                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     April 25, 2008
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 WADE ALLEN EDWARDS,

       Petitioner - Appellant,
                                                        No. 08-7011
 v.                                          (D.C. No. 07-CV-00274-FHS-KEW)
                                                        (E.D. Okla.)
 JIM KEITH, Warden; OKLAHOMA
 ATTORNEY GENERAL,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Petitioner-Appellant Wade Allen Edwards, a state inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal from the district

court’s denial of his habeas petition pursuant to 28 U.S.C. § 2254. Because Mr.

Edwards has failed to demonstrate that it is reasonably debatable whether the

district court’s procedural ruling dismissing his petition as untimely is correct,

see Slack v. McDaniel, 529 U.S. 473, 483–84 (2000), we deny a COA and dismiss

the appeal.

      The district court adopted the magistrate judge’s determination that Mr.

Edwards’s application was not filed within the applicable one-year statute of
limitations, see 28 U.S.C. § 2244(d)(1)(A), and that he was not entitled to

equitable tolling due to extraordinary circumstances or actual innocence. On

appeal, Mr. Edwards argues that a state-created impediment and actual innocence

excuse the untimeliness of his petition. First, he argues that the district court

erred in finding that he orally withdrew his motion to withdraw his guilty plea

and that this error was a state-created impediment. A state-created impediment

may delay the running of the one-year limitations period until that impediment is

removed if it prevents the petitioner from filing a federal habeas petition. See 28

U.S.C. § 2244(d)(1)(B). Mr. Edwards’s contention is an argument on the merits

and does not address how the factual finding prevented him from timely filing his

federal habeas petition.

      Second, Mr. Edwards’s arguments to equitably toll the limitations period

also fail. The limitations period may be equitably tolled if a petitioner “diligently

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

extraordinary circumstances beyond his control,” Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000), or if the petitioner is actually innocent, Gibson v. Klinger,

232 F.3d 799, 808 (10th Cir. 2000). Mr. Edwards does not contest that his

conviction became final on August 23, 2003 after entering a guilty plea. He filed

the present petition on July 25, 2007, nearly four years later. He has not

demonstrated that he diligently pursued his claims during this period to warrant

equitable tolling. Mr. Edwards has also failed to support his alleged innocence.

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He mistakenly argues legal innocence instead of factual innocence to justify

equitably tolling the limitations period. See Batrez Gradiz v. Gonzales, 490 F.3d

1206, 1209 (10th Cir. 2007). 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).

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Edwards has

failed to demonstrate that it is reasonably debatable whether the district court’s

procedural ruling dismissing his petition is correct. See Slack, 529 U.S. at

483–84.

      We DENY the motion for a COA and DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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