                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    December 4, 2013
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 DAVID LEE JOHNSON,

              Petitioner - Appellant,
                                                        No. 13-1324
 v.                                            (D.C. No. 1:12-CV-03061-LTB)
                                                       (D. Colorado)
 ANGEL MEDINA, Warden - Fremont
 Correctional Facility; and THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO JOHN
 SUTHERS,

              Respondents - Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Defendant and petitioner, David Lee Johnson, a Colorado state prisoner

proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal

the denial of his 28 U.S.C. § 2254 petition challenging the validity of his

conviction for kidnaping and first degree sexual assault. The district court denied

the habeas petition and dismissed the action as barred by the one-year limitation

      *
       This order is not binding precedent, except under the doctrines of law of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.
period applicable to habeas petitions under 28 U.S.C. § 2244(d). Mr. Johnson

filed a motion to alter or amend that judgment, construed as a motion seeking

relief from the judgment pursuant to Fed. R. Civ. P. 60(b), which the district court

also denied. The district court then denied Mr. Johnson a COA, finding that he

had not made a substantial showing of the denial of a constitutional right, and

denied him permission to proceed on appeal in forma pauperis. Concluding that

Mr. Johnson has not met the requirements for the issuance of a COA, we deny his

request for one and dismiss this matter.



                                 BACKGROUND

      Mr. Johnson pled guilty pursuant to a plea agreement to second-degree

kidnaping and first-degree sexual assault, resulting from an incident which

occurred on September 7, 1996. 1 The parties stipulated to a sentencing range of

37 to 55 years’ imprisonment.

      Prior to sentencing, Mr. Johnson filed a motion to withdraw his guilty plea

on the ground that his thinking had been impaired at the time of the plea because

of undiagnosed diabetes and because plea counsel coerced him into pleading

guilty. The district court denied the motion, after conducting an evidentiary

      1
        In its decision affirming his conviction, the Colorado Court of Appeals
stated that “Defendant admitted that there was a factual basis for his pleas and
detailed for the court how he had kidnaped a young woman at gunpoint and forced
her to drive to a parking lot where he forcibly raped her.” People v. Johnson, No.
98CA2077 (Colo. App. March 9, 2000) (unpublished). R. Vol. 1 at 153.

                                           -2-
hearing, R. Vol. 1 at 121, and, on September 3, 1998, imposed consecutive prison

sentence terms totaling fifty-five years. On March 9, 2000, the Colorado Court of

Appeals affirmed the conviction. People v. Johnson, No. 98CA2077 (Colo. App.

March 9, 2000) (unpublished). R. Vol. 1 at 151. On September 18, 2000, the

Colorado Supreme Court denied certiorari review. Johnson v. People, No.

00SC445 (Colo. Sept. 18, 2000) (unpublished). R. Vol. 1 at 168.

      On October 4, 2000, Mr. Johnson filed a letter requesting the appointment

of conflict-free counsel “to pursue possible 35(c) Ineffective Assistance of

Counsel, Post Conviction Relief in this Case.” R. Vol. 1 at 99. The court

granted the motion and, on October 12, 2000, appointed counsel.

      On September 16, 2003, counsel filed a motion for postconviction relief

under Colo. R. Crim. P. 35(c), asserting various claims of ineffective assistance

of plea counsel. The district court issued a minute order summarily denying the

motion. On appeal, the Colorado Court of Appeals remanded the case to the trial

court to enter findings of fact and conclusions of law. People v. Johnson, No.

07CA0910 (Colo App. Feb. 26, 2009) (unpublished). R. Vol. 1 at 201. On

remand, the trial court entered an order denying applicant’s motion. The

Colorado Court of Appeals affirmed. People v. Johnson, No. 09CA 2596 (Colo.

App., Aug. 25, 2011) (unpublished). 2 R. Vol. 1 at 249. The Colorado Supreme

      2
       We note that the decision of the Colorado Court of Appeals affirming the
denial of Mr. Johnson’s Rule 35(c) motion includes the following: “As to the
                                                                    (continued...)

                                         -3-
Court denied certiorari review. Johnson v. People, No. 2012SC146 (Colo.

Aug. 27, 2012) (unpublished). R. Vol. 1 at 270.

      On August 10, 2012, Mr. Johnson filed the instant § 2254 habeas

application, raising the following issues: (1) Mr. Johnson’s guilty plea was not

knowing, voluntary, or intelligent because of his hypoglycemic condition at the

time he entered his plea; (2) plea counsel was ineffective by failing to investigate

and challenge DNA evidence; (3) plea counsel was ineffective by failing to

discover, and the prosecution failed to disclose, exculpatory evidence; (4) plea

counsel was ineffective by failing to investigate an alternate suspect; (5) the trial

court violated Mr. Johnson’s due process and equal protection rights by denying

his postconviction motions without conducting an evidentiary hearing; (6) the

      2
        (...continued)
second prong of the Strickland test, the record includes a letter from defendant–
written before he entered his guilty plea–in which he indicated that he was aware
of the alleged discrepancies in the DNA evidence and requested that it be
retested. Under these circumstances, defendant has failed to show a reasonable
probability that he would not have entered a guilty plea in the absence of the
allegedly deficient performance of his counsel.” People v. Johnson, No.
09CA2596 , slip op. at 5 (Aug. 25, 2011) (unpublished); R. Vol. 1 at 254. The
court’s order also indicated that “the name of the alternative suspect appears on
the good faith list of witnesses filed by plea counsel before defendant entered his
guilty plea.” Id. at 7. Finally, the court addressed Mr. Johnson’s “actual
innocence” claim: “defendant argues that the district court violated his rights
because it did not adequately review his allegation of actual innocence. As noted,
however, when the motion, files, and record clearly establish that the allegations
are without merit and do not warrant postconviction relief, a court may properly
deny a Crim. P. 35(c) motion without holding an evidentiary hearing.” Id. at 8.
       Thus, the “actual innocence”/fundamental miscarriage of justice claim upon
which Mr. Johnson now relies was, in fact, raised before the Colorado state
courts, and it was addressed and rejected by those courts.

                                          -4-
trial court violated Mr. Johnson’s due process and equal protection rights by

making insufficient findings of fact, and the Colorado Court of Appeals erred by

presuming the validity of the trial court’s order; (7) the trial court violated Mr.

Johnson’s due process and equal protection rights by failing to review his claim

of ineffective assistance of post-conviction counsel; and (8) the trial court

violated Mr. Johnson’s due process and equal protection rights by ruling that his

merger claim was time-barred.

      The district court ordered the respondents to file a pre-Answer response,

addressing the affirmative defenses of timeliness and exhaustion of state

remedies. The respondents filed that Answer, arguing Mr. Johnson’s application

was untimely and that only three of his claims were exhausted and cognizable.

      The district court then determined that Mr. Johnson’s petition was untimely

under the one-year limitation period applicable to habeas petitions under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). That one-

year period commences on “the date on which the judgment became final.” 28

U.S.C. § 2244(d)(1)(A). The court noted that Mr. Johnson’s conviction became

final on December 18, 2000, and the “limitations period ran unabated until it

expired on December 18, 2001, the anniversary of the start of the limitations

period.” Order of Dismissal at 5, R. Vol. 2 at 23. Accordingly, “[b]ecause the

limitations period expired before Mr. Johnson filed his Rule 35(c) motion for




                                          -5-
postconviction relief through counsel on September 16, 2003, the motion did not

toll the limitations period.” Id.

      The court then considered whether there was any basis for equitably tolling

the statute of limitations, noting that “[e]quitable tolling . . . may be appropriate if

the applicant actually is innocent.” Id. at 6 (citing Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000)). As the court further observed:

      An actual innocence argument “is premised on the same fundamental
      miscarriage of justice exception that was discussed by the Supreme
      Court” in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v.
      Thompson, 501 U.S. 722 (1991). Therefore, in the rare and
      extraordinary case in which a habeas applicant can demonstrate
      equitable tolling is appropriate on actual innocence grounds, the
      applicant is not required to demonstrate he diligently pursued the
      actual innocence claim. However, to be credible, a claim of actual
      innocence requires an applicant “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.” The
      applicant then must demonstrate “that it is more likely than not that
      no reasonable juror would have convicted him in the light of the new
      evidence.” The Court emphasizes that a “substantial claim that
      constitutional error has caused the conviction of an innocent person
      is extremely rare.”

Id. at 6-7 (citing Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010);

quoting Schlup, 513 U.S. at 324, 327). The court accordingly dismissed the

petition as barred by the one-year limitation period in 28 U.S.C. § 2244(d). The

court also found that any appeal from the order would not be taken in good faith

and therefore in forma pauperis status was denied for the purpose of an appeal.

This request for a COA followed.

                                           -6-
                                    DISCUSSION

      “A COA is a prerequisite to appellate jurisdiction in a habeas action.”

Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .

constitutional claims on the[ir] merits,” the applicant “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where, as here, a district court’s ruling rests on procedural grounds, the applicant

must prove both “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir.),

cert. denied, 133 S. Ct. 669 (2012).

      Mr. Johnson argues his habeas petition was “erroneously dismissed by the

United States District Court due to its failure to consider [his] actual innocence

with respect to equitable tolling of the statutory time limits set by 28 U.S.C.

§ 2244(d).” Appellant’s Op. Br. & App. for COA at 8. He thus argues that

issuance of a COA is required, as well as a remand to the district court for an

evidentiary hearing into his claims of actual innocence.




                                          -7-
      Mr. Johnson cites McQuiggin v. Perkins, 133 S. Ct. 1924, 1931, 1933

(2013), in which the Supreme Court reaffirmed that there is an “equitable

exception” to the statute of limitations applicable to habeas claims, but “only

when the petitioner presents new evidence that ‘shows it is more likely than not

that no reasonable juror would have convicted the petitioner.’” Gore v. Crews,

720 F.3d 811, 817 (11th Cir. 2013) (quoting McQuiggin, 133 S. Ct. at 1933).

Thus, under McQuiggin, “actual 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, 133

S. Ct. at 1928. The Court’s opinion in McQuiggin makes clear the limitations on

its holding: “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner

does not meet the threshold requirement unless he persuades the district court

that, in light of the new evidence, no juror, acting reasonably, would have voted

to find him guilty beyond a reasonable doubt.’” Id. (quoting Schlup, 513 U.S. at

329)). “AEDPA’s time limitations apply to the typical case in which no

allegation of actual innocence is made.” Id. at 1933; see Gore, 720 F.3d at 817.

      The Court stressed the “demanding” nature of the test for permitting the

gateway to open: “The gateway should open only when a petition presents

‘evidence of innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error.’” Id. at 1936 (quoting Schlup, 513 U.S. at 316).

                                           -8-
The Court also noted that the degree of diligence displayed by the petitioner in

pursuing and presenting the new evidence “bears on the determination whether

the petitioner has made the requisite showing [of actual innocence].” Id. at 1935.

      Mr. Johnson argues that there was DNA and other evidence casting doubt

on his guilt, which his plea counsel failed to further investigate and/or properly

present or discuss with him, and that his counsel failed to discover and/or the

state withheld at some point a serology report which he says casts doubt on his

guilt. He attaches to his COA request materials from forensic serologists which

suggest the reports and evidence used in connection with Mr. Johnson’s

conviction should be retested and are, in various ways, inaccurate. All of this, he

avers, suggests the need for us to remand this case to the district court for an

evidentiary hearing in which he can establish his actual innocence. Thus, he

argues that reasonable jurists could conclude that the district court erred in

rejecting his claim that he has presented “evidence of innocence so strong” that

we cannot have confidence in his conviction.

      We disagree with Mr. Johnson. First, Mr. Johnson pled guilty. While he

claims that his guilty plea was involuntary and coerced, the state courts rejected

that argument, and his plea of guilty simply undermines his claim that another

individual committed the crime to which he pled guilty. See Goosby v.




                                          -9-
Trammell, 515 Fed. Appx. 776, 777 (10th Cir. 2013) (unpublished) 3 (rejecting

actual innocence argument, stating “[g]iven [petitioner’s] guilty plea and his

failure to address other evidence that contributed to his plea, he fails to carry the

heavy burden of ‘show[ing] it is more likely than not that no reasonable juror

would have convicted him’”) (quoting McQuiggin, 133 S. Ct. at 1935); Chestang

v. Sisto, 522 Fed. Appx. 389, 390 (9th Cir. 2013) (unpublished) (rejecting

petitioner’s “actual innocence” claim, noting that he “specifically pleaded

guilty”).

      Second, the evidence is not “new.” Actual innocence claims focus on

“new” evidence—“relevant evidence that was either excluded or unavailable at

trial.” Schlup, 513 U.S. at 327-28; see Chestang, 522 Fed. Appx. at 391. As one

district court pointed out, “[petitioner] has presented no new evidence, he simply

argues the DNA evidence which existed at the time he pled guilty is evidence of

his innocence.” Ross v. King, No. 1:13cv70-HSO-RHW, 2013 WL 6048156, at

*3 (S.D. Miss. Nov. 15, 2013) (unpublished); see James v. Ratman, No. CV 11-

8693-ABC(MAN), 2013 WL 5840278, at *8 (Oct. 28, 2013) (unpublished) (noting

that statement of which petitioner “was fully aware . . . before and during his trial

. . . cannot be said to constitute the requisite ‘evidence claimed to have been

wrongly excluded or to have become available only after the trial’”) (quoting


      3
        Since this case is unpublished, we cite it only for the persuasive value of
its reasoning.

                                         -10-
Schlup, 513 U.S. at 328)). As indicated above, supra n.2, the Colorado Court of

Appeals’ decision affirming Mr. Johnson’s Rule 35(c) motion indicated that he

was aware of alleged discrepancies in the DNA evidence and the existence of an

alternative suspect before he pled guilty.

      Third, while the allegedly “new” evidence has been in existence since

Mr. Johnson’s plea of guilty, he only now seeks to present it as grounds for his

actual innocence. “Unexplained delay in presenting new evidence bears on the

determination whether the petitioner has made the requisite showing.”

McQuiggin, 133 S. Ct. at 1935.

      In short, Mr. Johnson has not convinced us that the district court erred in

any respect in concluding that his case is not one of “rare” cases meeting the

“demanding” test for ignoring the one-year limitations period otherwise

applicable to his petition. We cannot say that any reasonable jurist would

disagree with or find fault with the district court’s analysis. Furthermore, given

that Mr. Johnson has presented the evidence he believes shows his actual

innocence, we cannot say that the district court abused its discretion in denying

an evidentiary hearing. See United States v. Flood, 713 F.3d 1281, 1290 (10th

Cir.), cert. denied, 82 USLW 3104, 3166, 3185 (Oct. 7, 2013).




                                         -11-
                                  CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter. We

DENY in forma pauperis status, and remind Mr. Johnson that he must make full

payment of all applicable fees.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




                                     -12-
