Lomax v. Davis , 484 F. App'x 206 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
May 17, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ARTHUR JAMES LOMAX,
Petitioner-Appellant,
v. No. 12-1094
(D.C. No. 1:11-CV-03034-LTB)
JOHN DAVIS, Warden; JOHN (D. Colo.)
SUTHERS, THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Arthur Lomax, a Colorado state prisoner appearing pro se, seeks a certificate of
appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C. §
2254 petition for federal habeas relief. Because Lomax has failed to satisfy the standards
for the issuance of a COA, we deny his request and dismiss the matter. We also deny his
request to proceed in forma pauperis on appeal.
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
I
In 2006, Lomax was convicted in the District Court for the City and County of
Denver of sexual assault, unlawful sexual contact, and misdemeanor sexual assault.
Lomax was sentenced to a term of imprisonment of six years to life for the sexual assault
conviction and concurrent one-year terms of imprisonment for the other two convictions.
Lomax filed a direct appeal. On November 16, 2009, the Colorado Court of
Appeals affirmed Lomax’s convictions for sexual assault and misdemeanor sexual
assault, but vacated his conviction for unlawful sexual contact. People v. Lomax, No.
07CA0186 (Colo. App. Nov. 16, 2009). Lomax filed a petition for writ of certiorari with
the Colorado Supreme Court, but that petition was denied on March 8, 2010. Lomax v.
People, No. 09SC1086 (Colo. Mar. 8, 2010).
On July 6, 2010, Lomax filed a motion for sentence reconsideration pursuant to
Colorado Rule of Criminal Procedure 35(b). That motion was denied by the trial court on
July 21, 2010. Lomax did not appeal from that ruling.
On August 23, 2010, Lomax filed a motion for postconviction relief pursuant to
Colorado Rule of Criminal Procedure 35(c). The trial court denied the motion on October
19, 2010. Lomax filed a notice of appeal on January 12, 2011. On November 14, 2011,
the Colorado Court of Appeals dismissed the appeal as untimely.
On November 21, 2011, Lomax initiated the instant proceedings by filing a pro se
petition for writ of habeas corpus pursuant to § 2254. Respondents, at the directive of the
magistrate judge assigned to the case, filed a pre-answer response addressing whether
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Lomax had exhausted his state court remedies and whether Lomax’s petition was timely
filed. Lomax filed a reply to respondents’ pre-answer response.
On March 20, 2012, the district court issued an order dismissing Lomax’s petition
as untimely. In doing so, the district court first determined that Lomax’s convictions
“became final on June 7, 2010, ninety days after March 8, 2010, the date the Colorado
Supreme Court denied certiorari review,” Order of Dismissal, at 4 (citing 28 U.S.C. §
2244(d)(1)(A)), and that “the one-year statute of limitations began to run on June 8, 2010,
the next business day after the conclusion of his direct appeal,” id. (citing Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2003)). The district court then addressed “whether any of
. . . Lomax’s state court post-conviction motions tolled the one-year limitation period,”
id., and concluded as follows:
There were no pending motions in Mr. Lomax’s state court action
between June 8, 2010, and July 5, 2010. (citation omitted) These 28 days
are counted against the one-year statute of limitations. Mr. Lomax filed a
Rule 35(b) motion on July 6, 2010, which the trial court denied on July 21,
2010. (citation omitted) Mr. Lomax then had 45 days, or until September
7, 2010, to appeal the trial court’s denial of the motion for sentence
reconsideration to the [Colorado Court of Appeals]. See Colo. App. R.
4(b). Mr. Lomax did not file an appeal.
Accordingly, the one-year limitation period would begin running
again on September 8, 2010. However, Mr. Lomax filed a Rule 35(c)
motion on August 21, 2010. (citation omitted) Therefore, the limitations
period was tolled until October 19, 2010, when the trial court denied the
Rule 35(c) motion. (citation omitted) Mr. Lomax then had 45 days, or until
December 3, 2010, to appeal the trial court’s denial of the motion for
sentence reconsideration to the [Colorado Court of Appeals]. See Colo.
App. R. 4(b).
Mr. Lomax did not file an appeal until January 12, 2011. The
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limitations period was not tolled by Mr. Lomax’s untimely appeal because
it was not “properly filed” under § 2244(d)(1)(D). See Hoggro v. Boone,
150 F.3d 1223, 1227 n.5 (10th Cir. 1998) (holding that untimely appeals are
not considered properly filed); see also Lovasz v. Vaughn, 134 F.3d 146,
148 (3d Cir. 1998) (holding that a “properly filed” application, for purposes
of § 2244(d), is one that has been “submitted according to the state’s
procedural requirements, such as the rules governing the time and place of
filing.”).
Therefore, the statue [sic] of limitations began running on December
4, 2010, and ran for 337 days until it expired on November 6, 2011 (28 days
+ 337 days = 365 days). The Court finds that the limitation period expired
approximately fifteen days prior to the filing of the application on
November 21, 2011. Accordingly, the instant action is time-barred in the
absence of some other reason to toll the one-year limitation period.
Id. at 5-6. Further, the district court concluded that “[n]othing in the record indicate[d]
that . . . Lomax faced extraordinary circumstances that prevented him from diligently
pursuing his claims,” and thus Lomax failed to carry his burden of demonstrating that
equitable tolling was appropriate in this action. Id. at 7. Lastly, the district court
“certifie[d] pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from [its] order would not
be taken in good faith and therefore in forma pauperis status w[ould] be denied for the
purpose of appeal.” Id.Lomax has now filed in this court a combined opening brief and an application for
COA.
II
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). In other words, a state prisoner may appeal from the denial of federal habeas
relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28
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U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When, as here, a district court denies a habeas petition on procedural grounds, a COA will
be issued only when the petitioner shows 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-
year statute of limitations to file petitions for federal habeas relief under 28 U.S.C. §
2254. 28 U.S.C. § 2244(d)(1). The limitations period typically begins running on “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). In this case, it is
undisputed that Lomax’s convictions became final on Monday, June 7, 2010. More
specifically, the Colorado Supreme Court denied Lomax’s petition for certiorari review
on March 8, 2010. Although Lomax had ninety days thereafter in which to file a
certiorari petition with the United States Supreme Court, he did not do so. See Harris v.
Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). Consequently, AEDPA’s one-year
limitations period began running on June 8, 2010.
AEDPA’s one-year limitations period is tolled during the time that “a properly
filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The Supreme Court
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has defined “collateral review” as “judicial review of a judgment in a proceeding that is
not part of direct review,” including motions to reduce sentence under state law. Wall v.
Kholi, 131 S. Ct. 1278, 1281-82 (2011). In this case, Lomax filed two state court motions
that served to toll AEDPA’s one-year limitations period. The first was Lomax’s motion
for sentence reconsideration under Colorado Rule of Criminal Procedure 35(b), and the
second was Lomax’s motion for postconviction relief pursuant to Colorado Rule of
Criminal Procedure 35(c). It is undisputed that these two motions together effectively
tolled the one-year limitations period from July 6, 2010 (when Lomax filed his Rule 35(b)
motion) until December 3, 2010 (the expiration of the 45-day period afforded Lomax
under Colorado state law to appeal from the trial court’s denial of his Rule 35(c) motion).
Although Lomax ultimately filed an appeal from the trial court’s denial of his Rule
35(c) motion, he did not do so until January 12, 2011, approximately 40 days after the
time period for filing an appeal had expired. As the district court correctly noted, the
pendency of an untimely appeal does not serve to toll AEDPA’s one-year limitations
period. See Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005). Consequently, the one-
year limitations period began running again in this case on December 4, 2010, was not
tolled during the time that Lomax’s untimely appeal was pending before the Colorado
Court of Appeals, and expired on November 6, 2011, approximately fifteen days prior to
the filing of Lomax’s federal habeas petition.
Notably, Lomax does not argue on appeal that he qualifies for equitable tolling,
nor do we see any basis in the record for tolling the one-year limitations period on
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equitable grounds. The Supreme Court has held “that § 2244(d) is subject to equitable
tolling in appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A federal
habeas 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.” Id. at 2562 (internal quotation marks omitted). Lomax
argued below, in his reply to respondent’s pre-answer response, that he “ha[d] pursued his
claims diligently” and that “some extraordinary circumstances prevented him from filing
a timely 28 U.S.C. § 2254 action.” R., Vol. 1, at 209. In support, Lomax alleged (1) that
his “health took a turn for the worst [sic] in “2009 and 2010,” during which he “had staff
[sic] infection, bleeding on the inside bleeding out from [his] rectum, and . . . high blood
pressure,” and (2) “there were countless facility lock-downs” during “2008-2011” that
“hindered [him] from getting to the law library.” Id. As we have noted, the district court
rejected these conclusory allegations as a basis for equitable tolling, and we conclude that
reasonable jurists “would [not] find it debatable whether the district court was correct in
its procedural ruling.” Slack, 529 U.S. at 484.
The application for COA is DENIED and this matter is DISMISSED. Lomax’s
motion to proceed in forma pauperis on appeal is DENIED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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