FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 4, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-5149
v. (D.C. No. 12-CV-00101-CVE-TLW and
4:08-CR-00137-CVE-1)
AARON EUGENE COPELAND, (N.D. Okla.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, EBEL and MURPHY, Circuit Judges.
Defendant-Appellant Aaron Eugene Copeland, a federal prisoner proceeding pro
se, seeks a certificate of appealability (“COA”), see 28 U.S.C. § 2253(c), in order to
appeal the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or modify his
sentence. Copeland pled guilty in the United States District Court for the Northern
District of Oklahoma to being a felon in possession of a firearm. He was sentenced to
180 months of imprisonment, and the court entered a judgment and commitment on
December 9, 2008. Copeland did not file a direct appeal of his conviction.
*
This order is not binding precedent except under the doctrines of law of the case,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.
Copeland filed the instant § 2255 motion on February 27, 2012. In his § 2255
motion, Copeland contends that his Due Process rights were violated because he was
actually innocent of the charge to which he pled guilty. Copeland filed his motion after
he discovered that “the officers in [his] case” had been indicted “for stealing money and
selling drugs as well as a plethora of other illegal[]activities” in unrelated matters. Aplt.
App. at 24. Copeland alleges that although he “maintained [his] innocence throughout
the entire ordeal,” he pled guilty at the behest of his lawyer, who was concerned that the
officers’ testimony would be perceived as more credible than Copeland’s. Id.
Copeland is entitled to a COA “only if [he] has made a substantial showing of the
denial of a constitutional right.” See 28 U.S.C. 2253(c)(2). Because the district court
denied Copeland’s habeas petition on a procedural ground without reaching Copeland’s
underlying constitutional claim, we will issue a COA if Copeland shows, “at least, that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Copeland has failed to make such a showing.
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) establishes a
one-year limitations period within which § 2255 movants like Copeland must file. The
one-year limitations period ordinarily runs from the date on which the judgment of
conviction becomes final. See 28 U.S.C. § 2255(f)(1). However, the limitations period
will run from “the date on which the facts supporting the claim or claims presented could
2
have been discovered through the exercise of due diligence” if that date is later than the
date on which the judgment of conviction becomes final. See 28 U.S.C. § 2255(f)(4).
Because Copeland’s conviction became final on December 23, 2008, his petition is time-
barred unless he can show that he could not have discovered the facts supporting his
claim of innocence through the exercise of due diligence by February 27, 2011, which is
one year before Copeland filed the instant § 2255 motion.
Copeland argues that he has made this showing because (1) he filed his petition
only twenty months after his arresting officer’s indictment was first unsealed in June
2010; and (2) he could not have independently discovered details about the indictment
any sooner than when he learned of it from another prisoner in June 2011, because he
was incarcerated in Arkansas and had no ties to Tulsa, Oklahoma, where the officer’s
indictment was the subject of an article in the paper in June 2010.
We conclude for substantially the same reasons articulated by the district court
that Copeland has failed to show that he could not have discovered his arresting officer’s
indictment through the exercise of due diligence by February 27, 2011. We agree with
the court that “[a] person exercising due diligence would have learned well before
February 27, 2011 of [the officers’] alleged wrongful conduct, particularly if that person
were actually searching for evidence to prove his innocence.” Dist. Ct. Op. at 9.
Copeland counters that “whether [his petition] is [procedurally] barred” is “not an
issue,” because “he is claiming actual innocence.” Aplt. App. at 51. It is “well
established that if a defendant can adduce new evidence in post-conviction proceedings
3
showing that constitutional error ‘probably’ resulted in the conviction of one who was
actually innocent, the court may reach the merits of otherwise defaulted claims.” United
States v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004) (internal quotation marks and
citations omitted) (quoting Schlup v. Delo, 513 U.S. 298, 322 (1995)).
We conclude that the new evidence Copeland identifies—that his arresting officers
were subsequently indicted for stealing money, selling drugs, and other illegal activities
in unrelated matters—does not satisfy Schlup’s arduous requirement that Copeland show
that “it is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.” Schlup, 513 U.S. at 327. At best, Copeland’s evidence
diminishes the officers’ overall credibility; it does not rise to the level of evidence
contemplated by the Court in Schlup, which included “exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence.” See id. at 324;
Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir. 2012) (“[M]ere impeachment evidence
is generally not sufficient to satisfy the Schlup standard.”). Cf. Sawyer v. Whitley, 505
U.S. 333, 349, (1992) ([L]atter-day evidence brought forward to impeach a prosecution
witness will seldom, if ever, make a clear and convincing showing that no reasonable
juror would have believed the heart of [the prosecution’s] account of petitioner’s
actions.”).
4
We therefore DENY Copeland a COA and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
5