                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                    September 5, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                     TENTH CIRCUIT                     Clerk of Court



 M AX INE R . RO SE,

          Petitioner - A ppellant,
 v.                                                     No. 05-6245
                                                  (D.C. No. CIV-05-308-F)
 M ILLIC EN T N EWT O N-EM B RY,                        (W .D. Okla.)
 W arden,

          Respondent - Appellee.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      M axine Rose, an Oklahoma state prisoner appearing with counsel, appeals

the federal district court’s denial of her 28 U.S.C. § 2254 petition. W e previously

granted Rose’s application for a certificate of appealability (“COA”) on two

issues: (1) whether Rose is entitled to equitable tolling of the one-year period of

limitations in 28 U.S.C. § 2244(d)(1)(A) for reasons of actual innocence, and (2)

whether Rose has established a violation of her Sixth Amendment right to


      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
effective assistance of counsel at trial. 1 For the reasons set forth below, we

A FFIR M the district court’s denial of Rose’s petition as time-barred.

      Rose challenges her state court convictions for Arson in the First Degree

and Endangerment to Human Life by Commission of Arson in the First D egree.

Her petition was filed on M arch 18, 2005, and is therefore governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA ”), Pub. L. No. 104-132,

110 Stat. 1214. AEDPA requires persons seeking a w rit of habeas corpus who are

in custody pursuant to a state court conviction to file their petitions within one

year of the date on which direct review of the conviction concluded. 28 U.S.C.

§ 2244(d)(1)(A). The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed

Rose’s convictions on M arch 25, 2003. Her convictions became final for

purposes of AEDPA on June 25, 2003, when the ninety-day period during which

Rose could have sought certiorari from the United States Supreme Court had

passed. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Rose did not

file her federal habeas petition until M arch 18, 2005. Taking into consideration

      1
         Rose raises a third issue in her appeal of the district court’s denial of her
petition, on which we did not grant a COA. Rose argues that she should be
granted equitable tolling because forces beyond her control made it impossible for
her to gather the evidence needed to file the petition within the one-year
limitations period. Specifically, Rose argues that she diligently attempted to
secure an affidavit from Tera Potts, but was frustrated in doing so by Potts’s
efforts to make herself scarce. This court has held that this type of delay does not
meet the requirement of “extraordinary circumstances” necessary to excuse the
failure to timely file. See M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Accordingly, we deny Rose’s request for a COA on this issue and affirm the
district court’s ruling.

                                         -2-
the tolling period during which she sought collateral post-conviction relief in state

court, the district court rightly found that Rose filed her petition three weeks after

the one-year limitations period had expired. 2

      W e have held that AEDPA’s limitations period “may be subject to equitable

tolling” if the petitioner is actually innocent. Gibson v. Klinger, 232 F.3d 799,

808 (10th Cir. 2000); M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998). This

limited exception to the procedural default doctrine was developed to prevent

“fundamental miscarriage[s] of justice.” Schlup v. Delo, 513 U.S. 298, 324

(1995); see also Sellers v. W ard, 135 F.3d 1333, 1338 (10th Cir. 1998). In order

to claim actual innocence a petitioner must present new, reliable evidence that

was not presented at trial. Such evidence typically consists of “exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence.” Schlup, 513 U.S. at 324. Once such evidence has been presented,

petitioner must further show that in light of the new evidence, “no reasonable

juror w ould have found the defendant guilty.” Id. at 329.




      2
        Rose has not presented copies of the relevant state trial, appellate, or post-
conviction records, foreclosing our independent determination of the appropriate
tolling period for her collateral state court appeal. Rose does not, however,
contest the district court’s finding that her petition was filed after the limitations
period had passed.

                                          -3-
       The one new piece of evidence R ose presents is the affidavit of Tera Potts,

an employee of the Cleveland County Sheriff’s Office. 3 Potts attests that she

overheard Rose’s ex-husband tell another prisoner that he had committed the

crime for w hich Rose was convicted and had framed Rose deliberately. This

evidence does not have the indicia of reliability sufficient to make out a claim of

actual innocence. At most, the evidence impeaches the credibility of some of the

prosecution’s witnesses. It does not fall into one of the categories of evidence,

enumerated by the Supreme Court in Schlup, that conclusively demonstrates a

petitioner’s innocence. See id. at 324. Because the requirements for meeting the

actual innocence exception have not been met, we affirm the district court’s

finding that Rose’s habeas petition is time-barred and is not subject to equitable

tolling.

       W e granted a CO A to Rose on a second issue, her claim of ineffective

assistance of counsel. Determining Rose’s petition time-barred, however, we do

not address that claim. See Robinson v. Golder, 443 F.3d 718, 719 n.1 (10th Cir.

2006) (citing Slack v. M cD aniel, 529 U.S. 473, 485 (2000) (holding that where

dismissal due to procedural bar is correct, consideration of merits is

unnecessary)).

       3
        Two additional affidavits included with Rose’s petition cannot be
considered new evidence for purposes of this appeal. Although one of the
affidavits post-dates Rose’s direct appeal of her conviction to the OCCA, the
substance of the evidence in both affidavits was considered by the OCCA when
Rose raised the issue of ineffective assistance of counsel on direct appeal.

                                         -4-
The judgment of the district court is AFFIRM ED.



                              ENTERED FOR THE COURT



                              Carlos F. Lucero
                              Circuit Judge




                               -5-
