UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KENNETH DAVID MCNELLY, 

 Petitioner - Appellant, 

v. 

SAM CLINE, 

 Respondent - Appellee. 

No. 17-3246 

(D.C. No. 5:17-CV-03141-SAC) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. 

_________________________________ 

Kenneth McNelly seeks a certificate of appealability (“COA”) to appeal the 

district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss 

the appeal. 

I 

McNelly was convicted of eight counts of rape, one count of aggravated 

criminal sodomy, and one count of aggravated liberties with a child. After 

exhausting state remedies, he filed a habeas petition in district court. Conceding that 

his petition was untimely, McNelly argued that he was entitled to equitable tolling 

 *

 This order is not binding precedent, except under the doctrines of law of the 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 

March 15, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

due to a miscarriage of justice at trial and actual innocence. The district court 

rejected McNelly’s actual-innocence argument because he failed to provide new 

evidence that was unavailable at the time of his conviction. See Schlup v. Delo, 513 

U.S. 298, 324 (1995) (“Claims of actual innocence . . . require[ ] petitioner to 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.”). McNelly then filed several motions to 

alter or amend the judgment, all of which the district court denied. McNelly now 

seeks a COA from this court.

II 

 A petitioner may not appeal the denial of habeas relief under § 2254 without a 

COA. § 2253(c)(1). We may issue a COA “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy 

this standard, McNelly must show “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) (quotation omitted). 

 To obtain relief under § 2254, a petitioner must show that the state court’s 

adjudication either “resulted in a decision that was based on an unreasonable 

determination of the facts in the light of the evidence presented” or was “contrary to, 

or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States.” § 2254(d)(1), (2). Put 
3 

differently, “a state prisoner must show that the state court’s ruling on the claim 

being presented in federal court was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 

III 

 On appeal, McNelly argues that the district court erred in its recitation or 

understanding of the facts and failed to consider an important part of his argument.1

 

Specifically, McNelly insists that he is entitled to relief because the statement that 

motivated his arrest and prosecution was ultimately suppressed. Although McNelly 

is correct that admission into evidence of a coerced confession can violate the Due 

Process Clause of the Fourteenth Amendment, Payne v. Arkansas, 356 U.S. 560, 568 

(1956), the Supreme Court has also held that “harmless-error analysis applies to 

coerced confessions,” Arizona v. Fulminante, 499 U.S. 279, 295 (1991). The state 

court concluded that—suppressed statement notwithstanding—other testimony given 

by an investigator with the Kansas Department of Social Services supplied probable 

cause to charge McNelly. Viewing the record “in the light most favorable to the 

prosecution” as we must on habeas review, Turrentine v. Mullin, 390 F.3d 1181, 

1197 (10th Cir. 2004) (quotation omitted), we conclude that even without the coerced 

statement, “the remainder of the evidence against” McNelly sufficed to furnish 

 1

 Because McNelly is pro se, we hold his pleadings to “a less stringent 

standard than formal pleadings drafted by lawyers” but do not “assume the role of 

advocate for” him. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 
4 

probable cause such that “the [use] of the confession was harmless.” United States v. 

McCullah, 76 F.3d 1087, 1101 (10th Cir. 1996) (quotation omitted).

 Additionally, McNelly argues that the district court erred in deciding that his 

failure to file a habeas petition within the one-year time limitation barred his claim. 

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may 

pass whether the impediment is a procedural bar, . . . or, as in this case, expiration of 

the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). 

Proving actual innocence “require[s] a petitioner to show that it is more likely than 

not that no reasonable juror would have found him guilty beyond a reasonable doubt 

in light of the new evidence.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014) 

(quotation, italics, and brackets omitted). McNelly argues that he discovered new 

evidence that the prosecution’s probable cause derived from the ultimatelysuppressed statement. However, as we have explained above, the state court did not 

err in determining that other evidence sufficed to furnish probable cause. McNelly 

has thus failed to show actual innocence. 

IV 

For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge