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

                                TENTH CIRCUIT                                  July 9, 2015
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JEFFERY A. HOLDEN,

       Petitioner-Appellant,
                                                            No. 15-6065
v.                                                   (D.C. No. 5:14-CV-00174-D)
                                                            (W.D. Okla.)
MIKE ADDISON, Warden,

       Respondent-Appellee.
                    ____________________________________

        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                       DISMISSING APPEAL
                ____________________________________

Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.
                ____________________________________

       Jeffery Holden, an Oklahoma state prisoner proceeding pro se, seeks to appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition, claiming actual innocence and

ineffective assistance of counsel. We construe pro se filings liberally. See Garza v.

Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). The district court dismissed Holden’s

petition as untimely. Holden now asks us to grant him a COA and hear his appeal. He

also seeks permission to proceed In Forma Pauperis.

       “When the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim, a COA 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.

McDaniel, 529 U.S. 473, 484 (2000).

       Holden argues his counsel coerced him into pleading guilty by misrepresenting the

strength of the government’s DNA evidence against him. Magistrate Judge Goodwin

explained precisely why Holden’s petition is untimely in a thorough Report and

Recommendation, which the district court adopted. And Holden essentially concedes his

petition is untimely under 28 U.S.C. § 2244(d)(1). But he believes he is entitled to

equitable tolling of the limitations period because he provides new evidence of his actual

innocence. Moreover, Holden argues the court erroneously considered timeliness an

absolute bar in denying his actual innocence claim.

       “[A]ctual innocence, if proved, serves as a gateway through which a petitioner

may pass” even where the § 2244(d)(1) limitations period has expired. McQuiggin v.

Perkins, 133 S. Ct. 1924, 1928 (2013). But a tenable actual-innocence gateway claim

requires a petitioner to persuade the district court that, in light of “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence,” Schlup v. Delo, 513 U.S. 298, 324 (1995), “no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”

McQuiggin, 133 S. Ct. 1924 at 1928.          Critically, “actual innocence means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615

(1998).

       Holden’s COA application asserts that he originally pleaded guilty because his

counsel told him the prosecution had a positive DNA match tying him to the crimes at

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issue, but he later found out that this DNA evidence did not definitively “match” him to

the crime. Rather, the DNA sample was a mixture from which Holden could not be

confirmed or excluded as a potential contributor.

       Even assuming the 2005 DNA report that Holden relies on could be construed as

“new,” it does not meet the requirements of Schlup, and McQuiggin. The DNA report is

neither exculpatory nor critical evidence—it is simply inconclusive.         Moreover, the

record indicates that this DNA “match” was but one piece of the “overwhelming

evidence” against Holden. Holden makes no effort to show that this other overwhelming

evidence could not establish his guilt. As such, he has failed to establish that, in light of

the inconclusive nature of the DNA report, “no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” McQuiggin, 133 S. Ct. 1924 at

1928. Moreover, to the extent Holden argues he would not have pleaded guilty had he

known the DNA results were inconclusive, this claim goes to legal sufficiency, not

factual innocence. See Bousley, 523 U.S. at 615.

       Given that Holden does not provide a legally sufficient claim of actual innocence,

McQuiggin’s analysis as to the timeliness of an actual-innocence gateway claim is

irrelevant. Rather, Holden is bound by the one-year limitations period in § 2244(d)(1).

His petition is clearly untimely under § 2244(d)(1) and he is not entitled to statutory or

equitable tolling. In sum, Holden’s reliance on this “new” inconclusive DNA report is a

frivolous attempt to breathe life into a clearly untimely petition. Accordingly, Holden’s




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request for a COA is DENIED, his appeal is DISMISSED, and his Motion to Proceed In

Forma Pauperis is DENIED.

                                     Entered for the Court,



                                     Bobby R. Baldock
                                     United States Circuit Judge




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