Faircloth v. Raemisch, 692 F. App'x 513

Background

Faircloth pleaded guilty in 2009 to identity theft and aggravated motor vehicle theft in Arapahoe County, receiving consecutive eight-year sentences; he did not file a direct appeal.
He sought to withdraw the plea in June 2009 (denied) and later (2012–2016) filed state Rule 35(c) post-conviction motions, which were ultimately denied on the merits by Colorado courts; state certiorari was denied in 2015.
Faircloth filed two federal habeas petitions under 28 U.S.C. § 2254 in September 2016, which were consolidated; he later filed an amended § 2254 raising seven claims including unlawful arrest, Miranda/search claims, prosecutorial misconduct, ineffective assistance, and involuntary plea.
The district court dismissed the § 2254 petition as untimely under AEDPA’s one-year rule (deadline July 25, 2010) and denied equitable tolling, a COA, and IFP status; Faircloth moved to alter/amend (Rule 59(e)), which the district court also denied.
On appeal to the Tenth Circuit, Faircloth sought a certificate of appealability and IFP; the panel held it had jurisdiction (construing his in forma pauperis filing as a functional notice of appeal) but concluded reasonable jurists could not debate the district court’s procedural rulings and denied COA and IFP, dismissing the appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under AEDPA §2244(d)	Faircloth argued his petition should be allowed (relying on later state filings and attorney representations)	Government: AEDPA one-year ran from July 25, 2009–July 25, 2010; federal petition filed in 2016 is untimely and later state filings cannot retroactively toll	Held: Petition untimely; no statutory tolling from post-conviction motions filed after the deadline; dismissal proper
Equitable tolling of AEDPA deadline	Faircloth claimed counsel misadvised him (letter saying three-year deadline) and promised to file Rule 35(c) motion	Government: attorney negligence/miscalculation cannot warrant equitable tolling absent extraordinary circumstances and diligence	Held: No equitable tolling. Counsel’s erroneous advice was garden-variety neglect; Faircloth failed to show due diligence or extraordinary circumstances
Rule 59(e) motion to alter or amend judgment	Faircloth reasserted claims, sought reconsideration, and argued jurisdictional defects in state court	Government: Rule 59(e) relief unwarranted; timing/merits unchanged; state-jurisdiction claim not cognizable on federal habeas	Held: Denial of Rule 59(e) affirmed; no clear error, new evidence, or intervening law; state-court jurisdiction claim not cognizable under §2254
Leave to proceed in forma pauperis on appeal	Faircloth asserted inability to pay and substantive merit to appeal	Government: appeal lacks nonfrivolous, reasoned arguments	Held: IFP denied — financial inability shown but appeal is frivolous/nonmeritorious

Key Cases Cited

Bowles v. Russell, 551 U.S. 205 (timely notice of appeal is jurisdictional)
Slack v. McDaniel, 529 U.S. 473 (COA standard where petition dismissed on procedural grounds)
Miller-El v. Cockrell, 537 U.S. 322 (scope of COA review and limitations on merits adjudication at COA stage)
Holland v. Florida, 560 U.S. 631 (equitable tolling requires diligence and extraordinary circumstances; attorney misconduct may qualify if sufficiently egregious)
Coleman v. Thompson, 501 U.S. 722 (no constitutional right to counsel in state post-conviction proceedings)
Smith v. Barry, 502 U.S. 244 (liberal construction of Rule 3 notices of appeal)
Woodford v. Garceau, 538 U.S. 202 (what qualifies as a properly filed application for state post-conviction relief)
Fleming v. Evans, 481 F.3d 1249 (habeas counsel negligence generally not a basis for equitable tolling)
Gibson v. Klinger, 232 F.3d 799 (equitable tolling standard and examples of extraordinary circumstances)
Paredes v. Atherton, 224 F.3d 1160 (brief overview standard when assessing facial sufficiency of habeas claims at COA stage)