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

                            FOR THE TENTH CIRCUIT                        December 19, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 MICHAEL D. GAINES,

       Petitioner - Appellant,
                                                              No. 18-6136
 v.                                                   (D.C. No. 5:18-CV-00001-W)
                                                             (W.D. Okla.)
 JANET DOWLING,

       Respondent - Appellee.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
      _________________________________

      Michael D. Gaines, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the dismissal by the United States District Court for the

Western District of Oklahoma of his application for relief under 28 U.S.C. § 2254. See

28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a prisoner in state custody to appeal

from the denial of a writ of habeas corpus). We deny a COA and dismiss the appeal.

      I.     BACKGROUND

      On January 14, 2004, Mr. Gaines pleaded guilty to first-degree murder in the

District Court for Comanche County, Oklahoma, and was sentenced to life imprisonment

without parole. Because Mr. Gaines did not appeal or move to withdraw his plea within

the 10 days allotted under Oklahoma law, see Clark v. Oklahoma, 

, 713

(10th Cir. 2006), his conviction became final 10 days later on January 24. Nearly 13
years later, on October 11, 2016, Mr. Gaines filed an unsuccessful application for state

postconviction relief. He appealed, and the Oklahoma Court of Criminal Appeals

affirmed in December 2017. On January 2, 2018, Mr. Gaines filed his § 2254

application. He claimed that he had uncovered evidence supporting an involuntary-

intoxication defense to the murder charge, relying on an affidavit from a codefendant

dated June 30, 2016, stating that the marijuana he gave Mr. Gaines to smoke before the

murder had—unbeknownst to Mr. Gaines—been laced with PCP. The district court

denied Mr. Gaines’s application as untimely and declined to issue a COA. Mr. Gaines

now seeks a COA from this court.

       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.”

Slack v. McDaniel, 

, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” 

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.” 

plain procedural bar is present, and the district court is


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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.” 

jurist could debate the district court’s denial of Mr. Gaines’s

application as untimely. A prisoner pursuing relief under § 2254 generally must file his

application in federal court within one year of “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). For Mr. Gaines that period expired on January 24,

2005, long before he sought relief in federal court.

       The time limit may be equitably tolled if the prisoner shows “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing.” Holland v. Florida, 

, 649 (2010) (internal

quotation marks omitted). The only possible circumstance that would warrant equitable

tolling here would be “actual innocence.” Laurson v. Leyba, 

, 1232–33

(10th Cir. 2007). Mr. Gaines appears to disclaim tolling on this ground, but any actual-

innocence claim would fail anyway. “[A]ctual innocence,” means “factual innocence,”

as opposed to legal innocence. 

And the crux of Mr. Gaines’s claim appears

to be that he could not assent to or participate in the murder given his intoxication—a

legal defense. See Beavers v. Saffle, 

, 923 (10th Cir. 2000) (claim that

defendant was “not guilty of first degree murder because he was intoxicated” went to

“legal innocence, as opposed to factual innocence”); Long v. Peterson, 291 F. App’x 209,




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213 (10th Cir. 2008) (claim that defendant “did not act with the requisite intent, namely,

malice aforethought” was not one of factual innocence).

       Mr. Gaines does, however, assert that the start of his limitations period was

delayed under § 2244(d)(1)(B)–(D). But § 2244(d)(1)(B)—which postpones the start of

the limitations period until “the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of the United States is

removed, if the applicant was prevented from filing by such State action”—is

inapplicable because Mr. Gaines points to no state-created impediment to filing his §

2254 application. Likewise, he cannot rely on § 2244(d)(1)(C), which delays the start of

the limitations period until “the date on which [a] constitutional right asserted was

initially recognized by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.” This

provision is inapplicable because Mr. Gaines fails to point to any “newly recognized”

constitutional right asserted in his application; the “new” rulings in the cases he cites—

Class v. United States, 

(2018); Buck v. Davis, 

(2017);

Trevino v. Thaler, 

(2013); Martinez v. Ryan, 

(2012)—were not

based on the Constitution.

       That leaves § 2244(d)(1)(D), which delays the start of the limitations period until

“the date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” But Mr. Gaines has made no showing

of due diligence in obtaining the affidavit on which he relies. He does not explain how

he acquired the affidavit in 2016, nor does he provide any explanation of why he could


                                              4
not have obtained it sooner. (He suggests that this evidence was hidden from him by the

government, but he provides no evidence that the government ever knew about the PCP.)

       In any event, even if Mr. Gaines has satisfied § 2244(d)(1)(D), he is still not

entitled to a COA unless he makes a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), on the ineffective-assistance claim to which the

purportedly “new” evidence is relevant. Although Mr. Gaines claims that his counsel

was ineffective in failing to discover before his plea the evidence that he was drugged, he

does not show how his counsel could have made the discovery. It is unusual for counsel

to interview a codefendant. And it is highly unlikely that the codefendant would have

revealed this information to Mr. Gaines’s counsel before sentencing even if interviewed,

as it would have shifted culpability from Mr. Gaines to his codefendant (who ultimately

received a lighter sentence than Mr. Gaines did). Further, Mr. Gaines makes no

showing of prejudice from counsel’s alleged deficiency, as he does not assert that he

would not have pleaded guilty had counsel obtained this information. See Hill v.

Lockhart, 

, 59 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement [of an

ineffective-assistance claim], the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.”); see also United States v. Jansen, 

, 659 (7th

Cir. 2018) (defendant failed to show prejudice from counsel’s alleged failure to

investigate when he did not “come forward with objective evidence” that had counsel

investigated “he would not have pleaded guilty” (internal quotation marks omitted)).




                                             5
This falls well short of the “substantial showing” needed to grant a COA. See 28 U.S.C.

§ 2253(c)(2).

      III.      CONCLUSION

      We DENY a COA and DISMISS the appeal.


                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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