Kemp v. Sloam , 442 F. App'x 363 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 27, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
FRANKLIN KEMP,
Petitioner - Appellant, No. 11-1155
v. (D. Colorado)
BRIGHAM SLOAM, Warden; THE (D.C. No. 1:11-CV-00420-LTB)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Franklin Kemp (Defendant), a Colorado prisoner, filed an application for
relief under 28 U.S.C. § 2254 in the United States District Court for the District
of Colorado. The court denied the application as untimely. Defendant seeks a
certificate of appealability (COA) from this court to appeal the denial. See
28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254
application). We deny his application for a COA and dismiss the appeal.
I. BACKGROUND
A jury convicted Defendant in 1999 on two counts of incest, two counts of
sexual assault on a child, and one count of contributing to the delinquency of a
minor. He was sentenced to 42 years’ imprisonment. The Colorado Court of
Appeals affirmed the judgment and the Colorado Supreme Court denied his
petition for certiorari on August 19, 2002. He apparently did not seek review in
the United States Supreme Court. On December 20, 2002, Defendant filed a
motion for sentence reconsideration, which the trial court denied on April 14,
2003. He did not appeal the order.
Defendant filed no further pleadings seeking relief until about three years
later, when he filed a motion to correct illegal sentence on April 6, 2006. That
was the first of repeated unsuccessful motions in state court to correct or vacate
his sentence. The trial court’s final denial of such a motion was on December 3,
2010.
On February 18, 2011, Defendant filed his § 2254 application in federal
court. He raised six claims of ineffective assistance of trial counsel: failure to
proffer exculpatory evidence, failure to cross-examine witnesses, failure to
investigate the case, failure to subpoena and interview key witnesses,
misrepresentation of material facts, and failure to raise the issue of insufficient
evidence at trial. Defendant also claimed that the district attorney maliciously
prosecuted the case with no physical evidence and that the trial judge’s refusal to
grant a mistrial constituted judicial misconduct. Finally, Defendant alleged that
his appellate counsel was ineffective for not presenting these claims on appeal.
The district court dismissed the petition as time-barred under 28 U.S.C.
§ 2244(d). It said that the limitation period first started running when
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Defendant’s conviction became final on November 17, 2002, ninety days after the
Colorado Supreme Court denied certiorari review. Although the one-year
limitation period was tolled from December 20, 2002, to April 14, 2003, while
state postconviction proceedings were pending, the clock then “ran for almost
three years until April 6, 2006, when [Defendant] filed a motion to correct illegal
sentence. At that point, however, the one-year period had already expired.” R. at
186–87 (Order of Dismissal at 5–6, Kemp v. Sloam, No. 11-cv-00420-BNB (D.
Colo. April 5, 2011) (emphasis omitted).
The district court also considered whether it could toll the limitation period
for equitable reasons. Defendant argued in his “Pre-Answer” brief to the district
court that he has a learning disability and suffers from illiteracy. But the court,
citing Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (dyslexia does not
justify tolling), ruled that these personal limitations do not constitute grounds for
equitable tolling.
In this court, Defendant claims only that defense counsel was ineffective in
failing to consult with him and investigate the case, and that the trial judge’s
refusal to declare a mistrial constituted judicial misconduct. Citing Trustees of
Dartmouth College v. Woodward, 17 U.S. 518 (1819), he argues that both defense
counsel and the state trial judge failed to perform duties expected of them under
an implied contract to serve their fellow citizens. His pleadings do not address
the timeliness of his § 2254 application.
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II. DISCUSSION
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, 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). “Each component of the . . .
showing is part of a threshold inquiry, and a court may find that it can dispose of
the application in a fair and prompt manner if it proceeds first to resolve the issue
whose answer is more apparent from the record and arguments.” Id. at 485.
Here, no reasonable jurist could dispute that Defendant’s § 2254
application was untimely.
III. CONCLUSION
We DENY Defendant’s application for a COA and DISMISS the appeal.
We also DENY his motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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