                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 21, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MARTIN VASQUEZ ARROYO,

      Petitioner - Appellant,

v.                                                           No. 17-3199
                                                (D.C. No. 5:15-CV-03234-SAC-DJW)
RAY PRYOR,                                                    (D. Kan.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Martin Vasquez Arroyo, a Kansas state prisoner proceeding pro se,1 seeks a

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

28 U.S.C. § 2254 habeas application. We deny a COA and dismiss this matter.

      In 2005, Mr. Arroyo was convicted of three counts of first-degree murder, one

count of aggravated robbery, one count of felony theft, and two counts of

misdemeanor theft. See State v. Vasquez, 194 P.3d 563 (Kan. 2008). His direct

appeal and motion for post-conviction relief were unsuccessful. See id.; Vasquez v.


      *
         This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estopped. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         Because Mr. Arroyo is pro se, we liberally construe his filings but do not act
as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
State, 331 P.3d 833 (table) (Kan. App. 2014), rev. denied, July 21, 2015. He then

sought habeas relief in federal court under 28 U.S.C. § 2254 in three applications.

The district court consolidated and dismissed them because Mr. Arroyo had not

exhausted all of his claims in state court. It allowed him to submit an amended

application containing only claims that had been properly exhausted.

      In the amended application, Mr. Arroyo renewed a single claim—actual

innocence. He argued that a county attorney and a police officer committed the

murders. He also raised questions about the involvement of two others who were

found in possession of the murder weapon (a handgun) four years after the crime, as

well as the original gun owner. He based these arguments on alleged fingerprint

evidence and DNA testing that the state had allegedly withheld.

      The district court denied relief, stating that Mr. Arroyo had failed to provide

“new reliable evidence,” as required under Schlup v. Delo, 513 U.S. 298, 324 (1995),

for an actual innocence claim, nor had he otherwise supported that any other person

had committed the crimes. The court also denied a COA.

      Mr. Arroyo must obtain a COA to appeal the district court’s denial of § 2254

relief. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). A COA may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). “At the COA stage, the only question is whether the applicant has

shown that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that ‘jurists could conclude the issues presented are adequate



                                            2
to deserve encouragement to proceed further.’” Buck v. Daris, 137 S. Ct. 759, 773

(2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

      Having carefully reviewed Mr. Arroyo’s filings and the record on appeal, we

conclude, as the district court did, that he has failed to support his claim of actual

innocence with any new evidence. Jurists of reason would not debate the district

court’s ruling. We therefore deny his application for a COA and dismiss this matter.



                                             Entered for the Court




                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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