                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 17, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 LA RRY PA U L TA FO Y A ,

                 Petitioner-A ppellant,                  No. 06-2275
          v.                                             (D. of N.M .)
 JA M ES JA N EC KA ,                             (D.C. No. CIV 06-360-JH)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Larry Paul Tafoya, a New M exico state prisoner proceeding through

counsel, appeals the district court’s denial of his federal habeas petition under 28

U.S.C. § 2254 as w ell as that court’s subsequent denial of his request for a

Certificate of Appealability (COA). Because we conclude that Tafoya has not

satisfied the requisite standard of a “substantial showing of the denial of a




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has 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 cause is therefore ordered submitted without oral argument.
constitutional right,” we deny COA and dismiss this appeal. 28 U.S.C.

§ 2253(c)(2); M iller-El v. Cockrell, 537 U.S. 322, 327 (2003).

                                   I. Background

       In November 2001, a jury convicted Tafoya of M urder in the First Degree

(Depraved M ind), Leaving the Scene of an A ccident Involving Death, Reckless

Driving, and Driving W hile License Suspended. 1 The New M exico Supreme

Court affirmed the conviction in June 2004. In July 2005, Tafoya filed the first of

tw o petitions for post-conviction relief in state court. Both petitions were denied.

       Tafoya filed his federal habeas petition in M ay 2006. The magistrate judge

recommended the petition be denied, among other reasons, on the grounds it

exceeded the one-year statute of limitations imposed by the Antiterrorism and

Effective Death Penalty Act (AEDPA ), which governs this appeal. The

magistrate judge aggregated all the periods of untolled time that had passed since

Tafoya’s conviction became final in June 2004 and found the aggregate surpassed

one year. Additionally, the magistrate judge concluded Tafoya’s petition

included unexhausted claims and, thus, was procedurally barred. After

considering Tafoya’s objections to the magistrate judge’s report and

recommendation, the district court adopted the recommendation and denied the

petition for relief.

       1
        The facts of that case, not relevant to the instant appeal, are laid out in
the New M exico Supreme Court’s unpublished opinion, State v. Tafoya, No.
27,354, June 30, 2004.

                                          -2-
      On appeal, Tafoya does not dispute that his habeas petition was untimely

under AEDPA . Instead, he asks this court to apply principles of equitable tolling

in order to bypass the statute of limitations. 2

                               II. Standard of Review

      “An order dismissing a habeas application as time-barred by AEDPA is

subject to de novo review.” Serrano v. Williams, 383 F.3d 1181, 1184 (10th Cir.

2004) (quoting Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002)).

                                     III. Analysis

      To obtain a COA, a movant challenging a criminal conviction under § 2254

must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). This

standard is satisfied by demonstrating 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.”

Slack v. M cDaniel, 529 U .S. 473, 484 (2000). W hen the district court denies a

petition on procedural grounds, as in this case, the standard is further refined,

requiring petitioner to show that reasonable jurists could find it debatable whether

(1) the petition states a valid claim of the denial of a constitutional right, and (2)

      2
         In making his case to the magistrate judge, Tafoya “failed to respond to
the [] argument that this Petition is time-barred.” M ag. J. R& R at 10. The
magistrate judge further concluded that “there were no facts in the Petition or the
Exhibits that suggest that the doctrine of equitable tolling would be applicable.”
Id. W e agree.

                                            -3-
the district court’s procedural ruling was correct. Id. Because the district court’s

procedural ruling that Tafoya’s claim was time-barred is not reasonably

debatable, w e must deny C OA .

      Tafoya concedes that he failed to file his federal habeas petition within the

one-year window mandated by AEDPA . 3 Nevertheless, he claims the limitations

period should be equitably tolled because of (1) his limited access to legal

materials while incarcerated, and (2) his actual innocence of the crime for which

he was convicted.

      AEDPA’s one-year statute of limitations is subject to equitable tolling only

“in 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)).

      Equitable tolling would be appropriate, for example, when a prisoner is
      actually innocent, M iller v. M arr, 141 F.3d 976, 978 (10th Cir. 1998),
      w h en an adversary’s conduct— or other uncontrollable
      circumstances— prevents a prisoner from timely filing, or when a
      prisoner actively pursues judicial remedies but files a defective pleading
      during the statutory period, Irwin v. Dep’t of Veterans Affairs, 498 U.S.
      89, 96 (1990). Simple excusable neglect is not sufficient. Id. at 96.
      M oreover, a petitioner must diligently pursue his federal habeas claims;
      a claim of insufficient access to relevant law, such as AEDPA, is not
      enough to support equitable tolling. M iller, 141 F.3d at 978.




      3
        Tafoya actually claims the district court overcalculated his tardiness
under the statute but admits that his petition was untimely by at least “a few
months.” “[I]t is apparent that if M r. Tafoya’s Application for a W rit of Habeas
Corpus is untimely, it is untimely only by a period of a few months, not more
than a year as alleged by Respondent.” Pet’r Br. at 19.

                                      -4-
Id. (Emphasis added.) Tafoya has made no showing with any specificity that he

lacked access to legal materials, nor did he make such a showing to the magistrate

judge. Thus, we find no support for equitable tolling on this allegation. 4

      Tafoya’s other ground for equitable tolling is based on a claim of actual

innocence. It likewise fails. He contends he is “actually innocent of the crime of

first degree, depraved-mind murder,” quoting this passage from his filed

objections to the magistrate judge’s Report and Recommendation:

      The evidence, as presented to the jury, indicated that M r. Tafoya must
      have been totally unaw are that the motorcyclist he came upon in front
      of his vehicle was Eddie Duran. There could not possibly have been
      any premeditation or intent. It was simply a very unfortunate accident,
      although brought about by [Applicant’s] impaired condition and
      possibly negligent disregard. It was not murder . . . and [M r. Tafoya is]
      not a depraved criminal.

Pet’r Br. at 20–21. These conclusory allegations are insufficient to support a

claim of actual innocence. Tafoya was convicted by a jury of his peers after they

had an opportunity to hear and weigh the evidence against him. The Supreme

Court of New M exico, after reviewing the evidence presented at trial, affirmed

the conviction, holding there was sufficient evidence from which a rational jury

could find Tafoya’s acts w ere the result of a depraved mind and that these acts

caused the victim’s death.

      4
          Tafoya claims our prior decision in M iller v. M arr left open the
possibility that lack of access “may, in certain circumstances, be sufficient to
entitle a petitioner to equitable tolling.” Pet’r Br. at 21. However, our recent
decision in Gibson makes clear that where a prisoner has not diligently pursued
his claim, lack of access alone is not enough to support equitable tolling.

                                         -5-
      In multiple filings, Tafoya has unsuccessfully pursued the issue of

evidentiary sufficiency while seeking post conviction relief in state and federal

courts. Both of his successive state habeas petitions were denied, the first one

following an evidentiary hearing on the issue of juror misconduct. The federal

magistrate judge and district court have likewise and independently found

Tafoya’s claims of actual innocence without merit. Having been considered and

rejected now by the New M exico state trial court, the New M exico state supreme

court, the federal magistrate judge and the federal district court, Tafoya has had a

careful and thorough evaluation of his claims. Based on our independent review

of the record, we likewise conclude that Tafoya has not made a showing under

AEDPA that he was actually innocent of the crimes for which he was convicted.

      W e therefore deny his request for equitable tolling of the AEDPA statute of

limitations.

                                  IV. Conclusion

      For the reasons set forth above, we DENY Tafoya’s request for COA, and

DISM ISS this appeal.



                                       Entered for the Court,



                                       Timothy M . Tymkovich
                                       Circuit Judge



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