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

                                   TENTH CIRCUIT                                  March 3, 2020

                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
  ROGER DAVID JOHNSON, Jr.,

                Petitioner - Appellant,

  v.                                                           No. 20-1005
                                                  (D.C. No. 1:19-CV-01866-LTB-GPG)
  JEFF LONG; PHILIP J. WEISER, The                            (D. Colorado)
  Attorney General of the State of
  Colorado,

                Respondents - Appellees.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.



       Petitioner Roger David Johnson, Jr., a prisoner in Colorado state custody

proceeding pro se,1 seeks a Certificate of Appealability (“COA”) to challenge the district

court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

Mr. Johnson also moves to proceed in forma pauperis. We deny Mr. Johnson’s motion to

proceed in forma pauperis, decline to grant a COA, and dismiss the matter.


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 10th Circuit Rule 32.1.
       1
        Because Mr. Johnson is proceeding pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                        BACKGROUND

       Mr. Johnson and his then-wife “were in the process of getting divorced, and one

night they got into an argument.” ROA at 158. He “punched her in the face, breaking her

jaw.” ROA at 112. “He then forced her down the stairs to the basement, where he tied her

arms and legs to the bed, cut her clothes off with a hunting knife, and sexual assaulted her

at gunpoint.” ROA at 112.

       In June 2007, the Adams County district attorney charged Mr. Johnson with one

count of false imprisonment, two counts of second-degree kidnapping, three counts of

sexual assault, and one count of second-degree assault.2 At Mr. Johnson’s first trial, a

jury found him guilty of second-degree assault and false imprisonment but was unable to

reach a verdict on the sexual assault charges. At Mr. Johnson’s second trial, the court

declared a mistrial. And at Mr. Johnson’s third trial, a jury convicted him of two counts

of sexual assault.3 The trial court sentenced Mr. Johnson to prison terms of one year on

the false imprisonment count, sixteen years on the second-degree assault count, and forty-

eight years to life on the merged sexual assault counts, to run concurrently.

       Mr. Johnson appealed. On May 31, 2012, the Colorado Court of Appeals affirmed.

Mr. Johnson then petitioned the Colorado Supreme Court for a writ of certiorari, which it

denied on November 27, 2012.



       2
        The trial court dismissed one of the sexual assault counts, and the district
attorney dismissed one of the kidnapping counts. The remaining kidnapping charge was
brought as a lesser included offense of sexual assault.
       3
           The two sexual assault counts merged.
                                                   2
       On June 10, 2013, Mr. Johnson returned to the trial court and filed a motion for

sentence reconsideration and modification under Colorado Rule of Criminal Procedure

35(b). The trial court denied that motion on June 11, 2013.

       On January 31, 2014, Mr. Johnson filed a § 2254 petition for a writ of habeas

corpus in the United States District Court for the District of Colorado. On June 19, 2014,

Mr. Johnson asked the district court to withdraw his § 2254 petition so that he could

“return to state court to exhaust newly discovered evidence claims and constitutional

arguments.” ROA at 139. The district court construed Mr. Johnson’s request as a notice

of voluntary dismissal and dismissed the § 2254 petition without prejudice. In its order,

the district court warned Mr. Johnson “that the time during which this application was

pending in this Court does not toll the one-year limitation period in 28 U.S.C. § 2244(d).”

ROA at 140.

       On July 24, 2014, Mr. Johnson filed a petition for postconviction relief in state

court under Colorado Rule of Criminal Procedure 35(c). Mr. Johnson alleged “newly

discovered evidence,” namely, that his ex-wife had been living with her now-husband

prior to Mr. Johnson’s trial. ROA at 147.

       The trial court held an evidentiary hearing and denied Mr. Johnson’s Rule 35(c)

petition. The state court of appeals affirmed on July 12, 2018. Mr. Johnson petitioned the

Colorado Supreme Court for a writ of certiorari, which it denied on May 28, 2019.

       On June 27, 2019, Mr. Johnson filed a second § 2254 petition in the United States

District Court for the District of Colorado. The district court ordered Mr. Johnson to cure

deficiencies in the petition. Mr. Johnson then submitted a revised petition.

                                                 3
       On October 11, 2019, Jeff Long and Colorado Attorney General Phillip J. Weiser

(“respondents”) filed a pre-answer response addressing timeliness and exhaustion of state

court remedies. Respondents argued that Mr. Johnson’s § 2254 petition was untimely

because he filed it more than one year after “the conclusion of direct review or the

expiration of the time for seeking such review.” ROA at 74 (quoting 28 U.S.C.

§ 2244(d)(1)).4

       On November 22, 2019, a magistrate judge recommended that Mr. Johnson’s

§ 2254 petition be dismissed as untimely. The magistrate judge determined that Mr.

Johnson’s conviction became final “on February 25, 2013—90 days after the Colorado

Supreme Court’s November 27, 2012 denial of certiorari—which is when the time

expired to petition for certiorari in the United States Supreme Court.” ROA at 279.

       The magistrate judge further determined that 105 days elapsed between February

25, 2013, and June 10, 2013—the date Mr. Johnson filed his Rule 35(b) motion in state

court. Then, Mr. Johnson’s Rule 35(b) motion tolled the statute of limitations until

July 30, 2013—“when the time for appealing the state court’s June 11th ruling on the

motion expired.” ROA at 280. Because Mr. Johnson did not file this § 2254 petition in

the 260 days after July 30, 2013, it is untimely.

       The magistrate judge then turned to the doctrine of equitable tolling. Specifically,

the magistrate judge rejected Mr. Johnson’s claim that he did not understand the

timeliness rules. And the magistrate judge chided Mr. Johnson for ignoring the warning


       4
        Respondents also argued that one of Mr. Johnson’s claims was procedurally
defaulted.
                                                    4
about timeliness that the district court included in its order dismissing Mr. Johnson’s first

§ 2254 petition.

       Lastly, the magistrate judge found the exception to timeliness for claims of actual

innocence inapplicable because Mr. Johnson had not made any such showing.

Mr. Johnson’s argument is “that the state court erred during his criminal trial or that the

victim lied about the extent of her relationship with another man.” ROA at 283. Neither

allegation, the magistrate judge concluded, establishes that Mr. Johnson is actually

innocent of sexual assault.

       Mr. Johnson objected to the magistrate judge’s report and recommendation.

Inexplicably, Mr. Johnson renewed his claim of innocence based on his ex-wife’s

cohabitation with her now-husband prior to Mr. Johnson’s trial. See ROA at 287 (“Does

this sound like the actions of a brutally raped woman? I think not!”).

       On December 11, 2019, the district court adopted the magistrate judge’s

recommendation, overruled Mr. Johnson’s objections, and dismissed the § 2254 petition.

The district court also declined to issue a COA.

       Mr. Johnson timely filed a notice of appeal on January 2, 2020, followed by a

formal request for a COA.

                                            ANALYSIS

   A. Certificate of Appealability

       “[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no

automatic right to appeal a district court’s denial or dismissal of the petition.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). “Instead, [a] petitioner must first seek and obtain a

                                                   5
COA.” Id. To obtain a COA, a petitioner must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When, as here, the district court

denies relief on procedural grounds, the petitioner seeking a COA must show both ‘that

jurists of reason would find it debatable whether the 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.’” Gonzalez v. Thaler, 565 U.S. 134,

140–41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

       Mr. Johnson does not dispute that he filed his § 2254 petition outside the one-year

limitations period. Johnson Br. at 75 (“Petitioner is not disputing the rules and regulations

of the A.E.D.P.A., but due to a miscarriage of justice and innocence, this standard does

not apply.”). If Mr. Johnson establishes a “tenable actual-innocence” claim, however, he

may bring a petition for a writ of habeas corpus outside the one-year limitations period.

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

       No reasonable jurist could debate whether Mr. Johnson has made a showing of

actual innocence. To establish actual innocence, a petitioner “must establish that, in light

of new evidence, ‘it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536–37

(2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “Simply maintaining one’s




       5
         Mr. Johnson’s application for a COA is not consecutively paginated. The page
numbers referenced in this order correspond to a page’s ordinal position in the document,
not the numbers that appear on those pages.
                                                 6
innocence, or even casting some doubt on witness credibility, does not necessarily satisfy

this standard.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014).

       Mr. Johnson’s theory appears to be that, because his ex-wife and his ex-wife’s

current husband (allegedly) perjured themselves to cover up their relationship at his trial,

they both “had motive to lie and make false allegations.” Johnson Br. at 7. He supports

this hypothesis by asserting the following:

       The victim files for a divorce while petitioner was still living in the same
       residence and having relations with then wife. Petitioner was arrested for
       these horrible crimes. In less than five months, before petitioner was even
       tried for the first time, before the divorce was final, the victim was already
       moved in and being finically [sic] supported by [her now-husband]. Does
       this sound like a woman who was brutally raped?

Id. at 8. Mr. Johnson also asserts the prosecution failed to present “physical evidence” of

sexual assault. Id.

       As the magistrate judge found, these aspersions on the testimony and motivations

of Mr. Johnson’s ex-wife, even if true, do not come close to establishing factual

innocence.

       We decline Mr. Johnson’s invitation to speculate about whether his ex-wife’s

alleged behavior is consistent with the behavior to be expected from an assault victim.

And even accepting Mr. Johnson’s allegations about his ex-wife’s relationship as true,

and as newly discovered,6 it does not establish his innocence. Mr. Johnson’s ex-wife


       6
         Mr. Johnson’s claim of actual innocence rests on supposedly new evidence that
his ex-wife was in “another relationship” at the time of his trial. Ironically, however, the
trial court declared a mistrial in Mr. Johnson’s second trial because his lawyer repeatedly
defied Colorado’s rape shield statute by asking Mr. Johnson’s ex-wife about this same
relationship. See Colo. Stat. Ann. § 18-3-407.
                                                 7
could have suffered the rape as the jury found and also entered into a consensual

relationship with her future husband. To obtain a COA, Mr. Johnson bears the burden of

showing that reasonable jurists could debate whether he has demonstrated actual

innocence. He has not made that showing.

   B. Motion to Proceed in Forma Pauperis

       Mr. Johnson filed a motion to proceed in forma pauperis. “In order to succeed on

his motion, an appellant must show 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.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

Mr. Johnson has not met this burden; our review of the record reveals no nonfrivolous

argument in support of his request for a COA. Accordingly, we also deny Mr. Johnson’s

motion to proceed in forma pauperis.

                                        CONCLUSION

       Because Mr. Johnson fails to establish that reasonable jurists could debate whether

his habeas petition is time-barred, we DENY his request for a COA and DISMISS the

matter. We also DENY Mr. Johnson’s motion to proceed in forma pauperis.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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