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 CERTIFIC ATE 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 aggr avated liberties with a child. After exhausting state remedies, he f iled a habeas petition in distri ct court. Conceding that his petition was untimely, McNelly argued th at he was entitled to equitable tolling

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 Court2 due to a miscarriage of just ice at trial and actual inno cence. The district court rejected McNelly’s actual-innocence argumen t 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 constitu tional error with new reliabl e evidence—whether it be exculpatory scientific eviden ce, trustworthy eyewitness acc ounts, or critical physical evidence—that was not presente d at trial.”). McNelly then filed several motions to alter or amend the judgment, all of which the district court de nied. 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 deni al 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 petitione r must show that the state court’s adjudication either “resulted in a d ecision that was based on an unreasonable determination of the facts in the light of the evidence pres ented” or was “contrary to, or involved an unreasonable application of , clearly establishe d Federal law, as determined by the Supreme Court of the Un ited States.” § 2254(d)(1), (2). Put3 differently, “a state prisoner must show that the state court’s ruling on the claim being presented in federal cour t was so lacking in justificat ion that there was an error well understood and comprehended in exis ting law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
III On appeal, McNelly argues that the dist rict court erred in its recitation or understanding of the facts and failed to cons ider an important pa rt of his argument. 1 Specifically, McNelly insists that he is entitled to relie f because the statement that motivated his arrest and prosecution was ultimately suppressed. Although McNelly is correct that admission in to evidence of a coerced c onfession can violate the Due Process Clause of the Fourteenth Amendm ent, Payne v. Arkans as, 356 U.S. 560, 568 (1956), the Supreme Court has also held th at “harmless-error an alysis applies to coerced confessions,” Arizona v. Fulminan te, 499 U.S. 279, 295 (1991). The state court concluded that—suppre ssed statement notwithstandi ng—other testimony given by an investigator with the Kansas Depart ment of Social Serv ices supplied probable cause to charge McNelly. Vi ewing the record “in the li ght most favorable to the prosecution” as we must on habeas review, Turrentin e v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotation omitted), we conclude that even without the coerced statement, “the remainder of the eviden ce against” McNelly sufficed to furnish

1 Because McNelly is pro se, we hold his pleadings to “a less stringent standard than formal pleadi ngs 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 ha rmless.” United States v. McCullah, 76 F.3d 1087, 1101 (10th Cir. 1996) (quotation omitted). Additionally, McNelly argues that the di strict court erred in deciding that his failure to file a habeas peti tion 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 petitione r to show that it is more likely than not that no reasonable juror would have fo und him guilty beyond a reasonable doubt in light of the new evidence.” Frost v. Pryor, 749 F.3d 1212, 1 232 (10th Cir. 2014) (quotation, italics, and brack ets omitted). McNelly argue s that he discovered new evidence that the prosecution’s probabl e cause derived fro m the ultimatelysuppressed statement. However, as we ha ve explained above, th e state court did not err in determining that other evidence su fficed to furnish proba ble cause. McNelly has thus failed to s how actual innocence.
IV For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge