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

                               FOR THE TENTH CIRCUIT                           April 24, 2019
                           _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 ERIC PAUL KENNETH,

          Petitioner - Appellant,

 v.                                                             No. 18-2133
                                                     (D.C. No. 2:17-CV-01176-MV-CG)
 R. MARTINEZ, Warden; HECTOR                                      (D. N.M.)
 BALDERAS, Attorney General of the
 State of New Mexico,

          Respondents - Appellees.
                         _________________________________

              ORDER DENYING A CERTIFICATE OF APPEALABILITY
                      _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
                  _________________________________

       Eric Paul Kenneth, acting pro se, seeks a certificate of appealability (COA) to

appeal from the denial by the United States District Court for the District of New Mexico

of his application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A)

(requiring COA to appeal denial of § 2254 application). He claims that he received

ineffective assistance of counsel in his state criminal trial and on appeal, that his

prosecution on the charges against him violated the Double Jeopardy Clause of the

Constitution, and that the trial judge failed to ensure a fair trial. We need not address the

merits of these arguments. Because the district court correctly dismissed Mr. Kenneth’s

application as untimely under 28 U.S.C. § 2244(d)(1), we deny a COA and dismiss the

appeal.
       In 2013, Mr. Kenneth was convicted in New Mexico state court of kidnapping,

aggravated battery, criminal sexual contact with a deadly weapon, and impersonating a

peace officer. His convictions were affirmed by the New Mexico Court of Appeals on

November 12, 2015, and the New Mexico Supreme Court denied his petition for a writ of

certiorari on January 5, 2016. He did not file a petition for certiorari with the United

States Supreme Court. On June 7, 2016, he filed a motion for modification of sentence in

state court; the court denied the motion on June 29, 2016. On July 24, 2017, he filed a

petition for writ of habeas corpus in state court. The trial court denied the petition, and

the New Mexico Supreme Court denied certiorari on August 21, 2017. He filed his

§ 2254 application in federal court on November 29, 2017. The magistrate judge issued

an order to show cause why the application should not be dismissed as untimely, and

after Mr. Kenneth responded, the district court dismissed the application as barred by the

one-year limitations period in § 2244(d)(1).

       “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). And “[w]here a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.


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       The district court correctly invoked the procedural bar imposed by § 2244(d)(1) to

dispose of this case. Under that provision a prisoner’s § 2254 application must ordinarily

be filed within one year of “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

§ 2244(d)(1)(A). Mr. Kenneth’s conviction became final upon expiration of the time to

seek direct review through a petition for certiorari to the United States Supreme Court,

which was April 4, 2016—90 days after the New Mexico Supreme Court denied his

petition for certiorari. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011).

He filed his § 2254 application more than 18 months after that date.

       None of the other provisions of § 2244 afford Mr. Kenneth an extension of the

limitations period that would render his application timely. Under § 2244(d)(2), “[t]he

time during which a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.” But even if we assume that his

state motion for modification of sentence qualifies as an application for collateral review,

it would toll the limitations period for only 52 days—the 22 days from June 7 to June 29,

2016, plus 30 days to seek appeal, see NMRA Rule 12-201(A)(1)(b). And he is not

entitled to any additional extension based on the filing of his state petition for

postconviction relief in July 2017, because it was filed after expiration of the one-year

limitations period (even with a 52-day extension). See Clark v. Oklahoma, 468 F.3d 711,

714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one

year allowed by AEDPA will toll the statute of limitations.”).


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       On appeal Mr. Kenneth argues that he lacked access to the factual record

necessary to assert certain claims, and thus that the limitations period should be measured

from “‘the date on which the factual predicate of [the] claim or claims presented could

have been discovered through the exercise of due diligence.’” Aplt. Br. at 5–6 (quoting

§ 2244(d)(1)(D)). But this argument was not presented to the district court, so we will

not consider it. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (“[A]s

to issues that were not presented to the district court, we adhere to our general rule

against considering issues for the first time on appeal.”).

       Nor is Mr. Kenneth entitled to equitable tolling of the limitations period. A habeas

applicant is “entitled to equitable tolling only if he shows (1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal

quotation marks omitted). The district court held that Mr. Kenneth had not demonstrated

extraordinary circumstances warranting equitable tolling, and we will not disturb that

ruling absent a showing of an abuse of discretion. See Garrett v. Fleming, 362 F.3d 692,

695 (10th Cir. 2004). Mr. Kenneth has not made such a showing. Although he argues

that equitable tolling may be justified by an attorney’s egregious misconduct that

prevents an application from being timely filed, see Holland, 560 U.S. at 652–53, as

when counsel abandoned the prisoner during a critical proceeding, see Maples v. Thomas,

565 U.S. 266, 282–83 (2012), he does not allege any such misconduct. The extent of his

claim is that his former trial attorney declined to provide him with court documents at the

attorney’s own expense for use in postconviction proceedings. That is not misconduct


                                              4
warranting extraordinary equitable relief, particularly when he failed to explain to the

district court why he needed the documents to pursue postconviction relief.

       He also asserts that he had difficulty obtaining a recording of trial proceedings,

which was necessary to prove ineffective assistance of counsel. But he does not identify

any reason that the recording was necessary to pursue that claim; he simply points to

relatively minor discrepancies between the recording and the printed transcript. In any

event, this court has repeatedly rejected the argument that difficulty in obtaining trial

records constitutes “extraordinary circumstances” justifying equitable tolling. See, e.g.,

Levering v. Dowling, 721 F. App’x 783, 788 (10th Cir. 2018) (“[N]either the difficulty in

obtaining trial court transcripts nor [applicant’s] limited time in the law library are

‘extraordinary circumstances’ that would justify the use of equitable tolling.”); Porter v.

Albaugh, 672 F. App’x 851, 857 (10th Cir. 2016) (“[E]ven if we gave [applicant] the

benefit of the equitable-tolling arguments that he advanced before the district court—viz.,

general difficulties in obtaining trial transcripts and in accessing the prison law library—

we would conclude that reasonable jurists would not find debatable the district court's

determination that [applicant’s] general grievances fail to constitute extraordinary

circumstances.”). Thus, jurists of reason could not debate that the district court did not

abuse its discretion in declining to grant equitable tolling on that basis.

       Finally, Mr. Kenneth asserts that he is actually innocent of the offenses of which

he was convicted, and thus we should consider his untimely application to avoid a

miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 397–98 (2013). But he

did not present that argument to the district court. Even for actual-innocence claims, “we


                                               5
adhere to our general rule against considering issues for the first time on appeal.” Viera,

674 F.3d at 1220; see, e.g., United States v. Moncada, 714 F. App’x 912, 913 (10th Cir.

2018) (“It does not appear that [the applicant] argued actual innocence below, and

therefore he has waived the issue on appeal.” (citation omitted)); Heath v. Soares, 49 F.

App’x 818, 821 (10th Cir. 2002) (“[The applicant] did not assert actual innocence at

critical stages in the proceedings, and as a general rule we will not consider a claim that

was waived or abandoned in the district court.”).

       We DENY the application for a COA and DISMISS the appeal. We GRANT

Mr. Kenneth’s motion to proceed in forma pauperis.


                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge




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