FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 3, 2006
TENTH CIRCUIT
Clerk of Court
LAWRENCE E. BEEMAN,
Petitioner-Appellant,
v. No. 05-1430
(D.C. No. 05-CV-01327-OES)
JOE ORTIZ, Executive Director, (D. Colo.)
Colorado Department of Corrections,
and THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Lawrence E. Beeman, a state prisoner proceeding pro se, requests a
certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254
petition. For substantially the same reasons set forth by the district court, we
DENY Beeman’s request for a COA and DISMISS.
In 1989, Beeman entered a plea in state court pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), to one count of attempted first degree sexual assault.
During the plea colloquy, the court advised Beeman that his plea constituted a
felony conviction, that the conviction could be used to charge him as a habitual
criminal if he committed another crime, and if convicted of another crime, the
conviction of attempted first degree sexual assault could be used to enhance his
sentence. Beeman acknowledged his understanding of the court’s advisement.
The court sentenced Beeman to four years’ imprisonment, with credit for time
served. Because Beeman had already served more than four years in prison, the
court ordered his immediate release.
In 2000, Beeman was convicted of a new felony and was convicted of
habitual criminal charges, which included the conviction stemming from his
Alford plea. The state trial court sentenced Beeman to twelve years’
incarceration.
Two years later, Beeman filed an application for post-conviction relief in
state court, arguing that his trial counsel in 1989 rendered ineffective assistance
of counsel by incorrectly informing Beeman that his Alford plea could not serve
as the basis of future habitual criminal charges. The trial court denied relief
because the application was untimely. Under Colorado law, a three year statute
of limitations applies to applications for post-conviction relief for felonies other
than Class 1 felonies. Colo. Rev. Stat. § 16-5-402(1). Thus, the trial court found
that Beeman should have filed the application within three years of the 1989
conviction.
The Colorado Court of Appeals affirmed, finding that the date the sentence
was imposed in 1989 commenced the limitations period and that Beeman failed to
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allege facts that, if true, would establish justifiable excuse or neglect.
Specifically, the court rejected Beeman’s argument that his 2000 conviction was
the first notice he received that his Alford plea could form the basis of a habitual
criminal charge. The court determined that the 1989 plea colloquy afforded
Beeman adequate notice. In the alternative, the court ruled that Beeman’s
allegation of ineffective assistance of counsel lacked merit, relying on
longstanding Colorado precedent holding that where “the trial court explained and
the defendant understood . . . the possible sentences to which he was subject as a
result of pleading guilty to the offenses, the assistance of his trial counsel [is],
ipso facto, sufficient to meet the constitutional standard, irrespective of whether
counsel independently explained these rights to defendant.” People v. Hall, 697
P.2d 746, 748 (Colo. Ct. App. 1984).
Having exhausted his state court remedies, Beeman filed a § 2254 petition
in the court below. The district court rejected Beeman’s claim that his counsel
rendered ineffective assistance in connection with the 1989 Alford plea, finding
that Beeman cannot attack an expired conviction, notwithstanding its use as a
present sentence enhancement. Lackawanna County Dist. Atty. v. Coss, 532 U.S.
394, 403-04 (2001) (“once a state conviction is no longer open to direct or
collateral attack in its own right . . . the conviction may be regarded as
conclusively valid. If that conviction is later used to enhance a criminal sentence,
the defendant generally may not challenge the enhanced sentence through a
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petition under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.”). Additionally, the court rejected Beeman’s
challenge to the state’s denial of a post-conviction evidentiary hearing, finding
that a claim of constitutional error directed at state post-conviction proceedings is
not cognizable on federal habeas review. Sellers v. Ward, 135 F.3d 1333, 1339
(10th Cir. 1998) (claim that “focuses only on the State’s post-conviction remedy
. . . states no cognizable federal habeas claim”). Accordingly, the court denied
Beeman’s § 2254 petition and dismissed the action. Having been denied a COA
below, Beeman now seeks a COA from this court. 1
Upon thorough review of the record, the briefs, and the relevant authority,
we discern no error in the district court’s disposition of Beeman’s § 2254 petition.
Neither Beeman’s attack on his expired 1989 conviction nor his challenge to state
post-conviction procedures are cognizable under § 2254. Moreover, we will not
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Beeman’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Beeman to show “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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Beeman a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.
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address Beeman’s assertion of actual innocence as he failed to raise the issue
below. See, e.g., In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (“a federal
appellate court does not consider an issue not passed upon below.”); Barnes v.
Scott, 201 F.3d 1292, 1294 n.2 (10th Cir. 2000) (applying Walker in § 2254 case).
Beeman’s motion to appoint counsel and motion to supplement the record are
DENIED. We GRANT Beeman’s motion to proceed in forma pauperis.
Beeman’s application for a COA is DENIED and the appeal is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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