                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           APR 6 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


RICHARD LEE POTTS,

       Petitioner-Appellant,
                                                        No. 04-5171
v.                                             (Northern District of Oklahoma)
                                                  (D.C. No. 01-CV-380-K)
MIKE MULLIN,

       Respondent-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      This matter is before the court on Richard Lee Potts’ pro se request for a

certificate of appealability (“COA”). Potts seeks a COA so that he can appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court,” unless the petitioner first obtains a COA).

Because Potts has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.
      Following a jury trial, Potts was convicted in Oklahoma state court of

assault and battery with a deadly weapon, shooting with intent to kill, and

possession of a firearm. On direct appeal to the Oklahoma Court of Criminal

Appeals (“OCCA”), Potts raised the following four issues: (1) the trial court

should have excluded at trial certain eye-witness identification testimony the state

failed to disclose during discovery; (2) his conviction of both shooting with intent

to kill and possession of a firearm amounted to a violation of the Double Jeopardy

Clause; (3) certain statements made by the prosecutor during the trial deprived

him of a fair trial; and (4) the trial court erred in submitting an instruction on

confessions when he did not confess to the crime. The OCCA granted relief on

Potts’ second claim of error and remanded to the trial court to vacate Potts’

conviction for possession of a firearm. The OCCA denied relief on Potts’ other

claims of error and affirmed the judgment and sentences as to the remaining two

counts of conviction.

      On May 21, 2001, almost one year after the OCCA issued its decision on

direct appeal, Potts filed the instant § 2254 habeas petition in federal district

court. In his habeas petition, Potts raised each of the first three issues he had

presented to the OCCA on direct appeal. More than two years later, on October 1,

2003, Potts filed a motion to amend his habeas petition. In his motion to amend,

Potts asserted generally that he was actually innocent of the crimes charged;


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included a couple of new, specific claims for habeas relief 1; and offered several

arguments about the procedural propriety of raising the new claims in an amended

§ 2254 petition.

      The district court denied Potts’ motion to amend and denied relief on the

three claims set out in Potts’ original § 2254 habeas petition. In denying Potts’

motion to amend his habeas petition to raise new claims, the district court noted

that pursuant to this court’s decision in Woodward v. Williams, the amended

petition did not relate back to the original petition because it sought to add

entirely new claims or insert entirely new theories into the case. 263 F.3d 1135,

1142 (10th Cir. 2001). Because the new claims set out in Potts’ proposed

amended habeas petition did not relate back to the original habeas petition, they

were filed well outside the limitations period set out in 28 U.S.C. §

2244(d)(1)(A). See District Court Order at 5-6 (noting that Potts’ convictions

became final on September 7, 2000, that the limitations period set out in §

2244(d) expired on September 7, 2001, and that Potts did not file his proposed

amended petition until October 1, 2003). The district court also concluded that



      1
        Potts’ amended petition seems to assert the following additional discrete
claims: (1) his conviction is not supported by adequate evidence (i.e., in light of
Glen Moreland’s testimony at trial that he was the one who shot the victims, no
reasonable jury could have found Potts guilty of the crimes charged); and (2) the
trial court should have suppressed Charles Neal’s identification of Potts as the
shooter because that identification was inherently unreliable.

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Potts could not demonstrate an entitlement to equitable tolling because he was not

diligent in pursuing the claims set out in his proposed amended petition. Id. at

1142-43 (holding that to be entitled to equitable tolling, an inmate must both

diligently pursue his claims and prove that the failure to timely file was caused by

extraordinary circumstances beyond the control of the inmate). In particular, the

district court noted that Potts waited more than three years after his conviction

became final and two years after he filed his original habeas petition before he

sought to file his proposed amended petition. Accordingly, the district court

denied Potts’ request to amend his habeas petition and considered only those

claims set out in the original petition.

      The district court concluded that Potts was not entitled to relief as to any of

the claims set out in his original petition. As to the Potts’ claim that the state trial

court should have excluded the testimony of Jose Perez that the man who shot him

was wearing a white shirt, the district court first noted that the OCCA had

rejected the claim on the merits. In so doing, the OCCA specifically held that the

prosecution had disclosed the testimony and fully complied with Oklahoma law.

In any event, the district court ruled that even if the evidence was not properly

admitted by the state court, state-court evidentiary rulings cannot serve as the

basis for habeas relief unless those rulings render the trial fundamentally unfair.

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002). Here, there could be no


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such fundamental unfairness because three other witnesses testified that the

shooter was the man wearing the white shirt. The district court concluded that

Potts’ double jeopardy claim failed because the OCCA had vacated Potts’

conviction for possession of a firearm. Thus, Potts had already received all the

relief that he could possibly get. Finally, as to Potts’ claims of prosecutorial

misconduct, the district court noted that the OCCA had considered the matter on

direct appeal and concluded the prosecutor’s actions were either proper or, if

improper, harmless. The district court concluded that the OCCA’s adjudication of

Potts’ prosecutorial-misconduct claim was neither contrary to, nor an

unreasonable application of, clearly established Supreme Court precedent. See 28

U.S.C. § 2254(d). The district court further noted, in the alternative, that habeas

relief is only available for prosecutorial misconduct when the prosecutor’s actions

are so egregious in the context of the entire trial that the trial was rendered

fundamentally unfair. Donnelly v. De Cristoforo, 416 U.S. 637, 642-48 (1974).

Because numerous witnesses had testified that the shooter was wearing a white

shirt and because it was uncontested that Potts was the individual wearing the

white shirt, the prosecutor’s questions and statements regarding the identity of the

shooter did not render the trial fundamentally unfair.

      To be entitled to a COA, Potts must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite


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showing, he must demonstrate “that reasonable jurists 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Potts has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Potts need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. Finally, this court reviews both the district court’s refusal to apply equitable

tolling and its denial of a motion to amend a habeas petition for abuse of

discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003); Moore v.

Reynolds, 153 F.3d 1086, 1116 (10th Cir. 1998).

      Having undertaken a review of Potts’ application for a COA and appellate

filings, the district court’s order, and the entire record before this court pursuant

to the framework set out by the Supreme Court in Miller-El, this court concludes

that Potts is not entitled to a COA. The district court’s resolution of Potts’

§ 2254 petition is not reasonably subject to debate and the issues he seeks to raise

on appeal are not adequate to deserve further proceedings. Furthermore, the

district court did not abuse its discretion in refusing to equitably toll the AEDPA


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limitations period based on Potts’ lack of diligence in pursuing his claims and,

therefore, refusing to allow Potts to file an amended § 2254 habeas petition.

Accordingly, this court DENIES Potts’ request for a COA and DISMISSES this

appeal.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court


                                               By
                                                    Deputy Clerk




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