Gordon v. Sullivan ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2014
Elisabeth A. Shumaker
Clerk of Court
LARRY GORDON,
Petitioner - Appellant,
v. No. 14-1188
(D.C. No. 1:92-CV-02425-JRC)
PAT SULLIVAN; GALE NORTON, (D. Colo.)
Respondents - Appellees.
________________________________
LARRY GORDON,
Petitioner - Appellant,
v. No. 14-1258
(D.C. No. 1:14-CV-00371-LTB)
FRANCIS FALK, Warden; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT*
*
The Court has determined that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
As a result, we have decided the appeals based on the briefs.
This order and judgment does not constitute 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.
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
The district court denied Mr. Larry Gordon’s motion for appointed counsel and
application for habeas relief. Mr. Gordon appeals the denial of appointed counsel
(No. 14-1188) and wants to appeal the denial of habeas relief (No. 14-1258).
Appeal No. 14-1188
In 1992, a Colorado state court issued a warrant for Mr. Gordon’s arrest on
charges of second-degree kidnapping, first- and second-degree sexual assault,
menacing, and third-degree assault. He was found in a Nebraska jail and extradited
to Colorado.
In Colorado, Mr. Gordon filed a habeas application in federal district court,
complaining of his prior detention in Nebraska, his extradition, and his legal
representation. The district court dismissed the application because Mr. Gordon had
not exhausted state court remedies.
Twenty years later, Mr. Gordon filed a motion to appoint counsel, claiming
that he was being “tortured under a mind control substance . . . to perfect a death
sentence without a jury trial.” R. at 5. The district court summarily denied the
motion as moot in light of the prior dismissal of the habeas application.
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On appeal, Mr. Gordon appears to advance the same claims he made in his
1992 habeas application.1 But he does not address the district court’s determination
that his motion to appoint counsel was moot based on the dismissal of the habeas
application twenty years earlier. The district court did not abuse its discretion in
denying the motion. See Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001)
(observing that “[t]he decision to appoint counsel is left to the sound discretion of the
district court”); United States v. De Vaughn, 694 F.3d 1141, 1157 (10th Cir. 2012)
(stating that “[a] case is moot when the issues presented are no longer live” (internal
quotation marks omitted)). Thus, we affirm the order denying appointment of
counsel.
Appeal No. 14-1258
In 1993, Mr. Gordon was convicted of second-degree kidnapping, third-degree
assault, and second-degree burglary. See People v. Gordon, Case No. 93CR1055
(Denver County District Court Dec. 17, 1993). The Colorado Court of Appeals
affirmed, the Colorado Supreme Court denied certiorari, and the United States
Supreme Court denied certiorari.
1
Mr. Gordon’s notice of appeal designates only the district court’s order
denying the motion to appoint counsel. A certificate of appealability is not required
for an order denying appointed counsel in a habeas proceeding. See Harbison v. Bell,
556 U.S. 180, 183 (2009). We have appellate jurisdiction because the ruling
followed dismissal of the action and left nothing for the district court to do. See
Montez v. Hickenlooper, 640 F.3d 1126, 1132 (10th Cir. 2011) (“This court typically
only has jurisdiction over final decisions of the district court, which generally means
the district court’s decision must reflect the termination of all matters as to all parties
and causes of action.” (internal quotation marks omitted)).
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Mr. Gordon applied for habeas relief, complaining that he was denied counsel
and tortured. R. at 37. The district court dismissed the application on timeliness
grounds and declined to issue a certificate of appealability.
To appeal, Mr. Gordon needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B). To obtain the certificate, Mr. Gordon must show that reasonable
jurists could find the district court’s ruling debatable or wrong. See Laurson v.
Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).
Federal law imposes a one-year period of limitations. See 28 U.S.C.
§ 2244(d). The limitations period ordinarily begins when the judgment became final,
which is when the Supreme Court denied certiorari. Id. § 2244(d)(a)(A); Locke v.
Saffle, 237 F.3d 1269, 1271 (10th Cir. 2001). But the limitations period is tolled
while state post-conviction proceedings remain pending. 28 U.S.C. § 2244(d)(2).
The United States Supreme Court denied certiorari in October 1996, and
Mr. Gordon failed to seek postconviction relief within a year.2 Thus, the limitations
2
Mr. Gordon moved for sentence reconsideration under Colo. R. Crim. P. 35(b)
on January 25, 1996, and the court declined relief on March 8, 1996 (before the
United States Supreme Court denied certiorari review). Although “a properly filed
Colorado Rule of Criminal Procedure 35(b) motion tolls the one-year limitation
period in § 2244(d)(1),” the limitations period did not begin for another seven
months. Robinson v. Golder, 443 F.3d 718, 720 (10th Cir. 2006). Mr. Gordon did
not appeal the denial of his Rule 35(b) motion. Instead, in December 1997, he filed a
motion to disqualify the trial judge. That motion had no tolling effect because
● it was filed after the limitations period had expired in October 1997, and
● it does not seek “review with respect to the pertinent judgment or
claim.”
(continued)
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period expired in October 1997, and Mr. Gordon did not file the habeas application
until February 2014. In these circumstances, any reasonable jurist would conclude
the habeas application is time-barred. As a result, we decline to issue a certificate of
appealability in Case No. 14-1258 and dismiss the appeal.
Application for Pauper Status
In both appeals, Mr. Gordon seeks leave to proceed in forma pauperis. We
grant this status in No. 14-1188. In No. 14-1258, we deny leave to proceed in forma
pauperis on the ground of mootness. See Johnson v. Keith, 726 F.3d 1134, 1136
(10th Cir. 2013) (denying leave to proceed in forma pauperis on the ground of
mootness upon denial of a certificate of appealability).
Conclusion
The judgment of the district court in Appeal No. 14-1188 is affirmed. We
deny the certificate of appealability and dismiss the appeal in No. 14-1258.
Entered for the Court
Robert E. Bacharach
Circuit Judge
28 U.S.C. § 2244(d)(2); Clark v. Okla., 468 F.3d 711, 714 (10th Cir. 2006).
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