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

                                TENTH CIRCUIT                                 June 17, 2015
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANTHONY T. WINSTON,

       Petitioner - Appellant,

                                                             No. 15-6022
v.
                                                      (D.C. No. 5:14-CV-00977-C)
                                                             (W.D. Okla.)
TERRY MARTIN, Warden,

       Respondent - Appellee.
                     ____________________________________

        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                       DISMISSING APPEAL
                ____________________________________

Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.
                ____________________________________

       Anthony Winston, an Oklahoma state prisoner proceeding pro se, seeks to appeal

the district court’s dismissal of his 28 U.S.C. § 2254 petition, claiming actual innocence

and ineffective assistance of counsel. We construe pro se filings liberally. See Garza v.

Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). The district court dismissed Winston’s

petition as untimely. Winston now asks us to grant him a COA and hear his appeal. He

also seeks permission to proceed In Forma Pauperis.

       “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).

       Winston concedes his petition is untimely under 28 U.S.C. § 2244(d)(1) but claims

he is entitled to equitable tolling of the limitations period because he provides new,

reliable evidence of his actual innocence. “[A]ctual innocence, if proved, serves as a

gateway through which a petitioner may pass” even where the § 2244(d)(1) limitations

period has expired. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). But a tenable

actual-innocence gateway plea requires a petitioner to persuade the district court that, in

light of the “new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence,” Schlup v. Delo, 513 U.S.

298, 324 (1995), “no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.” McQuiggin, 133 S. Ct. 1924 at 1928. Critically, “actual

innocence means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 615 (1998).

       Winston’s “evidence” takes two forms. First, he asserts the evidence against him

was procured through a warrantless wiretap. But this claim goes to legal sufficiency, not

factual innocence. See Bousley, 523 U.S. at 615. Second, he claims he “told his defense

counsel that it was not his voice that was allegedly recorded by the police during the

wiretap.” But this is not new evidence. And in any event, Winston’s own say-so lacks

the reliability necessary to support an actual innocence claim. Schlup, 513 U.S. at 324.

       In sum, we agree with the district court that Winston’s appeal is a frivolous

attempt to breathe life into meritless claims. Accordingly, Winston’s request for a COA

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is DENIED and his appeal is DISMISSED, and his Motion to Proceed In Forma

Pauperis is DENIED.



                                 Entered for the Court,



                                 Bobby R. Baldock
                                 United States Circuit Judge




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