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

                            FOR THE TENTH CIRCUIT                              August 13, 2020
                        _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 20-1204
                                                    (D.C. Nos. 1:17-CV-01792-REB &
 IMAN MAY,                                             1:15-CR-00155-REB-DW-1)
                                                                (D. Colo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

       Pro se petitioner Iman May seeks a certificate of appealability (“COA”) to appeal

the district court’s denial of his 28 U.S.C. § 2255 motion. Exercising jurisdiction under

28 U.S.C. §§ 1291 and 2255(d), we deny a COA and dismiss the appeal.

                                             I

       May pled guilty to two counts of abusive sexual contact in Indian Country, in

violation of 18 U.S.C. §§ 2244(a)(1), (b), and 1153. The district court sentenced him to

144 months’ imprisonment and entered its final judgment on March 1, 2016. May did

not file a direct appeal. On July 24, 2017, May filed this § 2255 motion. The district



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
court denied his motion as time-barred and declined to grant a COA. May now seeks a

COA from this court.

                                              II

       Because May proceeds pro se, we liberally construe his pleadings but “do not

assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)

(quotation omitted). A petitioner may not appeal the denial of habeas relief under § 2255

without a COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To

make this showing, May must demonstrate “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).

       Under the Antiterrorism and Effective Death Penalty Act, § 2255 motions are

subject to a one-year limitations period. 28 U.S.C. § 2244(d). This period generally runs

from the date a conviction becomes final. See § 2244(d)(1). May’s conviction became

final when his deadline to file a direct appeal expired—on March 15, 2016, fourteen days

after the entry of final judgment. See Fed. R. App. P. 4(b)(1)(A). The limitations period

expired one year later. May filed this § 2255 motion in July 2017, several months after

the expiration of the limitations period. Absent equitable tolling, May’s petition was

therefore untimely.

       Equitable tolling is “available when an inmate diligently pursues his claims and

demonstrates that the failure to timely file was caused by extraordinary circumstances

                                              2
beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). It is also

appropriate if “a prisoner is actually innocent.” Gibson v. Klinger, 232 F.3d 799, 808

(10th Cir. 2000). On appeal, May does not argue that he diligently pursued his claims or

that he is actually innocent.1 Accordingly, any argument for the application of equitable

tolling is waived. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues

not raised in the opening brief are deemed abandoned or waived.”).

                                           III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal. May’s

motion to proceed in forma pauperis is GRANTED.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




      1
       May argued before the district court that he was actually innocent, but he
abandons this argument on appeal.
                                            3
