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 CERTIFICATE 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 court’s denial of his federal 

habeas petition. 

In 2002, Estrada was convicted of six counts of criminal sexual 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 suspended, for an actual term of 26 years. 

More than nine years after Estrada’s convictions 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 This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 4, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

habeas petition seeking to overturn his convictions. The federal district court denied 

the petition, concluding it was barred by the one-year statute of limitations 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 grounds to conclude 

that reasonable jurists could find the district court’s decision debatable 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 petition long after § 2244(d)(1)(A)’s one-year time 

limit expired. And Estrada does not contend that reasonable jurists could disagree 

with that decision. Instead, he argues the district court should have granted him an 

equitable exception to the limitations period based on his claim of actual innocence. 

It is true that a “credible showing of actual innocence may allow a prisoner to 

pursue his constitutional claims . . . on the merits notwithstanding” § 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 actual innocence claim. Ordinarily the court 

does not address arguments made for the first time on appeal, particularly where, as 

here, the petitioner has not argued 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 Antiterrorism 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 Resp., Doc. 8 at 1. But even if we were to 
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construe this statement as a claim of actual innocence, see Heard v. Addison, 728 

F.3d 1170, 1186 n.8 (10th Cir. 2013) (describing court’s practice of liberally 

construing pro se filings “within the labyrinth of § 2254”), the claim would fail 

because Estrada has provided no new evidence to support it. 

To prevail on a claim of actual innocence, the petitioner must “support his 

allegations of constitutional error “with new reliable evidence—whether it be 

exculpatory scientific evidence, trustworthy eyewitness accounts, 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 (10th Cir. 2014). And he must 

demonstrate that the “new evidence shows ‘it is more likely than not that no 

reasonable juror would have convicted [the petitioner].’” McQuiggin, 133 S. Ct. at 

1933 (quoting Schlup, 513 U.S. at 329). 

Estrada has not met this demanding standard. He claims his trial counsel was 

ineffective for not investigating two witnesses’ motives to lie about him, not using 

medical experts, and not making potentially meritorious pretrial motions. He also 

raises issues of double jeopardy, insufficiency 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 denied and the matter is dismissed. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge