FILED
United States Court of Appeals
Tenth Circuit
December 6, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
VICTOR LOPEZ,
Petitioner–Appellant,
v. No. 10-1088
(D.C. No. 1:09-CV-01551-ZLW)
TRAVIS TRANI, Warden; THE (D. Colorado)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner, a Colorado state prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. After a
jury trial, Petitioner was convicted on rape charges and sentenced to a lengthy
term of imprisonment. Following unsuccessful efforts to challenge his conviction
and sentence in the state courts, he filed his federal habeas petition, which raised
twenty-four claims for relief. The district court dismissed three of his claims for
the failure to raise a valid constitutional claim for relief, as these claims related
only to alleged errors that occurred in state post-conviction proceedings. The
court dismissed the remaining claims as time-barred, finding that the petition had
been filed outside the one-year limitations period and that Petitioner had not
demonstrated that he was entitled to equitable tolling. In his application for a
certificate of appealability and his opening brief, Petitioner argues that the court
erred in concluding that three of his claims did not state a valid claim for habeas
relief, failed to properly calculate the limitations period, and erred in refusing to
apply equitable tolling based on Petitioner’s actual innocence.
Our precedent makes clear that the district court did not err in dismissing
claims that related only alleged errors in the post-conviction proceedings. See
Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“Moreover, because the
constitutional error he raises focuses only on the State’s post-conviction remedy
and not the judgment which provides the basis for his incarceration, it states no
cognizable federal habeas claim.”). Nor do we see any error in the court’s
calculation of the limitations period; the various letters and motions Petitioner
relies on to toll the limitations period were not “properly filed” pursuant to the
state’s procedural requirements. See Robinson v. Golder, 443 F.3d 718, 720 (10th
Cir. 2006) (“A state post-conviction application is ‘properly filed’ if it satisfies
the State’s requirements for filing such a pleading.”).
As for Petitioner’s equitable tolling argument, the district court concluded
that Petitioner was not entitled to equitable tolling because he had not
demonstrated that he diligently pursued his claim of actual innocence. For
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support, the district court cited to two Tenth Circuit cases in which the petitioners
did not raise an actual innocence argument, but instead argued that equitable
tolling was warranted based on the petitioners’ alleged lack of access to legal
materials during the limitations period. See Yang v. Archuleta, 525 F.3d 925, 930
(10th Cir. 2008); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (“Moreover,
Mr. Miller does not contend, for example, that a constitutional violation has
resulted in the conviction of one who is actually innocent or incompetent.”). The
district court also cited to Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000), in
which we explained:
AEDPA’s one-year statute of limitations is subject to equitable
tolling but only in rare and exceptional circumstances. Equitable
tolling would be appropriate, for example, when a prisoner is
actually innocent, when an adversary’s conduct—or other
uncontrollable circumstances—prevents a prisoner from timely filing,
or when a prisoner actively pursues judicial remedies but files a
defective pleading during the statutory period. Simple excusable
neglect is not sufficient. Moreover, a petitioner must diligently
pursue his federal habeas claims; a claim of insufficient access to
relevant law, such as AEDPA, is not enough to support equitable
tolling.
Id. at 808 (internal quotation marks and citations omitted).
Several of our unpublished cases have interpreted this language not only to
mean that a petitioner must show due diligence in pursuing federal habeas claims
when he filed a defective pleading or was prevented from filing by uncontrollable
circumstances, but also to mean that an actual innocence claim cannot support
equitable tolling unless the petitioner establishes that this claim of innocence was
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diligently pursued. See, e.g., Roadcap v. Milyard, 381 F. App’x 859, 862 (10th
Cir. 2010); Colbert v. Scott, 18 F. App’x 766, 767-68 (10th Cir. 2001).
Nevertheless, as we recently noted, this court has never definitively settled the
role of diligence in actual-innocence cases. See Robinson v. Ledezma, 2010 WL
4159461, at *4 (10th Cir. Oct. 14, 2010). “We have yet to decide, for instance,
whether a defendant who has demonstrated actual innocence must nevertheless
serve the rest of his sentence—possibly the rest of his life—in prison for a crime
he did not commit simply because he cannot persuade a court that he acted with
sufficient diligence in raising the issue.” Id.
In the context of claims that are defaulted based on state procedural rules,
the Supreme Court has held that these claims will not be considered “unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (emphasis added) (internal quotation marks
and citations omitted). Thus, “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent,
a federal habeas court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986).
Similarly, in the context of second and successive petitions, the Supreme Court
recognized the miscarriage of justice exception to permit a petitioner asserting a
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claim of actual innocence to avoid a procedural bar without a showing of cause
and prejudice. See Schlup v. Delo, 513 U.S. 298, 317-21, 327 (1995).
Consistent with this Supreme Court precedent, we have indicated in certain
unpublished cases that the actual innocence ground for equitable tolling falls
under the fundamental miscarriage of justice exception, while the other reasons
for equitable tolling—uncontrollable circumstances preventing a petitioner’s
filing, despite his diligent efforts, or the petitioner’s filing of a defective petition,
despite his active pursuit of judicial remedies—provide an excusable cause for the
failure to timely file. See, e.g., Riley v. Snider, 2000 WL 231833, at *2 (10th Cir.
2000) (considering separately whether the petitioner “diligently pursued his
petition or was prevented from doing so by an extraordinary obstacle” and
whether the petitioner’s claim of actual innocence satisfied the fundamental
miscarriage of justice exception).
We now expressly hold that, in the equitable tolling context as in the
contexts discussed by the Supreme Court in Coleman and Schlup, 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. We thus
reject the reading of our precedent that would require a habeas petitioner seeking
equitable tolling on actual innocence grounds to demonstrate that he diligently
pursued his actual innocence claim. Where a petitioner’s equitable tolling
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argument relies on cause and prejudice, such as the petitioner’s argument in
Miller that he lacked access to applicable statutes, he must demonstrate that he
diligently pursued his federal claims as part of his showing of cause for the delay
in filing. Where, however, a petitioner argues that he is entitled to equitable
tolling because he is actually innocent, this argument is premised on the same
fundamental miscarriage exception that was discussed by the Supreme Court in
Schlup and Coleman, and as such the petitioner need make no showing of cause
for the delay. We stress that this actual innocence exception is rare and will
“only be applied in the extraordinary case.” Schlup, 513 U.S. at 321 (internal
quotation marks omitted). Nevertheless, where such an extraordinary case exists,
the lack of a showing of due diligence in pursuing claims should not prevent the
equitable tolling of the statute of limitations for a petitioner who has presented a
substantial claim of actual innocence. We thus hold that the district court erred in
rejecting Petitioner’s actual innocence claim based simply on his failure to show
that he diligently pursued this claim. We also conclude that reasonable jurists
might find Petitioner’s claim of actual innocence—supported by an affidavit from
the victim recanting her trial testimony and averring that the sex was
consensual—sufficient under Schlup to warrant equitable tolling and overcome
the procedural barrier posed by the limitations period.
However, in order to be entitled to a certificate of appealability, Petitioner
must demonstrate both that reasonable jurists would debate the correctness of the
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district court’s procedural ruling and that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Herrera v. Collins,
506 U.S. 390, 404 (1993) (“[O]ur habeas jurisprudence makes clear that a claim
of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”). After thoroughly reviewing
Petitioner’s arguments and the record on appeal, we conclude that reasonable
jurists would not find it debatable whether any of Petitioner’s numerous
substantive claims state a valid ground for habeas relief. Several of these claims
relate to evidentiary rulings by the state court, which we will not disturb unless
the court’s error was “so grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness that is the essence of due process.” Williamson v.
Ward, 110 F.3d 1508, 1522 (10th Cir. 1997). We conclude that reasonable jurists
would not debate whether the errors alleged by Petitioner meet this standard. Nor
would reasonable jurists debate whether the alleged instances of prosecutorial
misconduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir.
1994), or whether the alleged deficiencies in Petitioner’s representation meet the
familiar two-part standard laid out in Strickland v. Washington, 466 U.S. 688
(1984). Others of Petitioner’s claims present only state law issues that are not
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cognizable under § 2254. See Shafer v. Stratton, 906 F.2d 506, 510 (10th Cir.
1990). Finally, because we conclude that reasonable jurists would not debate
whether any of these allegations state a valid constitutional claim for relief, we
likewise see no constitutional error in the state courts’ rejection of these various
arguments in the proceedings before them.
We therefore DENY the application for a certificate of appealability and
DISMISS the appeal. We GRANT Petitioner’s motion to proceed in forma
pauperis. All other pending motions are DENIED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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