                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       February 8, 2013
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


 NED PACE, JR.,

               Petitioner-Appellant,

 v.
                                                             No. 11-1567
                                                    (D.C. No. 1:11-CV-02556-LTB)
 JOHN CHAPDELAINE, Acting Warden;
                                                               (D. Colo.)
 THE PEOPLE OF THE STATE OF
 COLORADO; JOHN SUTHERS, the
 Attorney General of the State of Colorado,

               Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner Ned Pace, Jr., a Colorado state prisoner proceeding pro se,1 seeks a

certificate of appealabilty (“COA”) to appeal from the district court’s dismissal of his

habeas petition brought under 28 U.S.C. § 2254. The district court dismissed Mr. Pace’s

petition as untimely––barred by 28 U.S.C. § 2244(d)’s one-year limitations period. We


       *
            This Order is not binding precedent, except under the doctrines of law of the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.
       1
             Because Mr. Pace 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).
deny Mr. Pace’s COA request and dismiss this matter.

                                              I

       Mr. Pace was convicted by a jury in Colorado state court on two counts each of

first-degree murder, felony murder, and sexual assault. He was sentenced to life in prison

without parole. Mr. Pace filed a direct appeal to the Colorado Court of Appeals, which

affirmed his convictions on May 5, 2005. Mr. Pace petitioned the Colorado Supreme

Court for certiorari review, but his petition was denied on October 3, 2005. The Colorado

Supreme Court issued its mandate on October 12, 2005.

       On March 19 and 21, 2008, Mr. Pace filed post-conviction motions under

Colorado Rule of Criminal Procedure 35(c). The trial court denied the motions on

September 5, 2008. More than nine months later, on May 18, 2009, Mr. Pace filed

another Rule 35(c) motion. The trial court denied the motion on January 7, 2010. Mr.

Pace appealed, and the Colorado Court of Appeals affirmed the trial court on March 24,

2011. Mr. Pace again petitioned the Colorado Supreme Court for certiorari review, and

again the Colorado Supreme Court denied his petition.

       On September 29, 2011, Mr. Pace filed his petition under 28 U.S.C. § 2254 in the

United States District Court for the District of Colorado, alleging, among other things,

violations of “[E]qual Protection, Due Process, [r]ight to remain silent[,] and the [F]irst,

Fourth, Sixth, Eighth, Ninth, Tenth, and Fourteenth[] Amendments.” R. at 22 (Pet. for

Writ of Habeas Corpus, filed Sept. 29, 2011). On October 24, 2011, the magistrate judge

directed Respondents to file a pre-answer response limited to addressing the affirmative

                                             -2-
defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state-court remedies

under 28 U.S.C. § 2254(b)(1)(A). After Respondents filed their pre-answer response, and

Mr. Pace submitted a reply brief, the district court dismissed Mr. Pace’s petition.

Because the court determined that the petition was time-barred under § 2244(d), and not

subject to equitable tolling, it did not reach the question of whether Mr. Pace had

exhausted his state-court remedies. Finally, because in its estimation Mr. Pace had not

made a substantial showing of the denial of a constitutional right, the district court denied

him a COA.

                                              II

       Mr. Pace requests a COA to appeal from the district court’s denial of his § 2254

petition. It is undisputed on appeal that Mr. Pace’s habeas petition was filed outside of

the one-year limitations period for filing a petition for federal habeas relief, see 28 U.S.C.

§ 2244(d), enacted under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, but Mr. Pace avers that equitable

tolling should apply to allow his petition to advance despite its untimeliness, see, e.g.,

Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (holding “that § 2244(d) is subject to

equitable tolling in appropriate cases”). Absent our grant of a COA, we lack jurisdiction

under AEDPA to review the merits of Mr. Pace’s proposed appeal. See 28 U.S.C.

§ 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Specifically, “a COA is needed to

appeal . . . the final order in a habeas corpus proceeding in which the detention

                                             -3-
complained of arises out of process issued by a State court.” Montez v. McKinna, 208

F.3d 862, 866–67 (10th Cir. 2000) (quoting 28 U.S.C. § 2253(c)(1)) (internal quotation

marks omitted).

       We may issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the

applicant must show “that reasonable jurists could debate whether . . . the petition should

have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th

Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation

marks omitted). Where the district court denies an application on a procedural ground,

ordinarily the applicant must show both “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting

Slack, 529 U.S. at 484) (internal quotation marks omitted).

       “[W]e review the district court’s decision on equitable tolling of the limitation

period for an abuse of discretion.” Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003).

To qualify for equitable tolling, Mr. Pace 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.” Holland, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)) (internal quotation marks omitted). We address Mr. Pace’s two

                                             -4-
asserted grounds for equitable tolling. In the end, we find that the district court’s decision

on equitable tolling was correct, and that Mr. Pace has failed to meet his burden to

establish that reasonable jurists could debate the correctness of the district court’s

resolution of his petition.

                                               A

       Mr. Pace first contends that equitable tolling should apply because of his

attorney’s misconduct. In his habeas petition, Mr. Pace alleged that he was abandoned by

his attorney, who failed to file a habeas petition in 2006 and then returned some of the

retainer money to Mr. Pace’s parents in 2009. In his application for a COA, Mr. Pace

again avers that his attorney, who was “retained to prepare and file a petition of habeas

corpus,” instead “abandon[ed]” him, which prevented Mr. Pace from timely filing a

habeas petition. Aplt. Mot. for COA at 7 (capitalization altered). Mr. Pace also avers

that, in May 2006, his attorney “lie[d] to [his] parent[s] about filing for [a] new trial.” Id.

(capitalization altered).

       However, Mr. Pace does not explain how this alleged abandonment, which caused

his parents to be misled “for at le[a]st one year[],” id. (emphasis added), resulted in Mr.

Pace waiting to file his habeas petition until September 29, 2011 (more than five years

after the attorney had been retained to file a habeas petition and approximately two years

after the attorney had returned part of the retainer). See Law v. Jones, 433 F. App’x 651,

652 (10th Cir. 2011) (holding that the habeas petition did not qualify for equitable tolling

because the petitioner “discovered that his attorney had lied about filing a petition in early

                                              -5-
2008, and yet [the petitioner] did not file one himself until nearly two years later”); cf.

Holland, 130 S. Ct. at 2565 (holding that the habeas petitioner had exercised the requisite

reasonable diligence by writing his attorney numerous letters seeking crucial information

and providing direction; repeatedly contacting the state courts, their clerks, and the state

bar association in an effort to have his attorney removed from the case; and “promptly”

filing his own habeas petition pro se after discovering that his AEDPA clock had expired

due to his attorney’s failings). Similarly, “the fact that Mr. Pace’s attorney was

contemplating filing for a new trial in 2006 does not explain Mr. Pace’s complete failure

to file any motions in his criminal case until March 19, 2008, nor his decision to delay the

filing of his habeas application until September 29, 2011.” R. at 202 (Order of Dismissal,

filed Dec. 8, 2011).

       In sum, Mr. Pace does not allege specific facts that would support a claim of due

diligence after his attorney’s alleged untruthfulness and abandonment. See Yang v.

Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (holding that the petitioner has a “strong

burden to show specific facts to support his claim of extraordinary circumstances and due

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

quotation marks omitted)). The district court determined that Mr. Pace had not met his

burden of demonstrating that equitable tolling is appropriate as a result of his attorney’s

alleged misconduct, and we agree. Furthermore, reasonable jurists could not debate the




                                              -6-
district court’s resolution of this argument for equitable tolling.2

                                               B

       Mr. Pace’s second contention is that equitable tolling should apply because, “when

this court actually reaches the merits of [his] claims, [it] will become very clear and

convincing that [he is] innocent.” Aplt. Mot. for COA at 9; see also R. at 21 (“An

evidentiary hearing for Mr. Pace will fin[d] enough evidence to indicate [that] Mr. Pace

[is] innocent.” (capitalization altered)). Mr. Pace avers that the DNA evidence against

him was “weak,” that the Colorado Supreme Court denied him access to the DNA

evidence, and that further testing might reveal “fraud” or “evidence tampering.” R. at 21

(capitalization altered); see also id. at 14 (“The DNA evidence that was use[d] against

Mr. Pace at trial . . . was weak and contaminate [sic] and useless.” (capitalization

altered)); see also id. at 24 (explaining Mr. Pace’s theory that the DNA evidence was

weak because “thay [sic] only had ½ of Mr. Pace[’s] DNA” and someone handling the

       2
                Reading Mr. Pace’s pro se habeas petition liberally, see Erickson, 551 U.S.
at 94, we respectfully diverge from the district court’s view that “Mr. Pace [did] not
allege that his counsel was assisting him in preparing a habeas petition[,]” see R. at 202.
See id. at 23 (“Mr. Pace[’s] parent[s] hired attorney Kallman Elinoff for Mr. Pace[’s] writ
of habesa [sic] corpus, 28 U.S[.]C. § 2254 . . . . Attorney Elinoff did’en [sic] filed no writ
of habeas courpus [sic]-28 U.S.C. § 2254 for Mr. Pace before or on [the deadline]! . . .
Then in 2009 Attorney Kallman Elinoff gave . . . Mr. Pace[’s] parent[s] some of there
[sic] retainer ‘money’ back. . . . The evidence of what happen[ed] show[s] that Mr. Pace
was abandon[ed].” (capitalization altered)); see also id. at 189 (Reply Br., filed Nov. 21,
2011) (“Mr. Pace[’s] petition . . . is subject to equitable tolling . . . based upon the unique
facts of this case, where an attorney was retained to prepare and file a petition [but] failed
to do so.” (capitalization altered)). But, even though Mr. Pace did allege that his counsel
failed to file his habeas petition as directed, for the reasons stated supra, the district court
was undoubtedly correct in its conclusion that Mr. Pace is not entitled to equitable tolling
on the ground of attorney misconduct.

                                              -7-
samples might have contaminated the evidence (capitalization altered)). Mr. Pace also

asserts that testing to determine “how long the DNA was . . . in the victims [sic] body . . .

alone would have clear[ed him] from all guilt.” Id. at 22 (capitalization altered).

       Equitable tolling is appropriate when a prisoner is actually innocent. Burger, 317

F.3d at 1141. To establish a credible claim of actual innocence, a petitioner must support

his claim with “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, 324 (1995), and show “that it is more likely than not

that no reasonable juror would have convicted him in the light of the new evidence,” id. at

327. But Mr. Pace has provided no evidence that he is actually innocent, nor has he

undermined the validity of any of the evidence of his guilt presented at trial. Mr. Pace’s

vague assertions related to the alleged unreliability of the DNA evidence presented at trial

and what further testing might reveal are insufficient. Reasonable jurists could not debate

the district court’s conclusion here that Mr. Pace “has failed to assert any basis for

equitable tolling.” R. at 202.
                                             III

       For the foregoing reasons, we DENY Mr. Pace a COA and DISMISS this matter.




                                             -8-
We nonetheless GRANT Mr. Pace’s motion to proceed in forma pauperis.



                                             Entered for the Court


                                             JEROME A. HOLMES
                                             Circuit Judge




                                       -9-
