Appellate Case: 22-6062 Document: 010110770310 Date Filed: 11/16/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 16, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CHESTER CRELLER,
Petitioner - Appellant,
v. No. 22-6062
(D.C. No. 5:20-CV-01059-PRW)
SCOTT CROW, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
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In 2020, Petitioner Chester Creller filed a pro se habeas petition challenging his
2001 convictions under 28 U.S.C. § 2254. The district court dismissed his petition as
time barred and denied his application for a certificate of appealability (COA). Petitioner
now requests a COA. Because no reasonable jurist would debate the district court’s
dismissal, we deny Petitioner’s application for a COA and dismiss his appeal.
*
This order is not binding precedent except under the doctrines of law of the case,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.
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I.
In May 2001, a jury convicted Petitioner of first-degree rape, forcible oral
sodomy, and incest.1 He unsuccessfully moved for post-conviction relief in state court
three times between 2003 and 2016. He then filed a federal habeas petition in 2020,
raising nine claims: that his state trial denied him (1) due process of law, the right to a
fair trial, and equal protection under the law by allegedly having a biased judge preside;
(2) due process of law, the right to a fair trial, equal protection under the law, and the
right against self-incrimination by admitting his confession into evidence that he claims
the state coerced him into making about other crimes that it later used to prove his guilt
for the charged crimes; (3) due process of law and the right to confront his accuser
because the judge allowed the state to set up a chalkboard in between Petitioner and the
victim during the victim’s testimony; (4) due process of law and equal protection under
the law because the prosecutor allegedly knowingly lied to the jury during the trial; (5)
due process of law, equal protection under the law, the right to a fair trial, and the right to
effective assistance of counsel because his trial counsel allegedly did not interview or call
witnesses and made statements to the jury implying his guilt; (6) due process of law and
equal protection under the law by having ineffective appellate counsel for his direct
appeal; and (7) due process of law and equal protection under the law from introducing
prejudicial evidence at trial that had no probative value. On top of all that, Petitioner
1
In 2004, the Oklahoma Court of Criminal Appeals reversed and remanded with
instructions to dismiss Petitioner’s incest conviction for violating double jeopardy in his
first direct appeal.
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argues he has been denied (8) due process of law because the trial court refused to
consider a letter allegedly written by the victim after the trial that proved his innocence
and (9) that all of this proves he is actually innocent.
The magistrate judge reviewed the petition and recommended the district court
dismiss it as time barred. Petitioner’s state court judgment became final on December 20,
2002, but he did not seek federal habeas relief until October 19, 2020—almost eighteen
years later. Because Petitioner failed to file his habeas petition within one year from the
time “the [state court] 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), the
magistrate judge determined that his time to file a federal habeas petition had expired.
Thus, the magistrate judge noted, without statutory or equitable tolling, Petitioner sought
federal habeas relief too late.
The magistrate judge first determined that Petitioner was not entitled to any more
statutory tolling. Petitioner’s first state court appeal, filed in 2003, tolled his time to file a
habeas petition. See 28 U.S.C. § 2244(d)(2). But by 2004, his statute of limitations
period began to run again, and Petitioner soon missed his window to move for habeas
relief. So that left the magistrate judge to consider equitable tolling. To equitably toll his
limitations period, Petitioner needed to establish that he pursued his rights diligently, but
an extraordinary circumstance stood in his way and prevented timely filing. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). The magistrate judge determined that Petitioner
failed to allege that some circumstance prevented him from timely filing his petition.
The magistrate judge also acknowledged that actual innocence may provide an exception
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to the limitations period in rare instances. But it rejected Petitioner’s actual innocence
argument because Petitioner could only point to years-old evidence that could allegedly
prove his innocence (and only legal, not factual, innocence at that), making his 2020
petition still too late.2 The magistrate judge recommended, then, that the district court
decline to review the merits and dismiss the petition.
Petitioner objected to the magistrate judge’s report and recommendation. In his
objection, he raised a new argument: that limited law library access hindered his ability to
file a habeas petition. Petitioner claimed that he never stepped foot in a law library until
2012 because he had no access to one before then, and even once he did gain access, he
did not have enough legal understanding to piece together his petition until a legal
assistant began helping him in 2015. His access to the law library became limited again
when the COVID-19 lockdowns started in 2020. But, Petitioner insisted, he did not “sit
idle” during the times he could not access the law library. For example, he claimed that
he moved to produce documents about his convictions in preparation for challenging his
convictions with help from the Mid-Western Innocence Project (later his case was moved
to the Oklahoma Innocence Project). And even after he “split” with the innocence
project organizations, he still applied to receive DNA testing about his rape conviction.
He also claimed to have discovered new evidence on the law library computer in 2016
that he included in his post-conviction application.
2
We later clarified that “new evidence” for an actual innocence claim means
newly presented evidence, not newly discovered. See Fontenot v. Crow, 4 F.4th 982,
1032 (10th Cir. 2021). Thus, a lack of diligence is not fatal to an actual innocence claim.
See id.
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Besides explaining his untimely petition, Petitioner objected to the magistrate
judge’s consideration of the new evidence he presented. He accused the magistrate judge
of only considering one of the four pieces of new evidence he had presented in his
petition—a letter Petitioner received from the victim in 2012. According to Petitioner,
the magistrate judge ignored (1) a response from the state about a doctor who examined
the victim, attributing her injuries to an “in-home accident,” not sexual abuse; (2) an
affidavit from his youngest son who attested that he never witnessed the physical or
sexual abuse that the state accused Petitioner of committing; and (3) events during the
trial that proved the presiding judge harbored bias against him. Petitioner explained how
all four pieces of new evidence show that had the jury considered this evidence at trial, it
would not have convicted him and therefore the court’s unwillingness to consider the
merits of his petition would result in a miscarriage of justice.
The district court adopted the report and recommendation. It agreed with the
magistrate judge’s determination that Petitioner’s limitations period had run, and
Petitioner had not shown he diligently pursued his claims to warrant equitable tolling.
Nor had Petitioner demonstrated actual innocence. The district court did not consider
Petitioner’s explanation for why he could not timely file because he did not include the
explanation in his original petition. Plus, the district court noted, Petitioner failed to
adequately justify his delay anyway because he raised “primarily” the same claims in his
applications for post-conviction relief, “undercutting” his argument that lack of law
library access caused the delay. So the district court dismissed the habeas petition and
denied Petitioner a COA. Petitioner now asks us to grant him a COA.
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II.
We will issue a COA only if a petitioner has “made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means the petitioner “must
show that the district court’s resolution of the constitutional claim was either debatable or
wrong.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (quotation omitted).
And when a district court dismisses on procedural grounds, the petitioner must also show
that a reasonable jurist could find the procedural dismissal debatable. Id. Thus, when a
district court dismisses on procedural grounds, an applicant faces a “double hurdle” to
relief. Id. In determining whether to grant a COA, courts should resolve procedural
issues first whenever possible. See Slack v. McDaniel, 529 U.S. 473, 485 (2000)
(citation omitted).
Petitioner did not object to the magistrate judge’s finding that the limitations
period expired in 2004, years before he filed his habeas petition in 2020. Petitioner
instead focused his objection on explaining why he untimely filed his petition, arguing he
is entitled to equitable tolling because newly discovered evidence shows he is actually
innocent but inadequate access to a law library delayed his ability to file a habeas
petition. Because Petitioner sought federal habeas relief too late, he must prove he is
entitled to equitable tolling or can show actual innocence to receive a COA. We address
each exception in turn.
A.
To equitably toll the limitations period to move for habeas relief, Petitioner must
establish that he pursued his rights diligently, but an extraordinary circumstance stood in
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his way and prevented timely filing. Pace, 544 U.S. at 418. Petitioner explained his
reasons for untimely filing his petition but did so for the first time when he objected to
the report and recommendation. So he waived arguments attempting to prove his
diligence and extraordinary circumstances not raised until his objections. See Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (citations omitted) (“Issues raised for the
first time in objections to the magistrate judge’s recommendation are deemed waived.”).
Thus, we need not address the equitable tolling issue. Id. And because none of the
arguments we could address about this issue (because he raised them in his initial
petition) show his diligence or extraordinary circumstances that prevented him from
timely filing, a reasonable jurist would not debate whether Petitioner is entitled to
equitable tolling.
B.
Actual innocence can also serve as an exception to an expired limitations period.
Fontenot v. Crow, 4 F.4th 982, 1030 (10th Cir. 2021). “When used to overcome
procedural issues,” an actual innocence showing serves as a “gateway through which a
petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Id. at 1029–30. But for a court to apply this exception, Petitioner must show
that “more likely than not[,] any reasonable juror would have reasonable doubt” about
Petitioner’s convictions considering the new evidence he has presented in his petition.
Id. at 1030 (quoting House v. Bell, 547 U.S. 518, 538 (2006)).
This is a demanding standard. Id. at 1031 (citation omitted). And this “new
evidence” must also be reliable evidence not introduced at trial, although the habeas court
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need not consider whether the evidence would be admissible at this gateway stage. Id. at
1031–32. The habeas court should consider this new evidence within the context of all
the evidence—old and new, incriminating and exculpatory. Id. The new evidence must
prove factual, not legal, innocence. Laurson, 507 F.3d at 1233 (citing Bousley v. United
States, 523 U.S. 614, 623 (1998)). While lack of diligence in developing the new
evidence does not disqualify that evidence from supporting an actual innocence claim,
the petitioner’s untimeliness factors into whether the petitioner has “reliably shown”
actual innocence. Fontenot, 4 F.4th at 1033 (citations omitted). Finally, because an
actual innocence claim requires us to consider the law and facts, we review it de novo.
Id. at 1034.
As the magistrate judge noted, Petitioner’s actual innocence argument—his ninth
claim for relief in his petition—did not specify any new evidence proving he is actually
innocent. Rather, this last claim for relief pointed to constitutional errors that allegedly
occurred during his trial, rendering his conviction unconstitutional, according to
Petitioner. Petitioner made a legal argument for his innocence, not a factual one,
defeating his ability to obtain relief under his ninth claim. See Laurson, 507 F.3d at 1233
(citing Bousley v. United States, 523 U.S. 614, 623 (1998)). But elsewhere in his
petition, Petitioner alleged four new pieces of evidence which he claims prove his actual
innocence, the same four he mentioned in his objection to the report and
recommendation. As a reminder, that evidence includes: (1) the recusal of his trial judge;
(2) a report from the doctor who examined the victim, attributing her injuries to an “in-
home accident,” not sexual abuse; (3) a letter Petitioner received from the victim—his
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daughter—in 2012; and (4) an affidavit from his youngest son who attested that he never
witnessed the physical or sexual abuse that the state accused Petitioner of committing.
The first one does not qualify as new evidence while the other three do not sufficiently
show actual innocence. Thus, the lack of new evidence showing actual innocence
precludes him from prevailing under this exception.
Petitioner asked the judge who presided over the 2001 trial to recuse himself from
hearing Petitioner’s application for DNA testing; that judge agreed to do so “due to
incidents that occurred at trial.” Petitioner argues the recusal, especially the reason for
recusing, proves the judge harbored a bias against him and counts this as one piece of
“newly discovered evidence” proving his innocence. But Petitioner admits the recusal
does not “deal with evidentiary issues,” and thus reserves that fact for another part of his
petition. Because the judge’s recusal does not prove factual innocence, as Petitioner
appears to concede, this piece of evidence cannot satisfy the demanding actual innocence
standard.
Petitioner’s next piece of evidence consists of a response he received about the
forensic evidence he claims the state used to convict him. In 2014, Petitioner applied for
forensic DNA testing of biological materials supporting his convictions. But the state
found no biological materials to test, determining that the jury convicted Petitioner
“based on his voluntary statement” and medical testimony, rather than forensic evidence.
While running through all his requests for DNA testing, the state noted that Petitioner
asked for DNA evidence from a hospital visit for the victim months before the state
accused Petitioner of sexually abusing her. The state found that it could not conduct a
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DNA forensic test from this hospital visit because the doctor treated her for an “in-home
accident,” not abuse, and thus law enforcement did not collect DNA during this visit. In
another part of his petition, Petitioner claims that the doctor who examined the victim
ended up testifying at trial that this hospital visit occurred from the victim suffering a
sexual assault. The record does not support that the doctor testified to this at trial, but the
record does support that a doctor later examined the victim for sexual abuse and found
“significant” physical features on her body suggesting she had suffered such abuse. The
state’s response to Petitioner confirmed that the doctor’s testimony spoke to a later
examination where he found evidence of her experiencing sexual abuse. Overall, this
response does not make it “more likely than not [that] any reasonable juror would have
reasonable doubt” about Petitioner’s convictions. Fontenot, 4 F.4th at 1030 (quotation
omitted). In fact, the state’s response reinforces Petitioner’s conviction because it points
both to his confession and the doctor’s examination confirming the victim’s physical
signs of sexual abuse.
Petitioner also claims a letter the victim—his daughter—sent him in 2012 proves
he is actually innocent of sexually abusing her. In the letter, the victim supposedly asked
Petitioner to admit to sexually abusing her in ways not addressed at trial. Petitioner
speculates that if she had made these allegations at trial, no juror would have found him
guilty beyond a reasonable doubt because he claims a physical exam disproved one of her
allegations, discrediting her testimony. To start, the letter Petitioner mentions in his
petition is not the same letter he attaches as an exhibit to his brief. Petitioner claims
someone else lost the letter with unsupported allegations against him. So Petitioner
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apparently expects us to take his word for it that the victim made false allegations that he
could disprove from medical exams. This does not meet the demanding actual innocence
standard. Plus, the letter was not an affidavit; the victim wrote this private letter so she
could “move on” from the trauma Petitioner caused her to suffer. So even if the victim
made allegations in that letter that the trial evidence did not corroborate, that does not
suggest that “more likely than not[,] any reasonable juror would have reasonable doubt”
about Petitioner’s conviction. Fontenot, 4 F.4th at 1030 (quotation omitted).
Last, Petitioner points to an affidavit his son submitted in 2016 attesting that
Petitioner never beat him or sexually abused his sister and generally corroborating
Petitioner’s version of events explaining his innocence. The affidavit is Petitioner’s
strongest piece of evidence, but still does not present “evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial . . . .” Fontenot, 4 F.4th at
1031 (quotation omitted). Petitioner’s son submitted this affidavit seventeen years later,
recalling early childhood experiences. Although the untimeliness of this affidavit does
not defeat an actual innocence claim, a reasonable juror could question the affidavit’s
credibility given the passage of time. See Fontenot, 4 F.4th at 1033–1034 (quotation
omitted) (explaining that untimeliness “does bear on the credibility of evidence proffered
to show actual innocence”). Because other evidence at trial, such as Petitioner’s
confession and medical testimony, demonstrated Petitioner’s guilt, we cannot say that
“more likely than not[,] any reasonable juror would have reasonable doubt” about
Petitioner’s convictions after reading the affidavit. Id. at 1030 (quotation omitted).
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None of Petitioner’s new evidence meet the actual innocence standard. Nor did
Petitioner present evidence in his petition to warrant equitable tolling. Taken together,
these failures mean Petitioner cannot excuse the fact that he missed the one-year statutory
deadline to move for federal habeas relief. Thus, a reasonable jurist would not debate
whether the district court correctly dismissed the petition as time barred. Laurson, 507
F.3d at 1232 (citation omitted). We therefore deny Petitioner’s application for a COA
and dismiss the appeal.
DENIED and DISMISSED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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