FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 9, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEVEN WADE BIGHAM,
Petitioner - Appellant,
v. No. 16-7068
(D.C. No. 6:15-CV-00488-RAW-KEW)
JOE ALLBAUGH, (E.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
Steven Bigham seeks a certificate of appealability (COA) to appeal the
district court’s order dismissing his 28 U.S.C. § 2254 petition for habeas corpus
relief. The district court found the petition time-barred because Mr. Bigham
missed AEDPA’s filing deadline by 63 days. It also rejected Mr. Bigham’s
equitable tolling and actual innocence claims. And where a district court
dismisses a § 2254 petition on procedural grounds like these, we may issue a
COA only if “jurists of reason would find it debatable whether the district court
*
This order is not binding precedent except under the doctrines of law of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.
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Mr. Bigham has failed to carry this burden. AEDPA’s one-year statute of
limitations began to run on April 8, 2014, when his state court conviction became
final. 28 U.S.C. § 2244(d)(1)(A). The clock stopped for 179 days during his
post-conviction proceedings in Oklahoma state court. 28 U.S.C. § 2244(d)(2). So
Mr. Bigham had until October 5, 2015, to file his habeas petition, but he waited
until December 7, 2015. Neither do the prison lockdowns Mr. Bigham complains
of warrant equitable tolling. After all, he had uninhibited library access for the
first fourteen months of his limitations period. See Soriano v. Jones, 522 F.
App’x 428 (10th Cir. 2013) (petitioner “had several months in which he was not
subjected to institutional lockdown and has not shown why he could not file his
petition during such time”). Equitable tolling is particularly inappropriate here
because Mr. Bigham presented the same claims in his habeas petition that he
litigated in his state post-conviction proceedings. So it’s unclear how more legal
research could have helped. See id.; Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998). Finally, Mr. Bigham cannot avoid AEDPA’s statute of limitations on
actual innocence grounds. For both Mr. Bigham’s petition and his application for
a COA merely challenge the sufficiency of the evidence against him. Bousley v.
United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence’ means factual
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innocence, not mere legal insufficiency.”). Nothing Mr. Bigham presented to the
district court or to us suggests he’s innocent.
The request for a COA is denied and this appeal is dismissed. Mr. Bigham
is reminded of his obligation to continue making partial payments until his
appellate filing fee is fully paid.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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