FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 4, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DAVID LEE JOHNSON,
Petitioner - Appellant,
No. 13-1324
v. (D.C. No. 1:12-CV-03061-LTB)
(D. Colorado)
ANGEL MEDINA, Warden - Fremont
Correctional Facility; and THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO JOHN
SUTHERS,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Defendant and petitioner, David Lee Johnson, a Colorado state prisoner
proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal
the denial of his 28 U.S.C. § 2254 petition challenging the validity of his
conviction for kidnaping and first degree sexual assault. The district court denied
the habeas petition and dismissed the action as barred by the one-year limitation
*
This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
period applicable to habeas petitions under 28 U.S.C. § 2244(d). Mr. Johnson
filed a motion to alter or amend that judgment, construed as a motion seeking
relief from the judgment pursuant to Fed. R. Civ. P. 60(b), which the district court
also denied. The district court then denied Mr. Johnson a COA, finding that he
had not made a substantial showing of the denial of a constitutional right, and
denied him permission to proceed on appeal in forma pauperis. Concluding that
Mr. Johnson has not met the requirements for the issuance of a COA, we deny his
request for one and dismiss this matter.
BACKGROUND
Mr. Johnson pled guilty pursuant to a plea agreement to second-degree
kidnaping and first-degree sexual assault, resulting from an incident which
occurred on September 7, 1996. 1 The parties stipulated to a sentencing range of
37 to 55 years’ imprisonment.
Prior to sentencing, Mr. Johnson filed a motion to withdraw his guilty plea
on the ground that his thinking had been impaired at the time of the plea because
of undiagnosed diabetes and because plea counsel coerced him into pleading
guilty. The district court denied the motion, after conducting an evidentiary
1
In its decision affirming his conviction, the Colorado Court of Appeals
stated that “Defendant admitted that there was a factual basis for his pleas and
detailed for the court how he had kidnaped a young woman at gunpoint and forced
her to drive to a parking lot where he forcibly raped her.” People v. Johnson, No.
98CA2077 (Colo. App. March 9, 2000) (unpublished). R. Vol. 1 at 153.
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hearing, R. Vol. 1 at 121, and, on September 3, 1998, imposed consecutive prison
sentence terms totaling fifty-five years. On March 9, 2000, the Colorado Court of
Appeals affirmed the conviction. People v. Johnson, No. 98CA2077 (Colo. App.
March 9, 2000) (unpublished). R. Vol. 1 at 151. On September 18, 2000, the
Colorado Supreme Court denied certiorari review. Johnson v. People, No.
00SC445 (Colo. Sept. 18, 2000) (unpublished). R. Vol. 1 at 168.
On October 4, 2000, Mr. Johnson filed a letter requesting the appointment
of conflict-free counsel “to pursue possible 35(c) Ineffective Assistance of
Counsel, Post Conviction Relief in this Case.” R. Vol. 1 at 99. The court
granted the motion and, on October 12, 2000, appointed counsel.
On September 16, 2003, counsel filed a motion for postconviction relief
under Colo. R. Crim. P. 35(c), asserting various claims of ineffective assistance
of plea counsel. The district court issued a minute order summarily denying the
motion. On appeal, the Colorado Court of Appeals remanded the case to the trial
court to enter findings of fact and conclusions of law. People v. Johnson, No.
07CA0910 (Colo App. Feb. 26, 2009) (unpublished). R. Vol. 1 at 201. On
remand, the trial court entered an order denying applicant’s motion. The
Colorado Court of Appeals affirmed. People v. Johnson, No. 09CA 2596 (Colo.
App., Aug. 25, 2011) (unpublished). 2 R. Vol. 1 at 249. The Colorado Supreme
2
We note that the decision of the Colorado Court of Appeals affirming the
denial of Mr. Johnson’s Rule 35(c) motion includes the following: “As to the
(continued...)
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Court denied certiorari review. Johnson v. People, No. 2012SC146 (Colo.
Aug. 27, 2012) (unpublished). R. Vol. 1 at 270.
On August 10, 2012, Mr. Johnson filed the instant § 2254 habeas
application, raising the following issues: (1) Mr. Johnson’s guilty plea was not
knowing, voluntary, or intelligent because of his hypoglycemic condition at the
time he entered his plea; (2) plea counsel was ineffective by failing to investigate
and challenge DNA evidence; (3) plea counsel was ineffective by failing to
discover, and the prosecution failed to disclose, exculpatory evidence; (4) plea
counsel was ineffective by failing to investigate an alternate suspect; (5) the trial
court violated Mr. Johnson’s due process and equal protection rights by denying
his postconviction motions without conducting an evidentiary hearing; (6) the
2
(...continued)
second prong of the Strickland test, the record includes a letter from defendant–
written before he entered his guilty plea–in which he indicated that he was aware
of the alleged discrepancies in the DNA evidence and requested that it be
retested. Under these circumstances, defendant has failed to show a reasonable
probability that he would not have entered a guilty plea in the absence of the
allegedly deficient performance of his counsel.” People v. Johnson, No.
09CA2596 , slip op. at 5 (Aug. 25, 2011) (unpublished); R. Vol. 1 at 254. The
court’s order also indicated that “the name of the alternative suspect appears on
the good faith list of witnesses filed by plea counsel before defendant entered his
guilty plea.” Id. at 7. Finally, the court addressed Mr. Johnson’s “actual
innocence” claim: “defendant argues that the district court violated his rights
because it did not adequately review his allegation of actual innocence. As noted,
however, when the motion, files, and record clearly establish that the allegations
are without merit and do not warrant postconviction relief, a court may properly
deny a Crim. P. 35(c) motion without holding an evidentiary hearing.” Id. at 8.
Thus, the “actual innocence”/fundamental miscarriage of justice claim upon
which Mr. Johnson now relies was, in fact, raised before the Colorado state
courts, and it was addressed and rejected by those courts.
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trial court violated Mr. Johnson’s due process and equal protection rights by
making insufficient findings of fact, and the Colorado Court of Appeals erred by
presuming the validity of the trial court’s order; (7) the trial court violated Mr.
Johnson’s due process and equal protection rights by failing to review his claim
of ineffective assistance of post-conviction counsel; and (8) the trial court
violated Mr. Johnson’s due process and equal protection rights by ruling that his
merger claim was time-barred.
The district court ordered the respondents to file a pre-Answer response,
addressing the affirmative defenses of timeliness and exhaustion of state
remedies. The respondents filed that Answer, arguing Mr. Johnson’s application
was untimely and that only three of his claims were exhausted and cognizable.
The district court then determined that Mr. Johnson’s petition was untimely
under the one-year limitation period applicable to habeas petitions under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). That one-
year period commences on “the date on which the judgment became final.” 28
U.S.C. § 2244(d)(1)(A). The court noted that Mr. Johnson’s conviction became
final on December 18, 2000, and the “limitations period ran unabated until it
expired on December 18, 2001, the anniversary of the start of the limitations
period.” Order of Dismissal at 5, R. Vol. 2 at 23. Accordingly, “[b]ecause the
limitations period expired before Mr. Johnson filed his Rule 35(c) motion for
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postconviction relief through counsel on September 16, 2003, the motion did not
toll the limitations period.” Id.
The court then considered whether there was any basis for equitably tolling
the statute of limitations, noting that “[e]quitable tolling . . . may be appropriate if
the applicant actually is innocent.” Id. at 6 (citing Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000)). As the court further observed:
An actual innocence argument “is premised on the same fundamental
miscarriage of justice exception that was discussed by the Supreme
Court” in Schlup v. Delo, 513 U.S. 298 (1995), and Coleman v.
Thompson, 501 U.S. 722 (1991). Therefore, in the rare and
extraordinary case in which a habeas applicant can demonstrate
equitable tolling is appropriate on actual innocence grounds, the
applicant is not required to demonstrate he diligently pursued the
actual innocence claim. However, to be credible, a claim of actual
innocence requires an applicant “to support his allegations of
constitutional error with new reliable evidence–whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence–that was not presented at trial.” The
applicant then must demonstrate “that it is more likely than not that
no reasonable juror would have convicted him in the light of the new
evidence.” The Court emphasizes that a “substantial claim that
constitutional error has caused the conviction of an innocent person
is extremely rare.”
Id. at 6-7 (citing Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010);
quoting Schlup, 513 U.S. at 324, 327). The court accordingly dismissed the
petition as barred by the one-year limitation period in 28 U.S.C. § 2244(d). The
court also found that any appeal from the order would not be taken in good faith
and therefore in forma pauperis status was denied for the purpose of an appeal.
This request for a COA followed.
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DISCUSSION
“A COA is a prerequisite to appellate jurisdiction in a habeas action.”
Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .
constitutional claims on the[ir] merits,” the applicant “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where, as here, a district court’s ruling rests on procedural grounds, the applicant
must prove both “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir.),
cert. denied, 133 S. Ct. 669 (2012).
Mr. Johnson argues his habeas petition was “erroneously dismissed by the
United States District Court due to its failure to consider [his] actual innocence
with respect to equitable tolling of the statutory time limits set by 28 U.S.C.
§ 2244(d).” Appellant’s Op. Br. & App. for COA at 8. He thus argues that
issuance of a COA is required, as well as a remand to the district court for an
evidentiary hearing into his claims of actual innocence.
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Mr. Johnson cites McQuiggin v. Perkins, 133 S. Ct. 1924, 1931, 1933
(2013), in which the Supreme Court reaffirmed that there is an “equitable
exception” to the statute of limitations applicable to habeas claims, but “only
when the petitioner presents new evidence that ‘shows it is more likely than not
that no reasonable juror would have convicted the petitioner.’” Gore v. Crews,
720 F.3d 811, 817 (11th Cir. 2013) (quoting McQuiggin, 133 S. Ct. at 1933).
Thus, under McQuiggin, “actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar
. . . or, as in this case, expiration of the statute of limitations.” McQuiggin, 133
S. Ct. at 1928. The Court’s opinion in McQuiggin makes clear the limitations on
its holding: “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner
does not meet the threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.’” Id. (quoting Schlup, 513 U.S. at
329)). “AEDPA’s time limitations apply to the typical case in which no
allegation of actual innocence is made.” Id. at 1933; see Gore, 720 F.3d at 817.
The Court stressed the “demanding” nature of the test for permitting the
gateway to open: “The gateway should open only when a petition presents
‘evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.’” Id. at 1936 (quoting Schlup, 513 U.S. at 316).
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The Court also noted that the degree of diligence displayed by the petitioner in
pursuing and presenting the new evidence “bears on the determination whether
the petitioner has made the requisite showing [of actual innocence].” Id. at 1935.
Mr. Johnson argues that there was DNA and other evidence casting doubt
on his guilt, which his plea counsel failed to further investigate and/or properly
present or discuss with him, and that his counsel failed to discover and/or the
state withheld at some point a serology report which he says casts doubt on his
guilt. He attaches to his COA request materials from forensic serologists which
suggest the reports and evidence used in connection with Mr. Johnson’s
conviction should be retested and are, in various ways, inaccurate. All of this, he
avers, suggests the need for us to remand this case to the district court for an
evidentiary hearing in which he can establish his actual innocence. Thus, he
argues that reasonable jurists could conclude that the district court erred in
rejecting his claim that he has presented “evidence of innocence so strong” that
we cannot have confidence in his conviction.
We disagree with Mr. Johnson. First, Mr. Johnson pled guilty. While he
claims that his guilty plea was involuntary and coerced, the state courts rejected
that argument, and his plea of guilty simply undermines his claim that another
individual committed the crime to which he pled guilty. See Goosby v.
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Trammell, 515 Fed. Appx. 776, 777 (10th Cir. 2013) (unpublished) 3 (rejecting
actual innocence argument, stating “[g]iven [petitioner’s] guilty plea and his
failure to address other evidence that contributed to his plea, he fails to carry the
heavy burden of ‘show[ing] it is more likely than not that no reasonable juror
would have convicted him’”) (quoting McQuiggin, 133 S. Ct. at 1935); Chestang
v. Sisto, 522 Fed. Appx. 389, 390 (9th Cir. 2013) (unpublished) (rejecting
petitioner’s “actual innocence” claim, noting that he “specifically pleaded
guilty”).
Second, the evidence is not “new.” Actual innocence claims focus on
“new” evidence—“relevant evidence that was either excluded or unavailable at
trial.” Schlup, 513 U.S. at 327-28; see Chestang, 522 Fed. Appx. at 391. As one
district court pointed out, “[petitioner] has presented no new evidence, he simply
argues the DNA evidence which existed at the time he pled guilty is evidence of
his innocence.” Ross v. King, No. 1:13cv70-HSO-RHW, 2013 WL 6048156, at
*3 (S.D. Miss. Nov. 15, 2013) (unpublished); see James v. Ratman, No. CV 11-
8693-ABC(MAN), 2013 WL 5840278, at *8 (Oct. 28, 2013) (unpublished) (noting
that statement of which petitioner “was fully aware . . . before and during his trial
. . . cannot be said to constitute the requisite ‘evidence claimed to have been
wrongly excluded or to have become available only after the trial’”) (quoting
3
Since this case is unpublished, we cite it only for the persuasive value of
its reasoning.
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Schlup, 513 U.S. at 328)). As indicated above, supra n.2, the Colorado Court of
Appeals’ decision affirming Mr. Johnson’s Rule 35(c) motion indicated that he
was aware of alleged discrepancies in the DNA evidence and the existence of an
alternative suspect before he pled guilty.
Third, while the allegedly “new” evidence has been in existence since
Mr. Johnson’s plea of guilty, he only now seeks to present it as grounds for his
actual innocence. “Unexplained delay in presenting new evidence bears on the
determination whether the petitioner has made the requisite showing.”
McQuiggin, 133 S. Ct. at 1935.
In short, Mr. Johnson has not convinced us that the district court erred in
any respect in concluding that his case is not one of “rare” cases meeting the
“demanding” test for ignoring the one-year limitations period otherwise
applicable to his petition. We cannot say that any reasonable jurist would
disagree with or find fault with the district court’s analysis. Furthermore, given
that Mr. Johnson has presented the evidence he believes shows his actual
innocence, we cannot say that the district court abused its discretion in denying
an evidentiary hearing. See United States v. Flood, 713 F.3d 1281, 1290 (10th
Cir.), cert. denied, 82 USLW 3104, 3166, 3185 (Oct. 7, 2013).
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CONCLUSION
For the foregoing reasons, we DENY a COA and DISMISS this matter. We
DENY in forma pauperis status, and remind Mr. Johnson that he must make full
payment of all applicable fees.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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