he relies. He does not explain how he acquired the affidavit in 20 16, nor does he provide any expl anation of why he could5 not have obtained it sooner. (He su ggests that this evidence w as hidden from him by the government, but he provides no evi dence that the government eve r 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 c laim 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 evid ence that he was drugged, he does not show how his counsel c ould 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 M r. Gaines’s counsel before senten cing even if interviewed, as it would have shifted culpa bility from Mr. Gaines to his cod efendant (who ultimately received a lighter sentence than Mr. Gaines did). Further, Mr. Gaines makes no showing of prejudice from counse l’s alleged deficiency, as he d oes not assert that he would not have pleaded guilty had counsel obtained this informa tion. See Hill v.
Lockhart , 474 U.S. 52, 59 (1985) (“[I]n o rder to satisfy the ‘prejudice ’ requirement [of an ineffective-assistance claim], th e defendant must show that the re is a reasonable probability that, but for counsel’ s errors, he would not have p leaded 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 sho w prejudice from counsel’s a lleged failure to investigate when he did not “com e forward with objective eviden ce” that had counsel investigated “he would not hav e pleaded guilty” (internal quota tion marks omitted)).6 This falls well short of the “subs tantial showing” needed to gr ant 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