Lankford v. Novac , 7 F. App'x 867 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 3 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
SEAN DEAN LANKFORD,
Petitioner - Appellant,
vs. No. 00-1409
(D.C. No. 00-Z-1484)
JUANITA NOVAC; ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Sean Lankford was convicted of first-degree sexual assualt and first-degree
burglary. While burglarizing an apartment in a search for guns, Mr. Lankford
beat and held the victim down while a codefendant sexually assaulted her. People
v. Lankford, 819 P.2d 520, 521 (Colo. Ct. App. 1991); see also People v. Drake,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
841 P.2d 364, 365 (Colo. Ct. App. 1992). His conviction was affirmed on appeal
and the Colorado Supreme Court denied review. Lankford, 819 P.2d 520. In his
habeas petition pursuant to 28 U.S.C. § 2254, he contends that the Colorado
courts’ rejection of his first post-conviction motion as time-barred violates the
due process and equal protection guarantees of the United States Constitution. He
contends that the Colorado courts misapplied Colo. Rev. Stat. § 16-5-402(d)
(2000), which provides an exception to the three-year limitation period set forth
in Colo. Rev. Stat. § 16-5-402(1). Section 16-5-402(d) applies where “the failure
to seek relief within the applicable time period was the result of circumstances
amounting to justifiable excuse or excusable neglect.”
No other federal claims are contained in the federal petition. Thus, it is
unnecessary to consider the procedural bar aspects of the state court’s rejection of
Mr. Lankford’s petition. See generally Klein v. Neal, 45 F.3d 1395, 1398-99
(10th Cir. 1995) (finding that time bar of § 16-5-402 constituted an adequate and
independent state ground). It is well established that states may place reasonable
time limitations on the assertion of federal rights. See Francis v. Henderson, 425
U.S. 536, 540-41 (1976); Michel v. Louisiana, 350 U.S. 91, 97-98 (1955); see
also People v. Wiedemer, 852 P.2d 424, 436-40 (Colo. 1993) (rejecting due
process and equal protection challenges to § 16-5-402). We also reject Mr.
Lankford’s “as applied” challenge. Whether a defendant has demonstrated
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“justifiable excuse or excusable neglect” is a factual matter determined in
accordance with state law, specifically the standards in Wiedemer, 852 P.2d at
441-42, and People v. Heitzman, 852 P.2d 443, 447-48 (Colo. 1993). Moreover,
the premise of Mr. Lankford’s as applied challenge, that he is untrained in the law
and did not have counsel, does not implicate federal constitutional rights.
Coleman v. Thompson, 501 U.S. 722, 752 (1991) (noting that there is no
constitutional right to counsel in state postconviction proceedings).
We DENY the motion to proceed in forma pauperis, DENY a certificate of
appealability, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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