Wade v. Fairbairn

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 23, 2024
• Docket: 24-1101
• Status: Unpublished

Opinion

Appellate Case: 24-1101 Document: 010111054278 Date Filed: 05/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court CHARLES FREDERICK WADE,

Petitioner - Appellant,

v. No. 24-1101 (D.C. No. 1:23-CV-03185-LTB-SBP) MARK FAIRBAIRN; THE ATTORNEY (D. Colo.) GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________

Petitioner Charles Frederick Wade, a Colorado state prisoner proceeding pro

se,1 seeks a certificate of appealability (“COA”) to appeal from the district court’s

dismissal of his habeas petition brought under 28 U.S.C. § 2254. The district court

dismissed Mr. Wade’s petition as untimely, concluding it was barred by 28 U.S.C.

§ 2244(d)’s one-year limitations period. We deny Mr. Wade’s COA request and

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Wade is 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). Appellate Case: 24-1101 Document: 010111054278 Date Filed: 05/23/2024 Page: 2

dismiss this matter. We also deny Mr. Wade’s motion to proceed in forma pauperis

(“IFP”) because we conclude that he advances no non-frivolous arguments in this

matter.

I. BACKGROUND

Mr. Wade was convicted by a jury of sexual assault on a child in 2012. The

trial court adjudicated him a habitual sex offender against children in a separate trial

and sentenced him to eighteen years to life in prison. On direct appeal, the Colorado

Court of Appeals affirmed Mr. Wade’s sexual assault conviction, but reversed his

habitual sex offender conviction, holding that the trial court erred in admitting and

considering testimony in the proceeding that was admitted at trial for only a limited

purpose. The court of appeals accordingly vacated Mr. Wade’s sentence and

remanded the matter for a new habitual sex offender trial. The Colorado Supreme

Court denied certiorari. On remand, the trial court once more convicted Mr. Wade of

being a habitual sex offender of children and reimposed the eighteen-years-to-life

sentence. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court

denied certiorari on September 17, 2018.

Mr. Wade filed a petition for postconviction relief with the state district court

on September 23, 2021, and the state district court denied relief because the petition

was untimely. The Colorado Court of Appeals dismissed Mr. Wade’s appeal of this

ruling because he failed to timely file an opening brief, even after being granted an

extension. Mr. Wade responded, and then filed a petition for rehearing, which the

2 Appellate Case: 24-1101 Document: 010111054278 Date Filed: 05/23/2024 Page: 3

court of appeals denied. Mr. Wade filed a petition for certiorari with the Colorado

Supreme Court, which the court denied because it was untimely.

In his habeas petition before the District of Colorado, filed December 1, 2023,

Mr. Wade raised six claims for relief, alleging Confrontation Clause violations,

prosecutorial misconduct, judicial misconduct, and ineffective assistance of trial

counsel, while also arguing that the victim failed to identify him as the perpetrator of

the sexual assault. A magistrate judge issued a report and recommendation

concluding that Mr. Wade’s federal habeas claims are time-barred under 28 U.S.C.

§ 2254(d)(2). The magistrate judge explained that Mr. Wade’s conviction became

final on December 17, 2018, given that the Colorado Supreme Court issued an order

denying certiorari review on direct appeal on September 17, 2018, and Mr. Wade did

not file a petition for writ of certiorari with the United States Supreme Court. The

magistrate judge also noted that Mr. Wade did not file his first petition for

postconviction relief in Colorado state court until September 23, 2021, meaning his

one-year statute of limitations under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) expired on December 18, 2019, without being subject to

statutory tolling. The magistrate judge also concluded that Mr. Wade’s federal habeas

claims could not be saved under principles of equitable tolling, given that he

presented no relevant facts or arguments suggesting eligibility for equitable tolling.

Accordingly, the magistrate judge recommended denial of the petition and dismissal

of the action with prejudice due to untimeliness.

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Mr. Wade timely filed objections to the report and recommendation, arguing,

among other claims, that he is actually innocent because there was another suspect

who he claims actually assaulted the minor, and that the victim’s testimony at trial

supports that conclusion. The federal district court held that Mr. Wade waived his

actual innocence argument by failing to raise it before the magistrate judge. The

federal district court then overruled Mr. Wade’s objections and adopted the report

and recommendation. The federal district court declined to issue a COA and denied

Mr. Wade leave to proceed IFP on appeal.

Mr. Wade filed an “objection” to the federal district court’s order, claiming the

court erred in concluding that his actual innocence argument was newly presented in

his objections. The federal district court liberally construed this filing as a Federal

Rule of Civil Procedure 59(e) motion for reconsideration and denied the motion

because it did not make the necessary showing for reconsideration under Rule 59(e).

Before this court, Mr. Wade claims the federal district court erred in

concluding that his actual innocence argument was presented for the first time in his

objections to the report and recommendation, claiming that he raised the assertion in

his habeas petition. Liberally construed, Mr. Wade also argues he should be entitled

to equitable tolling because he has had difficulty conducting research at the law

library and he is proceeding pro se.2

2 Mr. Wade also filed a self-styled “Question of Concern,” which we liberally construe as a supplement to his opening brief. In his supplemental filing, Mr. Wade makes a vague assertion that, because the deputy district attorney who prosecuted his case was later charged with three drug-related felonies, a special prosecutor should 4 Appellate Case: 24-1101 Document: 010111054278 Date Filed: 05/23/2024 Page: 5

II. DISCUSSION

Mr. Wade must “seek a COA to obtain appellate review of the dismissal of his

habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482 (2000). Because the federal

district court denied his petition on procedural grounds without reaching the merits,

Mr. Wade must obtain a COA by showing “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.” Id. at 484. “Where a plain procedural bar is present

and the district court is correct to invoke it to dispose of the case, 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.

Because the district court was correct to dismiss Mr. Wade’s petition as

untimely, “no appeal [is] warranted.” Id. AEDPA establishes a one-year statute of

limitations period during which a person in state custody may file a habeas petition.

28 U.S.C. § 2244(d); see also Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

be appointed in this case in lieu of the Colorado Attorney General’s Office. However, Mr. Wade makes no specific allegations as to how this alleged conduct affected his prosecution, instead making vague assertions that the deputy district attorney may have been under the influence while working on her case. Before the district court, Mr. Wade briefly mentioned these allegations only in his reply brief before the magistrate judge, without the support of specific argument as to how it affected his case. Arguments raised for the first time in a reply brief are waived. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). Thus, all reasonable jurists would agree the district court acted properly in disregarding this argument, and we accordingly deny a COA to consider this claim here. See Slack v. McDaniel, 529 U.S. 473, 482, 484 (2000). 5 Appellate Case: 24-1101 Document: 010111054278 Date Filed: 05/23/2024 Page: 6

“Only state petitions for post-conviction relief filed within the one year allowed by

AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714

(10th Cir. 2006). Mr. Wade does not challenge the district court’s conclusions on the

timeliness of his petition. Given that Mr. Wade’s one-year statute of limitations under

AEDPA expired nearly two years before he filed a petition for postconviction relief

in state court, no reasonable jurist could “conclude either that the district court erred

in dismissing the petition or that [Mr. Wade] should be allowed to proceed further.”

Slack, 529 U.S. at 484.

Mr. Wade instead argues that his petition should be allowed to proceed on the

grounds that he alleges actual innocence. The Supreme Court has recognized that

under some circumstances, “actual innocence, if proved, serves as a gateway through

which a petitioner may pass whether the impediment is a procedural bar . . . or

. . . expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386

(2013). But this exception applies only in the “extraordinary case,” Lopez v. Trani,

628 F.3d 1228, 1231 (10th Cir. 2010), where the petitioner “presents evidence of

innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless constitutional

error,” Schlup v. Delo, 513 U.S. 298, 316 (1995). Only when a petitioner “support[s]

his allegations of constitutional error with new reliable evidence . . . that was not

presented at trial,” id. at 324, will he “be allowed to pass through the gateway [of

timeliness] and argue the merits of his underlying claims,” id. at 316. Actual

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innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998).

The district court held that Mr. Wade waived this claim by raising it for the

first time in his objections to the report and recommendation. We have long held that

“[i]ssues raised for the first time in objections to the magistrate judge’s

recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th

Cir. 1996). Mr. Wade argues that the district court erred in concluding that he waived

his actual innocence argument because it did not liberally construe his petition to

allege a claim of actual innocence. But no plausible reading of Mr. Wade’s habeas

petition shows that he raised a claim of actual innocence. To prevail on a theory of

actual innocence, Mr. Wade would have to identify “new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial” that could prove his factual

innocence. Schlup, 513 U.S. at 324; Bousley, 523 U.S. at 623. In his opening brief,

Mr. Wade asserts that he is actually innocent because the victim supposedly never

identified him when speaking with law enforcement or in court, citing portions of his

habeas petition supporting that claim. But Mr. Wade identifies no new evidence in

his petition, which is fatal to his claim of actual innocence on habeas review. No

reasonable jurist could conclude that the district court overlooked a plausible theory

of actual innocence in his petition.

Liberally construed, Mr. Wade also contests the district court’s conclusion that

he is not entitled to equitable tolling. The district court’s conclusion here is not

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subject to debate. “[W]e review the district court’s decision on equitable tolling of

the limitation period for an abuse of discretion.” Burger v. Scott, 317 F.3d 1133,

1138 (10th Cir. 2003). Mr. Wade is “‘entitled to equitable tolling’ only if he shows

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

circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560

U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The

diligence required for equitable tolling purposes is reasonable diligence, not

maximum feasible diligence.” Id. at 653 (citations omitted). Extraordinary

circumstances that could warrant equitable tolling include “when an adversary’s

conduct—or other uncontrollable circumstances—prevents a prisoner from timely

filing.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Mr. Wade “bears a

strong burden to show specific facts to support his claim of extraordinary

circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).

Mr. Wade has not shown that “extraordinary circumstances” prevented him

from filing within the AEDPA deadline. Mr. Wade generally points to his limited

access to the prison law library and his status as a pro se litigant. But Mr. Wade

waived this argument by failing to raise it until filing a Rule 59(e) motion to

reconsider. See Marshall, 75 F.3d at 1426. And in any event, Mr. Wade provides no

specific facts to support this allegation. See Yang, 525 F.3d at 928. As we have

previously explained, a petitioner’s limited access to the law library, without more, is

not an “extraordinary circumstance[]” that would justify the use of equitable tolling.

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See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (holding that a habeas

petitioner is not entitled to equitable tolling when he states he faced difficulty

accessing legal materials but “provide[s] no specificity regarding the alleged lack of

access and the steps he took to diligently pursue his federal claims”); Porter v.

Allbaugh, 672 F. App’x 851, 857 (10th Cir. 2016) (unpublished) (“[W]e . . . conclude

that reasonable jurists would not find debatable the district court’s determination that

[the petitioner’s] general grievances [concerning accessing the prison law library] fail

to constitute extraordinary circumstances.”). Furthermore, we have previously held

that a petitioner’s pro se status does not warrant equitable tolling. Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000). Reasonable jurists therefore “could not

conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.

Finally, Mr. Wade has filed a motion to proceed IFP. “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); see also Fed. R. App. P. 24(a)(3)(A) (stating an appellant may not

proceed IFP when the district court “certifies that the appeal is not taken in good

faith”); United States v. Ballieu, 480 F. App’x 494, 498 (10th Cir. 2012)

(unpublished) (defining “good faith” as presenting a nonfrivolous issue); see also

Allen v. Falk, 624 F. App’x 980, 986 (10th Cir. 2015) (“[W]e will only grant pauper

status if we conclude that the appeal contains a non-frivolous argument.”); Rolland v.

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Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007) (considering and

denying a party’s motion to proceed IFP because the appellant failed to raise a

reasoned, nonfrivolous argument). Because Mr. Wade’s arguments of error are

wholly meritless, due to the clear procedural bars precluding review of his § 2254

habeas petition, Mr. Wade advanced no nonfrivolous arguments in this habeas

petition, and we accordingly deny his application to proceed IFP.

III. CONCLUSION

Because Mr. Wade fails to demonstrate that the district court’s holdings are

debatable or wrong, we DENY his request for a COA and DISMISS this matter. We

also DENY his motion to proceed IFP.

Entered for the Court

Carolyn B. McHugh Circuit Judge