                                                                        FILED
                                                            United States Court of Appeals
                             UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                               May 23, 2017

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 JAMES ARTHUR FAIRCLOTH,

           Petitioner - Appellant,

 v.                                                             No. 17-1078
                                                     (D.C. Nos. 1:16-CV-02367-LTB
 RICK RAEMISCH, Executive Director of                   and 1:16-CV-02368-LTB)
 CDOC; JOHN CHAPDELAINE, Warden                                 (D. Colo.)
 of Sterling Corr. Fac.; CYNTHIA
 COFFMAN, Attorney General of the
 State of Colorado,

           Respondents - Appellees.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       James Arthur Faircloth, a Colorado state prisoner proceeding pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denials of his

Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254

       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
       1
          Because Mr. Faircloth is appearing pro se, we liberally construe his pleadings.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Nonetheless, 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).
(“§ 2254 motion”) and subsequent Motion to Alter or Amend Judgment in Habeas

Corpus 28 U.S.C. § 2254 Case Pursuant to Federal Rule of Civil Procedure 59(e)

(“motion to amend”). Mr. Faircloth also requests leave to proceed in forma pauperis.

Because we conclude that no reasonable jurist could debate whether the district court was

correct in its determinations, we deny Mr. Faircloth’s requests for a COA and to proceed

in forma pauperis, and dismiss this appeal in its entirety.

                                   I.    BACKGROUND

       After being charged with numerous felonies in two separate criminal cases before

the Arapahoe County District Court, Mr. Faircloth entered into a plea agreement

resolving both cases on May 28, 2009. As part of the plea agreement, Mr. Faircloth pled

guilty to identity theft in People v. Faircloth, No. 08CR329 (Arapahoe Cty. Dist. Ct. Feb.

7, 2008), and to aggravated motor vehicle theft in People v. Faircloth, No. 08CR1222

(Arapahoe Cty. Dist. Ct. May 23, 2008). He also agreed to serve, and was sentenced to,

consecutive eight-year prison sentences. Mr. Faircloth did not directly appeal these

convictions or sentences, but on June 2, 2009, he filed a letter with the Arapahoe County

District Court requesting to withdraw his guilty plea, which the county district court

denied on June 8, 2009. Thereafter, between 2009 and 2012, Mr. Faircloth filed a number

of requests with the Arapahoe County District Court for various documents, including

bond information and copies of the plea agreement, transcripts, the docket, and other

court records.

       Nearly three years after signing the plea agreement and receiving his sentences, on

May 24, 2012, Mr. Faircloth filed petitions in both criminal cases for post-conviction

                                              2
relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. In his

petitions, Mr. Faircloth raised a number of grounds for relief, including: (1) law

enforcement lacked probable cause to arrest him; (2) law enforcement failed to advise

him of his Miranda rights; (3) law enforcement searched him illegally; (4) the county

district court lacked jurisdiction over his cases; (5) issues with his plea agreement and

sentencing; and (6) ineffective assistance of trial counsel. Without holding an evidentiary

hearing, the Arapahoe County District Court denied Mr. Faircloth’s Rule 35(c) motions

on July 17, 2012. Mr. Faircloth appealed and, after the cases were consolidated on

appeal, the Colorado Court of Appeals affirmed the county district court’s decision on

December 18, 2014. The Colorado Supreme Court subsequently denied Mr. Faircloth’s

petition for writ of certiorari with respect to the post-conviction proceedings on

September 14, 2015.

       On February 26, 2016, Mr. Faircloth filed corresponding petitions for writ of

habeas corpus in both of the aforementioned criminal cases. The Arapahoe County

District Court construed these petitions as post-conviction relief motions made pursuant

to Rule 35(c) of the Colorado Rules of Criminal Procedure and dismissed all of Mr.

Faircloth’s claims as meritless, waived, or untimely. Mr. Faircloth appealed the county

district court’s decision, and that appeal is currently pending before the Colorado Court

of Appeals.

       On September 19, 2016, Mr. Faircloth initiated this federal habeas corpus action

by filing two separate applications for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. In Faircloth v. Raemisch, No. 16-cv-02367-GPG (D. Colo. Sept. 19, 2016),

                                             3
Mr. Faircloth challenged his criminal conviction and sentence for identity theft in People

v. Faircloth, No. 08CR329 (Arapahoe Cty. Dist. Ct. Feb. 7, 2008); and in Faircloth v.

Raemisch, No. 16-cv-02368-GPG (D. Colo. Sept. 19, 2016), he challenged his criminal

conviction and sentence for aggravated motor vehicle theft in People v. Faircloth, No.

08CR1222 (Arapahoe Cty. Dist. Ct. May 23, 2008). Mr. Faircloth filed an amended

§ 2254 motion in Case No. 16-cv-02367 on September 27, 2016, and shortly thereafter,

on October 11, 2016, the federal district court granted Mr. Faircloth’s motion to

consolidate the cases, ordering that Case No. 16-cv-02368-GPG be closed and Case No.

16-cv-02367-GPG become the operative habeas corpus action challenging both criminal

convictions and sentences arising from the Arapahoe County District Court.

       In the operative amended § 2254 motion, Mr. Faircloth raised the following seven

grounds for habeas relief:

    1. “Conviction obtained by use of an unlawful arrest (where the state has not
       provided a full & fair hearing on the merits of the 4th amendment claim)”;

    2. “Conviction obtained by the unconstitutional violation of the privilege against
       self[-]incrimination & coerced confession to evidence gained pursuant to an
       unconstitutional search & seizure (where the state has not provided a full & fair
       hearing on the merits of the 4th amendment claim)”;

    3. “Conviction obtained by insufficient information and outrageous governmental
       conduct implicating the court in obtaining a void arrest warrant”;

    4. “Prosecutorial [m]isconduct of charging a variance in the Complaint/Information
       Instrument”;

    5. “Denial of effective assistance of counsel & failure to appoint counsel at
       post[-]conviction hearing”;




                                            4
    6. “Conviction obtained by plea of guilty which was unlawfully induced or not made
       voluntarily with the understanding of the nature of the charge and the
       consequences of the plea”; and

    7. “The terms of the Plea deal and sentencing as petitioner understand [sic] it is
       satisfied and petitioner is passed [sic] his maximum control date in worst case
       scenario.”

The United States District Court for the District of Colorado denied Mr. Faircloth’s

§ 2254 motion in its entirety, concluding it was untimely because the one-year limitation

period for filing federal post-conviction relief motions under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) had expired on July 25, 2010, making

Mr. Faircloth’s § 2254 motion late by more than six years. In reaching this determination,

the district court determined that the one-year limitation period for Mr. Faircloth to file

his § 2254 motion was not subject to any statutory or equitable tolling that would render

his § 2254 motion timely. Additionally, the district court denied Mr. Faircloth a COA and

leave to proceed on appeal in forma pauperis.

       In response to the district court’s denial of his § 2254 motion, on January 17,

2017, Mr. Faircloth filed a motion to alter or amend the judgment pursuant to Federal

Rule of Civil Procedure 59(e). In his motion, and throughout his brief in support of the

motion, Mr. Faircloth reasserted many of the arguments he raised in his § 2254 motion,

as well as the argument raised in his state post-conviction proceedings that the Arapahoe

County District Court lacked jurisdiction over his criminal cases. Mr. Faircloth also

argued that the federal district court erred in rejecting his argument that the one-year

limitation period for filing federal habeas corpus petitions under AEDPA should be

equitably tolled, as his attorney had provided him incorrect advice regarding the deadline

                                              5
for filing such petitions. However, two days later, on January 19, 2017, the district court

denied Mr. Faircloth’s motion to amend. In doing so, the district court held that Mr.

Faircloth had failed to demonstrate sufficient grounds for reconsidering its denial of his

§ 2254 motion, as it “is undisputed that the [§ 2254 motion] was filed out of time by

more than six years” and that under “applicable law . . . equitable tolling was not

warranted.” Moreover, the district court determined that Mr. Faircloth’s contention

regarding the state court’s jurisdiction is not a cognizable claim under § 2254.

       Next, Mr. Faircloth filed a motion with the federal district court on February 6,

2017, to proceed on appeal in forma pauperis. Shortly thereafter, the district court denied

Mr. Faircloth’s motion, noting it had previously denied him leave to proceed in forma

pauperis and that it would not grant leave now as it “finds that this appeal is not taken in

good faith because [Mr. Faircloth] has not shown the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

Mr. Faircloth then filed a misdirected notice of appeal with this court on February 27,

2017, which was transmitted to the federal district court that same day. On March 2,

2017, we issued an order directing Mr. Faircloth to show cause as to why his appeal

should not be dismissed for lack of appellate jurisdiction, and on March 13, 2017, Mr.

Faircloth filed his response. This court issued an order reserving the issue of jurisdiction

for plenary consideration, and on April 26, 2017, Mr. Faircloth simultaneously filed an

opening brief and application for a COA and a motion for leave to proceed on appeal in

forma pauperis.



                                              6
                                    II.   DISCUSSION

                                      A. Jurisdiction

       Before considering whether to grant Mr. Faircloth a COA, we must first determine

whether his appeal was timely filed, as the filing of a timely notice of appeal is both

mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 214 (2007); Fed. R.

App. P. 3(a). Here, Mr. Faircloth was required to file a notice of appeal “with the district

clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P.

4(a)(1)(A); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (applying

Federal Rule of Appellate Procedure 4(a) to a § 2254 appeal). Because Mr. Faircloth filed

a motion to alter or amend pursuant to Federal Rule of Civil Procedure 59(e), which the

district court subsequently denied on January 19, 2017, his thirty-day window to file a

notice of appeal expired on February 21, 2017. See Fed. R. App. P. 4(a)(4)(A)(iv); id. at

26(a). Mr. Faircloth did not file a notice of appeal within this period, which would

ordinarily render his appeal untimely and subject to dismissal.2

       But Mr. Faircloth did file a motion to proceed on appeal in forma pauperis on

February 6, 2017, which falls within Rule 4(a)’s time restrictions. Therefore, we have

jurisdiction over this appeal if Mr. Faircloth’s motion to proceed in forma pauperis may

be construed as a notice of appeal. See United States v. Villarreal, 351 F. App’x 332,

333–34 (10th Cir. 2009) (unpublished) (construing a motion to proceed in forma pauperis

       2
         Mr. Faircloth filed a notice of appeal six days late, on February 27, 2017. And
even if we were to deem his notice of appeal as filed on the date it was given to prison
officials for mailing pursuant to Federal Rule of Appellate Procedure 4(c)(1), it would
remain untimely as the record indicates it was not given to prison officials until
February 22, 2017.
                                              7
as a notice of appeal); Zapata v. Brandenburg, 291 F. App’x 150, 152 (10th Cir. 2008)

(unpublished) (construing a motion to proceed in forma pauperis as a notice of appeal and

noting that “we have previously held that a pro se motion to proceed in forma pauperis

can serve as [the] functional equivalent [of a notice of appeal] when it evinces a clear

intent to appeal”); Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir. 2007)

(construing a combined motion to proceed in forma pauperis and application for a

certificate of appealability as a notice of appeal). In determining whether such construal

is appropriate, we examine whether the motion to proceed in forma pauperis meets the

requirements set forth in Federal Rule of Appellate Procedure 3(c), which indicates that a

notice of appeal must contain the name of the parties taking the appeal, designate the

judgment or order being appealed, and name the court to which the appeal is taken. Fed.

R. App. P. 3(c). However, we “liberally construe the requirements of Rule 3” and thus,

“when papers are ‘technically at variance with the letter of [Rule 3], a court may

nonetheless find that the litigant has complied with the rule if the litigant’s action is the

functional equivalent of what the rule requires.’” Smith v. Barry, 502 U.S. 244, 248

(1992) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988)); see

also Zapata, 291 F. App’x at 152 (noting that “[u]nder our case law, other documents

besides a formally denominated notice of appeal, may serve as its ‘functional

equivalent’” (quoting Barry, 502 U.S. at 248)). As a result, “the notice afforded by a

document . . . determines the document’s sufficiency as a notice of appeal,” Barry, 502

U.S. at 248, and “‘mere technicalities’ should not stand in the way of consideration of a

case on its merits,” Torres, 487 U.S. at 316; see also Fed. R. App. P. 3(c)(4) (cautioning

                                               8
against dismissing an appeal “for informality of form”). But “[t]his principle of liberal

construction does not . . . excuse noncompliance with” Rule 3, as the Rule’s “dictates are

jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Barry,

502 U.S. at 248.

       Mr. Faircloth’s motion to proceed in forma pauperis complies with just one of

Rule 3’s requirements: it names the party taking the appeal. However, “[f]ailure to

comply with the other two elements is not necessarily fatal,” as “failure to expressly

specify the judgment appealed from or the appellate court [to which the appeal is taken]

does not bar an appeal . . . where no doubt exists as to either.” Villarreal, 351 F. App’x at

333 (internal quotation marks omitted). In particular, “[a] notice of appeal that fails to

identify the proper order being appealed may nevertheless satisfy Rule 3(c) if the

petitioner’s intent can be fairly inferred from the petition or documents filed more or less

contemporaneously with it.” Id. (internal quotation marks omitted). Here, there were only

two substantive orders that Mr. Faircloth could have been appealing—the denials of his

§ 2254 motion and his Rule 59(e) motion to amend—and, based on the information

contained in documents he subsequently filed, we conclude it is “fairly inferable” that

Mr. Faircloth sought to appeal both substantive orders. See id. at 334 (concluding it was

fairly inferable from petitioner’s motion to proceed in forma pauperis that he sought to

appeal the denial of his 28 U.S.C. § 2255 petition); United States v. Morales, 108 F.3d

1213, 1222–23 (10th Cir. 1997) (noting that “the supporting papers filed in connection

with the [G]overnment’s [deficient] notice of appeal” manifest the Government’s intent

to appeal the sentence imposed on the defendant, and therefore the Government’s

                                               9
“incomplete compliance with [Rule 3(c)] should not result in the loss of an intended

appeal on the merits” because the notice of appeal’s deficiencies did not mislead or

prejudice the petitioner (internal quotation marks omitted)); Cooper v. Am Auto. Ins. Co.,

978 F.2d 602, 607–09 (10th Cir. 1992) (concluding the “original notice of appeal[,] . . .

together with the supporting papers and particular circumstances surrounding it,”

demonstrate the plaintiff’s intent to appeal the dismissal of its claims against the United

States, and therefore “[t]he [G]overnment was not misled and will not be prejudiced by

the inclusion of the issue of the dismissal of the claims against it”).

       Similarly, Mr. Faircloth’s failure to identify this court in his motion to proceed in

forma pauperis is not fatal to our jurisdiction. As we have previously noted, to avoid

“becom[ing] a citadel of technicality . . . ‘a defective notice of appeal should not warrant

dismissal for want of jurisdiction where the intention to appeal to a certain court of

appeals may be reasonably inferred from the notice, and where the defect has not

materially misled the appellee.’” United States v. Treto-Haro, 287 F.3d 1000, 1002 n.1

(10th Cir. 2002) (quoting Graves v. Gen. Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)).

Here, Mr. Faircloth’s sole avenue to appeal the denials of his § 2254 motion and motion

to amend is through this court, and as a result it may be reasonably inferred that his

appeal was taken to this court. See Villarreal, 351 F. App’x at 334. And “[g]iven that

[Mr. Faircloth’s] appeal must come to this court, the government could not have been

prejudiced by his failure to refer explicitly to this court in his motion to proceed in forma

pauperis.” Id.



                                              10
       Although Mr. Faircloth’s motion to proceed in forma pauperis failed to explicitly

identify the orders he sought to appeal and the court to which he brought the appeal, our

liberal construction of Rule 3, buttressed by the latitude afforded pro se litigants, forgives

these informalities of form. See Hill v. Corr. Corp. of Am., Inc., 189 F. App’x 693, 696–

97 (10th Cir. 2006) (unpublished); Campiti v. Matesanz, 333 F.3d 317, 320 (1st Cir.

2003). We therefore conclude that Mr. Faircloth’s motion to proceed in forma pauperis

evinced a clear intent to appeal and, with its supporting documents, provided sufficient

information to satisfy Rule 3(c) and avoid misleading or prejudicing the Government. As

a result, Mr. Faircloth’s motion to proceed in forma pauperis is properly construed as a

notice of appeal, and we have appellate jurisdiction to consider his request for a COA.

                              B. Certificate of Appealability

       To appeal the district court’s order and judgment denying him relief under § 2254,

and its subsequent order denying his motion to alter or amend that judgment, Mr.

Faircloth must first obtain a COA.3 The standards for obtaining a COA are the same

regardless of whether the applicant is a state or federal prisoner: a petitioner must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

       In instances where the district court denies a habeas petition on procedural

grounds without reaching the merits of the underlying constitutional claims, the Supreme

Court has held that a petitioner must satisfy a two-part standard to obtain a COA. This

standard requires Mr. Faircloth to show “that jurists of reason would find it debatable


       3
        “A COA is a jurisdictional pre-requisite to our review.” Clark v. Oklahoma, 468
F.3d 711, 713 (10th Cir. 2006).
                                             11
whether [his] 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[s].” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added);

see also Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Mr. Faircloth must

satisfy both factors, as “[e]ach component . . . is part of a threshold inquiry.” Slack, 529

U.S. at 485.

       Rather than address the threshold requirements in order, we may first “resolve the

issue whose answer is more apparent from the record and arguments,” though because we

ordinarily “will not pass upon a constitutional question . . . if there is also present some

other ground upon which the case may be disposed of,” we generally resolve procedural

issues first. Id. “Where a plain procedural bar is present and the district court is correct to

invoke it to dispose of the [claims], a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Id. at 484; see also Coppage, 534 F.3d at 1281. However, if we

conclude that reasonable jurists could debate the district court’s resolution of the

procedural issues, we must then consider whether Mr. Faircloth’s claims state valid

constitutional claims. In doing so, we “simply take a quick look at the face of the

[petition] to determine whether [Mr. Faircloth] has facially alleged the denial of a

constitutional right.” Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000)

(internal quotation marks omitted). In making such a determination, we are limited to

“an overview of the claims in the habeas petition and a general assessment of their

merits,” rather than “full consideration of the factual or legal bases adduced in support of

                                              12
the claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Buck v. Davis, 137

S. Ct. 759, 773 (2017) (“When a court of appeals sidesteps the COA process by first

deciding the merits of an appeal, and then justifying its denial of a COA based on its

adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.”

(alteration in original) (quoting Miller-El, 537 U.S. at 336–37)).

       After careful consideration of the district court’s orders and the record on appeal,

we conclude that Mr. Faircloth is not entitled to a COA as to the district court’s denials of

his § 2254 motion and motion to amend because reasonable jurists could not “debate

whether (or, for that matter, agree that) the petition [and motion] should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation marks

omitted). Accordingly, we deny Mr. Faircloth’s request for a COA and dismiss his appeal

for the reasons set forth below.

  1. AEDPA’s One-Year Filing Limitation and Statutory Tolling

       Under AEDPA, prisoners have a one-year time limit for filing a federal habeas

petition challenging a state conviction or sentence. 28 U.S.C. § 2244(d). This one-year

period commences from the latest of “when (A) direct appellate review ends, (B) any

state-created impediment to filing [the § 2254 motion] is lifted, (C) a retroactive

constitutional right is first recognized, or (D) the [factual] basis for the claim was

reasonably discoverable [through due diligence].” Sherratt v. Friel, 275 F. App’x 763,

765 (10th Cir. 2008); see also 28 U.S.C. § 2244(d)(1)(A)–(D). However, this one-year

limitation period is tolled during “[t]he time which a properly filed application for State

                                              13
post-conviction or other collateral review . . . is pending,” 28 U.S.C. § 2244(d)(2), and,

“[b]ecause AEDPA’s one-year statute of limitations for § 2254 petitions is

nonjurisdictional, it is [also] subject to equitable tolling in certain rare and exceptional

circumstances.” Sherratt, 275 F. App’x at 767 (internal quotation marks omitted).

       In a thorough and cogent order, the district court determined that, absent tolling,

Mr. Faircloth’s one-year limitation period began to run on July 14, 2009, as his state

convictions became final when the time to file a direct appeal expired on July 13, 2009.

However, the district court determined that because Mr. Faircloth filed a letter motion to

withdraw his guilty plea, which the Arapahoe County District Court denied on June 9,

2009, the limitation period was tolled through July 24, 2009, when the time to file an

appeal of that order expired. Consequently, the district court concluded that the one-year

limitation period began to run on July 25, 2009, and ran unabated until it expired one year

later on July 25, 2010.

       Although Mr. Faircloth filed various requests for bond information and copies of

transcripts, the plea agreement, and other court documents during this one-year period,

the district court determined that these requests did not constitute “properly filed

application[s] for State post-conviction or other collateral review,” and therefore did not

toll the limitation period under § 2244(d)(2). 28 U.S.C. § 2244(d); see, e.g., Woodford v.

Garceau, 538 U.S. 202, 207 (2003); May v. Workman, 339 F.3d 1236, 1237 (10th Cir.

2003); Osborne v. Boone, No. 99-7015, 1999 WL 203523, at *1–2 (10th Cir. 1999)

(unpublished). The district court also concluded that because Mr. Faircloth’s post-

conviction motion under Rule 35(c) of the Colorado Rules of Criminal Procedure was not

                                              14
filed until May 24, 2012, nearly two years after AEDPA’s one-year limitation period had

expired, it could not toll the limitation period under § 2244(d)(2).4 As a result, the district

court determined that Mr. Faircloth’s § 2254 motion was untimely and merited dismissal

unless Mr. Faircloth could show he was entitled to equitable tolling of the limitation

period.

       Mr. Faircloth’s application for a COA offers no argument regarding the timeliness

of his § 2254 motion, and instead focuses on the merits of the claims raised in the § 2254

motion. But in order to reach the merits of his § 2254 motion, Mr. Faircloth must first

demonstrate that it was timely filed—a requirement he has not and cannot meet here.

Even assuming, without deciding, that Mr. Faircloth’s letter motion to withdraw his

guilty plea tolled the commencement of the one-year limitation period until July 25,

2009, therefore extending the filing deadline until July 25, 2010, it is undisputed that his

§ 2254 motion was filed over six years after the one-year grace period had expired. And

because his Rule 35(c) post-conviction motions, filed on March 24, 2014 and February

26, 2016, were also filed after July 25, 2010, they could not toll the already-expired

limitation period. Fisher v. Gibson, 262 F.3d 1135, 1142–43 (10th Cir. 2001) (noting

petitioner’s state post-conviction proceedings did not toll the limitation period because

they were not filed until after the limitation period had already expired); Hickmon v.


       4
         The district court did not address the Rule 35(c) post-conviction motions that Mr.
Faircloth filed on February 26, 2016. However, even if either Rule 35(c) motion could be
considered a “properly filed application for State post-conviction or other collateral
review” under 28 U.S.C. § 2244(d)(2), both motions were filed outside the one-year
limitation period and therefore would similarly be unable to toll the limitation period. See
Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).
                                              15
Mahaffey, 28 F. App’x 856, 858 (10th Cir. 2001) (unpublished) (concluding petitioner’s

state post-conviction motions “were also filed after the one-year [limitations] period” and

“[c]onsequently, they could not toll the already-expired limitations period”). Therefore,

no reasonable jurist could debate the district court’s holding that Mr. Faircloth’s § 2254

motion was untimely and therefore subject to dismissal unless he can demonstrate that he

is entitled to equitable tolling.

   2. Equitable Tolling

       As previously noted, § 2244(d)’s one-year statute of limitations for filing a federal

habeas petition is subject to equitable tolling only in “rare and exceptional

circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal quotation

marks omitted). “[T]his equitable remedy is only available when an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (“We have

previously made clear that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows

‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstances stood in his way’ and prevented timely filing” (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005))); Sherratt, 275 F. App’x at 767. Such

exceptional circumstances include, “for example, when a prisoner is actually innocent,

when an adversary’s conduct—or other uncontrollable circumstances—prevents a

prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files

a deficient pleading during the statutory period.” Gibson, 232 F.3d at 808 (internal

                                             16
citations omitted). In addition, an attorney’s misconduct or “egregious behavior” may

also “create an extraordinary circumstance that warrants equitable tolling.” Holland, 560

U.S. at 651. However, “[s]imple excusable neglect is not sufficient” to meet this standard.

Gibson, 232 F.3d at 808; see also Holland, 560 U.S. at 651–52 (“We have previously

held that ‘a garden variety claim of excusable neglect’ . . . does not warrant equitable

tolling.” (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))).

Furthermore, to demonstrate he has pursued his claims diligently, a prisoner must “allege

with specificity the steps he took to diligently pursue his federal claims.” Yang v.

Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (internal quotation marks omitted).

       Before the district court, Mr. Faircloth argued he was entitled to equitable tolling

because: (1) his attorney misrepresented the AEDPA deadline for filing a § 2254 motion

by advising him, by letter, that he had three years to file his federal habeas corpus action;

and (2) his attorney indicated he would file a Rule 35(c) post-conviction motion on his

behalf, but never did. In support of these contentions, Mr. Faircloth submitted a letter

dated September 29, 2009, in which his counsel incorrectly stated he had three years to

file a federal habeas corpus petition and indicated that he would file a Rule 35(c) post-

conviction motion on Mr. Faircloth’s behalf within three years. Mr. Faircloth asserted

that he had relied on his counsel’s misrepresentation regarding the filing deadline for

§ 2254 motions and the assertion that counsel would prepare and file a Rule 35(c) post-

conviction motion on his behalf. Finally, Mr. Faircloth argued that counsel ignored his

requests to file the Rule 35(c) motion “as expediently as possible” and failed to



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communicate with him until March 2011, at which point counsel indicated he would not

file a Rule 35(c) motion on Mr. Faircloth’s behalf.

       The district court determined that Mr. Faircloth’s allegations regarding his

attorney’s conduct did not state sufficiently rare and exceptional circumstances to merit

equitable tolling. Moreover, the district court found that Mr. Faircloth failed to

demonstrate due diligence in pursuing his rights and claims. In particular, the district

concluded that, while egregious attorney misconduct may merit equitable tolling, the

incorrect advice given by Mr. Faircloth’s attorney regarding AEDPA’s statute of

limitations amounted to a single act of attorney negligence that did not rise to the level of

rare and extraordinary circumstances. In addition, the district court concluded that Mr.

Faircloth failed to allege any specific facts, other than a single request to his attorney to

file a Rule 35(c) motion as expediently as possible, demonstrating any steps he took

between September 28, 2009, and March 9, 2011, to inquire about his attorney’s progress

on the post-conviction motion or otherwise pursue his rights and claims. The district

court also held that Mr. Faircloth’s ignorance of the law did not excuse his

noncompliance with the filing deadlines. See Marsh 223 F.3d at1220.

       A review of the relevant legal standards leads us to conclude that no reasonable

jurist could debate the district court’s determination that Mr. Faircloth is not entitled to

equitable tolling with regard to his § 2254 motion. While sufficiently egregious attorney

misconduct may amount to the type of extraordinary circumstances warranting equitable

tolling, Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007), a “garden variety claim

of excusable neglect, such as a simple ‘miscalculation’ that leads a lawyer to miss a filing

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deadline, does not warrant equitable tolling,” Holland, 560 U.S. at 651–52 (internal

citations and quotation marks omitted). As we have previously noted, “[h]abeas counsel’s

negligence is not generally a basis for equitable tolling because ‘there is no constitutional

right to an attorney in state post-conviction proceedings.” Fleming, 481 F.3d at 1255

(quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)). “The rationale [for this

principle] is that attorney negligence is not extraordinary and clients, even if incarcerated,

must ‘vigilantly oversee,’ and ultimately bear responsibility for, their attorneys’ actions

or failures.” Id. at 1255–56 (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir.

2003)); see also Lawrence v. Florida, 549 U.S. 327, 336–37 (2007). As a result, Mr.

Faircloth’s attorney’s incorrect advice regarding AEDPA’s statute of limitations does not

amount to the type of extraordinary circumstances entitling him to equitable tolling. See

Reynolds v. Hines, 55 F. App’x 512, 513 (10th Cir. 2003) (unpublished) (upholding the

district court’s denial of the petitioner’s request to equitably toll the limitations period as

the petitioner’s “attorney’s incorrect advice regarding when the limitations period began

to run was not the type of extraordinary circumstance entitling [the petitioner] to

equitable tolling”); see also Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (applying

the general rule that “in non-capital cases, attorney error, miscalculation, inadequate

research, or other mistakes have not been found to rise to the ‘extraordinary’

circumstances required for equitable tolling” (quoting Fahy v. Horn, 240 F.3d 239, 244

(3d Cir. 2001))); Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (noting the United

States Court of Appeals for the Fourth Circuit has held that “a mistake by a party’s

counsel in interpreting a statute of limitations does not present the extraordinary

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circumstance beyond the party’s control where equity should step in to give the party the

benefit of his erroneous understanding” (quoting Harris v. Hutchinson, 209 F.3d 325, 331

(4th Cir. 2000))). Moreover, Mr. Faircloth failed to meet his burden of demonstrating that

he diligently pursued his federal claims. Cf. Holland, 560 U.S. at 653 (finding the

petitioner had demonstrated diligent pursuit of his federal claims where the petitioner

“wrote his attorney numerous letters seeking crucial information and providing direction;

. . . repeatedly contacted the state courts, their clerks, and the Florida State Bar

Association in an effort to have” his attorney removed from his case; and “prepared his

own habeas petition pro se and promptly filed it with the District Court” the day he

discovered that the AEDPA time limitation had expired due to his attorney’s failings).

       Accordingly, we deny Mr. Faircloth a COA as to the district court’s denial of his

§ 2254 motion.

  3. Motion to Alter or Amend Pursuant to Rule 59(e)

       After the district court denied his § 2254 motion, Mr. Faircloth filed a motion to

alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). In his

motion and supporting memorandum, Mr. Faircloth argued the merits of various claims

raised in his § 2254 motion, claimed he was entitled to equitable tolling of the one-year

time limit for filing § 2254 motions, and contended the Arapahoe County District Court

lacked jurisdiction over his criminal cases. In addition, he submitted two affidavits, one

of which had previously been filed with the Arapahoe County District Court, setting forth

various facts surrounding his arrest, law enforcement’s search and seizure of his property,

the proceedings and negotiations regarding his plea agreement, his legal representation,

                                              20
and his efforts to file post-conviction petitions. The district court denied Mr. Faircloth’s

motion to amend because it did not demonstrate any of the well-established grounds

warranting relief under Rule 59(e): “(1) an intervening change in the controlling law, (2)

new evidence previously unavailable, and (3) the need to correct clear error or prevent

manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

In particular, the district court found it had not made a clear error in dismissing Mr.

Faircloth’s § 2254 motion as untimely, and that the denial would not result in a manifest

injustice to Mr. Faircloth, because it “is undisputed that [his § 2254 motion] was filed out

of time by more than six years” and that under “applicable law . . . equitable tolling was

not warranted.” In addition, the district court found that Mr. Faircloth’s contention

regarding the state court’s jurisdiction is not a cognizable claim under § 2254.

       In his application for a COA, Mr. Faircloth fails to present a single argument

regarding the district court’s denial of his motion to amend, with the possible exception

of challenging the district court’s conclusion that his claim regarding the Arapahoe

County District Court’s jurisdiction is not cognizable under § 2254. However, we discern

no error in the district court’s holding regarding Mr. Faircloth’s jurisdictional claim, and

conclude all reasonable jurists would agree that such a claim is not cognizable under

§ 2254, as “[f]ederal habeas courts will not . . . review issues of purely state law.”

Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004); see also Swarthout v. Cooke, 562

U.S. 216, 219 (2011) (noting the United States Supreme Court has reiterated “many times

that ‘federal habeas corpus relief does not lie for errors of state law’” (quoting Estelle v.

McGuire, 502 U.S. 62, 67 (1991))); Dowdy v. Jones, 198 F. App’x 785, 787 (10th Cir.

                                              21
2006) (unpublished) (holding that petitioner’s “first claim that the state trial court lacked

jurisdiction to retry him . . . is a state law question that is not cognizable under § 2254”).

At most, our review of purely state law issues may encompass a determination of

“whether the state court’s finding was so arbitrary or capricious as to constitute an

independent due process or [other constitutional] violation.” Lewis v. Jeffers, 497 U.S.

764, 780 (1990); see also Harmon v. McCollum, 652 F. App’x 645, 651 (10th Cir. 2016)

(unpublished) (determining the state court’s ruling “on its own state law [was not] ‘so

arbitrary or capricious as to constitute an independent due process . . . violation’”

(quoting Lewis, 497 U.S. at 780)). And here there is nothing to suggest the Arapahoe

County District Court’s and the Colorado Court of Appeals’ decisions regarding Mr.

Faircloth’s jurisdictional claim were arbitrary or capricious, let alone so arbitrary or

capricious as to amount to a violation of Mr. Faircloth’s constitutional rights.

          Finally, for the reasons set forth above in Parts B.1 and B.2, we conclude no

reasonable jurist could disagree with the district court’s determination that it had not

clearly erred in holding that Mr. Faircloth’s § 2254 motion was untimely and that

equitable tolling was unwarranted. As a result, the district court properly denied Mr.

Faircloth’s motion to amend and we accordingly deny a COA as to the district court’s

ruling.

                          C. Request to Proceed In Forma Pauperis

          As a final matter, Mr. Faircloth has filed a motion to proceed on appeal in forma

pauperis. Prisoners seeking to proceed in forma pauperis in a habeas action must

demonstrate “a financial inability to pay the required fees and the existence of a reasoned,

                                               22
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation

marks omitted). We conclude that although Mr. Faircloth has demonstrated a financial

inability to pay, he has not shown that his arguments on appeal are nonfrivolous.

Accordingly, we deny Mr. Faircloth’s motion to proceed in forma pauperis.

                                  III.   CONCLUSION

       For the reasons set forth above, we conclude that reasonable jurists could not

debate the district court’s denials of Mr. Faircloth’s § 2254 motion and his subsequent

motion to amend. We therefore deny Mr. Faircloth’s requests for a COA and to proceed

in forma pauperis, and dismiss this appeal in its entirety.

                                               Entered for the Court


                                               Carolyn B. McHugh
                                               Circuit Judge




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