                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                              May 4, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RAUL ESTRADA,

      Petitioner - Appellant,

v.                                                           No. 15-2021
                                                 (D.C. No. 2:14-CV-00500-KG-SMV)
JAMES JANECKA; GARY K. KING,                                  (D. N.M.)

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________

      Raul Estrada, a New Mexico state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his federal

habeas petition.

      In 2002, Estrada was convicted of six counts of criminal sexual penetration of

a child under the age of 13 and six counts of criminal sexual contact of a minor. He

was sentenced to 36 years, with 10 years suspended, for an actual term of 26 years.

More than nine years after Estrada’s convictions became final, he filed a state habeas

petition, which the state district court summarily denied. After the New Mexico

Supreme Court denied Estrada’s petition for writ of certiorari, he filed a federal

      *
         This order is not binding precedent except under the doctrines of law of the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.
habeas petition seeking to overturn his convictions. The federal district court denied

the petition, concluding it was barred by the one-year statute of limitations for filing

a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A).

      The court may grant a COA only if the petitioner makes a “substantial showing

of the denial of a constitutional right” by providing the court grounds to conclude

that reasonable jurists could find the district court’s decision debatable or wrong.

28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The district

court found that Estrada filed his petition long after § 2244(d)(1)(A)’s one-year time

limit expired. And Estrada does not contend that reasonable jurists could disagree

with that decision. Instead, he argues the district court should have granted him an

equitable exception to the limitations period based on his claim of actual innocence.

      It is true that a “credible showing of actual innocence may allow a prisoner to

pursue his constitutional claims . . . on the merits notwithstanding” § 2241(d)(1)’s

time bar. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013). But Estrada’s habeas

petition did not specifically assert an actual innocence claim. Ordinarily the court

does not address arguments made for the first time on appeal, particularly where, as

here, the petitioner has not argued for plain error review. See Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1131 (10th Cir. 2011); see also Rojem v. Gibson, 245 F.3d 1130,

1141 (10th Cir. 2001).

      Estrada did argue below that the Antiterrorism and Effective Death Penalty

Act (AEDPA) “should not be used as a constitutional bar in a case such as this where

the law has not been applied justly.” Pet’r Resp., Doc. 8 at 1. But even if we were to

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construe this statement as a claim of actual innocence, see Heard v. Addison, 728

F.3d 1170, 1186 n.8 (10th Cir. 2013) (describing court’s practice of liberally

construing pro se filings “within the labyrinth of § 2254”), the claim would fail

because Estrada has provided no new evidence to support it.

      To prevail on a claim of actual innocence, the petitioner 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);

see also Frost v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir. 2014). And he must

demonstrate that the “new evidence shows ‘it is more likely than not that no

reasonable juror would have convicted [the petitioner].’” McQuiggin, 133 S. Ct. at

1933 (quoting Schlup, 513 U.S. at 329).

      Estrada has not met this demanding standard. He claims his trial counsel was

ineffective for not investigating two witnesses’ motives to lie about him, not using

medical experts, and not making potentially meritorious pretrial motions. He also

raises issues of double jeopardy, insufficiency of the evidence, and prosecutorial

misconduct. But he offers no new evidence to support his claim of actual innocence.

      Estrada’s request for a COA is denied and the matter is dismissed.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge


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