                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    June 14, 2011
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 CORDERO ROSALES SANDOVAL,

              Petitioner-Appellant,
                                                         No. 11-5022
 v.                                         (D.C. No. 4:09-CV-00599-GKF-TLW)
                                                         (N.D. Okla.)
 JUSTIN JONES, Director,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY 1


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Cordero Sandoval, an Oklahoma state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr.


      1
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Sandoval is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Sandoval has also filed a motion to proceed in forma pauperis on appeal.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr.

Sandoval’s application for a COA and dismiss his appeal. We also deny his

motion to proceed in forma pauperis.

                                 BACKGROUND

      Mr. Sandoval was convicted by an Oklahoma state-court jury of two counts

of First Degree Felony Murder, and on August 24, 2006, was sentenced to two

consecutive life sentences. Mr. Sandoval appealed to the Oklahoma Court of

Criminal Appeals (“OCCA”), which affirmed his conviction on July 13, 2007. No

appeal was taken to the United State Supreme Court.

      On June 23, 2008, Mr. Sandoval filed an application for post-conviction

relief with the state district court, which was denied on August 1, 2008. Mr.

Sandoval appealed to the OCCA. A little more than a month later, on September

8, 2008, the OCCA affirmed the district court’s denial of post-conviction relief.

      Mr. Sandoval then instigated the present federal habeas proceedings by

filing an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

with the United States District Court for the Northern District of Oklahoma on

September 11, 2009—more than a year after the state courts had denied him

relief. The district court, in a thorough opinion and order, dismissed the petition

as time barred under 28 U.S.C. § 2244(d)(1), and denied Mr. Sandoval a COA.

See R. at 60–66 (Sandoval v. Jones, No. 4:09-CV-00599-GKF-TLW, 2011 WL

                                         2
577118 (N.D. Okla. Feb. 8, 2011)). Mr. Sandoval now seeks leave from this

court to challenge the district court’s dismissal of his application.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,

1088 (10th Cir. 2009), cert. denied, 130 S. Ct. 3385 (2010). “We will issue a

COA ‘only if the applicant has made a substantial showing of the denial of a

constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009)

(quoting 28 U.S.C. § 2253(c)(2)). Under this standard, “the applicant 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.’” United

States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). In other words, “the applicant must show

that the district court’s resolution of the constitutional claim was either ‘debatable

or wrong.’” Id. (quoting Slack, 529 U.S. at 484). Our “inquiry does not require

[a] full consideration of the factual or legal bases adduced in support of the

claims,” but rather “an overview of the claims” and “a general assessment of their

merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).




                                           3
                                   DISCUSSION

      Before this court, Mr. Sandoval seeks a COA to renew the constitutional

claims he made below. 2 He maintains that the district court erred in dismissing

his petition as untimely. Mr. Sandoval does not dispute that the statute of

limitations for filing his petition “expired” “on December 27, 2008,” and that

“[t]his instant petition was not . . . filed until September 11, 2009.” 3 Aplt.

Opening Br. for Appl. for COA at 2. 4 Nevertheless, he avers that he “is entitled


      2
             In his habeas petition, Mr. Sandoval alleged that he received
ineffective assistance of both trial and appellate counsel, in violation of the Sixth
and Fourteenth Amendments, and that he was denied a fair trial based on the trial
judge’s alleged bias against him, in violation of his Fourteenth Amendment Due
Process rights.
      3
              Mr. Sandoval’s judgment became final on October 11, 2007, ninety
days after the OCCA concluded its direct review of his conviction. See Harris v.
Dinwiddie, — F.3d —, 2011 WL 1591814, at *3 n.6 (10th Cir. Apr. 28, 2011)
(“Harris’ conviction became final . . . when the ninety-day time period for filing a
certiorari petition with the United States Supreme Court expired.”). As a result,
Mr. Sandoval’s petition was initially due on October 11, 2008 (although, as a
practical matter it would have been due on October 14, 2008, as October 11 was a
Saturday and the following Monday, October 13, was Columbus Day). See
United States v. Hurst, 322 F.3d 1256, 1259–62 (10th Cir. 2003) (applying Fed.
R. Civ. P. 6(a) when calculating AEDPA deadlines). However, on June 23, 2008,
Mr. Sandoval filed his application for post-conviction relief in the state courts,
thereby tolling his AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2) (“The
time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.”). Mr.
Sandoval’s application was pending in state courts for seventy-seven days (until
September 8, 2008), and that time was added to his original due date of October
11, 2008, yielding a final deadline of December 27, 2008.
      4
             Mr. Sandoval appended a type-written opening brief—cited
                                                                  (continued...)

                                           4
to equitable tolling under the ‘Exceptional Circumstances’ [theory].” Id. We do

not agree.

      Section 2244(d)(1) requires state prisoners to file their federal habeas

petition within one year of—as is relevant here—“the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Section 2244(d) is not

jurisdictional, however, and its limitation is subject to equitable tolling. Holland

v. Florida, 130 S. Ct. 2549, 2560, 2562 (2010); see also United States v. Begay,

631 F.3d 1168, 1172 n.3 (10th Cir. 2011) (“In Holland, the Supreme Court held

that the statute of limitations on habeas petitions in 28 U.S.C. § 2244(d) is subject

to equitable tolling.”). In those “rare and exceptional circumstances” in which

this equitable doctrine is found to apply, a court will consider the merits of an

otherwise-untimely filed petition. Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)) (internal

quotation marks omitted).

      “Generally, equitable tolling requires a litigant to establish two elements:

‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way [that prevented him from timely


      4
      (...continued)
above—to the generic court form, styled “Appellant’s Combined Opening Brief
and Application for a Certificate of Appelability.” In completing the court form,
Mr. Sandoval referenced the arguments in his opening brief.

                                          5
filing his habeas petition].’” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)); see also Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[T]his equitable remedy is only

available when an inmate diligently pursues his claims and demonstrates that the

failure to timely file was caused by extraordinary circumstances beyond his

control.”) The petitioner’s burden in these situations is a heavy one: he must

“show specific facts to support his claim of extraordinary circumstances and due

diligence.” Yang, 525 F.3d at 928 (quoting Brown v. Barrow, 512 F.3d 1304,

1307 (11th Cir. 2008)) (internal quotation marks omitted); see also Miller v.

Marr, 141 F.3d 976, 978 (10th Cir. 1998) (dismissing petitioner’s equitable-

tolling claim because he “provided no specificity regarding the alleged lack of

access and the steps he took to diligently pursue his federal claims”).

      The district court rejected Mr. Sandoval’s equitable-tolling arguments,

concluding that “Petitioner ha[d] not demonstrated that he pursued his claims

diligently; nor ha[d] he met the burden of pleading ‘rare and exceptional

circumstances’ sufficient to warrant equitable tolling.” R. at 63 (quoting Gibson,

232 F.3d at 808). Reasonable jurists could not disagree with this conclusion.

Even now before this court, Mr. Sandoval offers little more than a vague

reference to “the prison [being] on . . . lockdown,” Aplt. Opening Br. for Appl.

for COA at 2–3, as explanation for the “extraordinary circumstance [that] stood in

his way,” Yang, 525 F.3d at 928. As he did before the district court, he speaks

                                          6
with no detail as to the date of the alleged lockdown or its length, and how this

might excuse the nearly eight-month delay in his habeas filing. This is simply not

enough to carry his burden in this situation. See Miller, 141 F.3d at 978

(rejecting a habeas petitioner’s request for equitable tolling based on a lack of

specificity). “Equitable tolling is a rare remedy,” and Mr. Sandoval has done

next to nothing to show that his situation presents the kind of “unusual

circumstances” that would warrant granting relief. Wallace v. Kato, 549 U.S.

384, 396 (2007). 5


      5
              Before the district court, Mr. Sandoval raised three additional bases
for equitably tolling § 2244(d)’s one-year limitation period: (1) “his lack of
access to legal resources,” (2) “his lack of legal knowledge,” and (3) his “medical
disability” (depression). R. at 64. In his filings with this court, however, Mr.
Sandoval does not renew these claims. Instead, he simply states that he
“explained the circumstances beyond [his] control” during “habeas review.”
Aplt. Opening Br. for Appl. for COA at 2.

       Insofar as this could be read as an attempt to incorporate the three
arguments by reference, this practice is generally disfavored in this circuit. See
10th Cir. R. 28.4 (“Incorporating by reference portions of lower court or agency
briefs or pleadings is disapproved.”); see also Wardell v. Duncan, 470 F.3d 954,
963–64 (10th Cir. 2006) (holding that the appellant could not incorporate district
court filings into his appellate brief by reference, and that his “pro se status d[id]
not except him from such established rules”); Gaines–Tabb v. ICI Explosives,
USA, Inc., 160 F.3d 613, 623–24 (10th Cir. 1998) (“Like other circuit courts, we
do not consider [incorporation by reference] acceptable argument.”). “In the
context of our consideration of Mr. [Sandoval’s] COA application, . . . we
perceive no good cause for treating this general disapproval as anything less than
an outright prohibition.” Argota v. Miller, No. 10-6251, 2011 WL 2133690, at *2
(10th Cir. May 31, 2011).

      In an abundance of caution, however, we have reviewed the merits of his
                                                                 (continued...)

                                          7
      We recognize, of course, that § 2244(d)’s procedural bar does not extend to

preclude this court from entertaining claims of actual innocence. See Lopez v.

Trani, 628 F.3d 1228, 1231 (10th Cir. 2010) (“Where . . . a petitioner argues that

he is entitled to equitable tolling because he is actually innocent, . . . the

petitioner need make no showing of cause for the delay.”); Laurson v. Leyba, 507

F.3d 1230, 1232 (10th Cir. 2007) (“A claim of actual innocence may toll the

AEDPA statute of limitations.”). As he did below, Mr. Sandoval claims to be

“actually innocent” of the crime of conviction. Compare R. at 65 (“[T]he Court

recognizes that Petitioner claims to be actually innocent of the crime for which he

was convicted.”), with Aplt. Opening Br. for Appl. for COA at 3 (“Petitioner in

this case has proclaimed innocence to the two . . . murders that petitioner was

convicted of committing.”). Nevertheless, the mere claim of actual innocence is

not itself sufficient to toll § 2244(d)’s limitations period; rather, the petitioner

must present a colorable claim of actual innocence. See Lopez, 628 F.3d at

1230–31 (“[A] sufficiently supported claim of actual innocence creates an

exception to procedural barriers for bringing constitutional claims, regardless of



      5
        (...continued)
additional arguments. We agree with the district court’s disposition of these
claims for substantially the same reasons laid out in its opinion and order—viz.,
that his conclusory statements about lack of legal resources and his medical
disability are not enough to support application of the equitable-tolling remedy,
and that “his lack of legal knowledge is insufficient to demonstrate entitlement to
[this relief].” R. at 64.

                                            8
whether the petitioner demonstrated cause for the failure to bring these claims

forward earlier.” (emphasis added)); see also Weibley v. Kaiser, 50 F. App’x 399,

403 (10th Cir. 2002) (“Weibley’s final argument—that he is actually

innocent—fails because he does not make a colorable claim of actual innocence.

Weibley makes only conclusory allegations regarding his innocence and provides

no analysis or specific facts to warrant equitable tolling.”).

      To raise a “colorable claim of actual innocence,” a petitioner must “support

his allegations . . . 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, 322,

324 (1995). The evidence must be of such quality and nature that it makes it

“more likely than not that no reasonable juror would have convicted [the

defendant] in the light of the new evidence.” Id. at 327.

      Reasonable jurists could not disagree with the district court’s conclusion

that Mr. Sandoval has failed to identify any such evidence in this case. Mr.

Sandoval does not specify any new evidence when making his actual-innocence

argument in favor of equitable tolling. Mr. Sandoval identifies a police officer

whom he believes would testify that his “co-defendant . . . admitted to murdering

both victim’s [sic] in this case,” thereby purportedly proving his innocence.




                                           9
Aplt. Opening Br. for Appl. for COA at 4. 6 But Mr. Sandoval was not convicted

of first-degree murder; he was convicted of first-degree felony murder. See R. at

36 (Sandoval v. State, No. PC-2008-780 (Okla. Crim. App. Sept. 8, 2008)). The

latter does not require that Mr. Sandoval himself commit the murder; instead,

under Oklahoma law, all that is required to be shown is that “that person or any

other person t[ook] the life of a human being during, or if the death of a human

result[ed] from, the commission or attempted commission” of a series of

enumerated felony crimes. Okla. Stat. Ann., tit. 21, § 701.7(B) (emphasis added);

see also Littlejohn v. State, 181 P.3d 736, 742 (Okla. Crim. App. 2008) (“The

crime of First Degree Felony Murder requires proof that a homicide occurred in

the commission of one of several specified felony crimes.”). Thus, even if the

officer were to have testified as Mr. Sandoval suggests, that alone would not

cause us to question the validity of his conviction. Accordingly, Mr. Sandoval

has failed to identify any adequate ground for tolling § 2244(d)’s statute of

limitations, and therefore has failed to “show that the district court’s resolution of

[his] constitutional claim was either ‘debatable or wrong.’” Taylor, 454 F.3d at

1078 (quoting Slack, 529 U.S. at 484).




      6
              Mr. Sandoval discusses this testimony in his ineffective-assistance-
of-counsel argument. See Aplt. Opening Br. for Appl. for COA at 4. Construing
his filings liberally, however, we assume that this evidence pertains to his actual-
innocence claim, and address it as such.

                                          10
                                CONCLUSION

      For the foregoing reasons, we DENY Mr. Sandoval’s application for a COA

and DISMISS his appeal. We also DENY his motion to proceed in forma

pauperis, as he has not demonstrated “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” Watkins

v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)) (internal quotation marks omitted).




                                     ENTERED FOR THE COURT



                                     Jerome A. Holmes
                                     Circuit Judge




                                       11
