                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                           August 7, 2006
                                  T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 JO H N N IE M U RR AY ,

              Petitioner - A ppellant,                      No. 06-3196

        v.                                                  (D. Kansas)

 LOUIS E. BRUCE, and the                           (D.C. No. 05-CV-3392-SAC)
 A TTO RN EY G EN ER AL O F THE
 STATE OF KANSAS,

              Respondents - Appellees.




                                         ORDER


Before H E N R Y , B R ISC O E , and O ’B R IE N , Circuit Judges.


      Johnnie M urray, a Kansas state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s order denying

his 28 U.S.C. § 2254 petition for habeas corpus as untimely filed. In that § 2254

petition, M r. M urray alleged that his trial counsel was ineffective and suppressed

evidence would show his actual innocence. For substantially the same reasons set

forth by the district court in its well-reasoned order, we deny M r. M urray’s

application for a COA and dismiss this matter.
                                I. BACKGROUND

      In 1998, M r. M urray was convicted in the District Court of Sedgwick

County, Kansas, of reckless second-degree murder and reckless aggravated

battery. The Kansas Court of Appeals affirmed the conviction on M ay 12, 2000,

and the Kansas Supreme Court denied his petition for review on July 14, 2000.

Because M r. M urray did not seek review by the United States Supreme Court, his

conviction became final for habeas corpus purposes ninety days later on October

12, 2000.

      M r. M urray sought post-conviction relief in Kansas on April 14, 2003.

This relief was denied, and the Kansas Court of Appeals affirmed that decision on

M arch 4, 2005. The Kansas Supreme Court denied review on June 9, 2005.

      On October 6, 2005, M r. M urray filed this § 2254 petition in federal court.

The district court denied the petition as time-barred under the one-year limitation

period established by 28 U.S.C. § 2244(d). The district court also denied M r.

M urray’s Rule 59 motion to amend the judgment, finding no exceptional

circumstances that might warrant equitable tolling. The district court denied M r.

M urray a COA and this request followed.

                                 II. DISCUSSION

      A COA can issue only “if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner



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satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). W hen a district court

has dismissed a habeas petition on procedural grounds, a certificate w ill only

issue when “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000). In his COA application before us, M r. M urray concedes his petition was

untimely. He argues, however, that we should equitably toll his petition because

he is actually innocent. Equitable tolling “is only available w hen an inmate

diligently pursues his claims and demonstrates that the failure to timely file was

caused by extraordinary circumstances beyond his control.” M arsh v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000). This actual innocence claim, however, is

nothing more than an unsubstantiated allegation that the state w ithheld

exculpatory evidence and presented perjured testimony. As such, we reject it.

See Schlup v. Delo, 513 U .S. 298, 324 (1995) (“To be credible, a petitioner must

support his allegations of actual innocence with “new reliable evidence-whether it

be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence-that was not presented at trial.”).




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      Based on our review of the record on appeal, the district court’s order, and

M r. M urray’s submissions to this court, we are not persuaded jurists of reason

would disagree with the district court’s disposition of M r. M urray’s § 2254

petition. In sum, reasonable jurists would agree with the district court that M r.

M urray’s case does not present “rare and exceptional circumstances” warranting

equitable tolling under 28 U.S.C. § 2244(d). Gibson v. Klinger, 232 F.3d 799,

808 (10th C ir. 2000). A ccordingly, we DENY Mr. M urray’s request for a COA

and DISM ISS the matter.

                                 Entered for the Court,




                                 Robert H. Henry
                                 Circuit Judge




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