Brooks v. Archuleta

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 18, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JASON BROOKS,
Petitioner - Appellant,
v. No. 17-1177
(D.C. No. 1:16-CV-00895-LTB)
LOU ARCHULETA, Warden; CYNTHIA (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,
Respondents - Appellees.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Jason Brooks, a Colorado state prisoner proceeding pro se,1 seeks a certificate
of appealability (COA) to challenge the district court’s denial of his Federal Rule of
Civil Procedure 60(b) motion for relief from its judgment dismissing his 28 U.S.C.
§ 2254 habeas petition. Mr. Brooks also requests leave to proceed in forma pauperis.
*
This order is not binding precedent, except under the doctrines of law of the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.
1
We liberally construe Mr. Brooks’s filings because he is proceeding pro se.
See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Nevertheless, a pro
se litigant must comply with fundamental procedural rules. Id. And our “rule of
liberal construction stops . . . at the point at which we begin to serve as his advocate.”
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we decline both requests
and dismiss this appeal.
I. BACKGROUND
In 2010, Mr. Brooks pleaded guilty in Colorado state court to four counts of
securities fraud and was sentenced to 32 years’ imprisonment. As part of his plea, he
also agreed to pay over $5 million in restitution.
In 2014, Mr. Brooks filed his first 28 U.S.C. § 2254 petition challenging the
legality of his conviction. The district court dismissed it in part and denied it in part.
On appeal, we denied Mr. Brooks’s application for a COA and dismissed the matter.
See Brooks v. Archuleta, 621 F. App’x 921 (10th Cir. 2015) [hereinafter Brooks I]
(unpublished).
In July 2015, Mr. Brooks received notice from a Colorado state court clerk that
his unpaid restitution was subject to a monthly 1% interest charge under Colo. Rev.
Stat. § 18-1.3-603(4). In August 2015, Mr. Brooks filed his fourth motion for post-
conviction relief in the state trial court under Colorado Rule of Criminal Procedure
35(c). He claimed that his trial counsel was ineffective for failing to advise him about
the interest charge, and that the State had breached the plea agreement by enforcing
the interest charge in violation of his Fourteenth Amendment due process rights.
In January 2016, the trial court denied the Rule 35(c) motion as untimely, as
procedurally barred because Mr. Brooks had filed at least three prior post-conviction
motions challenging his conviction or sentence, and on the merits because it lacked
authority to modify the statutory interest charge. Mr. Brooks did not file an appeal.
2
He instead filed in the trial court a motion to reconsider, which the trial court denied.
In February 2016, Mr. Brooks sought authorization from this court to file a
second or successive habeas petition to pursue his claim that the State had breached
the plea agreement. We denied authorization, but stated that if Mr. Brooks’s claims
arose from new events, then his petition would not be second or successive. See In re
Brooks, No. 16-1052, Order at 2 (10th Cir. Mar. 23, 2016). Because his claim was
susceptible to such a construction, we considered whether we should in the interests
of justice transfer the matter to the district court. Id. at 3. In the end, we concluded
that transfer was unwarranted because Mr. Brooks’s failure to exhaust the claim by
timely appealing the trial court’s order raised an anticipatory procedural bar. Id.
(citing Frost v. Pryor, 749 F.3d 1212, 1231–32 (10th Cir. 2014)).
In March 2016, Mr. Brooks filed in the state trial court another post-conviction
motion under Rule 35(a), arguing that the assessment of interest made his sentence
illegal. The trial court denied relief in April 2016, determining that Mr. Brooks had
raised no new issues. Mr. Brooks then appealed to the Colorado Court of Appeals.
While that appeal was pending, Mr. Brooks commenced on April 20, 2016, a
second habeas action in federal district court. He claimed that the State violated his
constitutional due process rights when it breached the plea agreement in July 2015 by
including post-judgment interest as part of the restitution award as required under
Colorado law. In a July 2016 order, the district court concluded that Mr. Brooks’s
petition was not second or successive because it arose after the prior habeas action
had concluded. See Brooks v. Archuleta, No. 16-cv-00895-GPG, 2016 WL 8914532,
3
at *2 (D. Colo. July 26, 2016) [hereinafter Brooks II]. But the court dismissed the
petition as unexhausted and procedurally barred. Id. at *3. And it concluded that Mr.
Brooks failed to establish cause and prejudice for his procedural default or that a
failure to consider the claim would result in a fundamental miscarriage of justice. Id.
at *4. In March 2017, a panel of this court denied Mr. Brooks’s request for a COA
because reasonable jurists could not debate whether the district court was correct in
its procedural ruling. Brooks v. Archuleta, 681 F. App’x 705, 706–07 (10th Cir.
2017) (unpublished), petition for cert. filed, No. 16-9434.
Undeterred, Mr. Brooks returned to district court and filed a Federal Rule of
Civil Procedure 60(b)(6) motion for relief from judgment. Mr. Brooks argued that the
district court erred in concluding that his claim is procedurally barred. In support, he
relied on a single sentence in the district court’s July 2016 order that he misquoted
and mischaracterized. Mr. Brooks also insisted this court erroneously denied his
application for a COA “based on the merits of the wrong case.”
The district court denied relief in April 2017. The court first determined that
Mr. Brooks’s motion was a true Rule 60(b) motion, and not a second or successive
application, because in it Mr. Brooks challenged the court’s procedural ruling that
precluded a merits determination. See Spitznas v. Boone, 464 F.3d 1213, 1215–16
(10th Cir. 2006) (stating that a Rule 60(b) motion is a true Rule 60(b) motion if it
“challenges only a procedural ruling of the habeas court which precluded a merits
determination”). Next, the court concluded that Mr. Brooks failed to establish the
extraordinary circumstances necessary to grant relief under Rule 60(b). Indeed, the
4
court explained, Mr. Brooks’s argument is premised on a mischaracterization of the
court’s basis for dismissing his § 2254 petition. Thus, the court denied Mr. Brooks’s
motion. Mr. Brooks then filed a timely motion to reconsider, which the district court
denied in May 2017. Mr. Brooks now appeals.
II. ANALYSIS
Our review of the district court’s denial of Mr. Brooks’s Rule 60(b) motion
depends on whether the motion should be treated as a second or successive habeas
petition, as a “true” Rule 60(b) motion, or as a “mixed” motion. Spitznas v. Boone,
464 F.3d 1213, 1224–25 (10th Cir. 2006). A motion is treated as a second or
successive petition “if it in substance or effect asserts or reasserts a federal basis for
relief from the petitioner’s underlying conviction.” Id. at 1215. It is a “true” Rule
60(b) motion if it challenges either “a procedural ruling of the habeas court which
precluded a merits determination of the habeas application,” or “a defect in the
integrity of the federal habeas proceeding, provided that such a challenge does not
itself lead inextricably to a merits-based attack on the disposition of a prior habeas
petition.” Id. at 1215–16. And a motion is “mixed” if it contains “both true Rule
60(b) allegations and second or successive habeas claims.” Id. at 1217.
If we conclude the district court correctly treated the motion as a “true” Rule
60(b) motion and denied it, then the movant must obtain a COA before proceeding
with his appeal. Id. at 1217–18. But if we decide the district court “incorrectly treated
a second or successive petition as a true Rule 60(b) motion and denied it on the
merits, we will vacate the district court’s order for lack of jurisdiction and construe
5
the petitioner’s appeal as an application to file a second or successive petition.” Id. at
1219.
In his motion, Mr. Brooks argued the district court erred in concluding that his
claim is procedurally barred. This is a “true” Rule 60(b) motion. See id. at 1216 (“[A]
motion asserting that the federal district court incorrectly dismissed a petition for
failure to exhaust, procedural bar, or because of the statute of limitations constitutes a
true 60(b) motion.”). So Mr. Brooks must obtain a COA to proceed with his appeal of
the denial of his motion.
We will issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard,
the applicant must demonstrate that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition”—here, Mr. Brooks’s 60(b) motion—“should
have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotation marks omitted).
Mr. Brooks moved for relief under Rule 60(b)(6), which allows a party to seek
relief from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). A movant seeking relief under this provision must “show ‘extraordinary
circumstances’ justifying the reopening of a final judgment.” Gonzalez v. Crosby,
545 U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 U.S. 193, 199
(1950)). A movant must show that “circumstances are so unusual or compelling that
extraordinary relief is warranted, or [that] it offends justice to deny such relief.”
6
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996) (internal
quotation marks omitted). “Such circumstances will rarely occur in the habeas
context.” Gonzalez, 545 U.S. at 535. “This very strict interpretation of Rule 60(b) is
essential if the finality of judgments is to be preserved.” Id. (quoting Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C.J.,
dissenting)).
Here, reasonable jurists could not debate that Mr. Brooks fails to establish the
existence of extraordinary circumstances justifying relief. In his Rule 60(b) motion,
Mr. Brooks challenged the district court’s July 2016 ruling that his § 2254 motion is
procedurally barred. He premised his challenge on his assertion that the district court
ignored the rule that “a determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). In support, he pointed to one line in
the district court’s order that he claimed shows the district court refused to defer to
the state court’s “factual determination” that his August 2015 Rule 35(c) motion was
untimely and procedurally barred.
But as the district court observed, Mr. Brooks misreads and mischaracterizes
the district court’s order. In its order, the district court concluded that Mr. Brooks
failed to exhaust an available state remedy by failing to appeal the state trial court’s
January 2016 order denying his August 2015 motion under Rule 35(c). Mr. Brooks
maintained that the district court could not dismiss his petition for failure to exhaust
“because the state court relied on independent and adequate state procedural grounds,
a state statute of limitations and a bar on successive motions, to deny the Rule 35(c)
7
motion.” Brooks II, 2016 WL 8914532, at *3. But the district court concluded that it
“is not persuaded that the state court’s determination that the Rule 35(c) motion Mr.
Brooks filed in August 2015 was both untimely and procedurally barred excuses his
failure to appeal to the Colorado Court of Appeals and fairly present his newly-
arising federal constitutional claim to the state appellate courts.” Id. Even though Mr.
Brooks, as a pro se litigant, understandably misunderstands the quoted language, the
district court did not decline to presume that the state court’s factual determinations
are correct. See § 2254(e)(1). Instead, the district court held the state court’s ruling
that Mr. Brooks’s motion was untimely and procedurally barred did not excuse his
failure to exhaust his state remedies. Because Mr. Brooks premised his Rule 60(b)
motion on this misunderstanding, the district court denied relief. We conclude that no
reasonable jurist could find fault with the district court’s denial of Mr. Brooks’s Rule
60(b) motion because it was based on a faulty premise and otherwise failed to show
the existence of exceptional circumstances justifying relief.2
2
Mr. Brooks also argued in his Rule 60(b) motion, and again in his request for
a COA now before us, that we misconstrued the facts in our March 2017 order
denying his request for a COA to appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition. Recall that the district court denied his petition as unexhausted
because he failed to appeal the state trial court’s January 2016 order. But, according
to Mr. Brooks, we misconstrued that ruling, and instead concluded that he failed to
exhaust his state remedies by filing his petition before the Colorado Court of Appeals
had decided his appeal of the trial court’s April 2016 order. Mr. Brooks raised this
argument in his Petition for Rehearing with Suggestion of Rehearing En Banc after
the panel issued its March 2017 order. The panel considered and rejected this
argument. See Brooks v. Archuleta, No. 16-1344, Order at 1 (10th Cir. Apr. 5, 2017).
We decline to reconsider it now.
8
As a final matter, Mr. Brooks also filed a motion to proceed in forma pauperis.
To proceed in forma pauperis, Mr. Brooks must demonstrate “a financial inability to
pay the required filing fees and the existence of a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543
F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted). Even if we were to
find that Mr. Brooks has a demonstrated inability to pay the required fees, he has not
presented a nonfrivolous argument in support of the issues raised on appeal. We deny
Mr. Brooks’s motion to proceed in forma pauperis.
III. CONCLUSION
We DENY Mr. Brooks’s request for a COA and dismiss this matter. We also
DENY his request to proceed in forma pauperis.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
9