Kerchee, Jr. v. Jones , 428 F. App'x 851 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    July 1, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    MELVIN R. KERCHEE, JR.,
    Petitioner-Appellant,
    No. 11-6058
    v.                                              (D.C. No. 5:10-CV-01128-R)
    (W.D. Okla.)
    JUSTIN JONES,
    Respondent-Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before KELLY, HARTZ, and HOLMES, Circuit Judges.
    Melvin Kerchee, an Oklahoma state prisoner proceeding pro se, 1 seeks a
    certificate of appealability (“COA”) to challenge the district court’s denial of his
    
    28 U.S.C. § 2254
     habeas application. Mr. Kerchee has also filed a motion asking
    *
    This Order is not binding precedent, except under the doctrines of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.
    1
    Because Mr. Kerchee is proceeding pro se, we construe his filings
    liberally. See Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (per curiam); Van
    Deelen v. Johnson, 
    497 F.3d 1151
    , 1153 n.1 (10th Cir. 2007).
    this court to stay proceedings pending the state court’s resolution of his fourth
    successive filing for post-conviction relief, as well as a motion to proceed in
    forma pauperis on appeal. Exercising jurisdiction under 
    28 U.S.C. §§ 1291
     and
    2253(a), we deny Mr. Kerchee’s application for a certificate of appealability,
    deny his motion to stay the proceedings, and dismiss his appeal. We also deny
    his motion to proceed in forma pauperis.
    BACKGROUND
    In 2005, Mr. Kerchee was tried and convicted in the district court of
    Comanche County, Oklahoma, on two counts of first-degree rape of a minor, for
    which he received two consecutive, ten-year sentences. 2 The Oklahoma Court of
    Criminal Appeals (“OCCA”) affirmed his conviction and sentence on May 21,
    2007. No certiorari petition was filed with the United States Supreme Court.
    According to Mr. Kerchee, he then filed three applications in the state
    district court for post-conviction relief: one on November 12, 2008, which was
    denied on December 19, 2008; a second on March 13, 2009, which was denied on
    April 6, 2009; and a third on December 21, 2009, which was denied on January
    26, 2010. Mr. Kerchee also represents in his Motion for a Stay of Proceedings
    that he filed a fourth post-conviction motion on April 7, 2011.
    On October 18, 2010, Mr. Kerchee filed a § 2254 habeas application in the
    2
    Mr. Kerchee’s conviction was based on the rape of two victims, both
    of whom were minors.
    2
    United States District Court for the Western District of Oklahoma—more than a
    year after his conviction became final on August 19, 2007. 3 The matter was
    referred to a magistrate judge, who recommended that the petition be dismissed as
    time-barred under 
    28 U.S.C. § 2244
    (d)(1)(A). Mr. Kerchee objected to the
    magistrate judge’s Report and Recommendation, and the district court reviewed
    the portions of the Report and Recommendation pertaining to those objections de
    novo. The district court agreed with the magistrate judge’s disposition and, in a
    thorough order and judgment, adopted his conclusion that Mr. Kerchee’s petition
    was untimely. Mr. Kerchee then filed two motions asking the district court to
    reopen and reconsider his case, both of which the court denied. He subsequently
    sought a certificate of appealability from the district court, which was also
    denied, along with Mr. Kerchee’s motion to proceed in forma pauperis. Mr.
    Kerchee now seeks leave from this court to challenge the district court’s dismissal
    of his habeas application, but asks us to stay our decision pending the state
    court’s resolution of his most recent application for post-conviction relief.
    3
    Because direct review concluded when the OCCA affirmed Mr.
    Kerchee’s conviction on May 21, 2007, the trial court’s judgment became final
    ninety days later when the time period for filing a certiorari petition with the
    United States Supreme Court expired—that is, on August 19, 2007. See Locke v.
    Saffle, 
    237 F.3d 1269
    , 1273 (10th Cir. 2001); see also Sandoval v. Jones, No. 11-
    5022, 
    2011 U.S. App. LEXIS 12124
    , at *5 n.3 (10th Cir. June 14, 2011). Mr.
    Kerchee therefore had to file his habeas application by August 19, 2008—one
    year from “the date on which the 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).
    3
    STANDARD OF REVIEW
    A COA is a jurisdictional prerequisite to this court’s 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), cert. denied, 
    130 S. Ct. 3385
     (2010). Thus, “[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)). In order to make such a showing, the applicant
    must demonstrate “that reasonable jurists 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)) (internal quotation marks omitted).
    “In other words, the applicant must show that the district court’s resolution of the
    constitutional claim was either ‘debatable or wrong.’” 
    Id.
     (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, 537 U.S. at 336) (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.
    4
    DISCUSSION
    Though Mr. Kerchee does not dispute that his October 2010 habeas petition
    was untimely, 4 he argues that the district court erred in refusing to statutorily or
    equitably toll AEDPA’s one-year statute of limitations. 5 We disagree.
    I.    Application of 
    28 U.S.C. § 2244
    (d)(1)
    As a threshold matter, Mr. Kerchee appears to argue that the district court
    erred in adopting the magistrate judge’s conclusion that AEDPA’s one-year
    statute of limitations began to run ninety days from the date that the OCCA
    affirmed his conviction—May 21, 2007. See 
    28 U.S.C. § 2244
    (d)(1)(A). First,
    Mr. Kerchee contends that the “impediments of confiscation of legal mail [and]
    4
    In his habeas petition, Mr. Kerchee presented twenty-two claims
    alleging, inter alia, ineffective assistance of counsel, improper sentencing
    instructions at trial, evidentiary errors, discovery violations, insufficient evidence,
    and prosecutorial and judicial misconduct.
    5
    In his combined Opening Brief and Application for a COA, Mr.
    Kerchee sets forth twenty-one grounds for relief. Those grounds, many of which
    are redundant, can be grouped into the following claims: (1) he was denied fair
    and impartial review; (2) he was entitled to equitable tolling of AEDPA’s one-
    year statute of limitations; (3) he was entitled to an evidentiary hearing; (4) he
    was deprived of his right to due process, equal protection, and access to the courts
    when his state court attorney was disbarred; (5) he was denied his right to
    counsel; (6) his state post-conviction applications were “impeded by the lower
    courts” and “restricted [by] counsel[’s] deception and misconduct,” Aplt. Opening
    Br. and Appl. for a COA at 19; (7) the district court erred in failing to “inquire”
    into the status of his state direct appeal; and (8) he possesses newly discovered
    evidence that entitles him to a COA. However, because Mr. Kerchee concedes
    that his October 2010 habeas petition was untimely, we need only consider these
    constitutional arguments in the event that statutory or equitable tolling is
    warranted.
    5
    legal work and material,” Aplt. Opening Br. and Appl. for a COA at 3, his
    inability to proceed in forma pauperis, and the restrictive nature of OCCA Rule
    3.14(B), somehow excused his untimely filing. Presumably, Mr. Kerchee is
    arguing that AEDPA’s one-year statute of limitations did not begin to run until
    these alleged “impediment[s] to filing an application created by State action in
    violation of the Constitution or laws of the United States [were] removed,” 
    28 U.S.C. § 2244
    (d)(1)(B)—in other words, that the district court erred in applying
    § 2244(d)(1)(A), rather than § 2244(d)(1)(B). Mr. Kerchee’s arguments are
    unavailing.
    We assume that Mr. Kerchee’s argument regarding the alleged confiscation
    of legal materials refers to his prior contention that prison officials deprived him
    of his legal research and written work product from September 2008 through
    February 2009. As the district court noted, however, this alleged misconduct
    purportedly occurred after Mr. Kerchee’s habeas petition was otherwise due under
    § 2244(d)(1)(A), on August 19, 2008. Even if this allegation were true, therefore,
    it does not excuse Mr. Kerchee’s failure to file a timely habeas application.
    Moreover, as the magistrate judge observed, Mr. Kerchee filed ten motions and
    complaints to various officials and agencies throughout the approximately six-
    month time period during which his materials were purportedly confiscated.
    Consequently, any “impediment” that the alleged deprivation of his legal
    materials might have created seemingly would not have hindered his ability to file
    6
    a habeas application.
    Mr. Kerchee’s in forma pauperis argument is equally unavailing. To the
    extent that he has adequately raised such an argument—for which Mr. Kerchee
    offers absolutely no support in his opening brief—we agree with the district court
    that “his need to substantiate his financial condition . . . provide[s] no basis for
    utilizing § 2244(d)(1)(B).” R., Vol. I, at 429 (Order, filed Jan. 27, 2011).
    Assuming that Mr. Kerchee seeks to argue here, as he did below, that institutional
    personnel hindered his ability to file a timely in forma pauperis motion, the
    record contains no proof of this contention. Moreover, as the district court noted,
    these allegations stemmed from conduct that purportedly occurred during the
    same time frame—viz., September 2008 through February 2009—during which
    Mr. Kerchee was allegedly deprived of his legal research and written work
    product. As discussed above, Mr. Kerchee’s attempts to substantiate his financial
    status after his habeas petition was due pursuant to § 2244(d)(1)(A), on August
    19, 2008, has no bearing upon his ability to file a timely petition prior to that
    date.
    Finally, Mr. Kerchee’s argument as to Rule 3.14 of the Oklahoma Rules of
    the Court of Criminal Appeals is meritless. Under Rule 3.14(B),
    [a] petition for rehearing shall not be filed, as a matter of course,
    but only for the following reasons:
    (1) [s]ome question decisive of the case and duly submitted by
    the attorney of record has been overlooked by the Court, or
    7
    (2) [t]he decision is in conflict with an express statute or
    controlling decision to which the attention of [the OCCA] was
    not called either in the brief or in oral argument.
    Okla. Stat. tit. 22, ch. 18, app., R. 3.14(B) (emphasis added). Mr. Kerchee alleges
    that this rule “deliberately and intentionally prevent[s] and restrict[s] pro se
    access to ‘direct appeal rehearing’” by “deliberately not allowing ‘pro se
    applicants’ access to their courts simply because they are pro se and not . . .
    ‘attorneys of record.’” Aplt. Opening Br. and Appl. for a COA at 10. Even
    assuming, arguendo, that this were true, the unavailability of rehearing in state
    court does not explain Mr. Kerchee’s failure to file a timely habeas petition in
    federal court. Furthermore, we note that Mr. Kerchee contends that he continues
    to be subject to Rule 3.14(B). If this is true, the statute of limitations has not
    begun to run because the impediment has yet to be removed—a premise that does
    not comport with the fact that Mr. Kerchee has already filed a habeas petition,
    albeit an untimely one. See 
    28 U.S.C. § 2244
     (d)(1)(B).
    Additionally, Mr. Kerchee contends that the limitations period should have
    run from the date on which “the factual predicate was discovered,” Aplt. Opening
    Br. and Appl. for a COA at 17—more specifically, the date on which Mr. Kerchee
    first learned that his state appellate counsel had been disbarred and had failed to
    file a timely petition for rehearing on his behalf. Presumably, Mr. Kerchee is
    asserting that the magistrate judge should have applied § 2244(d)(1)(D). See 
    28 U.S.C. § 2244
    (d)(1)(D) (providing that the statute of limitations may run from
    8
    “the date on which the factual predicate of the claim or claims presented could
    have been discovered through the exercise of due diligence”). However, as
    discussed below, Mr. Kerchee discovered that his counsel had been disbarred, at
    the very latest, on July 6, 2008. Thus, even if § 2244(d)(1)(D) had applied, Mr.
    Kerchee would have needed to file a habeas petition within one year of this
    discovery—by July 6, 2009. Consequently, even if we were to credit this
    argument, his October 2010 petition would still be untimely.
    II.   Statutory Tolling
    Under 
    28 U.S.C. § 2244
    (d)(2), “[t]he time during which a properly filed
    application for State post-conviction or other collateral review with respect to the
    pertinent judgment or claim is pending shall not be counted toward any period of
    limitation.” In other words, “[u]sually the running of the statute of limitations is
    suspended while a prisoner is pursuing relief in the state courts,” Titsworth v.
    Mullin, No. 10-7034, 
    2011 U.S. App. LEXIS 2829
    , at *16 (10th Cir. Feb. 14,
    2011)—that is, a petitioner is entitled to statutory tolling of AEDPA’s one-year
    statute of limitations while he pursues state post-conviction relief. In his COA
    application, Mr. Kerchee appears to allege that both the magistrate judge and the
    district court erred in refusing to toll the statute of limitations while his “properly
    filed post-conviction motion [was] pending in state court.” Aplt. Opening Br. and
    Appl. for a COA at 3. This argument is problematic for two reasons.
    First, Mr. Kerchee failed to assert a statutory tolling argument before the
    9
    district court. See R., Vol. I, at 387 (Report and Recommendation, filed Jan. 7,
    2011) (“Petitioner’s claim that his federal habeas action is timely relies solely on
    the doctrine of equitable tolling.”). Generally, “an appellate court will not
    consider an issue raised for the first time on appeal.” Tele-Commc’ns, Inc. v.
    Comm’r of Internal Revenue, 
    12 F.3d 1005
    , 1007 (10th Cir. 1993). And Mr.
    Kerchee’s failure to argue for application of the plain-error standard “surely
    marks the end of the road for [this] argument for reversal not first presented to the
    district court.” Richison v. Ernest Grp., Inc., 
    634 F.3d 1123
    , 1131 (10th Cir.
    2011).
    Second, even if we were to consider this argument, it would fail on the
    merits. Although Mr. Kerchee did file multiple state court motions for post-
    conviction relief, these motions were not “properly filed,” 
    28 U.S.C. § 2244
    (d)(2)—i.e., they were not timely. A review of the record reveals that Mr.
    Kerchee first filed an application for post-conviction relief, at the earliest, on
    September 8, 2008—the date on which he made an untimely request for rehearing
    of his direct appeal. As he made this first filing after the one-year statute of
    limitations expired on August 19, 2008, he was not entitled to statutory tolling
    while any of his post-conviction filings were pending. See R., Vol. I, at 387
    (“Because state court filings made after the expiration of the statute of limitations
    have no tolling effect, . . . and in this case the first such filing was after the
    limitations period expired, it is unnecessary to consider whether other, even later,
    10
    post-conviction efforts statutorily tolled the AEDPA year.” (citing Fisher v.
    Gibson, 
    262 F.3d 1135
    , 1142–43 (10th Cir. 2001))); id. at 430 (“Statutory tolling
    is permitted only when there are properly filed applications for State
    post-conviction or other collateral review filed before expiration of the one-year
    statute of limitations period. No such documents were filed in this case, and
    accordingly, Petitioner cannot rely on statutory tolling to avoid dismissal of this
    action.”).
    III.   Equitable Tolling
    As the Supreme Court recently reaffirmed, § 2244(d) is subject to equitable
    tolling. See Holland v. Florida, 
    130 S. Ct. 2549
    , 2560 (2010) (“[L]ike all 11
    Courts of Appeals that have considered the question, we hold that § 2244(d) is
    subject to equitable tolling in appropriate cases.”). However, equitable tolling is
    only available in those “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), in which application of the
    limitations period might render the habeas remedy “inadequate and ineffective,”
    Miller v. Marr, 
    141 F.3d 976
    , 978 (10th Cir. 1998). Consequently, 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 F.3d 925
    , 928 (10th Cir. 2008) (citations omitted)
    11
    (internal quotation marks omitted); see also Marsh v. Soares, 
    223 F.3d 1217
    ,
    1220 (10th Cir. 2000). On the record before us here, reasonable jurists could not
    debate that Mr. Kerchee has failed to meet this two-prong standard.
    A.     Extraordinary Circumstances
    First, Mr. Kerchee argues that he is entitled to equitable tolling “due to
    threats, possible harm, injury, irreparable harm, . . . death, fear, [and] retaliation
    from other inmates.” Aplt. Opening Br. and Appl. for a COA at 9. Mr. Kerchee
    explains that “[i]nmates with [his] type of charges and convictions are considered
    child molesters who[] are attacked, beaten, battered, robbed,” and sometimes
    killed by their fellow inmates. 
    Id.
     As the district court observed, however, the
    fact that the nature of Mr. Kerchee’s conviction “may make him more vulnerable
    while incarcerated does not support a finding that the statute of limitations period
    should be equitably tolled.” R., Vol. I, at 432. Moreover, Mr. Kerchee offers no
    evidence that he actually fell victim to such threats or physical harm, let alone
    that these speculative dangers constituted extraordinary circumstances that caused
    his failure to file a timely habeas petition. See Marsh, 
    223 F.3d at 1220
     (“[T]his
    equitable remedy 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.” (emphasis added)). Consequently, this
    argument cannot support Mr. Kerchee’s equitable tolling claim.
    Next, Mr. Kerchee offers the conclusory assertion that he is entitled to
    12
    equitable tolling “due to . . . constitutional violations, plain error, the interest of
    justice, fundamental error, the ends of justice, miscarriage of justice, actual and
    factual innocence, new evidence, recantation of testimony and statements of the
    victims,” and a string of additional incidents that allegedly occurred before the
    state trial court. Id. at 12. First of all, as the district court noted, “[t]he merits of
    the constitutional violations are to be tested in a timely filed petition for habeas
    corpus relief, and the[se] alleged constitutional errors at trial have no bearing on
    [Mr. Kerchee’s] ability to seek such relief under § 2254.” R., Vol. I, at 476–77
    (Order, filed Feb. 16, 2011) (emphasis added). In any event, Mr. Kerchee fails to
    articulate which of his constitutional rights were allegedly violated, what errors
    were made, or how the proceedings below constituted a “miscarriage of justice.”
    Thus, to the extent that Mr. Kerchee raises these arguments, they are inadequately
    presented on appeal, and we need not consider them here. See Bronson v.
    Swensen, 
    500 F.3d 1099
    , 1104 (10th Cir. 2007) (“[W]e routinely have declined to
    consider arguments that are not raised, or are inadequately presented, in an
    appellant’s opening brief.” (emphasis added)); see also United States v. Pursley,
    
    577 F.3d 1204
    , 1231 n.17 (10th Cir. 2009) (“[A]lthough Mr. Pursley alluded to
    the ex parte issue in his appellate brief, that skeletal reference does not present a
    cognizable issue for appellate review.”), cert. denied, 
    130 S. Ct. 1098
     (2010). In
    any event, in the absence of any evidence substantiating these bald assertions, we
    are left with no basis upon which we might conclude that these alleged violations
    13
    and errors amounted to “extraordinary circumstances.”
    Finally, Mr. Kerchee alleges that the statute should have been tolled for
    “the time of discovery that his retained appellate counsel . . . was ‘disbarred.’”
    Aplt. Opening Br. and Appl. for a COA at 16. Mr. Kerchee appears to contend
    that his counsel had “said he was going to file” something on Mr. Kerchee’s
    behalf—apparently a petition for rehearing in state court. 
    Id.
     This, Mr. Kerchee
    represents, should have afforded him an extra “20 days from May 21, 2007[,]” in
    which to file this petition—that is, until June 11, 2007. 
    Id.
     (emphasis omitted).
    Accordingly, he would have had “a total of 110 days” before his conviction
    become final on September 11, 2007. 
    Id.
     (emphasis omitted). Pursuant to this
    logic, Mr. Kerchee would then have had to file a habeas petition by September 11,
    2008. However, even assuming, arguendo, that Mr. Kerchee was entitled to this
    twenty-day tolling, his October 18, 2010 habeas filing was still untimely.
    Furthermore, as the magistrate judge explained, the record demonstrates
    that Mr. Kerchee’s direct appeal concluded long before his appellate counsel was
    disbarred, and that Mr. Kerchee learned of his counsel’s disbarment no later than
    July 6, 2008, when he filed a letter of complaint to the Oklahoma Bar
    Association. At that point, Mr. Kerchee still had over a month to file his habeas
    petition before the August 19, 2008 deadline. R., Vol. I, at 391. Moreover, as the
    district court later observed, “[t]here is no constitutional right to counsel beyond
    the first appeal of right,” and a petition for rehearing is not a proceeding “of
    14
    right.” 
    Id. at 433
    ; see also Pennsylvania v. Finley, 
    481 U.S. 551
    , 555 (1987)
    (“Our cases establish that the right to appointed counsel extends to the first
    appeal of right, and no further. Thus, we have rejected suggestions that we
    establish a right to counsel on discretionary appeals.”). Mr. Kerchee therefore
    had no “right” to his counsel’s filing of a petition for rehearing on his behalf, and
    he presents no evidence that either he or his wife ever communicated their desire
    to file a discretionary rehearing petition to Mr. Kerchee’s counsel. As such, Mr.
    Kerchee offers no evidence that his counsel’s disbarment was somehow an
    “extraordinary circumstance” that constituted an impediment to his timely habeas
    filing—or, for that matter, an impediment at all.
    B.     Diligent Pursuit
    Even if Mr. Kerchee had established that “extraordinary circumstances”
    hindered his ability to file a timely habeas petition, he has failed to demonstrate
    that he diligently pursued his federal claims. See, e.g., Burger v. Scott, 
    317 F.3d 1133
    , 1141 (10th Cir. 2003) (“[T]his Circuit has generally declined to apply
    equitable tolling when it is facially clear from the timing of the state and federal
    petitions that the petitioner did not diligently pursue his federal claims.”).
    Though Mr. Kerchee asserts that he has worked “‘diligently’ and in good faith in
    pursuing his state court collateral review and relief,” the only “support” that he
    offers for this statement is the unsubstantiated argument that “the district court[’]s
    ruleing [sic] on ‘diligence’ [was] unreasonable[,] too harsh, strict, unfair and
    15
    unlenient [sic].” Aplt. Opening Br. and Appl. for a COA at 21. This clearly falls
    far short of a demonstration that he has diligently pursued his claims. See Yang,
    
    525 F.3d at 928
     (“[A]n inmate bears a strong burden to show specific facts to
    support his claim of extraordinary circumstances and due diligence.” (alteration in
    original) (quoting Brown v. Barrow, 
    512 F.3d 1304
    , 1307 (11th Cir. 2008))
    (internal quotation marks omitted)). Moreover, as the magistrate judge noted, Mr.
    Kerchee was given every opportunity to do so. Mr. Kerchee himself provides
    evidence that the Clerk of Court supplied him with the proper forms to institute
    his federal habeas action in early October 2008, yet he failed to file a petition
    until October 2010—approximately two years later. Additionally, instead of
    filing an application for post-conviction relief in state court that could have tolled
    the statute of limitations pertaining to his habeas action, Mr. Kerchee elected to
    file an untimely petition for rehearing, along with a slew of complaints against
    lawyers, presiding judges, and others. Thus, even if Mr. Kerchee had presented a
    plausible extraordinary circumstances claim, reasonable jurists could not dispute
    that his failure to demonstrate diligent pursuit renders equitable tolling
    inappropriate.
    C.     Actual Innocence
    Finally, Mr. Kerchee alleges that “newly discovered and revealed evidence”
    demonstrates that he is actually innocent. Opening Br. and Appl. for a COA at
    24. Of course, § 2244(d)’s procedural bar does not preclude us from entertaining
    16
    claims of actual innocence, and a petitioner asserting actual innocence need not
    demonstrate cause for his delay in raising such a claim. See Lopez v. Trani, 
    628 F.3d 1228
    , 1230–31 (10th Cir. 2010) (“[A] sufficiently supported claim of actual
    innocence creates an exception to procedural barriers for bringing constitutional
    claims, regardless of whether the petitioner demonstrated cause for the failure to
    bring these claims forward earlier.”). However, Mr. Kerchee must still present a
    “colorable claim of factual innocence”; in other words, he must present “new
    reliable evidence—whether it be exculpatory scientific evidence, trustworthy
    eyewitness accounts, or critical physical evidence—that was not presented at
    trial.” Schlup v. Delo, 
    513 U.S. 298
    , 322, 324 (1995); see also United States v.
    Payne, No. 10-5111, 
    2011 U.S. App. LEXIS 12233
    , at *6 (10th Cir. May 10,
    2011) (“[E]ven if a colorable claim of actual innocence might be entitled to
    special treatment, [petitioner’s] claim is not colorable.”); Weibley v. Kaiser, 50 F.
    App’x 399, 403 (10th Cir. 2002) (determining that petitioner’s 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
    .
    Mr. Kerchee presents three affidavits in support of his actual innocence
    17
    claim, none of which we find persuasive. In the first, Don Jensen, who apparently
    served as a Boy Scout troop leader with Mr. Kerchee, suggests that the allegations
    against Mr. Kerchee were the result of a plot by one of the victim’s stepfathers to
    overthrow Mr. Kerchee and takeover his position as Commander of the Comanche
    War Scouts. Mr. Jensen also states that the stepfather of the other victim
    personally approached him and informed him that the allegations against Mr.
    Kerchee were false, and insists that Mr. Kerchee’s trial counsel was incompetent.
    In the second affidavit, another of Mr. Kerchee’s Boy Scout colleagues avers that
    “pre-trial publicity” deprived Mr. Kerchee of his right to a fair trial, and similarly
    represents that Mr. Kerchee’s trial counsel was ineffective. R., Vol. I, at 233–36
    (Aff. of Bill Walker, Def.’s Ex. Z, filed Nov. 23, 2010). The third affiant—a
    child caregiver at a children’s shelter that one of the victims attended—testifies to
    one of the victim’s “sexually inappropriate fantasies,” her “unstable and
    intolerable behavior,” and her tendency to tell lies. She too complains of Mr.
    Kerchee’s trial counsel’s performance. 
    Id.
     at 238–42 (Aff. of Debra Herrera,
    Def.’s Ex. AA, filed Nov. 23, 2010).
    Although these affidavits may call into question the quality of Mr.
    Kerchee’s legal representation, none of them would cause a reasonable juror to
    question the validity of his conviction. Each of the three affiants was available to
    testify at the time of trial—in fact, both Mr. Jensen and Mr. Walker did testify on
    Mr. Kerchee’s behalf. Consequently, these affidavits do not constitute “new
    18
    reliable evidence” in the first place. See, e.g., In re Harrison, No. 08-2271, 
    2008 U.S. App. LEXIS 28094
    , at *2 (10th Cir. Nov. 25, 2008) (finding that petitioner
    failed to present “new” evidence of his actual innocence where “the victim’s
    recantation was not new” because she had “recanted her statements to law
    enforcement even before [petitioner’s] trial”); Price v. Friel, 245 F. App’x 855,
    856–57 (10th Cir. 2007) (concluding that petitioner’s proffered evidence was not
    “new” where he was told during his psychological interview “that a report of the
    evaluation would be made and sent to the court” and “[a]lthough he may not have
    read its ultimate conclusion until well after trial, he certainly knew of the report’s
    existence before trial”); see also O’Boyle v. Ortiz, 242 F. App’x 529, 531 (10th
    Cir. 2007) (rejecting petitioner’s actual innocence claim where “[m]ost of his
    ‘new’ evidence [was] really speculation about what might be shown if certain
    tests were performed on physical evidence in the case”). Furthermore, the third
    affiant—Ms. Herrera, who served as a caregiver to one of the victims—speaks
    only to the victim’s character, not to whether Mr. Kerchee is actually guilty of the
    crime for which he was convicted. As such, reasonable jurists could not disagree
    with the district court’s conclusion that Mr. Kerchee has failed to present a
    colorable claim of actual innocence.
    IV.   Motion to Stay
    Mr. Kerchee also asks us to stay our disposition of his COA application
    pending the state court’s resolution of a post-conviction motion that Mr. Kerchee
    19
    supposedly filed in April 2011. In so doing, however, Mr. Kerchee cites no
    authority for the granting of such relief under the circumstances presented here,
    nor has he sought a similar stay from the district court below.
    Construing this request very liberally, Mr. Kerchee’s argument appears to
    be somewhat akin to that of the petitioner in Fairchild v. Workman, 
    579 F.3d 1134
     (10th Cir. 2009). In that case, the petitioner—who had been convicted of
    first-degree murder—furnished the district court with two new affidavits when he
    submitted his habeas petition, both of which “establish[ed] the link between his
    prior history of drug abuse and head injuries and possible physical, organic brain
    injury; and furnish[ed] evidence that he in fact had such an injury.” 
    Id. at 1149
    .
    Though the petitioner’s trial counsel had been aware of this evidence at the time
    of trial, he chose “to focus only on alcohol abuse” as a mitigating factor,
    allegedly without “considering the availability of other more powerful mitigating
    evidence.” 
    Id.
     This court, therefore, concluded that “the facts reflected in [this]
    additional evidence . . . might well support a claim of ineffective assistance.” 
    Id. at 1151
    . However, because the petitioner had yet to present these affidavits to the
    state court, we vacated the district court’s judgment and remanded the case with
    instructions to determine whether the stay-and-abeyance procedure should be used
    to permit the petitioner “to exhaust his new potentially meritorious claim for
    ineffective assistance of counsel and for it to conduct further proceedings
    consistent with this opinion.” 
    Id. at 1156
     (emphasis added).
    20
    Even assuming, arguendo, that Mr. Kerchee could rely upon our analysis in
    Fairchild, he has not advanced a new claim, let alone a meritorious one. Mr.
    Kerchee’s first argument—that a stay would allow the state court to consider the
    “new” affidavits of Mr. Jensen, Mr. Walker, and Ms. Herrera—is a non-starter.
    As discussed above, there is nothing “new” about the information contained in
    these affidavits; each of the three affiants was available and willing to testify at
    the time of trial, and two of them did testify on Mr. Kerchee’s behalf.
    Mr. Kerchee’s second argument is equally unpersuasive. Though he makes
    the conclusory assertion that Phelps v. Alameida, 
    569 F.3d 1120
     (9th Cir. 2009),
    cert. denied, 
    130 S. Ct. 1072
     (2010), and Cone v. Bell, 
    129 S. Ct. 1769
     (2009),
    somehow constitute an “intervening change in the law,” Aplt.’s Mot. for a Stay of
    Proceedings at 2, Mr. Kerchee explains neither the significance of this supposedly
    “intervening” caselaw nor its application to his case, let alone how it constitutes a
    “new claim” that might warrant state court review. Thus, Mr. Kerchee has
    effectively waived this second argument. See Bronson, 
    500 F.3d at 1104
    ; see also
    DiCesare v. Stuart, 
    12 F.3d 973
    , 979 (10th Cir. 1993) ( “[W]hile we hold pro se
    litigants to a less stringent standard, it is not the proper function of the district
    court to assume the role of advocate for the pro se litigant.”).
    Furthermore, as we observed in Fairchild, “not every new piece of
    evidence makes a claim a new one,” and Mr. Kerchee does not argue that these
    three affidavits or the supposedly “intervening” case law constitute new claims as
    21
    opposed to merely new evidence. See 
    579 F.3d at 1148
    ; see also Gardner v.
    Galetka, 
    568 F.3d 862
    , 881, 882 (10th Cir. 2009) (deferring to the state court’s
    ineffective-assistance-of-counsel determination where additional evidence “would
    likely only have added color” to the ineffective-assistance claim, and the
    difference between the evidence before the state court and the new evidence “was
    purely a matter of degree”). In fact, the three affidavits offered in support of Mr.
    Kerchee’s first argument appear to pertain to the same ineffective-assistance-of-
    counsel argument that he raised in his first state post-conviction motion, which
    the state court denied and dismissed on December 19, 2008. As Mr. Kerchee
    offers absolutely no explanation as to how this additional evidence “so changes
    the legal landscape that the state court’s prior analysis no longer addresses the
    substance of [his] claim,” we are left with no basis upon which we might
    conclude that he presents a “new claim” that warrants remand to the district court
    under Fairchild. 
    579 F.3d at 1149
    .
    CONCLUSION
    For the foregoing reasons, we DENY Mr. Kerchee’s application for a COA,
    DENY his motion to stay the proceedings, and DISMISS his appeal. We also
    DENY Mr. Kerchee’s motion to proceed in forma pauperis, as he has not
    demonstrated “the existence of a reasoned, nonfrivolous argument on the law and
    facts in support of the issues raised on appeal.” Watkins v. Leyba, 
    543 F.3d 624
    ,
    627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 
    115 F.3d 809
    ,
    22
    812 (10th Cir. 1997)) (internal quotation marks omitted). 6
    ENTERED FOR THE COURT
    Jerome A. Holmes
    Circuit Judge
    6
    Mr. Kerchee’s pending motion to pay the appellate filing fees in
    partial payments is also denied.
    23