JERRY E. BLAIR, Petitioner - Appellant,
RICK RAEMISCH, CDOC Director; STEVEN OWENS, CSP Warden; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees.
No. 1:18-CV-00138-LTB) (D. Colo.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
DISMISSING THE APPEAL
E. BACHARACH CIRCUIT JUDGE
Jerry E. Blair sought habeas relief, and the district court
ordered dismissal based on a procedural default in state
court. Mr. Blair seeks a certificate of appealability and
leave to proceed in forma pauperis. We grant leave
to proceed in forma pauperis, but we decline to
issue a certificate of appealability.
to Proceed in Forma Pauperis
obtain leave to proceed in forma pauperis, Mr. Blair
must show that he lacks money to prepay the filing fee and
that he brings the appeal in good faith. 28 U.S.C. §
1915(a)(1), (a)(3); Fed. R. App. P. 24(a)(5). He satisfies
these requirements. Mr. Blair does not have any income or
assets, and the average monthly balance in his prison trust
fund account for the previous six-month period is only
$91.76. In addition, we have no reason to question Mr.
Blair's good faith. We therefore grant leave to proceed
in forma pauperis.
appeal, Mr. Blair must obtain a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A). Because the district court
relied on procedural grounds in ordering dismissal, Mr. Blair
must show that the court's disposition was at least
reasonably debatable. Laurson v. Leyba, 507 F.3d
1230, 1231-32 (10th Cir. 2007). In our view, the district
court's disposition was not reasonably debatable.
Blair cannot obtain relief because he procedurally defaulted
on his habeas claims. He had raised these claims in the state
trial court in his post-conviction, and the state trial court
denied this post-conviction motion on November 2, 2015. With
this ruling, Mr. Blair had only 49 days to file a notice of
appeal,  but he waited over three months to file
the document. In light of his failure to meet the 49-day
deadline, the state court of appeals dismissed the appeal.
Given the dismissal of the appeal based on timeliness, the
federal district court concluded that the habeas claims are
procedurally defaulted. See Ballinger v. Kerby, 3
F.3d 1371, 1374 (10th Cir. 1993) (holding that a habeas claim
was procedurally defaulted based on the failure to timely
appeal in state court). And in this appeal, Mr. Blair does
not question the federal district court's reasoning.
light of this procedural default, Mr. Blair can pursue
federal habeas relief only upon a showing of (1) cause and
prejudice or (2) a fundamental miscarriage of justice.
Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.
1998). To demonstrate "cause" for procedural
default, he must show that "some objective factor
external to the defense impeded counsel's efforts to
comply with the State's procedural rule." Murray
v. Carrier, 477 U.S. 478, 488 (1986). Alternatively, a
fundamental miscarriage of justice requires a showing of
actual innocence. Id. at 496.
Blair contends that the trial court never ruled on the
post-conviction motion. This contention is contradicted by
the record, for the trial court's order on November 2,
2015, expressly denied the post-conviction motion. The order
explained that the court had already denied two previous
motions and was denying the latest motion, too.
Blair does not identify any external factor that would have
prevented him from filing a notice of appeal in the 49-day
period. He was apparently mistaken about whether the trial
court had ruled on the post-conviction motion. But that
mistake is not external to the defense and, therefore, does
not supply cause for a procedural default. See Lepiscopo
v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994)
(explaining that even though the claimant was pro se, he
could avoid a procedural default only by showing an
"objective factor external to the defense"). In
addition, Mr. Blair has not argued actual innocence. Given
the absence of cause or a fundamental miscarriage of justice,
Mr. Blair cannot overcome the procedural default. In light of
this procedural default, the federal district court's
dismissal of the habeas petition was not subject to
Mr. Blair's habeas claims were procedurally defaulted in
state court, the federal district court's ruling was ...