                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                              September 30, 2011
                               TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 LUIS SAN ROMAN

             Petitioner-Appellant,
                                                       No. 11-6103
 v.                                            (D.C. No. 5:10-CV-001158-F)
                                                       (W.D. Okla.)
 MARVIN VAUGHN, Warden

             Respondent-Appellee.




          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner-Appellant Luis San Roman, a state prisoner currently in the

custody of the Oklahoma Department of Corrections, seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his § 2254




      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
habeas petition as time-barred. 1 Exercising jurisdiction under 28 U.S.C. §§ 1291

and 2253(a), we deny Mr. San Roman’s application for a COA and dismiss his

appeal.

                                 BACKGROUND

      In 2006, Mr. San Roman pleaded guilty in state district court for Oklahoma

County, Oklahoma to using a vehicle to facilitate the intentional discharge of a

firearm, for which he received a fifteen-year suspended sentence. In September

2007, the state moved to revoke Mr. San Roman’s suspended sentence, alleging

that he had violated the terms and conditions of his probation in connection with

new criminal charges of pointing a firearm at another and possession of a firearm.

Following a hearing on October 30, 2007, a state district court judge revoked Mr.

San Roman’s suspended sentence and sentenced him to fifteen years’

imprisonment. The new criminal charges, however, were later dropped.

      Mr. San Roman did not directly appeal the revocation of his suspended

sentence. However, in September 2008, Mr. San Roman filed a motion to modify

that sentence. A hearing was held in state district court before the same judge

who presided over his revocation hearing. During the hearing, Mr. San Roman’s

counsel presented by way of proffer the exculpatory testimony of two individuals,

one the alleged victim of the offense, and the other, an alleged witness of the


      1
             In federal district court and before us, Mr. San Roman has been
represented in the instant habeas proceeding by counsel.

                                         2
offense. Following the hearing, the state court judge modified Mr. San Roman’s

sentence from fifteen years’ imprisonment to ten years’ imprisonment to be

followed by five years’ probation. On March 16, 2010, Mr. San Roman filed an

application for post-conviction relief in state court seeking to appeal his

revocation out of time. The state district court denied his application, and the

Oklahoma Court of Criminal Appeals (“OCCA”) affirmed that denial on August

3, 2010.

      On October 28, 2010, Mr. San Roman filed the instant federal habeas

petition under 28 U.S.C. § 2254 alleging, inter alia, claims of ineffective

assistance of counsel, denial of his right to due process, and factual innocence.

His petition was referred to a magistrate judge, who issued a Report and

Recommendation, in which she recommended that the petition be dismissed as

time-barred pursuant to the one-year statute of limitations of the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d). 2 On February


      2
              As the magistrate judge observed, Mr. San Roman “did not file a
notice of appeal within ten days of the state district court’s pronouncement
revoking his suspended sentence as is required under Oklahoma law.” Aplt. App.
at 92 (Report and Recommendation, filed Jan. 26, 2011); see Okla. Stat. tit. 22,
ch. 18, app., Rule 2.5 (“Within ten (10) days from the date the Judgment and
Sentence is imposed in open court or an order grants an appeal out of time, the
defendant must file with the trial court clerk a notice of intent to appeal . . . .”).
Accordingly, the revocation of Mr. San Roman’s suspended sentence became final
ten days after the district court’s decision on October 30, 2007—that is, on
November 9, 2007. Mr. San Roman thus had one year from that date—until
November 9, 2008—to file a timely habeas petition. See 28 U.S.C.
                                                                        (continued...)

                                          3
17, 2011, the district court adopted the magistrate judge’s recommendation and

dismissed Mr. San Roman’s habeas action as time-barred. Mr. San Roman then

filed a motion for reconsideration, alleging that he had never received a copy of

the magistrate judge’s Report and Recommendation and wished to file an

objection. The district court granted his motion, and Mr. San Roman filed an

objection. On April 6, 2011, having considered both the magistrate judge’s

recommendation and Mr. San Roman’s objection, the district court issued another

order adopting the recommendation and dismissing Mr. San Roman’s habeas

petition as untimely. Mr. San Roman now seeks a COA from this court to appeal

the district court’s dismissal of his § 2254 petition.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,

1088 (10th Cir. 2009). Accordingly, “[w]e will issue a COA ‘only if the

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

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C.

§ 2253(c)(2)). “This means that the applicant must show ‘that reasonable jurists


      2
       (...continued)
§ 2254(d)(1)(A). Therefore, his petition, filed October 28, 2010, fell well beyond
this one-year period, and statutory tolling was not available in the interim because
his March 16, 2010, application for state post-conviction relief was also outside
the one-year window. See, e.g., Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th
Cir. 2001).

                                           4
could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

      “In other words, the applicant must show that the district court’s resolution

of the constitutional claim was either ‘debatable or wrong.’” Id. (quoting Slack,

529 U.S. at 484). Furthermore, when the district court denies relief “on

procedural grounds, the applicant faces a double hurdle. Not only must the

applicant make a substantial showing of the denial of a constitutional right, but he

must also show ‘that jurists of reason would find it debatable . . . whether the

district court was correct in its procedural ruling.’” Coppage v. McKune, 534

F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484). In

determining whether to grant a COA, this court conducts an “overview of the

claims in the habeas petition and a general assessment of their merits.” United

States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted).

However, “[t]his threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of th[ose] claims.” Miller-El, 537 U.S.

at 336.




                                          5
                                  DISCUSSION

      In his opening brief in support of his request for a COA, 3 Mr. San Roman

concedes that his federal habeas petition was untimely. However, he argues that

the district court was obligated to equitably toll AEDPA’s one-year limitations

period and consider his otherwise untimely petition because he is actually

innocent of the charges that led to the revocation of his suspended sentence. We

are not persuaded. We conclude that no reasonable jurist could debate the

correctness of the district court’s determination that Mr. San Roman’s habeas

action is time-barred.

      As the Supreme Court recently underscored, AEDPA’s one-year statute of

limitations is subject to equitable tolling. See Holland v. Florida, 130 S. Ct.

2549, 2560, 2562 (2010). However, equitable tolling is warranted only “in rare

and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)) (internal

quotation marks omitted). Generally, courts will consider the merits of an

otherwise untimely habeas petition only where the petitioner “show[s] specific

facts,” demonstrating “(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way.” Yang v. Archuleta, 525



      3
           Mr. San Roman has not formally filed an application for a COA.
However, pursuant to Federal Rule of Appellate Procedure 22(b)(2), we treat Mr.
San Roman’s notice of appeal as a request for a COA.

                                         6
F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v. Florida, 549 U.S. 327, 336

(2007)) (internal quotation marks omitted); see also Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000) (observing that equitable tolling “is only available

when an inmate diligently pursues his claims and demonstrates that the failure to

timely file was caused by extraordinary circumstances beyond his control”).

      Where a petitioner does present the truly exceptional case in which he is

actually innocent, federal courts allow for an “exception to [the] procedural

barriers for bringing constitutional claims, regardless of whether the petitioner

demonstrated cause for the failure to bring these claims forward earlier.” Lopez

v. Trani, 628 F.3d 1228, 1230–31 (10th Cir. 2010). In other words, when a

habeas petitioner is seeking equitable tolling on actual innocence grounds, he

need not “demonstrate that he diligently pursued his actual innocence claim.” Id.

at 1231. But he must articulate a “colorable claim of factual innocence”; that is,

he 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, 322, 324 (1995); see

also, e.g., Cramer v. Utah, No. 11-4036, 2011 U.S. App. LEXIS 15648, at *7

(10th Cir. July 29, 2011) (“Although actual innocence can overcome procedural

default, the district court correctly observed that actual innocence must be shown

by newly available evidence and that [petitioner’s] showing is wholly

inadequate.” (citation omitted)); Weibley v. Kaiser, 50 F. App’x 399, 403 (10th

                                          7
Cir. 2002) (determining that petitioner’s actual innocence argument “fail[ed]

because he d[id] not make a colorable claim of actual innocence. [Petitioner]

makes only conclusory allegations regarding his innocence and provides no

analysis or specific facts to warrant equitable tolling.” (emphasis added)). Under

this rigorous standard, “the petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in . . . light of the new

evidence.” Schlup, 513 U.S. at 327.

      In the present case, Mr. San Roman concedes that he is guilty of the

underlying conviction to which he pleaded guilty, but insists that he is actually

innocent of the charges that led to the revocation of his suspended sentence.

First, Mr. San Roman asserts baldly—without citation to supporting legal

authority—that the ineffective assistance that he received from his counsel at his

revocation hearing “serve[d] to toll [his] timing default.” Aplt. Br. at 15.

However, if Mr. San Roman contends that his counsel’s ineffectiveness excused

his failure to file a timely habeas petition, he must “show specific facts,”

demonstrating that he has pursued his rights diligently, but that his counsel’s

deficient performance constituted an “extraordinary circumstance” that “stood in

his way.” See Yang, 525 F.3d at 928. Here, while Mr. San Roman alleges that

his revocation-hearing counsel “surreptitiously procur[ed] a waiver of [his]

appellate rights,” Aplt. Br. at 11, he does not explain how his counsel’s alleged

ineffectiveness caused him to delay filing his habeas petition. Accordingly, his

                                          8
underdeveloped first argument is without merit.

      Second, Mr. San Roman apparently contends that he was deprived of his

right to due process at his revocation hearing when the state district court judge

refused to credit the testimony of witness Cruz Blos and the alleged victim,

Rodolfo Botello, as demonstrating his factual—i.e., “actual”—innocence. Id. at

16–17. As we note above, however, in order to present a “colorable” claim of

actual innocence, a petitioner must present “new reliable evidence . . . that was

not presented at trial,” Schlup, 513 U.S. at 324 (emphasis added)—or, as

relevant here, the revocation proceeding. The testimony of both Mr. Blos and Mr.

Botello, however, was apparently available at the time of the revocation

proceeding. The magistrate judge noted that (1) Mr. San Roman’s counsel made

proffers concerning the two men’s testimony in the sentence modification

proceeding, which was held less than one year after the revocation proceeding;

(2) the same state district court judge presided over both proceedings; (3) the

judge specifically indicated that essentially the same testimony of Mr. Blos had

been presented in the revocation proceeding in the form of an affidavit and that

she had considered it. Mr. San Roman has not disputed these findings, and our

independent review of the record supports them. Indeed, on appeal, Mr. San

Roman expressly acknowledges that the state court judge also had before her an

affidavit of the victim, Mr. Botello. See Aplt.’s Br. at 13–14 (“It is important to

note that the affidavit . . . from the alleged victim refuting a statement attributed

                                           9
to him, was presented at the time of the actual revocation hearing.”). Thus, the

testimony of the two men does not constitute “new” evidence that can support an

actual innocence claim. 4

      Third and finally, Mr. San Roman contends that he is entitled to equitable

tolling because the state district court judge relied upon hearsay evidence at his

revocation hearing, in violation of his rights under the Confrontation Clause. 5

      4
              We also note that, even if Mr. San Roman had filed a timely § 2254
habeas petition, AEDPA mandates that we presume a state court’s findings to be
correct unless a petitioner can refute them by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). As the magistrate judge noted, the state district court
judge concluded that the State had proven by a preponderance of the evidence that
Mr. San Roman had violated the terms of his probation. Aplt. App. at 97.
Moreover, the state judge explicitly noted that she found the recantation of Mr.
Botello to be unreliable, as he was “a member of a rival gang” who “recanted
[his] prior testimony inculpating [Mr. San Roman] only after receiving
threatening recorded phone calls from the jail.” Id. As Mr. San Roman offers
absolutely no evidence suggesting that these findings are erroneous—let alone
clearly erroneous—the state court’s determination must stand.
      5
               Mr. San Roman relies upon Morrissey v. Brewer, 408 U.S. 471
(1972), to support his argument that the state court’s admission of hearsay
evidence at his revocation hearing was improper, at least without the court
making specific findings providing the good cause for denying him confrontation
of the witnesses at issue. Mr. San Roman, however, raised this Morrissey-based
argument for the first time in his objection to the magistrate judge’s Report and
Recommendation. See Aplt. App. at 115 (Objection to Report and
Recommendation, filed Mar. 21, 2011). Not surprisingly, then, the magistrate
judge did not discuss Morrissey or such an argument in its Report and
Recommendation. Under these circumstances, including the fact that Mr. San
Roman was represented by counsel in his proceedings before the district court,
see supra note 1, we decline to consider this Morrissey-based argument now.
See, e.g., United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In
this circuit, theories raised for the first time in objections to the magistrate
judge’s report are deemed waived.”); Marshall v. Chater, 75 F.3d 1421, 1426
                                                                          (continued...)

                                          10
Aplt. Br. at 17, 22. However, Mr. San Roman makes no attempt to explain how

his general hearsay argument has any bearing upon his factual innocence.

Moreover, this argument is at odds with the approach that Mr. San Roman himself

took before the state court in the revocation hearing; there, he urged the court to

credit the exculpatory out-of-court statements in Mr. Blos’s affidavit. More

fundamentally, in the absence of any persuasive arguments by Mr. San Roman as

to how the allegedly impermissible admission of hearsay evidence could possibly

excuse his untimely filing or demonstrate his factual innocence, we reject Mr. San

Roman’s final argument.

      Thus, in sum, Mr. San Roman presents no evidence of extraordinary

circumstances that prevented him from filing his habeas petition in a timely

manner, see Yang, 525 F.3d at 928, nor does he offer new and reliable evidence

demonstrating that he is factually innocent, see Schlup, 513 U.S. at 322, 324.

Accordingly, reasonable jurists could not debate that equitable tolling of

AEDPA’s one-year limitations period was not warranted, and that the district

court properly dismissed Mr. San Roman’s petition as untimely.

                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. San Roman’s application for a



      5
       (...continued)
(10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived.”).

                                          11
COA and DISMISS his appeal.


                              ENTERED FOR THE COURT


                              Jerome A. Holmes
                              Circuit Judge




                               12
