                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 30, 2015
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 JAMES L. CARLSON,

          Petitioner-Appellant,                        No. 15-3061
 v.                                           (D.C. No. 5:13-CV-03113-SAC)
                                                         (D. Kan.)
 REX PRYOR,

          Respondent-Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.


      James Carlson was convicted in a Kansas court of aggravated kidnapping,

criminal threat, and domestic battery. For these state crimes, the court sentenced

him to 272 months in prison. After the Kansas Court of Appeals affirmed his

convictions on direct appeal, State v. Carlson, 93 P.3d 1226 (Kan. Ct. App. 2004)

(unpublished table decision), and the Kansas Supreme Court denied his petition

for review as improvidently granted, State v. Carlson, 104 P.3d 402 (Kan. 2005)

(per curiam) (unpublished table decision), Mr. Carlson brought a series of state



      *
         This order is not binding precedent except under the doctrines of law of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.
post-conviction challenges. When these challenges, too, failed to win him relief,

he filed an application for habeas corpus under 28 U.S.C. § 2254 in federal

district court. In the end, however, the district court dismissed the motion after

finding his petition untimely and denied a certificate of appealability (COA). Mr.

Carlson now seeks from us a COA in order to challenge the district court’s denial

of his motion.

      By statute, we may issue a COA only if the petitioner first makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Where, as here, the district court dismissed a petition as untimely,

the petitioner must “show that ‘jurists of reason would find it debatable’ whether

his claim was time-barred.” Garcia v. Archuleta, 253 F. App’x 802, 803 (10th

Cir. 2007) (quoting Slack v. MacDaniel, 529 U.S. 473, 484 (2000)). This he

cannot do.

      Mr. Carlson doesn’t dispute that his petition was untimely but suggests that

the district court should have equitably tolled the limitations period to permit his

claim. The statute of limitations for habeas petitions is, of course, subject to

equitable tolling 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)). But equitable tolling is appropriate only if the petitioner

demonstrates both “that he has been pursuing his rights diligently” and “that some

extraordinary circumstance,” prevented him from timely filing the petition. Pace

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v. DiGuglielmo, 544 U.S. 408, 418 (2005). Otherwise, a petitioner may avoid the

time bar only by a showing of actual innocence. McQuiggin v. Perkins, 133 S.

Ct. 1924, 1931-32 (2013). In the materials before us, Mr. Carlson offers no

allegation as he must that he pursued his rights diligently during the period he

seeks to toll. Likewise, though he asserts his innocence, his papers supply no

persuasive support for this contention. Accordingly, a reasonable jurist could not

find the district court’s resolution debatable.

      The application for a COA is denied and the appeal is dismissed.


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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