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

                            FOR THE TENTH CIRCUIT                            July 30, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 FRANK JOSEPH BROWN,

       Petitioner - Appellant,

 v.                                                         No. 19-4028
                                                    (D.C. No. 2:17-CV-00826-TS)
 STATE OF UTAH,                                               (D. Utah)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Frank Brown seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2254 motion. We deny a COA and dismiss.

                                           I

      Brown pled guilty to one count of attempted child kidnapping in Utah state

court. He was sentenced to an indeterminate prison term of three years to life on

February 12, 2016. Brown did not appeal or seek state post-conviction review.

      On July 20, 2017, Brown filed his federal habeas petition, alleging a variety of

claims including pre-plea constitutional violations, ineffective assistance of counsel,



      *
         This order is not binding precedent, except under the doctrines of law of the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.
and actual innocence. The district court dismissed his petition as untimely and

denied a COA.

                                             II

       Brown may not appeal the denial of habeas relief under § 2254 without a

COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). Because

the district court dismissed Brown’s petition on procedural grounds, he must show

“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, 478 (2000).

       Jurists of reason would not find debatable the district court’s determination

that Brown’s § 2254 motion was untimely. Brown’s conviction became final and the

one-year limitations period began to run at “the expiration of the time for seeking

[direct] review.” § 2244(d)(1)(a). Under Utah law, March 14, 2016, was the date on

which his time to file a direct appeal expired. See Utah R. App. P. 4(a) (“the notice

of appeal . . . shall be filed with the clerk of the trial court within 30 days after the

date of entry of the judgment or order appealed from.”). But Brown filed his habeas

petition on July 20, 2017, more than four months after the limitations period had

expired. Accordingly, the district court correctly concluded Brown’s petition was

untimely.



                                             2
      Brown contends his petition is not time-barred because he is actually innocent.

See Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010) (“[A] sufficiently

supported claim of actual innocence creates an exception to procedural barriers for

bringing constitutional claims, regardless of whether the petitioner demonstrated

cause for the failure to bring these claims forward earlier.”). To establish actual

innocence, Brown must present “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). And in

light of this evidence, Brown “must show that it is more likely than not that no

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

at 327. Brown fails to adduce evidence meeting this high standard, and he advances

no other arguments suggesting his petition is timely.1

                                          III

      We DENY Brown’s request for a COA and DISMISS this matter.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




      1
        To the extent Brown argues in his request for a COA that his petition is
timely because of newly discovered evidence, see § 2244(d)(1)(D), that contention
fails. Brown does not address the district court’s determination that the evidence he
discusses was either available before his plea or is irrelevant, as in the case of the
investigatory evidence refuting assertions that Brown was involved in a sexual
relationship with the kidnap victim.
                                           3
