FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                  January 29, 2014
                                    TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

 FRANK MARTINEZ,

          Petitioner - Appellant,

 v.                                                      No. 13-2172
                                             (D.C. No. 1:13-CV-00194-WJ-ACT)
 DERRICK WILLIAMS, Warden; and                            (D.N.M.)
 NEW MEXICO ATTORNEY
 GENERAL GARY K. KING,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


      In 1995 Frank Martinez pleaded guilty to first-degree murder, conspiracy to

commit murder, criminal sexual penetration, tampering with evidence, and

kidnapping. He was sentenced to death for the first count and received 37.5 years

for each of the other counts, with the latter term to run consecutively with his

death penalty sentence. After various state appellate proceedings, in 2003 Mr.

Martinez’s death sentence was reduced to a term of life in prison. Ten years later,

he filed a federal habeas petition seeking to have this result overturned. But the


      *
        This order is not binding precedent except under the doctrines of law of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.
district court denied relief, finding the petition was untimely, barred by the statute

of limitations. Now before this court, Mr. Martinez seeks a certificate of

appealability (COA) so that he may contest the district court’s ruling.

      This we find we are unable to provide. We may grant a COA only if the

petitioner first makes a “substantial showing of the denial of a constitutional

right,” supplying this court with grounds to think reasonable jurists could at least

debate whether his petition should have been resolved in a different manner than

the district court provided. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 

, 484 (2000). As a matter of plain congressional direction, state

prisoners face a one-year statute of limitations in which to file habeas petitions.

28 U.S.C. § 2244(d)(1)(a). The clock begins to run from “the date on which the

judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review.” 

Martinez’s case, the district court

found that the limitations clock began running by August 28, 2003 at the latest,

and Mr. Martinez offers us no reason to question the district court’s calculation.

Plainly, then, there is no room to debate that the one-year limitations period has

long since passed.

      Before this court Mr. Martinez seems to argue that the district court should

have tolled the limitations period as a matter of equity given his claim of actual

innocence. This, of course, the district court has the power to do. See McQuiggin

v. Perkins, 

, 1931-34 (2013). Still, the Supreme Court has

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instructed that to toll the limitations period to entertain a claim of actual

innocence, the petitioner must show that “in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.” 

(quoting Schlup v. Delo, 

, 329 (1995)). And in

this case, the district court could find no such evidence. Mr. Martinez did suggest

to the district court that there may be some sort of unspecified DNA evidence

available and that it should be favorable to him. But he did not present the

district court with any evidence to this effect. And the district court held that Mr.

Martinez’s “self-serving conjecture” fails to satisfy the Supreme Court’s standard

for equitable tolling. On the record before this court, we see no lawful basis that

might permit us to express any disagreement with that assessment.

      The request for a COA and the motion seeking leave to proceed in forma

pauperis are denied and the matter is dismissed. Mr. Martinez is reminded of his

obligation to pay the filing fee in full.



                                            ENTERED FOR THE COURT



                                            Neil M. Gorsuch
                                            Circuit Judge




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