                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                      No. 06-3355
 M A RK JO H N CH A PM A N ,                  (D. C. No. 94-CR-30007-01-RDR)
                                                (D. C. No. 05-CV-3332-RDR)
          Defendant-Appellant.                           (D. Kansas)




           OR DER DENY ING A CERTIFICATE O F APPEALABILITY *


Before BRISCO E, M cK AY, and M cCO NNELL, Circuit Judges.


      M ark John Chapman (Chapman), a federal prisoner appearing pro se, seeks

to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set

aside or correct his sentence. The matter is before this court on Chapman’s

request for a certificate of appealability (COA). As Chapman has not made a

“substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and

dismiss this matter.

      Pursuant to a plea agreement, Chapman pled guilty to the first degree



      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
murder of another prisoner while incarcerated in a federal facility and was

sentenced to a term of life imprisonment. When Chapman later concluded that his

plea agreement was not being properly observed, he filed a motion to enforce the

plea agreement which was denied. This denial was affirmed on appeal. See

United States v. Chapman, Case No. 96-3210 (10th Cir. June 24, 1997). After

Chapman provided the government substantial assistance in other matters, the

government filed a motion to reduce Chapman’s life sentence to a thirty-year term

of imprisonment. On August 7, 2000, the district court reduced Chapman’s

sentence to thirty years.

      On June 17, 2005, Chapman filed a § 2255 petition arguing that the

government had breached the plea agreement by failing to recommend a twenty-

year sentence. That petition was transferred to this court as a successive habeas

petition. However, we concluded it was not a successive request and returned the

petition to the district court. Chapman v. United States, Case No. 05-3333 (10th

Cir. Jan. 19, 2006). The district court denied the § 2255 petition, holding that it

was time-barred, that Chapman was not entitled to rely upon either equitable

tolling or equitable estoppel, and that Chapman’s claim of actual innocence

lacked merit. The district court also noted that even if it were to reach the merits

of Chapman’s claim, it would deny the relief requested because the plea

agreement did not address the matters that ultimately led the government to seek a

reduction in his sentence. The district court denied Chapman’s motion for

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reconsideration and his application for a COA.

      Our granting of a CO A is a jurisdictional prerequisite to Chapman’s appeal

from the denial of his § 2255 petition. M iller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Chapman must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, Chapman must demonstrate “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.” M iller-El, 537 U.S. at 336 (internal

quotations omitted); see also Slack, 529 U.S. at 484-85 (holding that when a

district court dismisses a habeas petition on procedural grounds, a petitioner is

entitled to a COA only if he shows both that reasonable jurists w ould conclude it

debatable w hether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct).

      To determine whether Chapman has satisfied his burden, we undertake “a

preliminary, though not definitive, consideration of the [legal] framew ork”

applicable to each of his claims. M iller-El, 637 U.S. at 338. Although Chapman

need not demonstrate his appeal will succeed to be entitled to a COA, he must

“prove something more than the absence of frivolity or the existence of mere

good faith.” Id. (internal quotations omitted). Having undertaken a review of

Chapman’s application for a COA and appellate filings, the district court’s order,

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and the entire record on appeal pursuant to the framework set out by the Supreme

Court in M iller-El, we conclude Chapman is not entitled to a COA. Because

Chapman’s § 2255 petition is clearly time-barred, the district court’s resolution of

his petition is not reasonably subject to debate and the issues he seeks to raise on

appeal do not merit further consideration.

       M ore specifically, a § 2255 motion must be filed within one year from the

latest of:

       (1) the date on which the judgment of conviction becomes final;

       (2) the date on which the impediment to making a motion created by
       governmental action in violation of the Constitution or laws of the
       United States is removed, if the movant was prevented from making
       a motion by such governmental action;

       (3) the date on which the right asserted was initially recognized by
       the Supreme Court and made retroactively applicable to cases on
       collateral review; or

       (4) the date on which the facts supporting the claim or claims
       presented could have been discovered through the exercise of due
       diligence.

28 U.S.C. § 2255.

       Here, Chapman entered into a plea agreement with the government and

pled guilty to first degree murder on M ay 24, 1994. He was sentenced to life in

prison on June 16, 1994 and did not file a direct appeal. Because he did not file

a direct appeal, his conviction became final ten days later. See Fed. R .App. P.

4(b)(1)(A ). Chapman did not file his § 2255 petition until June 17, 2005, well



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after the one-year limitation period set forth in § 2255 had expired.

      Chapman essentially argues that the § 2255 statute of limitations w as again

triggered on August 7, 2000, the day the district court granted the government’s

Rule 35 motion and reduced Chapman’s sentence to thirty years. However, when

a federal prisoner is resentenced following a Rule 35(b) motion by the

government, the statute of limitations does not recommence from the date of the

resentencing judgment. See United States v. Sanders, 247 F.3d 139, 142-44 (4th

Cir. 2001). Even if we were to conclude that the limitations period set forth in §

2255 was triggered at Chapman’s resentencing in August of 2000, that time

period had long since expired when Chapman filed his § 2255 petition in 2005.

Likewise, to the extent Chapman argues that he was somehow unaware of the

facts supporting his § 2255 claim, we agree with the district court that Chapman

was aware at the time of his resentencing that the government did not ask the

court to reduce his sentence to twenty years.

      Beyond this, and despite his protestations to the contrary, we agree with

the district court that Chapman presents no meaningful argument that the

limitations period in this case should be equitably tolled. See M arsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000) (holding equitable tolling available if “an

inmate diligently pursues his claims and demonstrates that the failure to timely

file w as caused by extraordinary circumstances beyond his control”). Chapman’s

vague and conclusory allegations that he lacked access to library materials

                                         -5-
because of potentially hostile fellow inmates are insufficient to support equitable

tolling. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“[A] claim

of insufficient access to relevant law . . . is not enough to support equitable

tolling.”). Likewise, we see no merit in his contention that he was somehow

tricked by the government into allowing the statute of limitations to expire. See

Irw in v. Dept. of Veterans A ffairs, 498 U.S. 89, 96 (1990) (holding that equitable

tolling may be applicable w here complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline to pass).

      Last, as for Chapman’s contention that he is entitled to equitable tolling

because he is actually innocent of the crime for which he was convicted, we

conclude that this theory is equally unavailing. It is true that a claim of actual

innocence may equitably toll the one-year statute of limitations set forth in 28

U.S.C. § 2255. See Gibson, 232 F.3d at 808 (“Equitable tolling would be

appropriate, for example, when a prisoner is actually innocent.”). H owever, a

petitioner “must demonstrate that, in light of all the evidence, it is more likely

than not that no reasonable juror would have convicted him.” Bousely v. United

States, 523 U.S. 614, 623 (1998) (citations omitted). A valid claim of actual

innocence requires a 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.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Also, actual

                                          -6-
innocence means “factual innocence, not mere legal insufficiency.” Bousely,

523 U.S. at 623. Twelve years after pleading guilty to first degree murder,

Chapman now argues, without alleging the existence of any evidence beyond the

recantation of his prior guilty plea, that his alleged victim had in fact committed

suicide and he only had claimed to be the murderer to gain prestige with the

Aryan Brotherhood. This conclusory assertion is insufficient to justify equitable

tolling.

       Accordingly, we DEN Y Chapman’s application for a CO A and DISM ISS

this matter. W e also DENY Chapman’s motion to proceed in forma pauperis.


                                               Entered for the Court


                                               M ary Beck Briscoe
                                               Circuit Judge




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