FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 3, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ER IC JO SEPH LA U RSO N ,
Petitioner - A ppellant, No. 07-1177
v. (D. Colorado)
RON LEYBA, W arden at A.V.C.F.; (D.C. No. 05-cv-2635-ZLW )
A TTO RN EY G EN ER AL O F THE
STA TE OF C OLO RA D O ,
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Eric Joseph Laurson is an inmate in the custody of the Colorado
Department of Corrections. The United States District Court for the District of
Colorado dismissed his application for relief under 28 U.S.C. § 2254 as barred by
the one-year statute of limitations imposed by the Antiterrorism and Effective
Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). The district court
denied two motions for reconsideration under Fed. R. Civ. P. 60(b). W e construe
M r. Laurson’s application for a certificate of appealability (COA) under
28 U.S.C. § 2253 as requesting a COA to appeal both the dismissal of his § 2254
application 1 and the denial of his tw o motions to reconsider the dismissal.
Because no “jurist[] of reason could conclude that the District Court’s dismissal
on procedural grounds was debatable or incorrect,” Slack v. M cDaniel, 529 U.S.
473, 485 (2000), we deny a COA and dismiss the matter.
I. B ACKGR OU N D
M r. Laurson pleaded guilty to a charge of solicitation to commit murder in
the second degree. His conviction was entered January 8, 1999. He did not
appeal the conviction, but in December 2001 he filed in state court a motion for
postconviction relief, which was denied. The Colorado Court of Appeals affirmed
the denial, People v. Laurson, 70 P.3d 564 (Colo. Ct. App. 2002), and the
Colorado Supreme Court denied his petition for a writ of certiorari on June 16,
2003.
On December 28, 2005, M r. Laurson filed a pro se application for relief
under 28 U.S.C. § 2254. The magistrate judge ordered him to show cause why his
application should not be barred by the one-year limitation period of 28 U.S.C.
§ 2244(d). M r. Laurson failed to respond to the order, and the district court
dismissed his application on M arch 14, 2006. One year later, on M arch 14, 2007,
M r. Laurson filed a motion for relief under Rule 60(b), alleging that he had timely
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M r. Laurson’s attempt to appeal the dismissal of his § 2254 application
appears to be untimely. Although this is a jurisdictional matter, see Bowles v.
Russell, 127 S. C t. 2360, 2363 (2007), we need not address the issue because w e
are refusing to take jurisdiction on other grounds.
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sought an extension to respond to the show-cause order but had mistakenly filed
the motion with the wrong case number. He attached to the motion a copy of the
motion for extension that he had attempted to file and a copy of his proposed
answer to the order to show cause. The court, finding that there was no
extraordinary circumstance to justify Rule 60(b) relief, denied the motion to
reconsider on M arch 23, 2007. M r. Laurson filed a second Rule 60(b) motion on
April 10, 2007, seeking reconsideration of the M arch 23 order. The court ruled
that even accepting M r. Laurson’s excuses for his failure to respond timely to the
show-cause order, his response to the show-cause order did not establish that he
was entitled to equitable tolling of the statute of limitations. Concluding that the
action was properly dismissed as time-barred, the court declined to issue a COA.
II. D ISC USSIO N
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing 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, 529 U.S. at 484 (internal
quotation marks omitted). In other words, an applicant must show that the district
court’s resolution of the constitutional claim was either “debatable or wrong.” Id.
If the application was denied on procedural grounds, as here, the applicant faces a
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double hurdle. Not only must the applicant make a substantial showing of the
denial of a constitutional right, but he must also show “that jurists of reason
would find it debatable whether . . . the district court was correct in its procedural
ruling.” Id. “W here a plain procedural bar is present and the district court is
correct to invoke it to dispose of a case, 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.
AEDPA establishes a one-year limitations period for challenging a state-
court conviction. See 28 U.S.C. § 2244(d). It is undisputed that the limitations
period began to run when the time for seeking direct review of M r. Laurson’s
January 1999 conviction expired in early 1999. See Colo. App. R. 4(b)(1)
(providing 45 days to appeal conviction). Although the one-year period is tolled
while state postconviction review is pending, see 28 U.S.C. § 2244(d)(2), the one-
year period had long expired before M r. Laurson filed for state postconviction
relief in December 2001.
The one-year statute of limitations is not jurisdictional and can be equitably
tolled, but equitable tolling is limited to “rare and exceptional circumstances.”
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation marks
omitted). M r. Laurson asserts two grounds for equitable tolling; neither is valid.
First, M r. Laurson alleges that he is entitled to equitable tolling because his
dyslexia delayed his filing for relief. He raises this argument for the first time on
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appeal. A s a general rule, this court will not consider an issue not raised below.
See W alker v. M ather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). But
even if M r. Laurson had not forfeited this argument by failing to present it to the
district court, dyslexia is not a ground for tolling the AEDPA statute of
limitations. See Turner v. Johnson, 177 F.3d 390, 391–92 (5th Cir. 1999)
(unfamiliarity with the law due to illiteracy does not toll limitations period);
Jamison v. Jones, 197 Fed. App’x 743, 746 (10th Cir. 2006) (unpublished)
(following Turner); Gomez v. Leyba, No. 07-1118, 2007 W L 1765536 (10th Cir.
June 20, 2007) (unpublished) (unfamiliarity with the English language does not
toll limitations period); United States v. Richardson, 215 F.3d 1338 (10th Cir.
2000) (unpublished decision table) (learning disability does not toll limitations
period).
Second, M r. Laurson contends that he is entitled to equitable tolling
because he is actually innocent of the crime of which he was convicted. A claim
of actual innocence may toll the AEDPA statute of limitations. See Gibson, 232
F.3d at 808. M r. Laurson offers three reasons why he is actually innocent: (1)
that the crime of which he was convicted does not exist in Colorado, (2) that his
guilty plea was involuntary due to both the nonexistence of his crime and his
dyslexia, and (3) that his sentence exceeded the permissible statutory range and
that his crime had been placed in the wrong felony class for sentencing. The first
is a question of state law that is not reviewable under § 2254. See Estelle v.
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M cGuire, 502 U.S. 62, 68 (1991); Dockins v. Hines, 374 F.3d. 935, 940 (10th Cir.
2004) (“Federal habeas courts will not . . . review issues of purely state law.”)
M r. Laurson’s other arguments do not relate to actual innocence. Actual
innocence means “factual innocence.” See Bousley v. United States, 523 U.S.
614, 623 (1998). A claim that his guilty plea was involuntary does not assert that
he did not commit the crime to w hich he pleaded guilty. And as to M r. Laurson’s
argument that his sentence was improper, “a person cannot be actually innocent of
a noncapital sentence.” Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996)
(brackets and internal quotation marks omitted).
No reasonable jurist could dispute that the district court was correct to
dism iss M r. Laurson’s application as time-barred. Accordingly, we deny a COA
to appeal the dismissal.
M r. Laurson also requires a COA to appeal the denials of his two Rule
60(b) motions. See Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir. 2006)
(“[W ]e conclude that a C OA is required to appeal from the denial of a true Rule
60(b) motion.”). The district court dismissed M r. Laurson’s habeas application as
barred by the statute of limitations after he failed to respond to the order to show
cause. Even if M r. Laurson could justify his failure to respond to the order, the
court was correct to deny the 60(b) motions unless M r. Laurson presented a
meritorious argument for why his habeas application should not be dismissed as
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time-barred in the first place. For the reasons discussed above, M r. Laurson’s
arguments for equitable tolling lack merit.
W e conclude that reasonable jurists would not debate the correctness of the
district court’s procedural rulings. Accordingly, we D ENY M r. Laurson’s
application for a COA and DISM ISS this matter. We G RANT M r. Laurson’s
motion to proceed in form a pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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