FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

September 30, 2011

Elisabeth A. Shumaker
Clerk of Court

LUIS SAN ROMAN

Petitioner-Appellant,
No. 11-6103
(D.C. No. 5:10-CV-001158-F)
(W.D. Okla.)

v.
MARVIN VAUGHN, Warden
Respondent-Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Petitioner-Appellant Luis San Roman, a state prisoner currently in the

custody of the Oklahoma Department of Corrections, seeks a certificate of
appealability (COA) to challenge the district courts dismissal of his 2254

This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

habeas petition as time-barred. 1 Exercising jurisdiction under 28 U.S.C. 1291

and 2253(a), we deny Mr. San Romans application for a COA and dismiss his
appeal.
BACKGROUND
In 2006, Mr. San Roman pleaded guilty in state district court for Oklahoma
County, Oklahoma to using a vehicle to facilitate the intentional discharge of a
firearm, for which he received a fifteen-year suspended sentence. In September
2007, the state moved to revoke Mr. San Romans suspended sentence, alleging
that he had violated the terms and conditions of his probation in connection with
new criminal charges of pointing a firearm at another and possession of a firearm.
Following a hearing on October 30, 2007, a state district court judge revoked Mr.
San Romans suspended sentence and sentenced him to fifteen years
imprisonment. The new criminal charges, however, were later dropped.
Mr. San Roman did not directly appeal the revocation of his suspended
sentence. However, in September 2008, Mr. San Roman filed a motion to modify
that sentence. A hearing was held in state district court before the same judge
who presided over his revocation hearing. During the hearing, Mr. San Romans
counsel presented by way of proffer the exculpatory testimony of two individuals,
one the alleged victim of the offense, and the other, an alleged witness of the

In federal district court and before us, Mr. San Roman has been
represented in the instant habeas proceeding by counsel.
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offense. Following the hearing, the state court judge modified Mr. San Romans
sentence from fifteen years imprisonment to ten years imprisonment to be
followed by five years probation. On March 16, 2010, Mr. San Roman filed an
application for post-conviction relief in state court seeking to appeal his
revocation out of time. The state district court denied his application, and the
Oklahoma Court of Criminal Appeals (OCCA) affirmed that denial on August
3, 2010.
On October 28, 2010, Mr. San Roman filed the instant federal habeas
petition under 28 U.S.C. 2254 alleging, inter alia, claims of ineffective
assistance of counsel, denial of his right to due process, and factual innocence.
His petition was referred to a magistrate judge, who issued a Report and
Recommendation, in which she recommended that the petition be dismissed as
time-barred pursuant to the one-year statute of limitations of the Antiterrorism
and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2244(d). 2 On February

As the magistrate judge observed, Mr. San Roman did not file a
notice of appeal within ten days of the state district courts pronouncement
revoking his suspended sentence as is required under Oklahoma law. Aplt. App.
at 92 (Report and Recommendation, filed Jan. 26, 2011); see Okla. Stat. tit. 22,
ch. 18, app., Rule 2.5 (Within ten (10) days from the date the Judgment and
Sentence is imposed in open court or an order grants an appeal out of time, the
defendant must file with the trial court clerk a notice of intent to appeal . . . .).
Accordingly, the revocation of Mr. San Romans suspended sentence became final
ten days after the district courts decision on October 30, 2007that is, on
November 9, 2007. Mr. San Roman thus had one year from that dateuntil
November 9, 2008to file a timely habeas petition. See 28 U.S.C.
(continued...)
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17, 2011, the district court adopted the magistrate judges recommendation and
dismissed Mr. San Romans habeas action as time-barred. Mr. San Roman then
filed a motion for reconsideration, alleging that he had never received a copy of
the magistrate judges Report and Recommendation and wished to file an
objection. The district court granted his motion, and Mr. San Roman filed an
objection. On April 6, 2011, having considered both the magistrate judges
recommendation and Mr. San Romans objection, the district court issued another
order adopting the recommendation and dismissing Mr. San Romans habeas
petition as untimely. Mr. San Roman now seeks a COA from this court to appeal
the district courts dismissal of his 2254 petition.
STANDARD OF REVIEW
A COA is a jurisdictional prerequisite to this courts review of a habeas
application. 28 U.S.C. 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,
1088 (10th Cir. 2009). Accordingly, [w]e will issue a COA only if the
applicant has made a substantial showing of the denial of a constitutional right.
Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C.
2253(c)(2)). This means that the applicant must show that reasonable jurists

(...continued)
2254(d)(1)(A). Therefore, his petition, filed October 28, 2010, fell well beyond
this one-year period, and statutory tolling was not available in the interim because
his March 16, 2010, application for state post-conviction relief was also outside
the one-year window. See, e.g., Fisher v. Gibson, 262 F.3d 1135, 114243 (10th
Cir. 2001).
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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. United States v. Taylor, 454 F.3d
1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
In other words, the applicant must show that the district courts resolution
of the constitutional claim was either debatable or wrong. Id. (quoting Slack,
529 U.S. at 484). Furthermore, when the district court denies relief 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. Coppage v. McKune, 534
F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484). In
determining whether to grant a COA, this court conducts an overview of the
claims in the habeas petition and a general assessment of their merits. United
States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted).
However, [t]his threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of th[ose] claims. Miller-El, 537 U.S.
at 336.

DISCUSSION
In his opening brief in support of his request for a COA, 3 Mr. San Roman
concedes that his federal habeas petition was untimely. However, he argues that
the district court was obligated to equitably toll AEDPAs one-year limitations
period and consider his otherwise untimely petition because he is actually
innocent of the charges that led to the revocation of his suspended sentence. We
are not persuaded. We conclude that no reasonable jurist could debate the
correctness of the district courts determination that Mr. San Romans habeas
action is time-barred.
As the Supreme Court recently underscored, AEDPAs one-year statute of
limitations is subject to equitable tolling. See Holland v. Florida, 130 S. Ct.
2549, 2560, 2562 (2010). However, equitable tolling is warranted only in rare
and exceptional circumstances. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)) (internal
quotation marks omitted). Generally, courts will consider the merits of an
otherwise untimely habeas petition only where the petitioner show[s] specific
facts, demonstrating (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way. Yang v. Archuleta, 525

Mr. San Roman has not formally filed an application for a COA.
However, pursuant to Federal Rule of Appellate Procedure 22(b)(2), we treat Mr.
San Romans notice of appeal as a request for a COA.
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F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v. Florida, 549 U.S. 327, 336
(2007)) (internal quotation marks omitted); see also Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000) (observing that equitable tolling is only available
when an inmate diligently pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond his control).
Where a petitioner does present the truly exceptional case in which he is
actually innocent, federal courts allow for an exception to [the] procedural
barriers for bringing constitutional claims, regardless of whether the petitioner
demonstrated cause for the failure to bring these claims forward earlier. Lopez
v. Trani, 628 F.3d 1228, 123031 (10th Cir. 2010). In other words, when a
habeas petitioner is seeking equitable tolling on actual innocence grounds, he
need not demonstrate that he diligently pursued his actual innocence claim. Id.
at 1231. But he must articulate a colorable claim of factual innocence; that is,
he must present new reliable evidencewhether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidencethat
was not presented at trial. Schlup v. Delo, 513 U.S. 298, 322, 324 (1995); see
also, e.g., Cramer v. Utah, No. 11-4036, 2011 U.S. App. LEXIS 15648, at *7
(10th Cir. July 29, 2011) (Although actual innocence can overcome procedural
default, the district court correctly observed that actual innocence must be shown
by newly available evidence and that [petitioners] showing is wholly
inadequate. (citation omitted)); Weibley v. Kaiser, 50 F. Appx 399, 403 (10th
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Cir. 2002) (determining that petitioners actual innocence argument fail[ed]

because he d[id] not make a colorable claim of actual innocence. [Petitioner]
makes only conclusory allegations regarding his innocence and provides no
analysis or specific facts to warrant equitable tolling. (emphasis added)). Under
this rigorous standard, the petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in . . . light of the new
evidence. Schlup, 513 U.S. at 327.
In the present case, Mr. San Roman concedes that he is guilty of the
underlying conviction to which he pleaded guilty, but insists that he is actually
innocent of the charges that led to the revocation of his suspended sentence.
First, Mr. San Roman asserts baldlywithout citation to supporting legal
authoritythat the ineffective assistance that he received from his counsel at his
revocation hearing serve[d] to toll [his] timing default. Aplt. Br. at 15.
However, if Mr. San Roman contends that his counsels ineffectiveness excused
his failure to file a timely habeas petition, he must show specific facts,
demonstrating that he has pursued his rights diligently, but that his counsels
deficient performance constituted an extraordinary circumstance that stood in
his way. See Yang, 525 F.3d at 928. Here, while Mr. San Roman alleges that
his revocation-hearing counsel surreptitiously procur[ed] a waiver of [his]
appellate rights, Aplt. Br. at 11, he does not explain how his counsels alleged
ineffectiveness caused him to delay filing his habeas petition. Accordingly, his
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underdeveloped first argument is without merit.

Second, Mr. San Roman apparently contends that he was deprived of his
right to due process at his revocation hearing when the state district court judge
refused to credit the testimony of witness Cruz Blos and the alleged victim,
Rodolfo Botello, as demonstrating his factuali.e., actualinnocence. Id. at
1617. As we note above, however, in order to present a colorable claim of
actual innocence, a petitioner must present new reliable evidence . . . that was
not presented at trial, Schlup, 513 U.S. at 324 (emphasis added)or, as
relevant here, the revocation proceeding. The testimony of both Mr. Blos and Mr.
Botello, however, was apparently available at the time of the revocation
proceeding. The magistrate judge noted that (1) Mr. San Romans counsel made
proffers concerning the two mens testimony in the sentence modification
proceeding, which was held less than one year after the revocation proceeding;
(2) the same state district court judge presided over both proceedings; (3) the
judge specifically indicated that essentially the same testimony of Mr. Blos had
been presented in the revocation proceeding in the form of an affidavit and that
she had considered it. Mr. San Roman has not disputed these findings, and our
independent review of the record supports them. Indeed, on appeal, Mr. San
Roman expressly acknowledges that the state court judge also had before her an
affidavit of the victim, Mr. Botello. See Aplt.s Br. at 1314 (It is important to
note that the affidavit . . . from the alleged victim refuting a statement attributed
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to him, was presented at the time of the actual revocation hearing.). Thus, the
testimony of the two men does not constitute new evidence that can support an
actual innocence claim. 4
Third and finally, Mr. San Roman contends that he is entitled to equitable
tolling because the state district court judge relied upon hearsay evidence at his
revocation hearing, in violation of his rights under the Confrontation Clause. 5
4

We also note that, even if Mr. San Roman had filed a timely 2254
habeas petition, AEDPA mandates that we presume a state courts findings to be
correct unless a petitioner can refute them by clear and convincing evidence. See
28 U.S.C. 2254(e)(1). As the magistrate judge noted, the state district court
judge concluded that the State had proven by a preponderance of the evidence that
Mr. San Roman had violated the terms of his probation. Aplt. App. at 97.
Moreover, the state judge explicitly noted that she found the recantation of Mr.
Botello to be unreliable, as he was a member of a rival gang who recanted
[his] prior testimony inculpating [Mr. San Roman] only after receiving
threatening recorded phone calls from the jail. Id. As Mr. San Roman offers
absolutely no evidence suggesting that these findings are erroneouslet alone
clearly erroneousthe state courts determination must stand.
5

Mr. San Roman relies upon Morrissey v. Brewer, 408 U.S. 471
(1972), to support his argument that the state courts admission of hearsay
evidence at his revocation hearing was improper, at least without the court
making specific findings providing the good cause for denying him confrontation
of the witnesses at issue. Mr. San Roman, however, raised this Morrissey-based
argument for the first time in his objection to the magistrate judges Report and
Recommendation. See Aplt. App. at 115 (Objection to Report and
Recommendation, filed Mar. 21, 2011). Not surprisingly, then, the magistrate
judge did not discuss Morrissey or such an argument in its Report and
Recommendation. Under these circumstances, including the fact that Mr. San
Roman was represented by counsel in his proceedings before the district court,
see supra note 1, we decline to consider this Morrissey-based argument now.
See, e.g., United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (In
this circuit, theories raised for the first time in objections to the magistrate
judges report are deemed waived.); Marshall v. Chater, 75 F.3d 1421, 1426
(continued...)
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Aplt. Br. at 17, 22. However, Mr. San Roman makes no attempt to explain how
his general hearsay argument has any bearing upon his factual innocence.
Moreover, this argument is at odds with the approach that Mr. San Roman himself
took before the state court in the revocation hearing; there, he urged the court to
credit the exculpatory out-of-court statements in Mr. Bloss affidavit. More
fundamentally, in the absence of any persuasive arguments by Mr. San Roman as
to how the allegedly impermissible admission of hearsay evidence could possibly
excuse his untimely filing or demonstrate his factual innocence, we reject Mr. San
Romans final argument.
Thus, in sum, Mr. San Roman presents no evidence of extraordinary
circumstances that prevented him from filing his habeas petition in a timely
manner, see Yang, 525 F.3d at 928, nor does he offer new and reliable evidence
demonstrating that he is factually innocent, see Schlup, 513 U.S. at 322, 324.
Accordingly, reasonable jurists could not debate that equitable tolling of
AEDPAs one-year limitations period was not warranted, and that the district
court properly dismissed Mr. San Romans petition as untimely.
CONCLUSION
For the foregoing reasons, we DENY Mr. San Romans application for a

(...continued)
(10th Cir. 1996) (Issues raised for the first time in objections to the magistrate
judges recommendation are deemed waived.).
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COA and DISMISS his appeal.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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