F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 23, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PATRICK O’BO YLE,
Petitioner - A ppellant, No. 06-1214
v. D. Colo.
JO SEPH G . O RTIZ; C OLO RA DO (D.C. No. 04-CV-01173-ZLW -PAC)
ATTO RN EY G ENERAL,
Respondents - Appellees.
OR D ER D EN YING LEAVE TO PROCEED
ON APPEAL IN FO RM A PAU PERIS,
DENYING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Background
Pursuant to a plea agreement, Petitioner Patrick O’Boyle pled guilty to
second degree murder in Colorado state court on June 7, 1994. A first degree
murder charge was dismissed. He is serving a tw enty-four year sentence.
On June 9, 2004, O’Boyle petitioned for a writ of habeas corpus under
28 U.S.C. § 2254. The magistrate judge recommended O’Boyle’s petition be
dismissed as untimely. Over O’Boyle’s objections, the district court adopted the
recommendation. The district court also denied O ’Boyle’s request for a
Certificate of Appealability (“COA”) and his motion for leave to proceed on
appeal in form a pauperis (“ifp”). O ’Boyle renews these requests with this Court.
W e deny a COA and dismiss his application. W e also deny his request to proceed
ifp.
Analysis
Initially, O’Boyle concedes he filed his petition well beyond the time
limitation of the AEDPA. 1 He argues the limitations period should be equitably
tolled because new evidence demonstrates actual innocence. 2
In certain circumstances, the limitations period of the AEDPA may be
equitably tolled. “A EDPA’s one-year statute of limitations is subject to equitable
tolling but only in rare and exceptional circumstances.” Fisher v. Gibson, 262
F.3d 1135, 1143 (10th Cir. 2001) (quoting Gibson v. Klinger, 232 F.3d 799, 808
1
The district court determined that the limitations clock ran for 444 days,
which of course is longer than the 365 days permitted by the one year limitations
period of the AEDPA. See 28 U.S.C. § 2244(d)(1).
2
O’Boyle also claims his trial counsel was constitutionally ineffective;
there was insufficient evidence to support the verdict; defense counsel’s
investigator was laboring under the taint of an unconstitutional conflict of
interest; and his plea of guilty was not voluntary.
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(10th Cir. 2000)) (internal quotations omitted). One such circumstance may exist
when a person who is actually innocent is incarcerated. M iller v. M arr, 141 F.3d
976, 978 (10th Cir. 1998) (citing Schlup v. Delo, 513 U.S. 298, 324-29 (1995))
(suggesting actual innocence is a “rare and exceptional circumstance[]” for which
the AEDPA statue of limitations may be tolled); Gibson, 232 F.3d at 808 (citing
M iller, 141 F.3d at 978) (“Equitable tolling would be appropriate, for example,
when a prisoner is actually innocent . . . .”).
However, “prisoners asserting innocence as a gateway to defaulted claims
must establish that, in light of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
House v. Bell, 126 S.Ct. 2064, 2076-77 (2006) (citing Schlup, 513 U.S. at 327).
O’Boyle claims new evidence shows he is actually innocent. He argues: his
fingerprints were not found on the weapon; no ballistics tests were performed on
the weapon; and gunshot residue and trace metal tests were not performed on his
hands or the prosecution’s witness. The magistrate judge’s thorough Report and
Recommendation considered all of these claims. After independent review, the
district court adopted the magistrate judge’s recommendation that O’Boyle failed
to present “new reliable evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence-that was not
presented at trial.” Id. at 2077 (quoting Schlup, 513 U.S. at 324).
O’Boyle confuses theoretical innocence with actual innocence. M ost of his
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“new” evidence is really speculation about what might be shown if certain tests
were performed on physical evidence in the case. Such speculation is insufficient
to meet the heavy burden to produce “new evidence” from which we could
conclude it is “more likely than not that no reasonable juror would have convicted
him . . . .” See Schlup, 513 U.S. at 324, 327; cf. Arthur v. Allen, 459 F.3d 1310,
1310-11 (11th Cir. 2005) (petitioner’s “mere speculation” about what the
evidence, if tested, might show was insufficient to support discovery request
where petitioner had to demonstrate “‘good cause’ to believe that the evidence
sought would ‘raise sufficient doubt about his guilt to undermine confidence in
the result of the trial” (citations and brackets omitted)). In addition, as the
magistrate judge noted, the remaining “new” evidence offered by O’Boyle was
known by him at the time he pled guilty, and is therefore not new at all. (See R.
Vol. I, Doc. 30 at 3 (O’Boyle admitted his counsel advised him that the gun
residue tests on his hands returned negative results)). Consequently, O’Boyle
fails to establish cause for equitable tolling rendering his constitutional claims
time-barred.
If a prisoner is granted leave to proceed ifp in the district court that
privilege is extended to an appeal unless the district court certifies the appeal is
not taken in good faith and denies continuing ifp status. Fed. R. App. P. 24(a)(3).
W e do not review such decisions. Instead, we consider a motion to proceed ifp
filed in this Court. Fed. R. App. P. 24(a)(5). Nevertheless, the standard is the
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same – in order to qualify for ifp status an applicant must comply with the filing
requirements and demonstrate “a financial inability to pay the required fees and
the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” M cIntosh v. United States Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted)
(emphasis added) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
Cir. 1991)). In denying O’Boyle’s motion to proceed ifp on appeal, the district
court concluded he had not presented a reasoned, non-frivolous argument,
therefore his putative appeal was not taken in good faith. W e agree with the
district court. O’Boyle’s motion to proceed ifp on appeal is DENIED.
Appellant’s motion for appointment of counsel is DENIED. W e also DENY his
request for a COA and DISM ISS the application. O’Boyle is reminded he must
remit the full amount of the filing fee within tw enty days of the date of this order.
Dismissal of an appeal does not relieve a litigant of his obligation to pay the
filing fee in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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