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

                            FOR THE TENTH CIRCUIT                             May 22, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 JOSE L. RENTERIA,

       Petitioner - Appellant,

 v.                                                         No. 18-6042
                                                     (D.C. No. 5:16-CV-01333-D)
 JASON BRYANT, Warden,                                      (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Pro se state prisoner Jose L. Renteria1 seeks a certificate of appealability

(COA) to appeal the district court’s denial of his federal habeas petition pursuant to

28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

Renteria’s request for a COA and dismiss the appeal because Renteria cannot


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       Because Renteria is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596 F.3d
1198, 1201 n.2 (10th Cir. 2010).
demonstrate that reasonable jurists would find the district court’s assessment of his

constitutional claims debatable or wrong.

                                            I.

      On March 16, 2011, Renteria entered a guilty plea to the crimes of First-

Degree Rape and Sexual Battery. He had previously been convicted of two felonies.

Renteria was sentenced to thirty-two years’ imprisonment. His conviction became

final on March 28, 2011.

      On July 22, 2011, Renteria filed a petition for judicial review in Oklahoma

district court. On December 11, 2013, he filed an application for post-conviction

relief in Oklahoma district court. The district court denied Renteria’s request for

post-conviction relief, and the Oklahoma Court of Criminal Appeals affirmed the

district court. On January 25, 2016, Renteria filed a second application for post-

conviction relief in Oklahoma district court. The district court denied the request,

and the Oklahoma Court of Criminal Appeals affirmed the district court.

      On November 21, 2016, Renteria filed the § 2254 habeas petition underlying

this appeal. Respondent-Appellee, Warden Jason Bryant, moved to dismiss the

petition on the grounds that the petition was barred by the one-year statute of

limitations contained in the Antiterrorism and Effective Death Penalty Act (AEDPA),

28 U.S.C. § 2244(d). The matter was referred to a United States Magistrate Judge,

who issued a report and recommendation recommending that the district court grant

Bryant’s motion and dismiss the petition as untimely.



                                            2
      The report and recommendation concluded that Renteria’s July 2011 state

court petition for judicial review was not “properly filed” under Oklahoma law and

therefore did not statutorily toll the federal habeas limitations period. ROA at 164.

The report and recommendation also concluded that Renteria’s December 2013 and

January 2016 applications for state post-conviction relief did not toll the AEDPA

limitations period because they were filed after the limitations period had expired.

Id. Lastly, the report and recommendation concluded that Renteria did not prove that

“extraordinary circumstances” existed to warrant equitable tolling, nor did he satisfy

his burden to prove actual innocence. Id. at 169. Without any basis for statutory or

equitable tolling, Renteria’s deadline for filing his habeas petition was March 28,

2012. Id. Because Renteria did not file his petition until November 21, 2016, the

Magistrate Judge recommended that dismissal of his petition was appropriate. Id.

      The district court adopted the magistrate judge’s report and recommendation,

dismissed the petition, and denied Renteria a COA. Id. at 211–12. The district court

entered judgment against Renteria by separate order. Id. at 214.

                                          II.

      A state prisoner’s right to appeal a denial of habeas relief is conditioned on the

grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may issue only if the prisoner

has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Where a district court has rejected the constitutional claims on the

merits, “the petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v.

                                           3
McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude that either the district court erred in dismissing the petition or that

the petitioner should be allowed to proceed further.” Id.

       In this appeal, Renteria contends that the district court below: (1) erred in

concluding that his state application for judicial review was not “properly filed” and

denying statutory tolling on that basis; (2) erred in denying equitable tolling of his

petition based on attorney misconduct, actual innocence, and failure to waive the

one-year limitation period pursuant to the Oklahoma Post Conviction DNA Act; and

(3) erred by failing to hold an evidentiary hearing regarding further DNA testing that

would allow Renteria to develop facts to support his claim of actual innocence.

       Pursuant to AEDPA, petitions for writ of habeas corpus by a person in custody

are governed by a one-year statute of limitations. See 28 U.S.C. § 2244(d). Section

2244(d)(1)(A), the only subsection at issue here, states: “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 date on which the judgment became final by conclusion of direct review

or the expiration of the time for seeking such review.”

       A. Statutory Tolling

       The AEDPA one-year limitations period is tolled while “a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). To satisfy the

                                             4
tolling requirements, a petitioner’s application must be “properly filed,” meaning “its

delivery and acceptance are in compliance with the applicable laws and rules

governing filings.” Artuz v. Bennet, 531 U.S. 4, 8 (2000). This court has held that “a

‘properly filed’ application is one filed according to the filing requirements for a

motion for state post-conviction relief,” including “the obtaining of any necessary

judicial authorizations that are conditions precedent to filing . . . [and] other

conditions precedent that the state may impose upon the filing of a post-conviction

motion.” Habteselassie v. Novak, 209 F.3d 1208, 1210–11 (10th Cir. 2000) (footnote

omitted).

       The district court held that Renteria’s petition for judicial review was not

“properly filed” because it was filed in violation of 22 Okla. Stat. § 982a. ROA at

207. Section 982a excludes the statutory remedy of judicial review from (1)

sentences of convicted felons who have been in confinement for a felony conviction

during the ten-year period preceding the date of their sentence, and (2) sentences

imposed pursuant to a plea agreement unless consent from the district attorney is

obtained. 22 Okla. Stat. § 982a(A)(3). Renteria was convicted of felony driving

under the influence on September 19, 2005. See ROA at 112, 206. Further, Renteria

entered a plea of guilty for the underlying offenses in this matter, and there is no

indication in the record that the district attorney consented to Renteria filing the

petition. Id. Renteria does not challenge these facts on appeal. Renteria’s petition

for judicial review did not satisfy the standard imposed by 22 Okla. Stat. § 982a;

therefore, he has not shown that his petition was “properly filed.”

                                             5
      The two applications for post-conviction relief filed by Renteria in December

2013 and January 2016, respectively, were filed outside of the one-year statute of

limitations and do not qualify for statutory tolling.

      No reasonable jurist would find the district court’s assessment that Renteria is

not entitled to statutory tolling debatable or wrong.

      B. Equitable Tolling

      The limitations period may also be equitably tolled in “rare and exceptional

circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2002) (quotation

omitted).   Equitable tolling is warranted when, for example, “a constitutional

violation has resulted in the conviction of one who is actually innocent or

incompetent,” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), or “when an

adversary’s conduct—or other uncontrollable circumstances—prevents a prisoner

from timely filing, or when a prisoner actively pursues judicial remedies but files a

defective pleading during the statutory period,” Gibson, 232 F.3d at 808.

      To avail himself of equitable tolling, Renteria must show “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way and prevented timely filing” of his federal habeas petition. Holland v.

Florida, 560 U.S. 631, 649 (2010) (quotation omitted). Renteria makes three

arguments as to why equitable tolling should apply: (1) his trial attorney failed to

communicate with him, and, as a result, his guilty plea was never withdrawn; (2) he

is actually innocent of the rape charge; and (3) Oklahoma’s Postconviction DNA Act,

22 Okla. Stat. § 1373, waives the one-year limitation period because he has requested

                                            6
Touch DNA Testing. Aplt. Br. at 9–11. The district court rejected each of these

bases for applying equitable tolling. ROA at 208–11. We address each argument

below.

      As to Renteria’s claim of attorney misconduct, this court has held that

“sufficiently egregious misconduct on the part of a habeas petitioner’s counsel may

justify equitable tolling of the AEDPA limitations period.” Fleming v. Evans, 481

F.3d 1249, 1256 (10th Cir. 2007) (recognizing that an attorney’s negligence or

mistake is not generally a basis for equitable tolling).

      Renteria had ten days from March 16, 2011 to file a motion to withdraw his

guilty plea. Clayton v. Jones, 700 F.3d 435, 441 (10th Cir. 2012) (citing Rule 4.2,

Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)).

As the basis for his ineffective assistance of counsel argument, Renteria asserts that,

after he entered a guilty plea, his family contacted his attorney and asked him to visit

Renteria because he wanted to withdraw his plea, but the attorney failed to

communicate with Renteria and did not withdraw his plea. Aplt. Br. at 9.

      The district court noted its doubt that Renteria had diligently pursued this

argument, given that he waited nearly four years to argue that his trial counsel had

been ineffective in failing to withdraw his plea. ROA at 208 n.3. Assuming that the

diligent pursuit requirement was met, however, the district court held that Renteria

had not shown that extraordinary circumstances prevented him from filing a timely

habeas petition because he knew of the circumstances underlying the alleged attorney

misconduct shortly after his conviction but did not file the habeas petition for four

                                            7
years. Id. at 208. Given these circumstances, we conclude that reasonable jurists

would not find the district court’s determination erroneous or debatable.

      Renteria also argues that he is actually innocent of rape. “[A] sufficiently

supported claim of actual innocence creates an exception to procedural barriers for

bringing constitutional claims, regardless of whether the petitioner demonstrated

cause for the failure to bring these claims forward earlier.” Lopez v. Trani, 628 F.3d

1228, 1230–31 (10th Cir. 2010). Equitable tolling is warranted when the petitioner

can show that “a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotation

omitted). “To establish actual innocence, petitioner must demonstrate that, in light of

all the evidence, it is more likely than not that no reasonable juror would have

convicted him.” Bousley v. United States, 523 U.S. 614 (1998) (quotations omitted).

To be credible, a claim of actual innocence “requires petitioner to support his

allegations of constitutional error with new reliable evidence . . . that was not

presented at trial.” Schlup, 513 U.S. at 324.

      Renteria claims that his innocence is established by a forensic report that

excluded him as a contributing source of DNA on the victim. Assuming that the

forensic report is “new reliable evidence,” the district court found that Renteria

cannot show that no reasonable juror would have convicted him based on the DNA

evidence because “neither of the crimes for which Petitioner was convicted required

the presence of seminal fluid.” ROA at 210. Furthermore, the DNA evidence does

not establish that Renteria did not “(1) engage in an act of sexual intercourse with

                                            8
someone incapable of giving legal consent through mental illness, in violation of

Oklahoma’s rape statute, . . . or (2) touch, maul or feel the victim’s body or private

parts in a lewd and lascivious manner, in violation of the sexual battery statute.” Id.

Renteria failed to show that it was more likely than not that no reasonable juror

would have convicted him of the crimes for which he was convicted. For the reasons

addressed by the magistrate judge and district court, we hold that no reasonable jurist

would find the district court’s conclusion debatable or wrong.

      Lastly, to support his claim of actual innocence, Renteria asserts that his

request for “Touch” DNA testing under Oklahoma’s Postconviction DNA Act waives

the AEDPA limitations period. To toll the one-year limitations period, a properly

filed application for state post-conviction or collateral review must be pending. 28

U.S.C. § 2244(d)(2). Renteria did not request DNA testing until several years after

the limitations period had expired. Furthermore, claims of actual innocence must be

supported by “new reliable evidence,” Schlup, 513 U.S. at 324, and a request for

DNA testing does not qualify, see Chavez v. Trani, 534 F. App’x 799, 801 (10th Cir.

2013) (unpublished) (recognizing that a “blanket assertion that DNA testing would

exonerate [petitioner] of his crimes” is not sufficient evidence to support a claim of

actual innocence). Renteria has not provided “new reliable evidence” sufficient to

waive the AEDPA limitations period.

      After carefully reviewing Renteria’s brief, the district court order, and the

record on appeal, we conclude that Renteria has not raised an issue that warrants

granting a COA. For substantially the same reasons discussed in the magistrate

                                           9
judge’s report and recommendation and the district court’s order, we conclude that

reasonable jurists would not debate “whether the district court was correct in its

procedural ruling” that Renteria’s petition is barred by the AEDPA limitations

period. Slack, 529 U.S. at 484.

      C. Application to Proceed In Forma Pauperis

      Renteria sought permission from the district court to proceed on his appeal in

forma pauperis. The district court denied Renteria’s application for leave to proceed

in forma pauperis, finding that Renteria’s appeal of his § 2254 petition was not taken

in good faith. Renteria renewed his motion to proceed in forma pauperis on appeal

with this court. A showing of good faith requires “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (citing

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Because Renteria did

not identify a reasoned, nonfrivolous issue or supporting argument to present on

appeal we deny his application to proceed in forma pauperis. See Coppedge v.

United States, 369 U.S. 438, 446 (1962).




                                           10
                                        III.

      Based on the foregoing, we DENY Renteria’s request for a certificate of

appealability, DENY his motion to proceed in forma pauperis, and DISMISS the

appeal.


                                          Entered for the Court


                                          Allison H. Eid
                                          Circuit Judge




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