FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 23, 2017
Elisabeth A. Shumaker
Clerk of Court
JAMES ARTHUR FAIRCLOTH,
Petitioner - Appellant,
v. No. 17-1078
(D.C. Nos. 1:16-CV-02367-LTB
RICK RAEMISCH, Executive Director of and 1:16-CV-02368-LTB)
CDOC; JOHN CHAPDELAINE, Warden (D. Colo.)
of Sterling Corr. Fac.; CYNTHIA
COFFMAN, Attorney General of the
State of Colorado,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
James Arthur Faircloth, a Colorado state prisoner proceeding pro se,1 seeks a
certificate of appealability (“COA”) to challenge the district court’s denials of his
Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
*
This order is not binding precedent, except under the doctrines of law of the case,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.
1
Because Mr. Faircloth is appearing pro se, we liberally construe his pleadings.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Nonetheless, a pro se litigant
must comply with fundamental procedural rules, id., and our “rule of liberal construction
stops . . . at the point at which we begin to serve as his advocate.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
(“§ 2254 motion”) and subsequent Motion to Alter or Amend Judgment in Habeas
Corpus 28 U.S.C. § 2254 Case Pursuant to Federal Rule of Civil Procedure 59(e)
(“motion to amend”). Mr. Faircloth also requests leave to proceed in forma pauperis.
Because we conclude that no reasonable jurist could debate whether the district court was
correct in its determinations, we deny Mr. Faircloth’s requests for a COA and to proceed
in forma pauperis, and dismiss this appeal in its entirety.
I. BACKGROUND
After being charged with numerous felonies in two separate criminal cases before
the Arapahoe County District Court, Mr. Faircloth entered into a plea agreement
resolving both cases on May 28, 2009. As part of the plea agreement, Mr. Faircloth pled
guilty to identity theft in People v. Faircloth, No. 08CR329 (Arapahoe Cty. Dist. Ct. Feb.
7, 2008), and to aggravated motor vehicle theft in People v. Faircloth, No. 08CR1222
(Arapahoe Cty. Dist. Ct. May 23, 2008). He also agreed to serve, and was sentenced to,
consecutive eight-year prison sentences. Mr. Faircloth did not directly appeal these
convictions or sentences, but on June 2, 2009, he filed a letter with the Arapahoe County
District Court requesting to withdraw his guilty plea, which the county district court
denied on June 8, 2009. Thereafter, between 2009 and 2012, Mr. Faircloth filed a number
of requests with the Arapahoe County District Court for various documents, including
bond information and copies of the plea agreement, transcripts, the docket, and other
court records.
Nearly three years after signing the plea agreement and receiving his sentences, on
May 24, 2012, Mr. Faircloth filed petitions in both criminal cases for post-conviction
2
relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. In his
petitions, Mr. Faircloth raised a number of grounds for relief, including: (1) law
enforcement lacked probable cause to arrest him; (2) law enforcement failed to advise
him of his Miranda rights; (3) law enforcement searched him illegally; (4) the county
district court lacked jurisdiction over his cases; (5) issues with his plea agreement and
sentencing; and (6) ineffective assistance of trial counsel. Without holding an evidentiary
hearing, the Arapahoe County District Court denied Mr. Faircloth’s Rule 35(c) motions
on July 17, 2012. Mr. Faircloth appealed and, after the cases were consolidated on
appeal, the Colorado Court of Appeals affirmed the county district court’s decision on
December 18, 2014. The Colorado Supreme Court subsequently denied Mr. Faircloth’s
petition for writ of certiorari with respect to the post-conviction proceedings on
September 14, 2015.
On February 26, 2016, Mr. Faircloth filed corresponding petitions for writ of
habeas corpus in both of the aforementioned criminal cases. The Arapahoe County
District Court construed these petitions as post-conviction relief motions made pursuant
to Rule 35(c) of the Colorado Rules of Criminal Procedure and dismissed all of Mr.
Faircloth’s claims as meritless, waived, or untimely. Mr. Faircloth appealed the county
district court’s decision, and that appeal is currently pending before the Colorado Court
of Appeals.
On September 19, 2016, Mr. Faircloth initiated this federal habeas corpus action
by filing two separate applications for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In Faircloth v. Raemisch, No. 16-cv-02367-GPG (D. Colo. Sept. 19, 2016),
3
Mr. Faircloth challenged his criminal conviction and sentence for identity theft in People
v. Faircloth, No. 08CR329 (Arapahoe Cty. Dist. Ct. Feb. 7, 2008); and in Faircloth v.
Raemisch, No. 16-cv-02368-GPG (D. Colo. Sept. 19, 2016), he challenged his criminal
conviction and sentence for aggravated motor vehicle theft in People v. Faircloth, No.
08CR1222 (Arapahoe Cty. Dist. Ct. May 23, 2008). Mr. Faircloth filed an amended
§ 2254 motion in Case No. 16-cv-02367 on September 27, 2016, and shortly thereafter,
on October 11, 2016, the federal district court granted Mr. Faircloth’s motion to
consolidate the cases, ordering that Case No. 16-cv-02368-GPG be closed and Case No.
16-cv-02367-GPG become the operative habeas corpus action challenging both criminal
convictions and sentences arising from the Arapahoe County District Court.
In the operative amended § 2254 motion, Mr. Faircloth raised the following seven
grounds for habeas relief:
1. “Conviction obtained by use of an unlawful arrest (where the state has not
provided a full & fair hearing on the merits of the 4th amendment claim)”;
2. “Conviction obtained by the unconstitutional violation of the privilege against
self[-]incrimination & coerced confession to evidence gained pursuant to an
unconstitutional search & seizure (where the state has not provided a full & fair
hearing on the merits of the 4th amendment claim)”;
3. “Conviction obtained by insufficient information and outrageous governmental
conduct implicating the court in obtaining a void arrest warrant”;
4. “Prosecutorial [m]isconduct of charging a variance in the Complaint/Information
Instrument”;
5. “Denial of effective assistance of counsel & failure to appoint counsel at
post[-]conviction hearing”;
4
6. “Conviction obtained by plea of guilty which was unlawfully induced or not made
voluntarily with the understanding of the nature of the charge and the
consequences of the plea”; and
7. “The terms of the Plea deal and sentencing as petitioner understand [sic] it is
satisfied and petitioner is passed [sic] his maximum control date in worst case
scenario.”
The United States District Court for the District of Colorado denied Mr. Faircloth’s
§ 2254 motion in its entirety, concluding it was untimely because the one-year limitation
period for filing federal post-conviction relief motions under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) had expired on July 25, 2010, making
Mr. Faircloth’s § 2254 motion late by more than six years. In reaching this determination,
the district court determined that the one-year limitation period for Mr. Faircloth to file
his § 2254 motion was not subject to any statutory or equitable tolling that would render
his § 2254 motion timely. Additionally, the district court denied Mr. Faircloth a COA and
leave to proceed on appeal in forma pauperis.
In response to the district court’s denial of his § 2254 motion, on January 17,
2017, Mr. Faircloth filed a motion to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e). In his motion, and throughout his brief in support of the
motion, Mr. Faircloth reasserted many of the arguments he raised in his § 2254 motion,
as well as the argument raised in his state post-conviction proceedings that the Arapahoe
County District Court lacked jurisdiction over his criminal cases. Mr. Faircloth also
argued that the federal district court erred in rejecting his argument that the one-year
limitation period for filing federal habeas corpus petitions under AEDPA should be
equitably tolled, as his attorney had provided him incorrect advice regarding the deadline
5
for filing such petitions. However, two days later, on January 19, 2017, the district court
denied Mr. Faircloth’s motion to amend. In doing so, the district court held that Mr.
Faircloth had failed to demonstrate sufficient grounds for reconsidering its denial of his
§ 2254 motion, as it “is undisputed that the [§ 2254 motion] was filed out of time by
more than six years” and that under “applicable law . . . equitable tolling was not
warranted.” Moreover, the district court determined that Mr. Faircloth’s contention
regarding the state court’s jurisdiction is not a cognizable claim under § 2254.
Next, Mr. Faircloth filed a motion with the federal district court on February 6,
2017, to proceed on appeal in forma pauperis. Shortly thereafter, the district court denied
Mr. Faircloth’s motion, noting it had previously denied him leave to proceed in forma
pauperis and that it would not grant leave now as it “finds that this appeal is not taken in
good faith because [Mr. Faircloth] has not shown the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
Mr. Faircloth then filed a misdirected notice of appeal with this court on February 27,
2017, which was transmitted to the federal district court that same day. On March 2,
2017, we issued an order directing Mr. Faircloth to show cause as to why his appeal
should not be dismissed for lack of appellate jurisdiction, and on March 13, 2017, Mr.
Faircloth filed his response. This court issued an order reserving the issue of jurisdiction
for plenary consideration, and on April 26, 2017, Mr. Faircloth simultaneously filed an
opening brief and application for a COA and a motion for leave to proceed on appeal in
forma pauperis.
6
II. DISCUSSION
A. Jurisdiction
Before considering whether to grant Mr. Faircloth a COA, we must first determine
whether his appeal was timely filed, as the filing of a timely notice of appeal is both
mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 214 (2007); Fed. R.
App. P. 3(a). Here, Mr. Faircloth was required to file a notice of appeal “with the district
clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P.
4(a)(1)(A); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (applying
Federal Rule of Appellate Procedure 4(a) to a § 2254 appeal). Because Mr. Faircloth filed
a motion to alter or amend pursuant to Federal Rule of Civil Procedure 59(e), which the
district court subsequently denied on January 19, 2017, his thirty-day window to file a
notice of appeal expired on February 21, 2017. See Fed. R. App. P. 4(a)(4)(A)(iv); id. at
26(a). Mr. Faircloth did not file a notice of appeal within this period, which would
ordinarily render his appeal untimely and subject to dismissal.2
But Mr. Faircloth did file a motion to proceed on appeal in forma pauperis on
February 6, 2017, which falls within Rule 4(a)’s time restrictions. Therefore, we have
jurisdiction over this appeal if Mr. Faircloth’s motion to proceed in forma pauperis may
be construed as a notice of appeal. See United States v. Villarreal, 351 F. App’x 332,
333–34 (10th Cir. 2009) (unpublished) (construing a motion to proceed in forma pauperis
2
Mr. Faircloth filed a notice of appeal six days late, on February 27, 2017. And
even if we were to deem his notice of appeal as filed on the date it was given to prison
officials for mailing pursuant to Federal Rule of Appellate Procedure 4(c)(1), it would
remain untimely as the record indicates it was not given to prison officials until
February 22, 2017.
7
as a notice of appeal); Zapata v. Brandenburg, 291 F. App’x 150, 152 (10th Cir. 2008)
(unpublished) (construing a motion to proceed in forma pauperis as a notice of appeal and
noting that “we have previously held that a pro se motion to proceed in forma pauperis
can serve as [the] functional equivalent [of a notice of appeal] when it evinces a clear
intent to appeal”); Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir. 2007)
(construing a combined motion to proceed in forma pauperis and application for a
certificate of appealability as a notice of appeal). In determining whether such construal
is appropriate, we examine whether the motion to proceed in forma pauperis meets the
requirements set forth in Federal Rule of Appellate Procedure 3(c), which indicates that a
notice of appeal must contain the name of the parties taking the appeal, designate the
judgment or order being appealed, and name the court to which the appeal is taken. Fed.
R. App. P. 3(c). However, we “liberally construe the requirements of Rule 3” and thus,
“when papers are ‘technically at variance with the letter of [Rule 3], a court may
nonetheless find that the litigant has complied with the rule if the litigant’s action is the
functional equivalent of what the rule requires.’” Smith v. Barry, 502 U.S. 244, 248
(1992) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988)); see
also Zapata, 291 F. App’x at 152 (noting that “[u]nder our case law, other documents
besides a formally denominated notice of appeal, may serve as its ‘functional
equivalent’” (quoting Barry, 502 U.S. at 248)). As a result, “the notice afforded by a
document . . . determines the document’s sufficiency as a notice of appeal,” Barry, 502
U.S. at 248, and “‘mere technicalities’ should not stand in the way of consideration of a
case on its merits,” Torres, 487 U.S. at 316; see also Fed. R. App. P. 3(c)(4) (cautioning
8
against dismissing an appeal “for informality of form”). But “[t]his principle of liberal
construction does not . . . excuse noncompliance with” Rule 3, as the Rule’s “dictates are
jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Barry,
502 U.S. at 248.
Mr. Faircloth’s motion to proceed in forma pauperis complies with just one of
Rule 3’s requirements: it names the party taking the appeal. However, “[f]ailure to
comply with the other two elements is not necessarily fatal,” as “failure to expressly
specify the judgment appealed from or the appellate court [to which the appeal is taken]
does not bar an appeal . . . where no doubt exists as to either.” Villarreal, 351 F. App’x at
333 (internal quotation marks omitted). In particular, “[a] notice of appeal that fails to
identify the proper order being appealed may nevertheless satisfy Rule 3(c) if the
petitioner’s intent can be fairly inferred from the petition or documents filed more or less
contemporaneously with it.” Id. (internal quotation marks omitted). Here, there were only
two substantive orders that Mr. Faircloth could have been appealing—the denials of his
§ 2254 motion and his Rule 59(e) motion to amend—and, based on the information
contained in documents he subsequently filed, we conclude it is “fairly inferable” that
Mr. Faircloth sought to appeal both substantive orders. See id. at 334 (concluding it was
fairly inferable from petitioner’s motion to proceed in forma pauperis that he sought to
appeal the denial of his 28 U.S.C. § 2255 petition); United States v. Morales, 108 F.3d
1213, 1222–23 (10th Cir. 1997) (noting that “the supporting papers filed in connection
with the [G]overnment’s [deficient] notice of appeal” manifest the Government’s intent
to appeal the sentence imposed on the defendant, and therefore the Government’s
9
“incomplete compliance with [Rule 3(c)] should not result in the loss of an intended
appeal on the merits” because the notice of appeal’s deficiencies did not mislead or
prejudice the petitioner (internal quotation marks omitted)); Cooper v. Am Auto. Ins. Co.,
978 F.2d 602, 607–09 (10th Cir. 1992) (concluding the “original notice of appeal[,] . . .
together with the supporting papers and particular circumstances surrounding it,”
demonstrate the plaintiff’s intent to appeal the dismissal of its claims against the United
States, and therefore “[t]he [G]overnment was not misled and will not be prejudiced by
the inclusion of the issue of the dismissal of the claims against it”).
Similarly, Mr. Faircloth’s failure to identify this court in his motion to proceed in
forma pauperis is not fatal to our jurisdiction. As we have previously noted, to avoid
“becom[ing] a citadel of technicality . . . ‘a defective notice of appeal should not warrant
dismissal for want of jurisdiction where the intention to appeal to a certain court of
appeals may be reasonably inferred from the notice, and where the defect has not
materially misled the appellee.’” United States v. Treto-Haro, 287 F.3d 1000, 1002 n.1
(10th Cir. 2002) (quoting Graves v. Gen. Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)).
Here, Mr. Faircloth’s sole avenue to appeal the denials of his § 2254 motion and motion
to amend is through this court, and as a result it may be reasonably inferred that his
appeal was taken to this court. See Villarreal, 351 F. App’x at 334. And “[g]iven that
[Mr. Faircloth’s] appeal must come to this court, the government could not have been
prejudiced by his failure to refer explicitly to this court in his motion to proceed in forma
pauperis.” Id.
10
Although Mr. Faircloth’s motion to proceed in forma pauperis failed to explicitly
identify the orders he sought to appeal and the court to which he brought the appeal, our
liberal construction of Rule 3, buttressed by the latitude afforded pro se litigants, forgives
these informalities of form. See Hill v. Corr. Corp. of Am., Inc., 189 F. App’x 693, 696–
97 (10th Cir. 2006) (unpublished); Campiti v. Matesanz, 333 F.3d 317, 320 (1st Cir.
2003). We therefore conclude that Mr. Faircloth’s motion to proceed in forma pauperis
evinced a clear intent to appeal and, with its supporting documents, provided sufficient
information to satisfy Rule 3(c) and avoid misleading or prejudicing the Government. As
a result, Mr. Faircloth’s motion to proceed in forma pauperis is properly construed as a
notice of appeal, and we have appellate jurisdiction to consider his request for a COA.
B. Certificate of Appealability
To appeal the district court’s order and judgment denying him relief under § 2254,
and its subsequent order denying his motion to alter or amend that judgment, Mr.
Faircloth must first obtain a COA.3 The standards for obtaining a COA are the same
regardless of whether the applicant is a state or federal prisoner: a petitioner must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
In instances where the district court denies a habeas petition on procedural
grounds without reaching the merits of the underlying constitutional claims, the Supreme
Court has held that a petitioner must satisfy a two-part standard to obtain a COA. This
standard requires Mr. Faircloth to show “that jurists of reason would find it debatable
3
“A COA is a jurisdictional pre-requisite to our review.” Clark v. Oklahoma, 468
F.3d 711, 713 (10th Cir. 2006).
11
whether [his] 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[s].” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added);
see also Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Mr. Faircloth must
satisfy both factors, as “[e]ach component . . . is part of a threshold inquiry.” Slack, 529
U.S. at 485.
Rather than address the threshold requirements in order, we may first “resolve the
issue whose answer is more apparent from the record and arguments,” though because we
ordinarily “will not pass upon a constitutional question . . . if there is also present some
other ground upon which the case may be disposed of,” we generally resolve procedural
issues first. Id. “Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the [claims], a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be allowed to
proceed further.” Id. at 484; see also Coppage, 534 F.3d at 1281. However, if we
conclude that reasonable jurists could debate the district court’s resolution of the
procedural issues, we must then consider whether Mr. Faircloth’s claims state valid
constitutional claims. In doing so, we “simply take a quick look at the face of the
[petition] to determine whether [Mr. Faircloth] has facially alleged the denial of a
constitutional right.” Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000)
(internal quotation marks omitted). In making such a determination, we are limited to
“an overview of the claims in the habeas petition and a general assessment of their
merits,” rather than “full consideration of the factual or legal bases adduced in support of
12
the claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Buck v. Davis, 137
S. Ct. 759, 773 (2017) (“When a court of appeals sidesteps the COA process by first
deciding the merits of an appeal, and then justifying its denial of a COA based on its
adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.”
(alteration in original) (quoting Miller-El, 537 U.S. at 336–37)).
After careful consideration of the district court’s orders and the record on appeal,
we conclude that Mr. Faircloth is not entitled to a COA as to the district court’s denials of
his § 2254 motion and motion to amend because reasonable jurists could not “debate
whether (or, for that matter, agree that) the petition [and motion] should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation marks
omitted). Accordingly, we deny Mr. Faircloth’s request for a COA and dismiss his appeal
for the reasons set forth below.
1. AEDPA’s One-Year Filing Limitation and Statutory Tolling
Under AEDPA, prisoners have a one-year time limit for filing a federal habeas
petition challenging a state conviction or sentence. 28 U.S.C. § 2244(d). This one-year
period commences from the latest of “when (A) direct appellate review ends, (B) any
state-created impediment to filing [the § 2254 motion] is lifted, (C) a retroactive
constitutional right is first recognized, or (D) the [factual] basis for the claim was
reasonably discoverable [through due diligence].” Sherratt v. Friel, 275 F. App’x 763,
765 (10th Cir. 2008); see also 28 U.S.C. § 2244(d)(1)(A)–(D). However, this one-year
limitation period is tolled during “[t]he time which a properly filed application for State
13
post-conviction or other collateral review . . . is pending,” 28 U.S.C. § 2244(d)(2), and,
“[b]ecause AEDPA’s one-year statute of limitations for § 2254 petitions is
nonjurisdictional, it is [also] subject to equitable tolling in certain rare and exceptional
circumstances.” Sherratt, 275 F. App’x at 767 (internal quotation marks omitted).
In a thorough and cogent order, the district court determined that, absent tolling,
Mr. Faircloth’s one-year limitation period began to run on July 14, 2009, as his state
convictions became final when the time to file a direct appeal expired on July 13, 2009.
However, the district court determined that because Mr. Faircloth filed a letter motion to
withdraw his guilty plea, which the Arapahoe County District Court denied on June 9,
2009, the limitation period was tolled through July 24, 2009, when the time to file an
appeal of that order expired. Consequently, the district court concluded that the one-year
limitation period began to run on July 25, 2009, and ran unabated until it expired one year
later on July 25, 2010.
Although Mr. Faircloth filed various requests for bond information and copies of
transcripts, the plea agreement, and other court documents during this one-year period,
the district court determined that these requests did not constitute “properly filed
application[s] for State post-conviction or other collateral review,” and therefore did not
toll the limitation period under § 2244(d)(2). 28 U.S.C. § 2244(d); see, e.g., Woodford v.
Garceau, 538 U.S. 202, 207 (2003); May v. Workman, 339 F.3d 1236, 1237 (10th Cir.
2003); Osborne v. Boone, No. 99-7015, 1999 WL 203523, at *1–2 (10th Cir. 1999)
(unpublished). The district court also concluded that because Mr. Faircloth’s post-
conviction motion under Rule 35(c) of the Colorado Rules of Criminal Procedure was not
14
filed until May 24, 2012, nearly two years after AEDPA’s one-year limitation period had
expired, it could not toll the limitation period under § 2244(d)(2).4 As a result, the district
court determined that Mr. Faircloth’s § 2254 motion was untimely and merited dismissal
unless Mr. Faircloth could show he was entitled to equitable tolling of the limitation
period.
Mr. Faircloth’s application for a COA offers no argument regarding the timeliness
of his § 2254 motion, and instead focuses on the merits of the claims raised in the § 2254
motion. But in order to reach the merits of his § 2254 motion, Mr. Faircloth must first
demonstrate that it was timely filed—a requirement he has not and cannot meet here.
Even assuming, without deciding, that Mr. Faircloth’s letter motion to withdraw his
guilty plea tolled the commencement of the one-year limitation period until July 25,
2009, therefore extending the filing deadline until July 25, 2010, it is undisputed that his
§ 2254 motion was filed over six years after the one-year grace period had expired. And
because his Rule 35(c) post-conviction motions, filed on March 24, 2014 and February
26, 2016, were also filed after July 25, 2010, they could not toll the already-expired
limitation period. Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001) (noting
petitioner’s state post-conviction proceedings did not toll the limitation period because
they were not filed until after the limitation period had already expired); Hickmon v.
4
The district court did not address the Rule 35(c) post-conviction motions that Mr.
Faircloth filed on February 26, 2016. However, even if either Rule 35(c) motion could be
considered a “properly filed application for State post-conviction or other collateral
review” under 28 U.S.C. § 2244(d)(2), both motions were filed outside the one-year
limitation period and therefore would similarly be unable to toll the limitation period. See
Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
15
Mahaffey, 28 F. App’x 856, 858 (10th Cir. 2001) (unpublished) (concluding petitioner’s
state post-conviction motions “were also filed after the one-year [limitations] period” and
“[c]onsequently, they could not toll the already-expired limitations period”). Therefore,
no reasonable jurist could debate the district court’s holding that Mr. Faircloth’s § 2254
motion was untimely and therefore subject to dismissal unless he can demonstrate that he
is entitled to equitable tolling.
2. Equitable Tolling
As previously noted, § 2244(d)’s one-year statute of limitations for filing a federal
habeas petition is subject to equitable tolling only in “rare and exceptional
circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation
marks omitted). “[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.” Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (“We have
previously made clear that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows
‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way’ and prevented timely filing” (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005))); Sherratt, 275 F. App’x at 767. Such
exceptional circumstances include, “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 deficient pleading during the statutory period.” Gibson, 232 F.3d at 808 (internal
16
citations omitted). In addition, an attorney’s misconduct or “egregious behavior” may
also “create an extraordinary circumstance that warrants equitable tolling.” Holland, 560
U.S. at 651. However, “[s]imple excusable neglect is not sufficient” to meet this standard.
Gibson, 232 F.3d at 808; see also Holland, 560 U.S. at 651–52 (“We have previously
held that ‘a garden variety claim of excusable neglect’ . . . does not warrant equitable
tolling.” (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))).
Furthermore, to demonstrate he has pursued his claims diligently, a prisoner must “allege
with specificity the steps he took to diligently pursue his federal claims.” Yang v.
Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (internal quotation marks omitted).
Before the district court, Mr. Faircloth argued he was entitled to equitable tolling
because: (1) his attorney misrepresented the AEDPA deadline for filing a § 2254 motion
by advising him, by letter, that he had three years to file his federal habeas corpus action;
and (2) his attorney indicated he would file a Rule 35(c) post-conviction motion on his
behalf, but never did. In support of these contentions, Mr. Faircloth submitted a letter
dated September 29, 2009, in which his counsel incorrectly stated he had three years to
file a federal habeas corpus petition and indicated that he would file a Rule 35(c) post-
conviction motion on Mr. Faircloth’s behalf within three years. Mr. Faircloth asserted
that he had relied on his counsel’s misrepresentation regarding the filing deadline for
§ 2254 motions and the assertion that counsel would prepare and file a Rule 35(c) post-
conviction motion on his behalf. Finally, Mr. Faircloth argued that counsel ignored his
requests to file the Rule 35(c) motion “as expediently as possible” and failed to
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communicate with him until March 2011, at which point counsel indicated he would not
file a Rule 35(c) motion on Mr. Faircloth’s behalf.
The district court determined that Mr. Faircloth’s allegations regarding his
attorney’s conduct did not state sufficiently rare and exceptional circumstances to merit
equitable tolling. Moreover, the district court found that Mr. Faircloth failed to
demonstrate due diligence in pursuing his rights and claims. In particular, the district
concluded that, while egregious attorney misconduct may merit equitable tolling, the
incorrect advice given by Mr. Faircloth’s attorney regarding AEDPA’s statute of
limitations amounted to a single act of attorney negligence that did not rise to the level of
rare and extraordinary circumstances. In addition, the district court concluded that Mr.
Faircloth failed to allege any specific facts, other than a single request to his attorney to
file a Rule 35(c) motion as expediently as possible, demonstrating any steps he took
between September 28, 2009, and March 9, 2011, to inquire about his attorney’s progress
on the post-conviction motion or otherwise pursue his rights and claims. The district
court also held that Mr. Faircloth’s ignorance of the law did not excuse his
noncompliance with the filing deadlines. See Marsh 223 F.3d at1220.
A review of the relevant legal standards leads us to conclude that no reasonable
jurist could debate the district court’s determination that Mr. Faircloth is not entitled to
equitable tolling with regard to his § 2254 motion. While sufficiently egregious attorney
misconduct may amount to the type of extraordinary circumstances warranting equitable
tolling, Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007), a “garden variety claim
of excusable neglect, such as a simple ‘miscalculation’ that leads a lawyer to miss a filing
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deadline, does not warrant equitable tolling,” Holland, 560 U.S. at 651–52 (internal
citations and quotation marks omitted). As we have previously noted, “[h]abeas counsel’s
negligence is not generally a basis for equitable tolling because ‘there is no constitutional
right to an attorney in state post-conviction proceedings.” Fleming, 481 F.3d at 1255
(quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)). “The rationale [for this
principle] is that attorney negligence is not extraordinary and clients, even if incarcerated,
must ‘vigilantly oversee,’ and ultimately bear responsibility for, their attorneys’ actions
or failures.” Id. at 1255–56 (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir.
2003)); see also Lawrence v. Florida, 549 U.S. 327, 336–37 (2007). As a result, Mr.
Faircloth’s attorney’s incorrect advice regarding AEDPA’s statute of limitations does not
amount to the type of extraordinary circumstances entitling him to equitable tolling. See
Reynolds v. Hines, 55 F. App’x 512, 513 (10th Cir. 2003) (unpublished) (upholding the
district court’s denial of the petitioner’s request to equitably toll the limitations period as
the petitioner’s “attorney’s incorrect advice regarding when the limitations period began
to run was not the type of extraordinary circumstance entitling [the petitioner] to
equitable tolling”); see also Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (applying
the general rule that “in non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling” (quoting Fahy v. Horn, 240 F.3d 239, 244
(3d Cir. 2001))); Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (noting the United
States Court of Appeals for the Fourth Circuit has held that “a mistake by a party’s
counsel in interpreting a statute of limitations does not present the extraordinary
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circumstance beyond the party’s control where equity should step in to give the party the
benefit of his erroneous understanding” (quoting Harris v. Hutchinson, 209 F.3d 325, 331
(4th Cir. 2000))). Moreover, Mr. Faircloth failed to meet his burden of demonstrating that
he diligently pursued his federal claims. Cf. Holland, 560 U.S. at 653 (finding the
petitioner had demonstrated diligent pursuit of his federal claims where the petitioner
“wrote his attorney numerous letters seeking crucial information and providing direction;
. . . repeatedly contacted the state courts, their clerks, and the Florida State Bar
Association in an effort to have” his attorney removed from his case; and “prepared his
own habeas petition pro se and promptly filed it with the District Court” the day he
discovered that the AEDPA time limitation had expired due to his attorney’s failings).
Accordingly, we deny Mr. Faircloth a COA as to the district court’s denial of his
§ 2254 motion.
3. Motion to Alter or Amend Pursuant to Rule 59(e)
After the district court denied his § 2254 motion, Mr. Faircloth filed a motion to
alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). In his
motion and supporting memorandum, Mr. Faircloth argued the merits of various claims
raised in his § 2254 motion, claimed he was entitled to equitable tolling of the one-year
time limit for filing § 2254 motions, and contended the Arapahoe County District Court
lacked jurisdiction over his criminal cases. In addition, he submitted two affidavits, one
of which had previously been filed with the Arapahoe County District Court, setting forth
various facts surrounding his arrest, law enforcement’s search and seizure of his property,
the proceedings and negotiations regarding his plea agreement, his legal representation,
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and his efforts to file post-conviction petitions. The district court denied Mr. Faircloth’s
motion to amend because it did not demonstrate any of the well-established grounds
warranting relief under Rule 59(e): “(1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
In particular, the district court found it had not made a clear error in dismissing Mr.
Faircloth’s § 2254 motion as untimely, and that the denial would not result in a manifest
injustice to Mr. Faircloth, because it “is undisputed that [his § 2254 motion] was filed out
of time by more than six years” and that under “applicable law . . . equitable tolling was
not warranted.” In addition, the district court found that Mr. Faircloth’s contention
regarding the state court’s jurisdiction is not a cognizable claim under § 2254.
In his application for a COA, Mr. Faircloth fails to present a single argument
regarding the district court’s denial of his motion to amend, with the possible exception
of challenging the district court’s conclusion that his claim regarding the Arapahoe
County District Court’s jurisdiction is not cognizable under § 2254. However, we discern
no error in the district court’s holding regarding Mr. Faircloth’s jurisdictional claim, and
conclude all reasonable jurists would agree that such a claim is not cognizable under
§ 2254, as “[f]ederal habeas courts will not . . . review issues of purely state law.”
Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004); see also Swarthout v. Cooke, 562
U.S. 216, 219 (2011) (noting the United States Supreme Court has reiterated “many times
that ‘federal habeas corpus relief does not lie for errors of state law’” (quoting Estelle v.
McGuire, 502 U.S. 62, 67 (1991))); Dowdy v. Jones, 198 F. App’x 785, 787 (10th Cir.
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2006) (unpublished) (holding that petitioner’s “first claim that the state trial court lacked
jurisdiction to retry him . . . is a state law question that is not cognizable under § 2254”).
At most, our review of purely state law issues may encompass a determination of
“whether the state court’s finding was so arbitrary or capricious as to constitute an
independent due process or [other constitutional] violation.” Lewis v. Jeffers, 497 U.S.
764, 780 (1990); see also Harmon v. McCollum, 652 F. App’x 645, 651 (10th Cir. 2016)
(unpublished) (determining the state court’s ruling “on its own state law [was not] ‘so
arbitrary or capricious as to constitute an independent due process . . . violation’”
(quoting Lewis, 497 U.S. at 780)). And here there is nothing to suggest the Arapahoe
County District Court’s and the Colorado Court of Appeals’ decisions regarding Mr.
Faircloth’s jurisdictional claim were arbitrary or capricious, let alone so arbitrary or
capricious as to amount to a violation of Mr. Faircloth’s constitutional rights.
Finally, for the reasons set forth above in Parts B.1 and B.2, we conclude no
reasonable jurist could disagree with the district court’s determination that it had not
clearly erred in holding that Mr. Faircloth’s § 2254 motion was untimely and that
equitable tolling was unwarranted. As a result, the district court properly denied Mr.
Faircloth’s motion to amend and we accordingly deny a COA as to the district court’s
ruling.
C. Request to Proceed In Forma Pauperis
As a final matter, Mr. Faircloth has filed a motion to proceed on appeal in forma
pauperis. Prisoners seeking to proceed in forma pauperis in a habeas action must
demonstrate “a financial inability to pay the required fees and the existence of a reasoned,
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nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation
marks omitted). We conclude that although Mr. Faircloth has demonstrated a financial
inability to pay, he has not shown that his arguments on appeal are nonfrivolous.
Accordingly, we deny Mr. Faircloth’s motion to proceed in forma pauperis.
III. CONCLUSION
For the reasons set forth above, we conclude that reasonable jurists could not
debate the district court’s denials of Mr. Faircloth’s § 2254 motion and his subsequent
motion to amend. We therefore deny Mr. Faircloth’s requests for a COA and to proceed
in forma pauperis, and dismiss this appeal in its entirety.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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