                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     November 30, 2016

                                                                         Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                          Clerk of Court
                          _________________________________

ELROY TILLMAN,

      Petitioner - Appellant,
                                                             No. 16-4139
v.                                                   (D.C. No. 2:13-CV-00201-DB)
                                                               (D. Utah)
ALFRED BIGELOW,

      Respondent - Appellee.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                     ______________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                  _________________________________

       Defendant Elroy Tillman, a state prisoner proceeding pro se, applied for relief

under 28 U.S.C. § 2254 more than one year after his state-court conviction and sentence

became final. The United States District Court for the District of Utah dismissed his

application as untimely. Defendant now requests a certificate of appealability (COA)

from this court to appeal the dismissal. See 28 U.S.C. § 2253(c)(1)(A). We deny a COA

and dismiss the appeal because no reasonable jurist could debate that the district court

erred in its denial of his claim.

       I.     BACKGROUND

       In 1983 Defendant was convicted of first-degree murder and sentenced to death.

The Utah Supreme Court initially affirmed the conviction and death sentence. See State
v. Tillman, 750 P.2d 546, 577 (Utah 1987). Over the ensuing years, Defendant repeatedly

sought postconviction relief from state and federal courts without success. But in 2001 a

state district court granted a petition for postconviction relief, vacating Defendant’s death

sentence but not his conviction. The Utah Supreme Court affirmed. Defendant was

resentenced to life imprisonment on December 23, 2005. See Tillman v. Bigelow, 484 F.

App’x. 286, 287 (10th Cir. 2012). He did not appeal his resentencing.

       In 2013 Defendant initiated his current § 2254 application. The district court

found it to be a second-or-successive application and dismissed it for lack of

authorization from this court. But when Defendant sought authorization from this court,

we dismissed the request as unnecessary because of his 2005 resentencing. We explained

that Supreme Court precedent treated “the existence of a new judgment [as] dispositive”

in determining whether a § 2254 application is second or successive. Order, R. at 228

(quoting Magwood v. Patterson, 561 U.S. 320, 338 (2010)). The district court

accordingly vacated its dismissal order and directed the state to file an answer to

Defendant’s application. In a March 2016 order the district court dismissed the

application as untimely. Defendant now seeks a COA from us.

       II.    DISCUSSION

       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). This standard requires “a

demonstration that . . . includes showing 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.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). If the

application was denied on procedural grounds, the applicant faces a double hurdle. Not

only must the applicant make a substantial showing of the denial of a constitutional right,

but he must also show “that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present

and the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.

       The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year

time limit for filing a § 2254 application. The relevant language follows:

       (1) A 1-year period of limitation shall apply to an application for a writ of
       habeas corpus by a person in custody pursuant to the judgment of a State
       court. The limitation period shall run from the latest of--
              (A) the date on which the judgment became final by the conclusion
              of direct review or the expiration of the time for seeking such
              review;
              ...
       (2) The time during which a properly filed application for State post-
       conviction or other collateral review with respect to the pertinent judgment
       or claim is pending shall not be counted toward any period of limitation
       under this subsection.

28 U.S.C. § 2244(d).

       Defendant’s § 2254 application was clearly untimely. Because he failed to appeal

his resentencing, his judgment became final on January 23, 2005—30 days after his

resentencing. See Utah R. App. P. 4(a) (notice of appeal shall be filed “within 30 days

after the date of entry of the judgment or order appealed from”). Absent statutory or



                                               3
equitable tolling, the last day to file his application for federal habeas relief was January

23, 2006, long before he filed his § 2254 application on March 29, 2013.

       Defendant is not entitled to statutory tolling. Although the one-year limitation

period may be tolled while a defendant seeks state postconviction relief, the first

postconviction petition filed by Defendant after his resentencing was in December 2009,

well after the limitation period had expired. See Fisher v. Gibson, 262 F.3d 1135, 1142‒

43 (10th Cir. 2001) (denying statutory tolling for state postconviction petition filed after

limitation period).

       And we agree with the district court that Defendant is ineligible for equitable

tolling. Actual innocence, which Defendant invokes here, can justify equitable tolling.

See Schlup v. Delo, 513 U.S. 298, 315 (1995) (claim of innocence may serve as “a

gateway through which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits” (internal quotation marks omitted));

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). But “[t]o make a credible

showing of actual innocence, a petitioner must support his allegations of constitutional

error with new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not presented at

trial. This new evidence must be sufficient to show that it is more likely than not that no

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

Frost v. Pryor, 749 F.3d 1212, 1231‒32 (10th Cir. 2014) (citations omitted) (internal

quotation marks omitted). Defendant has failed to provide any new evidence, before this

court or below.

                                              4
       Defendant’s final argument is that our order sending the case to the district court

required that court to hear the merits of his claim. But the order did not address the

merits of his petition or whether it was procedurally barred. It merely stated that

Defendant did not need permission from our court to proceed.

       Defendant fails to identify any other basis for equitable tolling. Hence, no

reasonable jurist could debate whether Defendant’s § 2254 motion ought to have been

granted.

       III.   CONCLUSION

       We DENY Defendant’s request for a COA and DISMISS the appeal.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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