                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          December 23, 2009
                                     TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court



 STEVEN W. MITCHELL,

           Petitioner – Appellant,

 v.
                                                              No. 09-8083
 MICHAEL J. MURPHY, Warden,                         (D.C. No. 2:08-CV-00231-WFD)
 Wyoming Department of Corrections                             (D. Wyo.)
 State Penitentiary,

           Respondent – Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Steven W. Mitchell, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. For substantially the same reasons set forth by the district court, we deny a

COA and dismiss the appeal.

                                             I


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       According to the Wyoming Supreme Court, Mitchell, Tawnya Sidwell, and two

friends were socializing at Sidwell’s trailer on the night of October 14, 1996. 1 The two

friends left for fifteen to twenty minutes, returning to find Mitchell gone and Sidwell

dead from a gunshot wound to the face. When police visited Mitchell’s home in an

attempt to interview him, Mitchell shot two officers with a shotgun. One officer was

struck in the neck and the other was hit in the arm. Mitchell barricaded himself in his

attic but eventually surrendered after police tear-gassed the home.

       Mitchell was convicted in Wyoming state court of one count of first degree

murder and two counts of attempted first degree murder. He was sentenced to life in

prison on each count. The Wyoming Supreme Court affirmed his convictions and prison

sentence on June 24, 1999. Mitchell did not file a petition for writ of certiorari with the

United States Supreme Court.

       On November 19, 1999, Mitchell filed a motion for reduction of sentence, which

was denied by the state trial court on the same day. Mitchell filed a petition for state

post-conviction relief on November 15, 2000. After the court denied appointment of

counsel on April 26, 2001, no further action was taken until Mitchell sent an ex parte

letter inquiring as to the status of his petition on June 29, 2007. The state court denied


       1
         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “state
court factual findings are presumptively correct and may be rebutted only by ‘clear and
convincing evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28
U.S.C. § 2254(e)(1)).


                                            -2-
post-conviction relief on June 20, 2008, and the Wyoming Supreme Court denied further

review on October 14, 2008.

       On October 23, 2008, Mitchell filed a § 2254 petition in federal court advancing

six claims: (1) the trial court erred in admitting statements obtained in violation of

Miranda v. Arizona, 384 U.S. 436 (1966); (2) he was denied due process because he was

jointly tried for murder and attempted murder; (3) the prosecutor engaged in misconduct;

(4) his counsel provided ineffective assistance; (5) the state court erred in denying

appointment of counsel and appointment of an expert witness to assist in Mitchell’s

petition for state post-conviction relief; and (6) he was denied due process because of

excessive delay in post-conviction proceedings.

       The district court dismissed the petition as time-barred and denied a COA.

Mitchell now seeks a COA from this court.

                                             II

       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 Mitchell 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 denied Mitchell a COA, he may

not appeal the district court’s decision absent the grant of a COA by this court.


                                            -3-
       AEDPA imposes a one-year statute of limitations on habeas petitions filed by state

prisoners. § 2244(d). Mitchell’s conviction became final on September 22, 1999, when

the deadline to file a petition for writ of certiorari with the United States Supreme Court

passed. See Sup. Ct. R. 13(1). Accordingly, he had until September 22, 2000, to file a

habeas petition. Mitchell did not do so until October 23, 2008, more than eight years late.

       Mitchell argues that he is entitled to statutory tolling based on his motion for

reduction of sentence. Section 2244(d)’s one-year limitation period is tolled while a

prisoner pursues state post-conviction relief or other collateral review. § 2244(d)(2).

However, Mitchell’s motion was filed and decided on the same day, providing only one

day of tolling—well short of the eight years necessary to render Mitchell’s claim timely.

Mitchell also argued below that his application for post-conviction relief tolled AEDPA’s

statute of limitations, but the district court properly rejected that argument because

Mitchell’s application was not filed until the limitations period had expired. See Clark v.

Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

       Mitchell further contends he is entitled to either statutory or equitable tolling

because: (1) he waited three months to receive lab reports he claims were necessary for

his petition for post-conviction relief; and (2) he is actually innocent.2 Equitable tolling



       2
         Construing Mitchell’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), we read Mitchell’s tolling arguments with respect to these
issues as requesting equitable tolling and seeking to fit within § 2244(d)(1)(D), which
                                                                              Continued . . .

                                             -4-
“is only available when an inmate 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).

       With respect to the medical reports (which show Mitchell’s amphetamine and

methamphetamine levels near the time of the murder), Mitchell argues that he needed

these documents to establish that counsel was ineffective for failing to obtain an expert

on the effects of methamphetamine abuse. Yet Mitchell was surely aware that he had

used large quantities of methamphetamine and that counsel had failed to obtain an expert

witness—“the vital facts underlying [his] claims,” McAleese v. Brennan, 483 F.3d 206,

214 (3d Cir. 2007)—before he gained access to the medical reports. Accordingly,

Mitchell was aware of the factual predicate of his claim and is not entitled to equitable or

statutory tolling based on the delay in obtaining medical reports.

       Nor is Mitchell entitled to tolling based on his claim of actual innocence. To

obtain habeas relief on this ground, 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” and “show that it is more likely than not that no reasonable juror would

have convicted him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324,



starts the AEDPA clock on “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.”


                                            -5-
327 (1995). Mitchell provides a pair of affidavits from Pamela Turner, one of the friends

who left Sidwell’s apartment shortly before the murder. The affidavits state that Turner

is “willing to recant any prior statements that [she has] made to Law Enforcement, or the

Prosecution[,] against” Mitchell; that police tried to convince Turner “of times and facts

that conflicted with [her] own memory” of the crime; that she “know[s] for a fact that

[Mitchell] was not involved with the murder”; and that she “knows for a fact” that other

individuals murdered Sidwell. Despite the factual labels, these bare conclusions do not

provide actual evidence that would compel any reasonable juror to acquit Mitchell,

particularly in view of the substantial evidence of his guilt. See Hall, 935 F.2d at 1111

(“[A]ffidavits must be based upon personal knowledge and set forth facts that would be

admissible in evidence; conclusory and self-serving affidavits are not sufficient.”).

                                            III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.



                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




                                            -6-
