                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 1, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 MELVIN R. KERCHEE, JR.,

              Petitioner-Appellant,
                                                        No. 11-6058
 v.                                              (D.C. No. 5:10-CV-01128-R)
                                                        (W.D. Okla.)
 JUSTIN JONES,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Melvin Kerchee, an Oklahoma state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

28 U.S.C. § 2254 habeas application. Mr. Kerchee has also filed a motion asking


      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Kerchee is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
this court to stay proceedings pending the state court’s resolution of his fourth

successive filing for post-conviction relief, as well as a motion to proceed in

forma pauperis on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we deny Mr. Kerchee’s application for a certificate of appealability,

deny his motion to stay the proceedings, and dismiss his appeal. We also deny

his motion to proceed in forma pauperis.

                                 BACKGROUND

      In 2005, Mr. Kerchee was tried and convicted in the district court of

Comanche County, Oklahoma, on two counts of first-degree rape of a minor, for

which he received two consecutive, ten-year sentences. 2 The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed his conviction and sentence on May 21,

2007. No certiorari petition was filed with the United States Supreme Court.

      According to Mr. Kerchee, he then filed three applications in the state

district court for post-conviction relief: one on November 12, 2008, which was

denied on December 19, 2008; a second on March 13, 2009, which was denied on

April 6, 2009; and a third on December 21, 2009, which was denied on January

26, 2010. Mr. Kerchee also represents in his Motion for a Stay of Proceedings

that he filed a fourth post-conviction motion on April 7, 2011.

      On October 18, 2010, Mr. Kerchee filed a § 2254 habeas application in the


      2
          Mr. Kerchee’s conviction was based on the rape of two victims, both
of whom were minors.

                                          2
United States District Court for the Western District of Oklahoma—more than a

year after his conviction became final on August 19, 2007. 3 The matter was

referred to a magistrate judge, who recommended that the petition be dismissed as

time-barred under 28 U.S.C. § 2244(d)(1)(A). Mr. Kerchee objected to the

magistrate judge’s Report and Recommendation, and the district court reviewed

the portions of the Report and Recommendation pertaining to those objections de

novo. The district court agreed with the magistrate judge’s disposition and, in a

thorough order and judgment, adopted his conclusion that Mr. Kerchee’s petition

was untimely. Mr. Kerchee then filed two motions asking the district court to

reopen and reconsider his case, both of which the court denied. He subsequently

sought a certificate of appealability from the district court, which was also

denied, along with Mr. Kerchee’s motion to proceed in forma pauperis. Mr.

Kerchee now seeks leave from this court to challenge the district court’s dismissal

of his habeas application, but asks us to stay our decision pending the state

court’s resolution of his most recent application for post-conviction relief.


      3
             Because direct review concluded when the OCCA affirmed Mr.
Kerchee’s conviction on May 21, 2007, the trial court’s judgment became final
ninety days later when the time period for filing a certiorari petition with the
United States Supreme Court expired—that is, on August 19, 2007. See Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); see also Sandoval v. Jones, No. 11-
5022, 2011 U.S. App. LEXIS 12124, at *5 n.3 (10th Cir. June 14, 2011). Mr.
Kerchee therefore had to file his habeas application by August 19, 2008—one
year from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A).

                                          3
                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,

1088 (10th Cir. 2009), cert. denied, 130 S. Ct. 3385 (2010). Thus, “[w]e will

issue a COA ‘only if the applicant has made a substantial showing of the denial of

a constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009)

(quoting 28 U.S.C. § 2253(c)(2)). In order to make such a showing, the applicant

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.” United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted).

“In other words, the applicant must show that the district court’s resolution of the

constitutional claim was either ‘debatable or wrong.’” Id. (quoting Slack, 529

U.S. at 484). In determining whether to grant a COA, this court conducts an

“overview of the claims in the habeas petition and a general assessment of their

merits.” United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting

Miller-El, 537 U.S. at 336) (internal quotation marks omitted). However, “[t]his

threshold inquiry does not require full consideration of the factual or legal bases

adduced in support of th[ose] claims.” Miller-El, 537 U.S. at 336.




                                         4
                                   DISCUSSION

      Though Mr. Kerchee does not dispute that his October 2010 habeas petition

was untimely, 4 he argues that the district court erred in refusing to statutorily or

equitably toll AEDPA’s one-year statute of limitations. 5 We disagree.

I.    Application of 28 U.S.C. § 2244(d)(1)

      As a threshold matter, Mr. Kerchee appears to argue that the district court

erred in adopting the magistrate judge’s conclusion that AEDPA’s one-year

statute of limitations began to run ninety days from the date that the OCCA

affirmed his conviction—May 21, 2007. See 28 U.S.C. § 2244(d)(1)(A). First,

Mr. Kerchee contends that the “impediments of confiscation of legal mail [and]

      4
              In his habeas petition, Mr. Kerchee presented twenty-two claims
alleging, inter alia, ineffective assistance of counsel, improper sentencing
instructions at trial, evidentiary errors, discovery violations, insufficient evidence,
and prosecutorial and judicial misconduct.
      5
              In his combined Opening Brief and Application for a COA, Mr.
Kerchee sets forth twenty-one grounds for relief. Those grounds, many of which
are redundant, can be grouped into the following claims: (1) he was denied fair
and impartial review; (2) he was entitled to equitable tolling of AEDPA’s one-
year statute of limitations; (3) he was entitled to an evidentiary hearing; (4) he
was deprived of his right to due process, equal protection, and access to the courts
when his state court attorney was disbarred; (5) he was denied his right to
counsel; (6) his state post-conviction applications were “impeded by the lower
courts” and “restricted [by] counsel[’s] deception and misconduct,” Aplt. Opening
Br. and Appl. for a COA at 19; (7) the district court erred in failing to “inquire”
into the status of his state direct appeal; and (8) he possesses newly discovered
evidence that entitles him to a COA. However, because Mr. Kerchee concedes
that his October 2010 habeas petition was untimely, we need only consider these
constitutional arguments in the event that statutory or equitable tolling is
warranted.


                                           5
legal work and material,” Aplt. Opening Br. and Appl. for a COA at 3, his

inability to proceed in forma pauperis, and the restrictive nature of OCCA Rule

3.14(B), somehow excused his untimely filing. Presumably, Mr. Kerchee is

arguing that AEDPA’s one-year statute of limitations did not begin to run until

these alleged “impediment[s] to filing an application created by State action in

violation of the Constitution or laws of the United States [were] removed,” 28

U.S.C. § 2244(d)(1)(B)—in other words, that the district court erred in applying

§ 2244(d)(1)(A), rather than § 2244(d)(1)(B). Mr. Kerchee’s arguments are

unavailing.

      We assume that Mr. Kerchee’s argument regarding the alleged confiscation

of legal materials refers to his prior contention that prison officials deprived him

of his legal research and written work product from September 2008 through

February 2009. As the district court noted, however, this alleged misconduct

purportedly occurred after Mr. Kerchee’s habeas petition was otherwise due under

§ 2244(d)(1)(A), on August 19, 2008. Even if this allegation were true, therefore,

it does not excuse Mr. Kerchee’s failure to file a timely habeas application.

Moreover, as the magistrate judge observed, Mr. Kerchee filed ten motions and

complaints to various officials and agencies throughout the approximately six-

month time period during which his materials were purportedly confiscated.

Consequently, any “impediment” that the alleged deprivation of his legal

materials might have created seemingly would not have hindered his ability to file

                                          6
a habeas application.

        Mr. Kerchee’s in forma pauperis argument is equally unavailing. To the

extent that he has adequately raised such an argument—for which Mr. Kerchee

offers absolutely no support in his opening brief—we agree with the district court

that “his need to substantiate his financial condition . . . provide[s] no basis for

utilizing § 2244(d)(1)(B).” R., Vol. I, at 429 (Order, filed Jan. 27, 2011).

Assuming that Mr. Kerchee seeks to argue here, as he did below, that institutional

personnel hindered his ability to file a timely in forma pauperis motion, the

record contains no proof of this contention. Moreover, as the district court noted,

these allegations stemmed from conduct that purportedly occurred during the

same time frame—viz., September 2008 through February 2009—during which

Mr. Kerchee was allegedly deprived of his legal research and written work

product. As discussed above, Mr. Kerchee’s attempts to substantiate his financial

status after his habeas petition was due pursuant to § 2244(d)(1)(A), on August

19, 2008, has no bearing upon his ability to file a timely petition prior to that

date.

        Finally, Mr. Kerchee’s argument as to Rule 3.14 of the Oklahoma Rules of

the Court of Criminal Appeals is meritless. Under Rule 3.14(B),

              [a] petition for rehearing shall not be filed, as a matter of course,
              but only for the following reasons:

              (1) [s]ome question decisive of the case and duly submitted by
              the attorney of record has been overlooked by the Court, or

                                            7
             (2) [t]he decision is in conflict with an express statute or
             controlling decision to which the attention of [the OCCA] was
             not called either in the brief or in oral argument.

Okla. Stat. tit. 22, ch. 18, app., R. 3.14(B) (emphasis added). Mr. Kerchee alleges

that this rule “deliberately and intentionally prevent[s] and restrict[s] pro se

access to ‘direct appeal rehearing’” by “deliberately not allowing ‘pro se

applicants’ access to their courts simply because they are pro se and not . . .

‘attorneys of record.’” Aplt. Opening Br. and Appl. for a COA at 10. Even

assuming, arguendo, that this were true, the unavailability of rehearing in state

court does not explain Mr. Kerchee’s failure to file a timely habeas petition in

federal court. Furthermore, we note that Mr. Kerchee contends that he continues

to be subject to Rule 3.14(B). If this is true, the statute of limitations has not

begun to run because the impediment has yet to be removed—a premise that does

not comport with the fact that Mr. Kerchee has already filed a habeas petition,

albeit an untimely one. See 28 U.S.C. § 2244 (d)(1)(B).

      Additionally, Mr. Kerchee contends that the limitations period should have

run from the date on which “the factual predicate was discovered,” Aplt. Opening

Br. and Appl. for a COA at 17—more specifically, the date on which Mr. Kerchee

first learned that his state appellate counsel had been disbarred and had failed to

file a timely petition for rehearing on his behalf. Presumably, Mr. Kerchee is

asserting that the magistrate judge should have applied § 2244(d)(1)(D). See 28

U.S.C. § 2244(d)(1)(D) (providing that the statute of limitations may run from

                                           8
“the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence”). However, as

discussed below, Mr. Kerchee discovered that his counsel had been disbarred, at

the very latest, on July 6, 2008. Thus, even if § 2244(d)(1)(D) had applied, Mr.

Kerchee would have needed to file a habeas petition within one year of this

discovery—by July 6, 2009. Consequently, even if we were to credit this

argument, his October 2010 petition would still be untimely.

II.   Statutory Tolling

      Under 28 U.S.C. § 2244(d)(2), “[t]he 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.” In other words, “[u]sually the running of the statute of limitations is

suspended while a prisoner is pursuing relief in the state courts,” Titsworth v.

Mullin, No. 10-7034, 2011 U.S. App. LEXIS 2829, at *16 (10th Cir. Feb. 14,

2011)—that is, a petitioner is entitled to statutory tolling of AEDPA’s one-year

statute of limitations while he pursues state post-conviction relief. In his COA

application, Mr. Kerchee appears to allege that both the magistrate judge and the

district court erred in refusing to toll the statute of limitations while his “properly

filed post-conviction motion [was] pending in state court.” Aplt. Opening Br. and

Appl. for a COA at 3. This argument is problematic for two reasons.

      First, Mr. Kerchee failed to assert a statutory tolling argument before the

                                           9
district court. See R., Vol. I, at 387 (Report and Recommendation, filed Jan. 7,

2011) (“Petitioner’s claim that his federal habeas action is timely relies solely on

the doctrine of equitable tolling.”). Generally, “an appellate court will not

consider an issue raised for the first time on appeal.” Tele-Commc’ns, Inc. v.

Comm’r of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993). And Mr.

Kerchee’s failure to argue for application of the plain-error standard “surely

marks the end of the road for [this] argument for reversal not first presented to the

district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.

2011).

         Second, even if we were to consider this argument, it would fail on the

merits. Although Mr. Kerchee did file multiple state court motions for post-

conviction relief, these motions were not “properly filed,” 28 U.S.C.

§ 2244(d)(2)—i.e., they were not timely. A review of the record reveals that Mr.

Kerchee first filed an application for post-conviction relief, at the earliest, on

September 8, 2008—the date on which he made an untimely request for rehearing

of his direct appeal. As he made this first filing after the one-year statute of

limitations expired on August 19, 2008, he was not entitled to statutory tolling

while any of his post-conviction filings were pending. See R., Vol. I, at 387

(“Because state court filings made after the expiration of the statute of limitations

have no tolling effect, . . . and in this case the first such filing was after the

limitations period expired, it is unnecessary to consider whether other, even later,

                                           10
post-conviction efforts statutorily tolled the AEDPA year.” (citing Fisher v.

Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001))); id. at 430 (“Statutory tolling

is permitted only when there are properly filed applications for State

post-conviction or other collateral review filed before expiration of the one-year

statute of limitations period. No such documents were filed in this case, and

accordingly, Petitioner cannot rely on statutory tolling to avoid dismissal of this

action.”).

III.   Equitable Tolling

       As the Supreme Court recently reaffirmed, § 2244(d) is subject to equitable

tolling. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (“[L]ike all 11

Courts of Appeals that have considered the question, we hold that § 2244(d) is

subject to equitable tolling in appropriate cases.”). However, equitable tolling is

only available in those “rare and exceptional circumstances,” Gibson v. Klinger,

232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 811

(5th Cir. 1998)) (internal quotation marks omitted), in which application of the

limitations period might render the habeas remedy “inadequate and ineffective,”

Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Consequently, courts will

consider the merits of an otherwise untimely habeas petition only where the

petitioner “show[s] specific facts” demonstrating “(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) (citations omitted)

                                          11
(internal quotation marks omitted); see also Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000). On the record before us here, reasonable jurists could not

debate that Mr. Kerchee has failed to meet this two-prong standard.

      A.     Extraordinary Circumstances

      First, Mr. Kerchee argues that he is entitled to equitable tolling “due to

threats, possible harm, injury, irreparable harm, . . . death, fear, [and] retaliation

from other inmates.” Aplt. Opening Br. and Appl. for a COA at 9. Mr. Kerchee

explains that “[i]nmates with [his] type of charges and convictions are considered

child molesters who[] are attacked, beaten, battered, robbed,” and sometimes

killed by their fellow inmates. Id. As the district court observed, however, the

fact that the nature of Mr. Kerchee’s conviction “may make him more vulnerable

while incarcerated does not support a finding that the statute of limitations period

should be equitably tolled.” R., Vol. I, at 432. Moreover, Mr. Kerchee offers no

evidence that he actually fell victim to such threats or physical harm, let alone

that these speculative dangers constituted extraordinary circumstances that caused

his failure to file a timely habeas petition. See Marsh, 223 F.3d at 1220 (“[T]his

equitable remedy is only available when an inmate diligently pursues his claims

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

circumstances beyond his control.” (emphasis added)). Consequently, this

argument cannot support Mr. Kerchee’s equitable tolling claim.

      Next, Mr. Kerchee offers the conclusory assertion that he is entitled to

                                          12
equitable tolling “due to . . . constitutional violations, plain error, the interest of

justice, fundamental error, the ends of justice, miscarriage of justice, actual and

factual innocence, new evidence, recantation of testimony and statements of the

victims,” and a string of additional incidents that allegedly occurred before the

state trial court. Id. at 12. First of all, as the district court noted, “[t]he merits of

the constitutional violations are to be tested in a timely filed petition for habeas

corpus relief, and the[se] alleged constitutional errors at trial have no bearing on

[Mr. Kerchee’s] ability to seek such relief under § 2254.” R., Vol. I, at 476–77

(Order, filed Feb. 16, 2011) (emphasis added). In any event, Mr. Kerchee fails to

articulate which of his constitutional rights were allegedly violated, what errors

were made, or how the proceedings below constituted a “miscarriage of justice.”

Thus, to the extent that Mr. Kerchee raises these arguments, they are inadequately

presented on appeal, and we need not consider them here. See Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to

consider arguments that are not raised, or are inadequately presented, in an

appellant’s opening brief.” (emphasis added)); see also United States v. Pursley,

577 F.3d 1204, 1231 n.17 (10th Cir. 2009) (“[A]lthough Mr. Pursley alluded to

the ex parte issue in his appellate brief, that skeletal reference does not present a

cognizable issue for appellate review.”), cert. denied, 130 S. Ct. 1098 (2010). In

any event, in the absence of any evidence substantiating these bald assertions, we

are left with no basis upon which we might conclude that these alleged violations

                                            13
and errors amounted to “extraordinary circumstances.”

      Finally, Mr. Kerchee alleges that the statute should have been tolled for

“the time of discovery that his retained appellate counsel . . . was ‘disbarred.’”

Aplt. Opening Br. and Appl. for a COA at 16. Mr. Kerchee appears to contend

that his counsel had “said he was going to file” something on Mr. Kerchee’s

behalf—apparently a petition for rehearing in state court. Id. This, Mr. Kerchee

represents, should have afforded him an extra “20 days from May 21, 2007[,]” in

which to file this petition—that is, until June 11, 2007. Id. (emphasis omitted).

Accordingly, he would have had “a total of 110 days” before his conviction

become final on September 11, 2007. Id. (emphasis omitted). Pursuant to this

logic, Mr. Kerchee would then have had to file a habeas petition by September 11,

2008. However, even assuming, arguendo, that Mr. Kerchee was entitled to this

twenty-day tolling, his October 18, 2010 habeas filing was still untimely.

      Furthermore, as the magistrate judge explained, the record demonstrates

that Mr. Kerchee’s direct appeal concluded long before his appellate counsel was

disbarred, and that Mr. Kerchee learned of his counsel’s disbarment no later than

July 6, 2008, when he filed a letter of complaint to the Oklahoma Bar

Association. At that point, Mr. Kerchee still had over a month to file his habeas

petition before the August 19, 2008 deadline. R., Vol. I, at 391. Moreover, as the

district court later observed, “[t]here is no constitutional right to counsel beyond

the first appeal of right,” and a petition for rehearing is not a proceeding “of

                                          14
right.” Id. at 433; see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)

(“Our cases establish that the right to appointed counsel extends to the first

appeal of right, and no further. Thus, we have rejected suggestions that we

establish a right to counsel on discretionary appeals.”). Mr. Kerchee therefore

had no “right” to his counsel’s filing of a petition for rehearing on his behalf, and

he presents no evidence that either he or his wife ever communicated their desire

to file a discretionary rehearing petition to Mr. Kerchee’s counsel. As such, Mr.

Kerchee offers no evidence that his counsel’s disbarment was somehow an

“extraordinary circumstance” that constituted an impediment to his timely habeas

filing—or, for that matter, an impediment at all.

      B.     Diligent Pursuit

      Even if Mr. Kerchee had established that “extraordinary circumstances”

hindered his ability to file a timely habeas petition, he has failed to demonstrate

that he diligently pursued his federal claims. See, e.g., Burger v. Scott, 317 F.3d

1133, 1141 (10th Cir. 2003) (“[T]his Circuit has generally declined to apply

equitable tolling when it is facially clear from the timing of the state and federal

petitions that the petitioner did not diligently pursue his federal claims.”).

Though Mr. Kerchee asserts that he has worked “‘diligently’ and in good faith in

pursuing his state court collateral review and relief,” the only “support” that he

offers for this statement is the unsubstantiated argument that “the district court[’]s

ruleing [sic] on ‘diligence’ [was] unreasonable[,] too harsh, strict, unfair and

                                          15
unlenient [sic].” Aplt. Opening Br. and Appl. for a COA at 21. This clearly falls

far short of a demonstration that he has diligently pursued his claims. See Yang,

525 F.3d at 928 (“[A]n inmate bears a strong burden to show specific facts to

support his claim of extraordinary circumstances and due diligence.” (alteration in

original) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))

(internal quotation marks omitted)). Moreover, as the magistrate judge noted, Mr.

Kerchee was given every opportunity to do so. Mr. Kerchee himself provides

evidence that the Clerk of Court supplied him with the proper forms to institute

his federal habeas action in early October 2008, yet he failed to file a petition

until October 2010—approximately two years later. Additionally, instead of

filing an application for post-conviction relief in state court that could have tolled

the statute of limitations pertaining to his habeas action, Mr. Kerchee elected to

file an untimely petition for rehearing, along with a slew of complaints against

lawyers, presiding judges, and others. Thus, even if Mr. Kerchee had presented a

plausible extraordinary circumstances claim, reasonable jurists could not dispute

that his failure to demonstrate diligent pursuit renders equitable tolling

inappropriate.

      C.     Actual Innocence

      Finally, Mr. Kerchee alleges that “newly discovered and revealed evidence”

demonstrates that he is actually innocent. Opening Br. and Appl. for a COA at

24. Of course, § 2244(d)’s procedural bar does not preclude us from entertaining

                                          16
claims of actual innocence, and a petitioner asserting actual innocence need not

demonstrate cause for his delay in raising such a claim. See Lopez v. Trani, 628

F.3d 1228, 1230–31 (10th Cir. 2010) (“[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.”). However, Mr. Kerchee must still present a

“colorable claim of factual innocence”; in other words, he must present “new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at

trial.” Schlup v. Delo, 513 U.S. 298, 322, 324 (1995); see also United States v.

Payne, No. 10-5111, 2011 U.S. App. LEXIS 12233, at *6 (10th Cir. May 10,

2011) (“[E]ven if a colorable claim of actual innocence might be entitled to

special treatment, [petitioner’s] claim is not colorable.”); Weibley v. Kaiser, 50 F.

App’x 399, 403 (10th Cir. 2002) (determining that petitioner’s actual innocence

argument “fail[ed] because he d[id] not make a colorable claim of actual

innocence. [Petitioner] makes only conclusory allegations regarding his

innocence and provides no analysis or specific facts to warrant equitable tolling.”

(emphasis added)). Under this rigorous standard, “the petitioner must show that it

is more likely than not that no reasonable juror would have convicted him in . . .

light of the new evidence.” Schlup, 513 U.S. at 327.

      Mr. Kerchee presents three affidavits in support of his actual innocence

                                          17
claim, none of which we find persuasive. In the first, Don Jensen, who apparently

served as a Boy Scout troop leader with Mr. Kerchee, suggests that the allegations

against Mr. Kerchee were the result of a plot by one of the victim’s stepfathers to

overthrow Mr. Kerchee and takeover his position as Commander of the Comanche

War Scouts. Mr. Jensen also states that the stepfather of the other victim

personally approached him and informed him that the allegations against Mr.

Kerchee were false, and insists that Mr. Kerchee’s trial counsel was incompetent.

In the second affidavit, another of Mr. Kerchee’s Boy Scout colleagues avers that

“pre-trial publicity” deprived Mr. Kerchee of his right to a fair trial, and similarly

represents that Mr. Kerchee’s trial counsel was ineffective. R., Vol. I, at 233–36

(Aff. of Bill Walker, Def.’s Ex. Z, filed Nov. 23, 2010). The third affiant—a

child caregiver at a children’s shelter that one of the victims attended—testifies to

one of the victim’s “sexually inappropriate fantasies,” her “unstable and

intolerable behavior,” and her tendency to tell lies. She too complains of Mr.

Kerchee’s trial counsel’s performance. Id. at 238–42 (Aff. of Debra Herrera,

Def.’s Ex. AA, filed Nov. 23, 2010).

      Although these affidavits may call into question the quality of Mr.

Kerchee’s legal representation, none of them would cause a reasonable juror to

question the validity of his conviction. Each of the three affiants was available to

testify at the time of trial—in fact, both Mr. Jensen and Mr. Walker did testify on

Mr. Kerchee’s behalf. Consequently, these affidavits do not constitute “new

                                          18
reliable evidence” in the first place. See, e.g., In re Harrison, No. 08-2271, 2008

U.S. App. LEXIS 28094, at *2 (10th Cir. Nov. 25, 2008) (finding that petitioner

failed to present “new” evidence of his actual innocence where “the victim’s

recantation was not new” because she had “recanted her statements to law

enforcement even before [petitioner’s] trial”); Price v. Friel, 245 F. App’x 855,

856–57 (10th Cir. 2007) (concluding that petitioner’s proffered evidence was not

“new” where he was told during his psychological interview “that a report of the

evaluation would be made and sent to the court” and “[a]lthough he may not have

read its ultimate conclusion until well after trial, he certainly knew of the report’s

existence before trial”); see also O’Boyle v. Ortiz, 242 F. App’x 529, 531 (10th

Cir. 2007) (rejecting petitioner’s actual innocence claim where “[m]ost of his

‘new’ evidence [was] really speculation about what might be shown if certain

tests were performed on physical evidence in the case”). Furthermore, the third

affiant—Ms. Herrera, who served as a caregiver to one of the victims—speaks

only to the victim’s character, not to whether Mr. Kerchee is actually guilty of the

crime for which he was convicted. As such, reasonable jurists could not disagree

with the district court’s conclusion that Mr. Kerchee has failed to present a

colorable claim of actual innocence.

IV.   Motion to Stay

      Mr. Kerchee also asks us to stay our disposition of his COA application

pending the state court’s resolution of a post-conviction motion that Mr. Kerchee


                                          19
supposedly filed in April 2011. In so doing, however, Mr. Kerchee cites no

authority for the granting of such relief under the circumstances presented here,

nor has he sought a similar stay from the district court below.

      Construing this request very liberally, Mr. Kerchee’s argument appears to

be somewhat akin to that of the petitioner in Fairchild v. Workman, 579 F.3d

1134 (10th Cir. 2009). In that case, the petitioner—who had been convicted of

first-degree murder—furnished the district court with two new affidavits when he

submitted his habeas petition, both of which “establish[ed] the link between his

prior history of drug abuse and head injuries and possible physical, organic brain

injury; and furnish[ed] evidence that he in fact had such an injury.” Id. at 1149.

Though the petitioner’s trial counsel had been aware of this evidence at the time

of trial, he chose “to focus only on alcohol abuse” as a mitigating factor,

allegedly without “considering the availability of other more powerful mitigating

evidence.” Id. This court, therefore, concluded that “the facts reflected in [this]

additional evidence . . . might well support a claim of ineffective assistance.” Id.

at 1151. However, because the petitioner had yet to present these affidavits to the

state court, we vacated the district court’s judgment and remanded the case with

instructions to determine whether the stay-and-abeyance procedure should be used

to permit the petitioner “to exhaust his new potentially meritorious claim for

ineffective assistance of counsel and for it to conduct further proceedings

consistent with this opinion.” Id. at 1156 (emphasis added).


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      Even assuming, arguendo, that Mr. Kerchee could rely upon our analysis in

Fairchild, he has not advanced a new claim, let alone a meritorious one. Mr.

Kerchee’s first argument—that a stay would allow the state court to consider the

“new” affidavits of Mr. Jensen, Mr. Walker, and Ms. Herrera—is a non-starter.

As discussed above, there is nothing “new” about the information contained in

these affidavits; each of the three affiants was available and willing to testify at

the time of trial, and two of them did testify on Mr. Kerchee’s behalf.

      Mr. Kerchee’s second argument is equally unpersuasive. Though he makes

the conclusory assertion that Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009),

cert. denied, 130 S. Ct. 1072 (2010), and Cone v. Bell, 129 S. Ct. 1769 (2009),

somehow constitute an “intervening change in the law,” Aplt.’s Mot. for a Stay of

Proceedings at 2, Mr. Kerchee explains neither the significance of this supposedly

“intervening” caselaw nor its application to his case, let alone how it constitutes a

“new claim” that might warrant state court review. Thus, Mr. Kerchee has

effectively waived this second argument. See Bronson, 500 F.3d at 1104; see also

DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993) ( “[W]hile we hold pro se

litigants to a less stringent standard, it is not the proper function of the district

court to assume the role of advocate for the pro se litigant.”).

      Furthermore, as we observed in Fairchild, “not every new piece of

evidence makes a claim a new one,” and Mr. Kerchee does not argue that these

three affidavits or the supposedly “intervening” case law constitute new claims as


                                            21
opposed to merely new evidence. See 579 F.3d at 1148; see also Gardner v.

Galetka, 568 F.3d 862, 881, 882 (10th Cir. 2009) (deferring to the state court’s

ineffective-assistance-of-counsel determination where additional evidence “would

likely only have added color” to the ineffective-assistance claim, and the

difference between the evidence before the state court and the new evidence “was

purely a matter of degree”). In fact, the three affidavits offered in support of Mr.

Kerchee’s first argument appear to pertain to the same ineffective-assistance-of-

counsel argument that he raised in his first state post-conviction motion, which

the state court denied and dismissed on December 19, 2008. As Mr. Kerchee

offers absolutely no explanation as to how this additional evidence “so changes

the legal landscape that the state court’s prior analysis no longer addresses the

substance of [his] claim,” we are left with no basis upon which we might

conclude that he presents a “new claim” that warrants remand to the district court

under Fairchild. 579 F.3d at 1149.

                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Kerchee’s application for a COA,

DENY his motion to stay the proceedings, and DISMISS his appeal. We also

DENY Mr. Kerchee’s motion to proceed in forma pauperis, as he has not

demonstrated “the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624,

627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,


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812 (10th Cir. 1997)) (internal quotation marks omitted). 6




                                       ENTERED FOR THE COURT



                                       Jerome A. Holmes
                                       Circuit Judge




      6
            Mr. Kerchee’s pending motion to pay the appellate filing fees in
partial payments is also denied.

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