                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 16, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court



 G EO RG E JA M ES A LLEN ,

       Petitioner – Appellant,
                                                        No. 05-5168
 v.
                                                 (D.C. No. 04-CV -638-CV E)
                                                        (N.D. Okla.)
 STEVE BECK, W arden,

       Respondent – Appellee.



                            ORDER DENYING
                     CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      George James Allen, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we D EN Y a COA and DISM ISS.

      A llen w as convicted of two counts of sexually abusing a minor child. H e

was sentenced to consecutive prison terms that totaled one hundred tw enty years.

He appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), and on

December 19, 1995, his convictions were affirmed. Almost six years later, on

January 2, 2001, Allen filed an application for post-conviction relief in the

District Court of Tulsa County. Following an evidentiary hearing, the state
district court denied relief on August 22, 2003. Allen appealed, and on June 18,

2004, the OCCA affirmed the district court. Allen then filed this § 2254

application on July 12, 2004, in federal district court. Respondent Beck opposed

the petition, arguing that it was time-barred. Allen argued in response that the

doctrine of equitable tolling justified his delay. The district court concluded that

Allen’s habeas petition was time-barred and dismissed. Having failed to secure a

COA from that court, Allen now seeks a COA from this court. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U .S.C. § 2244(d). It states:

      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of –
          (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review ;



      1
         Allen’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U .S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires A llen to 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. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Allen a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.

                                            -2-
          (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of the
      United States is removed, if the applicant was prevented from filing
      by such State action;
          (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been
      newly recognized by the Supreme Court and made retroactively
      applicable to cases on collateral review; or
          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
       (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.

Because this law went into effect on April 24, 1996, after Allen’s conviction

became final, Allen had until April 24, 1997 to file his petition. See United

States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

      Under 28 U.S.C. § 2244(d)(2), the time during which a properly filed

application for state post-conviction relief or other collateral review is pending

does not count towards the one-year statute of limitations. However, Allen did

not file his state application for post-conviction relief until January 2, 2002, over

five years after the statute of limitations had run.

      Allen makes tw o arguments that equitable tolling excuses this delay. First,

he asserts that his appellate counsel failed to file an application for post-

conviction relief as she had promised. Equitable tolling “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.” M arsh v.

                                          -3-
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Because there is no constitutional

right to counsel in collateral proceedings, see Pennsylvania v. Finley, 481 U.S.

551, 555 (1987), we have held that “lack of assistance from counsel [is] not

sufficient to establish extraordinary circumstances warranting equitable tolling.”

M arsh, 223 F.3d at 1220. M oreover, the eight-year delay between the conclusion

of Allen’s direct appeal and the filing of the instant action belies any conclusion

that Allen pursued his habeas claims diligently.

      Allen also argues that equitable tolling should be applied because he is

actually innocent. The evidence supporting his actual innocence claim consists of

letters from the victims of sexual abuse recanting their trial testimony. Equitable

tolling for habeas corpus relief may be available in extraordinary circumstances

such as when “a constitutional violation [will] result[ ] in the conviction of one

who is actually innocent or incompetent.” M iller v. M arr, 141 F.3d 976, 978

(10th Cir. 1998). Claims of actual innocence, however, are subject to an exacting

standard, and in most cases, are simply not cognizable through habeas petitions.

As the Supreme Court explained in Herrera v. Collins, 506 U.S. 390, 400 (1993):

“Claims of actual innocence based on newly discovered evidence have never been

held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding . . . .

This rule is grounded in the principle that federal habeas courts sit to ensure that

individuals are not imprisoned in violation of the Constitution – not to correct

                                         -4-
errors of fact.” Because Allen does not allege that these letters were not given

their due weight at his state trial as a result of a constitutional violation, but

rather that their appearance after the trial merely affects the balance of the

evidence, he asserts a “freestanding” actual innocence claim. See, e.g., Sellers v.

W ard, 135 F.3d 1333, 1338 (10th Cir. 1998). As stated by the district court,

Allen’s “‘newly discovered evidence’ . . . is actually the claim itself, rather than

the factual predicate of a independent constitutional claim.” Such a freestanding

claim of actual innocence is not available in this non-capital case. 2

      Allen’s actual innocence claim has already been afforded an evidentiary

hearing and appellate review by the state courts. Under Herrera, we are precluded

from giving Allen’s letters a third look. As much as these recantations give us

pause, if Herrera is to be revisited, it is not for us to do so.




      2
        The Court in Herrera did not altogether preclude freestanding claims of
actual innocence, and assumed for argument’s sake, “that in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim.” Herrera, 506 U.S. at
417. Because Allen did not receive a death sentence, this exception does not
apply. See M ilone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994); but see White v.
Keane, 51 F.Supp.2d 495, 504 (S.D.N.Y.1999) (suggesting that a liberal reading
of H errera extends the exception to non-capital cases). Furthermore, Herrera
indicates that a freestanding actual innocence claim is not cognizable at all in
habeas when a state avenue for relief is open, such as executive clemency. See
Herrera, 506 U.S. at 417. The record does not indicate that Allen has sought
executive clemency.

                                           -5-
Allen’s request for a COA is DENIED and the appeal is DISM ISSED.


                             ENTERED FOR THE COURT

                             Carlos F. Lucero
                             Circuit Judge




                              -6-
