                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   February 25, 2015
                                  TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    MILTON D. GRAYSON,

                Petitioner - Appellant,

    v.                                                     No. 14-7086
                                              (D.C. No. 6:13-CV-0422-RAW-KEW)
    TRACY McCOLLUM, Warden,                              (E.D. Oklahoma)

                Respondent - Appellee.


                                          ORDER


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.



         This appeal involves the timeliness of a habeas petition. The petitioner is

Mr. Milton Grayson, who was convicted in state court of first degree rape by force

or fear, first degree burglary, and assault and battery with a dangerous weapon.

Under federal law, a federal habeas petition must ordinarily be filed within one

year of the date that the conviction became final. 28 U.S.C. § 2244(d)(1)(A). 1 Mr.

Grayson waited more than a year to file the habeas petition, and the district court

ordered dismissal based on timeliness. Mr. Grayson seeks to appeal, arguing that

the statute of limitations does not apply because he is actually innocent. To

appeal, Mr. Grayson needs a certificate of appealability. See Clark v. Oklahoma,

1
         Exceptions exist, but none apply here. See 28 U.S.C. § 2244(d)(1)(B)-(D).
468 F.3d 711, 713 (10th Cir. 2006). We decline to issue the certificate and

dismiss the appeal.

      For a certificate of appealability, Mr. Grayson must show that reasonable

jurists could debate the correctness of the district court’s ruling on timeliness.

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Mr. Grayson fails to make this

showing. He does not deny that he waited more than a year to file the habeas

petition. Instead, he argues that he is actually innocent of the charges.

      Petitioners can avoid the statute of limitations based on presentation of new

evidence showing that it is more likely that no reasonable juror would have found

guilt. McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924, 1935 (2013). But,

Mr. Grayson did not present the district court with any new evidence of innocence.

As a result, the district court concluded that Mr. Grayson had failed to satisfy his

burden of proving actual innocence. This conclusion is not reasonably debatable

in the absence of new evidence of innocence. As a result, we decline to issue a

certificate of appealability and dismiss the appeal.


                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




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