                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     April 28, 2008
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                        No. 07-2278
                                            (D.C. Nos. 6:05-CV-01170-MV-DJS
 v.
                                                  and 2:97-CR-00420-HB)
                                                         (D. N.M.)
 DANIEL NATHAN STARR,

       Defendant-Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Daniel Nathan Starr, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion. For substantially the same reasons set forth by the district

court, we deny a COA and dismiss the appeal.

      Starr was convicted of four counts of assault and aggravated sexual abuse

and sentenced to twenty years in prison. In 1999, this court affirmed his

conviction and sentence on appeal. United States v. Starr, No. 98-2065, 1999 WL

178549 (10th Cir. Apr. 1, 1999) (unpublished).
      In November 2005, Starr filed a § 2255 application for habeas relief. In his

amended application, he claimed actual innocence of the crimes for which he was

convicted, ineffective assistance of counsel, withholding of exculpatory evidence

by the government, lack of federal subject matter jurisdiction under the Indian

Major Crimes Act, and that the original indictment was defective on its face.

Because Starr filed his application after the expiration of § 2255’s one-year

limitation period, the district court ordered him to show cause why his motion

should not be dismissed as untimely.

      Starr responded that because he claimed actual innocence, dismissal of his

motion would cause a fundamental miscarriage of justice. Specifically, he

asserted that new evidence proved that he was innocent. Finding that the

allegedly new evidence could have been discovered before trial, the court

declined to toll the statute of limitations and dismissed his petition as untimely.

Starr then filed this timely request for COA. 1




      1
        A petitioner may not appeal the denial of habeas relief under § 2255
without a COA. § 2253(c)(1)(B). A COA may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). This requires Starr to show “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Because the district court did not rule on whether to grant a
COA, we assume it was denied. 10th Cir. R. 22.1(C). Accordingly, Starr may not
appeal the district court’s decision absent a grant of a COA by this court.

                                         -2-
       Starr argues that he is entitled to equitable tolling of the limitations period

because he is actually innocent of his crimes of conviction, as indicated by newly

discovered evidence. According to Starr, he recently discovered that the victim

told Starr’s mother, aunt, and defense counsel that he was not responsible for the

assault. 2

       Under certain circumstances a claim of actual innocence may be a ground

for equitable tolling of the limitations period. See Gibson v. Klinger, 232 F.3d

799, 808 (10th Cir. 2000) (“AEDPA’s one-year statute of limitations is subject to

equitable tolling but only in rare and exceptional circumstances . . . for example,

when a prisoner is actually innocent.” (quotation omitted)). To establish actual

innocence, a petitioner must demonstrate that “it is more likely than not that no

reasonable juror would have convicted him in the light of . . . new evidence.”

Schlup v. Delo, 513 U.S. 298, 327 (1995) (remanding a state prisoner’s federal

habeas petition for consideration of an actual innocence claim notwithstanding

petitioner’s procedural default); see also Bousley v. United States, 523 U.S. 614,

623 (1998) (applying the Schlup standard to a federal prisoner’s § 2255 motion).


       2
        The limitations period runs, at the latest, from “the date on which the
facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). Although Starr
claims that he only “recently” learned of this evidence, he has not provided the
exact date upon which he discovered this evidence, nor attempted to explain why
he could not have obtained this information from his family members or former
counsel at an earlier date through diligent efforts. Accordingly, we cannot apply
this exception to the period of limitations.

                                          -3-
      Starr argues that no reasonable juror would have convicted him if evidence

of the victim’s statements had been presented at trial. He asserts that “[t]his

evidence was not available until after the trial, or defense counsel did not disclose

the evidence at [trial].” Starr admitted in his petition before the district court,

however, that the victim’s statements occurred before his trial. Accordingly, the

district court correctly found that this evidence was available before trial, and in

fact had been discovered by defense counsel. Thus Starr’s claim is not based on

“new” evidence, but rather on evidence that could have been presented at trial.

Any failure by counsel to adduce this evidence is more properly characterized as

a claim for ineffective assistance of counsel, and such a claim is barred by the

applicable limitations period. § 2255(f).

      We conclude that reasonable jurists could not debate the district court’s

dismissal of the petition as time barred, and Starr’s request for a COA is therefore

DENIED. Starr’s motion to proceed on appeal in forma pauperis is GRANTED.


                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge




                                          -4-
