UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAXINE R. ROSE,

Petitioner - Appellant,

v.

MILLICENT NEWTON-EMBRY, Warden,

Respondent - Appellee.	No. 05-6245

(D.C. No. CIV-05-308-F)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Maxine Rose, an Oklahoma state prisoner appearing with counsel, appeals the federal district court's denial of her 28 U.S.C. § 2254 petition. We previously granted Rose's application for a certificate of appealability ("COA") on two issues: (1) whether Rose is entitled to equitable tolling of the one-year period of limitations in 28 U.S.C. § 2244(d)(1)(A) for reasons of actual innocence, and (2) whether Rose has established a violation of her Sixth Amendment right to effective assistance of counsel at trial.1 For the reasons set forth below, we AFFIRM the district court's denial of Rose's petition as time-barred.

Rose challenges her state court convictions for Arson in the First Degree and Endangerment to Human Life by Commission of Arson in the First Degree. Her petition was filed on March 18, 2005, and is therefore governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. AEDPA requires persons seeking a writ of habeas corpus who are in custody pursuant to a state court conviction to file their petitions within one year of the date on which direct review of the conviction concluded. 28 U.S.C.

§ 2244(d)(1)(A). The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Rose's convictions on March 25, 2003. Her convictions became final for purposes of AEDPA on June 25, 2003, when the ninety-day period during which Rose could have sought certiorari from the United States Supreme Court had passed. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Rose did not file her federal habeas petition until March 18, 2005. Taking into consideration the tolling period during which she sought collateral post-conviction relief in state court, the district court rightly found that Rose filed her petition three weeks after the one-year limitations period had expired.2

We have held that AEDPA's limitations period "may be subject to equitable tolling" if the petitioner is actually innocent. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). This limited exception to the procedural default doctrine was developed to prevent "fundamental miscarriage[s] of justice." Schlup v. Delo, 513 U.S. 298, 324 (1995); see also Sellers v. Ward, 135 F.3d 1333, 1338 (10th Cir. 1998). In order to claim actual innocence a petitioner must present new, reliable evidence that was not presented at trial. Such evidence typically consists of "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. Once such evidence has been presented, petitioner must further show that in light of the new evidence, "no reasonable juror would have found the defendant guilty." Id. at 329.

The one new piece of evidence Rose presents is the affidavit of Tera Potts, an employee of the Cleveland County Sheriff's Office.3 Potts attests that she overheard Rose's ex-husband tell another prisoner that he had committed the crime for which Rose was convicted and had framed Rose deliberately. This evidence does not have the indicia of reliability sufficient to make out a claim of actual innocence. At most, the evidence impeaches the credibility of some of the prosecution's witnesses. It does not fall into one of the categories of evidence, enumerated by the Supreme Court in Schlup, that conclusively demonstrates a petitioner's innocence. See id. at 324. Because the requirements for meeting the actual innocence exception have not been met, we affirm the district court's finding that Rose's habeas petition is time-barred and is not subject to equitable tolling.

We granted a COA to Rose on a second issue, her claim of ineffective assistance of counsel. Determining Rose's petition time-barred, however, we do not address that claim. See Robinson v. Golder, 443 F.3d 718, 719 n.1 (10th Cir. 2006) (citing Slack v. McDaniel, 529 U.S. 473, 485 (2000) (holding that where dismissal due to procedural bar is correct, consideration of merits is unnecessary)).

The judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge