                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     July 23, 2007
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 PATRICK O’BO YLE,

             Petitioner - A ppellant,                  No. 06-1214
       v.                                                D. Colo.
 JO SEPH G . O RTIZ; C OLO RA DO           (D.C. No. 04-CV-01173-ZLW -PAC)
 ATTO RN EY G ENERAL,

             Respondents - Appellees.



                OR D ER D EN YING LEAVE TO PROCEED
                   ON APPEAL IN FO RM A PAU PERIS,
              DENYING CERTIFICATE O F APPEALABILITY
                   A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

                                    Background

      Pursuant to a plea agreement, Petitioner Patrick O’Boyle pled guilty to

second degree murder in Colorado state court on June 7, 1994. A first degree

murder charge was dismissed. He is serving a tw enty-four year sentence.
       On June 9, 2004, O’Boyle petitioned for a writ of habeas corpus under

28 U.S.C. § 2254. The magistrate judge recommended O’Boyle’s petition be

dismissed as untimely. Over O’Boyle’s objections, the district court adopted the

recommendation. The district court also denied O ’Boyle’s request for a

Certificate of Appealability (“COA”) and his motion for leave to proceed on

appeal in form a pauperis (“ifp”). O ’Boyle renews these requests with this Court.

W e deny a COA and dismiss his application. W e also deny his request to proceed

ifp.

                                      Analysis

       Initially, O’Boyle concedes he filed his petition well beyond the time

limitation of the AEDPA. 1 He argues the limitations period should be equitably

tolled because new evidence demonstrates actual innocence. 2

       In certain circumstances, the limitations period of the AEDPA may be

equitably tolled. “A EDPA’s one-year statute of limitations is subject to equitable

tolling but only in rare and exceptional circumstances.” Fisher v. Gibson, 262

F.3d 1135, 1143 (10th Cir. 2001) (quoting Gibson v. Klinger, 232 F.3d 799, 808



       1
        The district court determined that the limitations clock ran for 444 days,
which of course is longer than the 365 days permitted by the one year limitations
period of the AEDPA. See 28 U.S.C. § 2244(d)(1).
       2
         O’Boyle also claims his trial counsel was constitutionally ineffective;
there was insufficient evidence to support the verdict; defense counsel’s
investigator was laboring under the taint of an unconstitutional conflict of
interest; and his plea of guilty was not voluntary.

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(10th Cir. 2000)) (internal quotations omitted). One such circumstance may exist

when a person who is actually innocent is incarcerated. M iller v. M arr, 141 F.3d

976, 978 (10th Cir. 1998) (citing Schlup v. Delo, 513 U.S. 298, 324-29 (1995))

(suggesting actual innocence is a “rare and exceptional circumstance[]” for which

the AEDPA statue of limitations may be tolled); Gibson, 232 F.3d at 808 (citing

M iller, 141 F.3d at 978) (“Equitable tolling would be appropriate, for example,

when a prisoner is actually innocent . . . .”).

      However, “prisoners asserting innocence as a gateway to defaulted claims

must establish that, in light of new evidence, it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

House v. Bell, 126 S.Ct. 2064, 2076-77 (2006) (citing Schlup, 513 U.S. at 327).

O’Boyle claims new evidence shows he is actually innocent. He argues: his

fingerprints were not found on the weapon; no ballistics tests were performed on

the weapon; and gunshot residue and trace metal tests were not performed on his

hands or the prosecution’s witness. The magistrate judge’s thorough Report and

Recommendation considered all of these claims. After independent review, the

district court adopted the magistrate judge’s recommendation that O’Boyle failed

to present “new reliable evidence-whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence-that was not

presented at trial.” Id. at 2077 (quoting Schlup, 513 U.S. at 324).

      O’Boyle confuses theoretical innocence with actual innocence. M ost of his

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“new” evidence is really speculation about what might be shown if certain tests

were performed on physical evidence in the case. Such speculation is insufficient

to meet the heavy burden to produce “new evidence” from which we could

conclude it is “more likely than not that no reasonable juror would have convicted

him . . . .” See Schlup, 513 U.S. at 324, 327; cf. Arthur v. Allen, 459 F.3d 1310,

1310-11 (11th Cir. 2005) (petitioner’s “mere speculation” about what the

evidence, if tested, might show was insufficient to support discovery request

where petitioner had to demonstrate “‘good cause’ to believe that the evidence

sought would ‘raise sufficient doubt about his guilt to undermine confidence in

the result of the trial” (citations and brackets omitted)). In addition, as the

magistrate judge noted, the remaining “new” evidence offered by O’Boyle was

known by him at the time he pled guilty, and is therefore not new at all. (See R.

Vol. I, Doc. 30 at 3 (O’Boyle admitted his counsel advised him that the gun

residue tests on his hands returned negative results)). Consequently, O’Boyle

fails to establish cause for equitable tolling rendering his constitutional claims

time-barred.

      If a prisoner is granted leave to proceed ifp in the district court that

privilege is extended to an appeal unless the district court certifies the appeal is

not taken in good faith and denies continuing ifp status. Fed. R. App. P. 24(a)(3).

W e do not review such decisions. Instead, we consider a motion to proceed ifp

filed in this Court. Fed. R. App. P. 24(a)(5). Nevertheless, the standard is the

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same – in order to qualify for ifp status an applicant must comply with the filing

requirements and demonstrate “a financial inability to pay the required fees and

the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” M cIntosh v. United States Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted)

(emphasis added) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991)). In denying O’Boyle’s motion to proceed ifp on appeal, the district

court concluded he had not presented a reasoned, non-frivolous argument,

therefore his putative appeal was not taken in good faith. W e agree with the

district court. O’Boyle’s motion to proceed ifp on appeal is DENIED.

Appellant’s motion for appointment of counsel is DENIED. W e also DENY his

request for a COA and DISM ISS the application. O’Boyle is reminded he must

remit the full amount of the filing fee within tw enty days of the date of this order.

Dismissal of an appeal does not relieve a litigant of his obligation to pay the

filing fee in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




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