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

                             FOR THE TENTH CIRCUIT                             January 11, 2017
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
JOSHUA D. SLINKARD,

      Petitioner - Appellant,

v.                                                             No. 16-5133
                                                   (D.C. No. 4:13-CV-00703-JED-PJC)
TRACY MCCOLLUM, Warden,                                       (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY**
                    _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

       Joshua Slinkard, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

application. To obtain a COA, Slinkard must make “a substantial showing of the denial of

a constitutional right.” Id. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Because Slinkard hasn’t made that showing, we deny his request for a COA and

dismiss this matter.

       
          Slinkard is housed at the North Fork Correctional Center. Tracy McCollum, the
current warden of that facility, is substituted for its former warden, Janet Dowling, as the
respondent in this action. See Fed. R. App. P. 43(c)(2).
        **
           This order isn’t binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
        1
          We liberally construe pro se pleadings. But we don’t act as an advocate for pro
se litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
                                       BACKGROUND

       In 2011, Slinkard pleaded guilty in Oklahoma state court to seven counts of child

sexual abuse, one count of lewd molestation of a child under sixteen, and one count of

possessing child pornography. Pursuant to a negotiated plea agreement, the trial court

imposed a controlling 30-year prison sentence. Four days later, Slinkard moved to

withdraw his guilty pleas. He asserted that he “felt undue pressure” to enter the pleas and

that, due to an undiagnosed and untreated mental illness, “he was not in his right state of

mind” when he entered them. R. vol. 1, 97.

       After an evidentiary hearing, the trial court denied Slinkard’s motion. Slinkard

appealed, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed. The OCCA

concluded that the record didn’t support Slinkard’s assertion that his guilty pleas were the

product of untreated mental illness or coercion. The OCCA found that the record instead

demonstrated that Slinkard’s pleas were knowing and voluntary.

       Slinkard then applied for post-conviction relief in state district court, asserting two

ineffective-assistance-of-counsel (IAC) claims. The state district court concluded that

those claims were procedurally barred under state law and therefore denied Slinkard’s

application. The OCCA affirmed.

       Slinkard filed the instant § 2254 application in October 2013, asserting three

claims: (1) he was denied his Fifth, Sixth, and Fourteenth Amendment due process rights

because his guilty pleas were neither knowing nor voluntary, (2) he was denied his Sixth

Amendment right to effective assistance of counsel during the plea bargaining process,



                                              2
and (3) he was denied his Sixth Amendment right to effective assistance of counsel

during the hearing on the motion to withdraw his guilty pleas.2

       In September 2014, while his § 2254 application was pending, Slinkard filed a

second application for state post-conviction relief based on newly discovered evidence.

See Okla. Stat. Ann. tit. 22, § 1080(d) (permitting state prisoners to seek vacation of

conviction or sentence based on claim “that there exists evidence of material facts, not

previously presented and heard” that would require granting relief “in the interest of

justice”). Specifically, Slinkard cited a letter he received from his wife in July 2014. In

the letter, his wife states that Slinkard’s stepdaughter—one of the victims Slinkard

pleaded guilty to sexually abusing—“ha[s] problems” with both Slinkard and her

biological father and “was also raped during the summer by a friend.” R. vol. 1, 264.

Slinkard argued that the letter “establish[es] that [his stepdaughter] has the propensity to

lie about being sexually abused and/or assaulted; therefore, the allegation against [him] is

part of a pattern of false abuse.” Id. at 260. He further argued that, had this evidence been

available during plea negotiations, “his attorney would have investigated the evidence

and opted for a jury trial instead of coercing [him] to sign[] a plea agreement.” Id. at 262.

       The state district court concluded this evidence wasn’t material and denied

Slinkard’s application. The OCCA affirmed, concluding that Slinkard didn’t demonstrate

“a reasonable probability that [the] letter would have changed the outcome in this case.”

R. vol. 1, 287.


       2
         In his combined opening brief and COA application, Slinkard expressly waives
the ineffective-assistance-of-counsel claims. Thus, we don’t address them further.
                                              3
       In November 2015, Slinkard moved for leave to file an amended § 2254

application. Slinkard primarily sought to add the claim he exhausted in his second

application for state post-conviction relief—i.e., his claim that the July 2014 letter from

his wife demonstrates the victim’s propensity to lie and establishes the victim’s pattern of

making false sexual-abuse allegations.

       The district court denied Slinkard’s motion to file the amended application. First,

the district court characterized any new claims in that application as presumptively time-

barred under 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations. Second, it

construed Slinkard’s allegations relating to the July 2014 letter as asserting a gateway

actual-innocence claim that might operate to overcome the one-year statute of limitations.

See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (holding that “actual innocence,

if proved, serves as a gateway through which a petitioner may pass whether the

impediment is a procedural bar . . . [or] expiration of the statute of limitations”). Finally,

it concluded that Slinkard wasn’t “entitled to equitable tolling based on actual innocence”

because the new evidence Slinkard cited wasn’t “sufficient to undermine confidence in

[his] conviction[s].” R. vol. 1, 304. See id. at 1936 (“The gateway should open only when

a petition presents ‘evidence of innocence so strong that a court cannot have confidence

in the outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error.’” (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995))).

       The court then addressed the claims Slinkard asserted in his original habeas

application. As relevant here, the court concluded that Slinkard didn’t show by clear and

convincing evidence that the OCCA erred in finding that his guilty pleas were knowing

                                               4
and voluntary. See 28 U.S.C. § 2254(e)(1) (providing that state court factual

determinations are “presumed to be correct” and requiring habeas applicant to rebut

presumption with clear and convincing evidence). The court further concluded that, in

light of the OCCA’s factual findings, Slinkard couldn’t show the OCCA’s adjudication of

this claim was contrary to, or involved an unreasonable application of, clearly established

law. See id. § 2254(d)(1). Accordingly, the court refused to grant Slinkard habeas relief.

Finally, the court declined to issue a COA.

                                        DISCUSSION

       Slinkard first argues that we should issue a COA on his claim that the trial court

violated his due process rights by accepting his guilty pleas when, according to Slinkard,

those pleas weren’t knowing and voluntary. Because the OCCA adjudicated the merits of

this claim, Slinkard had to demonstrate to the district court that the OCCA’s rejection of

this claim was contrary to, or involved an unreasonable application of, clearly established

federal law, or that it was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding. See Id. § 2254(d)(1)-(2).

       And because the district court rejected this claim on its merits, we will issue a

COA only if Slinkard “demonstrate[s] that reasonable jurists would find the district

court’s assessment of the constitutional claim[] debatable or wrong.” Slack, 529 U.S. at

484. Having reviewed Slinkard’s combined opening brief and COA application, the

transcripts of Slinkard’s plea hearing and hearing on the motion to withdraw his guilty

pleas, the OCCA’s decision, the district court’s order, and the applicable law, we

conclude that Slinkard hasn’t made the requisite showing to obtain a COA on this claim.

                                              5
       Next, Slinkard asserts that we should grant a COA to review whether the district

court abused its discretion when it denied his motion to add his claim based on newly

discovered evidence. Slinkard specifically argues that (1) the district court failed to

“consider the substance of his [n]ewly [d]iscovered [e]vidence,” Aplt. Br. 12, and

(2) “[a]ctual [i]nnocence is a valid cognizable claim . . . under the United States

Constitution,” id. at 13. Slinkard is wrong on both points.

       First, to the extent that Slinkard suggests the district court should have treated his

newly-discovered-evidence claim as asserting a freestanding actual-innocence claim and

should have granted habeas relief on that claim, Slinkard is mistaken. “[A] claim of

‘actual innocence’ is not itself a constitutional claim , but instead a gateway through

which a habeas petitioner must pass to have his otherwise barred constitutional claim

considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993); see also

LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001) (“[A]n assertion of actual

innocence, although operating as a potential pathway for reaching otherwise defaulted

constitutional claims, does not, standing alone, support the granting of the writ of habeas

corpus.”).

       Second, to the extent that Slinkard instead suggests the district court appropriately

characterized his newly-discovered-evidence claim as a gateway actual-innocence claim,

but nevertheless failed to “consider the substance of his [n]ewly [d]iscovered [e]vidence,”

Aplt. Br. 12, that argument also fails. The district court thoroughly addressed why

Slinkard’s new evidence—the July 2014 letter from his wife—doesn’t “undermine



                                              6
confidence in [Slinkard’s] convictions.”3 R. vol. 1, 304. Moreover, even assuming the

district court somehow erred in evaluating that evidence, Slinkard failed to tether his

gateway actual-innocence claim to an independent constitutional claim. Thus, Slinkard

isn’t entitled to a COA on this basis. See § 2253(c)(2) (“A [COA] may issue . . . only if

the applicant has made a substantial showing of the denial of a constitutional right.”).

       We deny Slinkard’s request for a COA and dismiss this matter.


                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




       3
         The standard for a gateway actual-innocence claim is “demanding,” requiring
“evidence of innocence so strong” that it undermines our confidence in Slinkard’s
conviction. McQuiggin, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at 316). That
standard is even more demanding for a habeas applicant who, like Slinkard, pleads guilty
to the crimes for which he stands convicted. See, e.g., Johnson v. Medina, 547 F. App’x
880, 885 (10th Cir. 2013) (unpublished) (citing cases rejecting actual-innocence
arguments asserted by habeas petitioners challenging convictions obtained through guilty
pleas).
                                             7
