UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RAUL ESTRADA, Petitioner - Appellant,

v. JAMES JANECKA; GARY K. KING, Respondents - Appellees. No. 15-2021 (D.C. No. 2:14-CV-00500-KG-SMV) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , TYMKOVICH , and MORITZ , Circuit Judges.

________________ _________________ Raul Estrada, a New Mexico state prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the district c ourt’s denial of his federal habeas petition. In 2002, Estrada was convicted of six c ounts of criminal se xual penetration of a child under the age of 13 and six counts of criminal sexual contact of a minor. He was sentenced to 36 years, with 10 years su spended, for an actual term of 26 years. More than nine years after Estrada’s convicti ons became final, he filed a state habeas petition, which the state district court summarily denied. After the New Mexico Supreme Court denied Estrada’s petition for writ of certiorari, he filed a federal

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel.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

### May 4, 2015
Elisabeth A. Shumaker Clerk of Court2 habeas petition seeking to overturn his convi ctions. The federal di strict court denied the petition, concluding it was barred by the one-year statute of li mitations for filing a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A). The court may grant a COA only if the petitioner makes a “substantial showing of the denial of a constitutional right” by providing the court gr ounds to conclude that reasonable jurists could find the distri ct court’s decision de batable or wrong. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). The district court found that Estrada filed his petiti on long after § 2244(d)(1 )(A)’s one-year time limit expired. And Estrada doe s not contend that reasonabl e jurists could disagree with that decision. Instead, he argues the district cour t should have granted him an equitable exception to the limitations period based on his claim of actual innocence. It is true that a “credi ble showing of actual innocen ce may allow a prisoner to pursue his constitutional claims . . . on the merits notw ithstanding” § 2241(d)(1)’s time bar. McQuiggin v. Perkins , 133 S. Ct. 1924, 1931 (2013) . But Estrada’s habeas petition did not specifically assert an actu al innocence claim. Ordinarily the court does not address arguments made for the firs t time on appeal, particularly where, as here, the petitioner has not ar gued for plain error review. See Richison v. Ernest Grp.,
Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011); see also Rojem v. Gibson , 245 F.3d 1130, 1141 (10th Cir. 2001)

. Estrada did argue below that the Antite rrorism and Effective Death Penalty Act (AEDPA) “should not be used as a constitutional bar in a case such as this where the law has not been applied justly.” Pet’r Re sp., Doc. 8 at 1. But even if we were to3 construe this statement as a claim of actu al innocence, see Heard v. Addison , 728 F.3d 1170, 1186 n.8 (10th Cir. 2013) (des cribing court’s practice of liberally construing pro se filings “within the labyr inth of § 2254”), the claim would fail because Estrada has provided no new evidence to support it. To prevail on a claim of actual innocen ce, the petitioner must “support his allegations of constitutional error “with new reliable evidence—whether it be exculpatory scientific eviden ce, trustworthy eyewitness acc ounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo , 513 U.S. 298, 324 (1995) ; see also Frost v. Pryor , 749 F.3d 1212, 1231-32 (10t h Cir. 2014). And he must demonstrate that the “new evidence shows ‘it is more likely than not that no reasonable juror would have co nvicted [the petitioner].’” McQuiggin , 133 S. Ct. at 1933 (quoting Schlup , 513 U.S. at 329). Estrada has not met this demanding standa rd. He claims his trial counsel was ineffective for not investigating two witnes ses’ motives to lie about him, not using medical experts, and not ma king potentially meritorious pr etrial motions. He also raises issues of double jeopardy, insuffici ency of the evidence, and prosecutorial misconduct. But he offers no new evidence to support his claim of actual innocence. Estrada’s request for a COA is deni ed and the matter is dismissed.

Entered for the Court
Nancy L. Moritz Circuit Judge