                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS                        July 5, 2006

                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court



 DO UG LAS L.R. AB EL,

          Petitioner-A ppellant,

 v.                                                    No. 05-3444
                                                (D.C. No. 04-CV-3465-SAC)
 STATE OF KAN SAS; ATTO RN EY                             (Kansas)
 G EN ER AL O F TH E STA TE O F
 KA NSA S; and LOU IS E. BRU CE,

          Respondents-Appellees.




                                      ORDER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Douglas L.R. Abel, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s dismissal of his 28 U.S.C. §

2254 petition as time barred. Because he is proceeding pro se, we review M r.

Abel’s pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Exercising jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253(c), we conclude jurists of reason would



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, or collateral estoppel.
not find debatable the district court’s rejection of M r. A bel’s petition for relief.

W e therefore deny his application for a COA.

      M r. Abel was convicted in 1995 of felony murder and robbery and is

currently serving a life sentence in a Kansas correctional facility. His convictions

were affirmed on direct appeal by the Kansas Supreme Court on January 27,

1997. On February 4, 1998, M r. Abel initiated pro se state post-conviction

proceedings w hich were ultimately denied by the Kansas Supreme Court on July

13, 2000. M r. Abel initiated his federal § 2254 action on November 22, 2004. 1

      In seeking federal habeas relief, M r. Abel acknowledged he filed his

petition outside of the one-year limitations period detailed in 28 U.S.C. § 2244(d),

but argued he should be afforded equitable tolling. See Gibson v. Klinger, 232

F.3d 799, 808 (10th Cir. 2000) (limitations period in § 2244(d) subject to

equitable tolling, but only in rare and exceptional situations). He contended

extraordinary circumstances beyond his control prevented him from filing his §

2254 petition in a timely manner, that he diligently pursued his claims for relief,

and that he was actually innocent of the crimes for w hich he was convicted. Id.

(equitable tolling may be appropriate w here prisoner is actually innocent,




      1
       M r. Abel’s habeas petition essentially claimed (1) the state knowingly and
intentionally presented false, misleading, and suggestive evidence at his trial,
violating his Fourteenth Amendment right to due process; (2) the state violated
his Sixth Amendment confrontation rights; (3) ineffective assistance of counsel;
and (4) actual innocence.

                                           -2-
uncontrollable circumstances prevent a timely filing, and prisoner diligently

pursued his federal habeas claims).

      In particular, M r. Abel claimed that problems he allegedly encountered

during his pro se state post-conviction proceedings created an extraordinary

circumstance beyond his control and prompted him not to want to proceed with

his federal § 2254 petition without the aid of counsel. He likewise argued he

diligently pursued his claims, and submitted correspondence dating from the

beginning of 2001 through 2004 highlighting his attempts to secure counsel to file

his federal petition and to gather additional evidence about his case. Finally, in

claiming actual innocence, M r. Abel essentially argued that the evidence

presented against him at trial was not sufficient to support his conviction.

      In a ten-page memorandum and order, the district court engaged in a

careful analysis of the time line for M r. Abel’s case, concluding his conviction

became final in April 1997. Pursuant to § 2244(d), therefore, M r. Abel had until

April 1998 to file his federal habeas action. In light of M r. Abel’s state post-

conviction proceedings, however, the court rightly noted the one-year limitations

period was tolled until July 13, 2000, when the K ansas Supreme Court denied M r.

Abel’s state petition for relief. The district court calculated that at that time M r.

Abel had eighty-two days, or until early October 2000, to file his federal action




                                           -3-
before the limitations period expired. 2 As noted above, M r. Abel filed his action

in November 2004, over four years later.

      The district court rejected M r. Abel’s equitable tolling arguments. First, it

declined to find that the alleged problems M r. Abel encountered while seeking

state post-conviction relief were sufficient to amount to the extraordinary

circumstances necessary to w arrant equitable tolling. The court likew ise

dismissed M r. Abel’s contentions that he had diligently pursued his claims. It

noted that all the evidence presented by M r. Abel to support his diligence

argument was dated after the statute of limitations had already expired. The court

comm ented that M r. Abel’s post limitation period actions, “no matter how

diligent, do not entitle him to equitable tolling.” Rec., doc. 7 at 10. The court

also stated that “[p]etitioner describes no circumstances between July 13, 2000,

and the end of December, 2000, which were beyond his control and prevented him

from filing his 2254 petition on time.” Id. at 9. Finally, the court commented in

passing that M r. Abel’s actual innocence claim was unwarranted because he failed

to present any new evidence to the court. Id. at 5 n.6. See also Schlup v. Delo,




      2
        As acknowledged by the district court, it was not clear from the record
whether M r. Abel learned of the Kansas Supreme Court’s decision to deny his
petition for relief in July 2000, or in October of that same year, when he received
a copy of the court’s decision. Giving M r. Abel the benefit of the doubt, the
district court included in its timeliness and equitable tolling analysis the
possibility that M r. Abel’s remaining eighty-two days might not have expired
until D ecember 2000.

                                         -4-
513 U.S. 298, 324 (1995) (“To be credible, such a claim requires petitioner 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 court therefore

dismissed M r. Abel’s § 2254 petition as time barred and subsequently denied his

request for a C OA .

      A COA can issue only “if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). W hen, as here, a

district court dismisses a habeas petition on procedural grounds without

addressing the prisoner’s underlying constitutional claims, “a CO A should issue

when the prisoner shows, at least, 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.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). W ith

these principles in mind, we have carefully reviewed the record before us, the

order of the district court, and M r. A bel’s COA request.

      W e need not reach M r. Abel’s substantive claims, as we do not find

debatable the district court’s procedural dismissal of M r. Abel’s habeas petition

as time barred. M r. Abel has failed to show rare and exceptional circumstances to

warrant equitable tolling. Likew ise, in the absence of any new evidence, M r.

Abel’s actual innocence claim is unsupportable.

                                          -5-
      Accordingly, we D EN Y M r. Abel’s application for a COA, and DISM ISS

his appeal.

                                    ENTERED FOR THE COURT

                                    Stephanie K. Seymour
                                    Circuit Judge




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