                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 May 30, 2013
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 NICHOLAS D. GOOSBY,

      Petitioner - Appellant,
                                                        No. 13-6074
 v.                                             (D.C. No. 5:12-CV-01202-M)
                                                       (W.D. Okla.)
 ANITA TRAMMELL, Warden,

      Respondent - Appellee .




          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.



      In 1995, Nicholas Goosby pleaded guilty to murder and robbery in state

court. He didn’t pursue an appeal or seek post-conviction relief under state law.

But then, in 2012, Mr. Goosby filed a federal habeas petition under 28 U.S.C.

§ 2254. The district court, adopting the magistrate judge’s report and

recommendation, dismissed the petition as untimely, coming as it did many years

after the one-year statute of limitations had run. See 28 U.S.C. § 2244(d)(1).




      *
         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      We discern no ground on which we might grant a certificate of

appealability (COA). Because Mr. Goosby didn’t seek state post-conviction

relief, we may not statutorily toll the limitations period. See 28 U.S.C.

§ 2244(d)(2). Neither can we equitably toll Mr. Goosby’s limitations period: that

sort of tolling requires that Mr. Goosby show “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way.”

Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). Mr. Goosby doesn’t even

try to show he has been pursuing his rights diligently, and given that sixteen years

have passed since he could have filed his petition such a showing would be

exceedingly difficult. See Young v. Saffle, 24 F. App’x 843, 844 (10th Cir. 2001)

(unpublished). Nor has Mr. Goosby established that some extraordinary

circumstance stood in his way.

      Mr. Goosby maintains he’s actually innocent, contending that, as of 2012,

the state court did not have the victim’s autopsy report on file. This, according to

Mr. Goosby, casts doubt on the medical examiner’s testimony about his autopsy

findings at Mr. Goosby’s certification hearing. Given Mr. Goosby’s guilty plea

and his failure to address other evidence that contributed to his plea, he fails to

carry the heavy burden of “show[ing] it is more likely than not that no reasonable

juror would have convicted” him, McQuiggin v. Perkins, No. 12-126, ___ S. Ct.

___, 2013 WL 2300806, at *9 (May 28, 2013) (quotations mark omitted), a

showing that is necessary to invoke the miscarriage of justice exception to

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AEDPA’s statute of limitations. Id. Given all this, we cannot say 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).

      Mr. Goosby separately contends that the district court abused its discretion

by failing to rule on his motion to appoint counsel. See 18 U.S.C. § 3006A(a)(2).

“An order . . . that denies a motion for appointment of counsel . . . is . . . not

subject to the COA requirement.” Harbison v. Bell, 556 U.S. 180, 183 (2009).

Even so, Mr. Goosby seeks counsel only to establish the second element of the

equitable tolling test. He does not seek counsel to show he has been pursuing his

rights diligently and so he can’t take advantage of equitable tolling regardless.

And Mr. Goosby doesn’t come close to satisfying the miscarriage of justice

standard, and so certainly doesn’t show that an evidentiary hearing was required

or that “the interests of justice so require” the appointment of counsel. 18 U.S.C.

§ 3006A(a)(2). The district court, therefore, did not commit reversible error.

      Mr. Goosby’s application for a COA is denied and this appeal is dismissed.



                                         ENTERED FOR THE COURT


                                         Neil M. Gorsuch
                                         Circuit Judge




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