                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 25, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 FREDDIE A. DIAZ,

              Petitioner - Appellant,                   No. 08-1440
       v.                                               (D. Colorado)
 KEVIN MILYARD; THE                           (D.C. No. 1:08-CV-01543-ZLW)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      Freddie A. Diaz, a Colorado state prisoner proceeding pro se and in forma

pauperis, was denied his application for relief under 28 U.S.C. § 2254 by the

United States District Court for the District of Colorado. The district court held

that the application was untimely filed and that Mr. Diaz was not entitled to

equitable tolling. Mr. Diaz now seeks a certificate of appealability (COA) to

appeal that decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal

denial of § 2254 relief). We deny a COA and dismiss the appeal.

      In 1988 in two separate trials in Arapahoe County District Court, Mr. Diaz

was convicted of a number of offenses, including kidnapping, aggravated robbery,

burglary, and sexual assault. On October 5, 1988, he was sentenced in both cases.
In case No. 88CR399 he was sentenced to 115 years’ imprisonment. In case

No. 88CR574 he was first adjudicated a habitual criminal and then sentenced to

five consecutive sentences of 40 years’ to life imprisonment. Mr. Diaz filed

appeals in both cases. On May 10, 1990, the Colorado Court of Appeals (CCA)

affirmed the judgment in 88CR399 and affirmed the judgment in 88CR574 except

to remand to the trial court to allow Mr. Diaz to challenge the predicate

convictions for his adjudication as a habitual criminal. Before the habitual-

criminal issue was resolved, Mr. Diaz filed petitions for writs of certiorari in the

Colorado Supreme Court to review the CCA’s decisions in both cases, but his

petitions were denied on December 24, 1990.

      On August 27, 1991, Mr. Diaz filed a motion for postconviction relief in

Arapahoe County District Court, challenging his convictions in both cases. The

court consolidated his postconviction motion with the question on remand of his

status as a habitual criminal. The court sua sponte struck Mr. Diaz’s second-

degree burglary convictions in both cases and vacated one guilty plea that had

served as a basis for his habitual-criminal adjudication. The court then held the

matter in abeyance while Mr. Diaz pursued a postconviction motion in Denver

District Court to withdraw two guilty pleas. His motion, filed in August 1992,

was denied.

      The Arapahoe County District Court then denied Mr. Diaz’s motion for

postconviction relief in both cases on May 27, 1993, with the proviso that the

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issues relating to his postconviction motion in the Denver District Court would be

reconsidered if the CCA reversed the denial of that motion. On February 10,

1994, the CCA affirmed the Denver District Court’s ruling. On July 27, 1995, the

CCA affirmed the Arapahoe County District Court’s denial of his postconviction

motion, and the Colorado Supreme Court denied certiorari on December 26, 1995.

      More than nine years later, on December 28, 2004, Mr. Diaz filed a second

motion for postconviction relief in the Arapahoe County District Court,

challenging his convictions in the two original cases as well as a third conviction

for assault and reckless endangerment while in prison. This motion was also

denied, and the CCA affirmed on April 19, 2007. The Colorado Supreme Court

denied certiorari on January 14, 2008.

      On July 23, 2008, Mr. Diaz filed his § 2254 application, raising five

grounds for relief: (1) he was provided ineffective assistance of counsel, (2) he

was denied the right to represent himself, (3) evidence was admitted at trial in

violation of the Fourth Amendment, (4) the state trial court lacked jurisdiction

over the charged offenses, and (5) DNA evidence would show his actual

innocence.

      A COA will issue "only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard

requires "a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

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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) (internal quotation marks omitted). If the application was denied on

procedural grounds, as it was in this case, the applicant faces a double hurdle.

Not only must the applicant make a substantial showing of the denial of a

constitutional right, but he must also show "that jurists of reason would find it

debatable . . . whether the district court was correct in its procedural ruling." Id.

       Under the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), an applicant has one year from the date on which his conviction

becomes final to apply for a writ of habeas corpus. See 28 U.S.C. 2244(d)(1).

Because Mr. Diaz did not seek review in the United States Supreme Court, his

convictions became final for purposes of the one-year limitation period on

March 25, 1991—90 days after the Colorado Supreme Court denied his first

petition for a writ of certiorari. See Romo v. Okla. Dept. of Corr., 216 F.3d 1202,

1203 (10th Cir. 2000). This one-year limitation period expired before the April

24, 1996, effective date of AEDPA; so Mr. Diaz had one year from that date to

file his application. See id. But his application was filed more than 12 years after

the effective date of AEDPA and is thus time barred unless tolling is available to

him.

       The one-year limitation period may be tolled while an applicant pursues

postconviction relief in state court. See 28 U.S.C. § 2244(d)(2). But that tolling

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provision cannot avail Mr. Diaz because he had no pending state postconviction

proceeding on April 24, 1996, and another eight years passed before he again

sought postconviction relief in state court.

         We have recognized that an applicant can benefit from equitable tolling “in

rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir. 2000) (internal quotation marks omitted). Equitable tolling may be warranted

by actual innocence or when delay was caused by circumstances outside the

applicant’s control, see id., but only if the applicant “diligently pursue[d] his

federal habeas claims,” id. The applicant bears the burden of demonstrating that

equitable tolling is appropriate. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008).

         Mr. Diaz seeks equitable tolling because (1) he was denied access to court

records and transcripts in 2001, 2002, and 2004, and (2) he suffers from “Mental

Deficiencies, brain Damage, or Learning disabilities.” R. Doc. 10 at 3. In

support of these claims he offers evidence of motions and appeals that he filed in

state court requesting the loan of documents and evidence of a psychological

evaluation from 1988 that placed him in the “Low Normal range of intellectual

ability.” Id. at 26.

         The district court concluded that Mr. Diaz did not meet his burden of

showing that equitable tolling was appropriate. The court noted that Mr. Diaz had

failed to show due diligence because he had not filed a request for court records

                                           -5-
and transcripts until 2000, four years after the one-year limitation period began to

run in his case. Moreover, the court pointed out that he fell in the “Low Normal

range” of intellectual abilities and that he had been able to file two state

postconviction motions and several other motions requesting records and

transcripts despite his alleged mental disabilities. See Laurson v. Lebya, 507 F.3d

1230, 1232 (10th Cir. 2007) (habeas applicant not entitled to equitable tolling

because of dyslexia). The district court’s thorough order explains why Mr. Diaz

had not shown a basis for equitable tolling.

      Mr. Diaz’s application suggests that he may also be raising a claim of

actual innocence. But to show actual innocence, a habeas applicant 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). Because Mr. Diaz’s application presents no new evidence, any

claim of actual innocence must fail. No reasonable jurist could disagree with the

district court’s denial of equitable tolling.

      Accordingly, we DENY Mr. Diaz’s request for a COA and DISMISS this

appeal. We DENY Mr. Diaz’s motion for leave to proceed in forma pauperis.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge

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