                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS April 19, 2012

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 12-3027
 v.                                         (D.C. Nos. 2:11-CV-02406-KHV and
                                                  2:07-CR-20167-KHV-8)
 CHARLES R. SINGLETON,                                    (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Charles Singleton, a federal inmate appearing pro se, seeks to appeal the

district court’s overruling of his 28 U.S.C. § 2255 motion to vacate, set-aside or

correct his sentence as untimely. See United States v. Singleton, Crim. Act. No.

07-20167-08-KHV, Civ. Act. No. 11-2406-KHV, 2011 WL 5837176 (D. Kan.

Nov. 21, 2011). Because Mr. Singleton has not made “a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate

of appealability (“COA”) and dismiss this appeal.

      On February 12, 2009, Mr. Singleton pled guilty to conspiracy to

manufacture, to possess with intent to distribute and to distribute 50 grams or

more of cocaine base and to possess with intent to distribute five kilograms or
more of cocaine. 1 R. 40-56. On June 5, 2009, he was sentenced to 120 months’

imprisonment and five years’ supervised release. 1 R. 58-59. He sought to

appeal, but this court enforced the appeal waiver provision contained in the plea

agreement and dismissed his direct appeal. United States v. Singleton, 357 Fed.

App’x 988 (10th Cir. 2009).

      A one-year limitation period applies to § 2255 motions. 28 U.S.C.

§ 2255(f). Mr. Singleton filed his § 2255 motion on July 21, 2011, arguing that

the one-year time-bar should not be enforced because he was actually innocent. 1

R. 64-79. The district court disagreed and overruled the motion on November 11,

2011. He then sought reconsideration, 1 R. 102-06, which the district court

denied. United States v. Singleton, Crim. Act. No. 07-20167-08-KHV, Civ. Act.

No. 11-2406-KHV, 2011 WL 6189612 (D. Kan. Dec. 13, 2011); 1 R. 107-10.

      Where a district court rejects a § 2255 motion on procedural grounds, a

movant must demonstrate that it is reasonably debatable whether (1) the motion

states a valid claim of the denial of a constitutional right and (2) the district

court’s procedural ruling is correct in order to obtain a COA. Slack v. McDaniel,

529 U.S. 473, 484 (2000). The district court’s ruling concerning the time bar and

the lack of a showing of actual innocence is not reasonably debatable. In order to

establish actual innocence, “the petitioner must show that it is more likely than

not that no reasonable juror would have convicted him in the light of the new

evidence.” See Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence

                                         -2-
requires a showing of factual innocence, not merely legal insufficiency. See

Bousley v. United States, 523 U.S. 614, 623 (1998). As the district court noted,

Mr. Singleton, despite his sworn statements, now takes issue with the sufficiency

of the evidence establishing his involvement in a conspiracy and claims

ineffective assistance of counsel. The district court’s conclusion that this does

not suffice to excuse the time bar is not reasonably debatable.

      We DENY a COA and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        -3-
