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

                                                                           June 2, 2006
                   UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                 TENTH CIRCUIT                            Clerk of Court


 ERIC LIGHTNER,

       Petitioner – Appellant,
 v.
                                                        No. 06-1050
                                                (D.C. No. 05-CV-2096-ZLW)
 AL ESTEP, Warden; THE
                                                         (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents – Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Eric Lightner, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. For substantially the same reasons set forth by the district court,

we DENY a COA and DISMISS.

      In 1993, Lightner was convicted of first degree murder, three counts of

attempted first degree murder, second degree assault, conspiracy to commit first

degree assault, and conspiracy to commit menacing. For these crimes, Lightner

was sentenced to life imprisonment without parole, plus fifty years. According to
his federal habeas petition, he directly appealed his convictions, and on

September 28, 1995, the Colorado Court of Appeals substantially affirmed,

vacating one count of attempted first degree murder. Lightner sought review by

the Colorado Supreme Court, but certiorari was denied on April 15, 1996. On

December 30, 1996, he filed a state petition for postconviction relief, and on July

30, 1998, this petition was denied. His appeal of the denial of this petition was

also unsuccessful. A second petition for postconviction relief followed on May

12, 2002, and on May 30, 2003, the state district court denied the petition. His

appeal from this denial was also unavailing.

      On October 21, 2005, Lightner filed this § 2254 petition in federal district

court. A magistrate judge ordered Lightner to show cause why his application

should not be dismissed as barred by the one-year limitation period set forth in 28

U.S.C. § 2244(d). Lightner responded that he was actually innocent, and that the

court should equitably toll the limitations period. He also argued that an

unconstitutional state-created impediment prevented him from filing on time. The

magistrate judge recommended dismissal, and the district court adopted the

magistrate’s recommendation. Lightner’s subsequent application for a COA was




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denied. Having failed to secure a COA from that court, Lightner now seeks a

COA from this court. 1

      The statute of limitations for applications for a writ of habeas corpus is set

forth in 28 U.S.C. § 2244(d). It states:

      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of –
           (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review;
           (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of the
      United States is removed, if the applicant was prevented from filing
      by such State action;
           (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been newly
      recognized by the Supreme Court and made retroactively applicable
      to cases on collateral review; or



      1
         Lightner’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Lightner to show “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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Lightner a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

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          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
       (2) The time during which a properly filed application for State
      post-conviction or other collateral review with respect to the
      pertinent judgment or claim is pending shall not be counted toward
      any period of limitation under this subsection.

Because this law went into effect on April 24, 1996, after Lightner’s conviction

became final, Lightner had until April 24, 1997, to file his petition. See United

States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

      On appeal, Lightner concedes his petition was untimely under AEDPA. He

argues, however, that we should equitably toll his petition because he is actually

innocent. This actual innocence claim, however, is nothing more than an

unsubstantiated allegation that the state destroyed exculpatory evidence. As such,

we reject it. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding that, to be

credible, a petitioner must support his allegations of innocence with “new reliable

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence – that was not presented at trial”).

      Lightner also argues his delay in filing his federal petition was justified

because the time between his two state court postconviction motions should not

count against the one-year limitation period. Specifically, he argues that

Colorado’s provision for a successive Rule 35(c) motion is an unconstitutional

state-created impediment to his timely filing of a federal habeas petition. Because


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Lightner does not explain how the ability to file a successive Rule 35(c) motion

actually prevented him from timely filing the instant action, we cannot excuse his

delay. See Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (noting that

whatever constitutes an impediment under § 2244(d)(1)(B) must prevent an

applicant from filing a federal habeas corpus application).

      Accordingly, we DENY Lightner’s request for a COA and DISMISS the

appeal. Lightner’s application to proceed in forma pauperis is also DENIED.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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