FILED

United States Court of Appeals

Tenth Circuit

October 3, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERIC JOSEPH LAURSON,

Petitioner - Appellant, No. 07-1177

v. (D. Colorado)

RON LEYBA, Warden at A.V.C.F.;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

(D.C. No. 05-cv-2635-ZLW)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Eric Joseph Laurson is an inmate in the custody of the Colorado

Department of Corrections. The United States District Court for the District of

Colorado dismissed his application for relief under 28 U.S.C. § 2254 as barred by

the one-year statute of limitations imposed by the Antiterrorism and Effective

Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). The district court

denied two motions for reconsideration under Fed. R. Civ. P. 60(b). We construe

Mr. Laurson’s application for a certificate of appealability (COA) under

28 U.S.C. § 2253 as requesting a COA to appeal both the dismissal of his § 2254
Mr. Laurson’s attempt to appeal the dismissal of his § 2254 application 1

appears to be untimely. Although this is a jurisdictional matter, see Bowles v.

Russell, 127 S. Ct. 2360, 2363 (2007), we need not address the issue because we

are refusing to take jurisdiction on other grounds.

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application and the denial of his two motions to reconsider the dismissal. 1

Because no “jurist[] of reason could conclude that the District Court’s dismissal

on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S.

473, 485 (2000), we deny a COA and dismiss the matter.

I. BACKGROUND

Mr. Laurson pleaded guilty to a charge of solicitation to commit murder in

the second degree. His conviction was entered January 8, 1999. He did not

appeal the conviction, but in December 2001 he filed in state court a motion for

postconviction relief, which was denied. The Colorado Court of Appeals affirmed

the denial, People v. Laurson, 70 P.3d 564 (Colo. Ct. App. 2002), and the

Colorado Supreme Court denied his petition for a writ of certiorari on June 16,

2003.

On December 28, 2005, Mr. Laurson filed a pro se application for relief

under 28 U.S.C. § 2254. The magistrate judge ordered him to show cause why his

application should not be barred by the one-year limitation period of 28 U.S.C.

§ 2244(d). Mr. Laurson failed to respond to the order, and the district court

dismissed his application on March 14, 2006. One year later, on March 14, 2007,

Mr. Laurson filed a motion for relief under Rule 60(b), alleging that he had timely
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sought an extension to respond to the show-cause order but had mistakenly filed

the motion with the wrong case number. He attached to the motion a copy of the

motion for extension that he had attempted to file and a copy of his proposed

answer to the order to show cause. The court, finding that there was no

extraordinary circumstance to justify Rule 60(b) relief, denied the motion to

reconsider on March 23, 2007. Mr. Laurson filed a second Rule 60(b) motion on

April 10, 2007, seeking reconsideration of the March 23 order. The court ruled

that even accepting Mr. Laurson’s excuses for his failure to respond timely to the

show-cause order, his response to the show-cause order did not establish that he

was entitled to equitable tolling of the statute of limitations. Concluding that the

action was properly dismissed as time-barred, the court declined to issue a COA. 

II. DISCUSSION

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition 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). In other words, an applicant must show that the district

court’s resolution of the constitutional claim was either “debatable or wrong.” Id. 

If the application was denied on procedural grounds, as here, the applicant faces a
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double hurdle. Not only must the applicant make a substantial showing of the

denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable whether . . . the district court was correct in its procedural

ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of a 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.

AEDPA establishes a one-year limitations period for challenging a statecourt conviction. See 28 U.S.C. § 2244(d). It is undisputed that the limitations

period began to run when the time for seeking direct review of Mr. Laurson’s

January 1999 conviction expired in early 1999. See Colo. App. R. 4(b)(1)

(providing 45 days to appeal conviction). Although the one-year period is tolled

while state postconviction review is pending, see 28 U.S.C. § 2244(d)(2), the oneyear period had long expired before Mr. Laurson filed for state postconviction

relief in December 2001. 

The one-year statute of limitations is not jurisdictional and can be equitably

tolled, but equitable tolling is limited to “rare and exceptional circumstances.” 

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

omitted). Mr. Laurson asserts two grounds for equitable tolling; neither is valid.

First, Mr. Laurson alleges that he is entitled to equitable tolling because his

dyslexia delayed his filing for relief. He raises this argument for the first time on
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appeal. As a general rule, this court will not consider an issue not raised below. 

See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). But

even if Mr. Laurson had not forfeited this argument by failing to present it to the

district court, dyslexia is not a ground for tolling the AEDPA statute of

limitations. See Turner v. Johnson, 177 F.3d 390, 391–92 (5th Cir. 1999)

(unfamiliarity with the law due to illiteracy does not toll limitations period);

Jamison v. Jones, 197 Fed. App’x 743, 746 (10th Cir. 2006) (unpublished)

(following Turner); Gomez v. Leyba, No. 07-1118, 2007 WL 1765536 (10th Cir.

June 20, 2007) (unpublished) (unfamiliarity with the English language does not

toll limitations period); United States v. Richardson, 215 F.3d 1338 (10th Cir.

2000) (unpublished decision table) (learning disability does not toll limitations

period).

Second, Mr. Laurson contends that he is entitled to equitable tolling

because he is actually innocent of the crime of which he was convicted. A claim

of actual innocence may toll the AEDPA statute of limitations. See Gibson, 232

F.3d at 808. Mr. Laurson offers three reasons why he is actually innocent: (1)

that the crime of which he was convicted does not exist in Colorado, (2) that his

guilty plea was involuntary due to both the nonexistence of his crime and his

dyslexia, and (3) that his sentence exceeded the permissible statutory range and

that his crime had been placed in the wrong felony class for sentencing. The first

is a question of state law that is not reviewable under § 2254. See Estelle v.
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McGuire, 502 U.S. 62, 68 (1991); Dockins v. Hines, 374 F.3d. 935, 940 (10th Cir.

2004) (“Federal habeas courts will not . . . review issues of purely state law.”)

Mr. Laurson’s other arguments do not relate to actual innocence. Actual

innocence means “factual innocence.” See Bousley v. United States, 523 U.S.

614, 623 (1998). A claim that his guilty plea was involuntary does not assert that

he did not commit the crime to which he pleaded guilty. And as to Mr. Laurson’s

argument that his sentence was improper, “a person cannot be actually innocent of

a noncapital sentence.” Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996)

(brackets and internal quotation marks omitted).

No reasonable jurist could dispute that the district court was correct to

dismiss Mr. Laurson’s application as time-barred. Accordingly, we deny a COA

to appeal the dismissal.

Mr. Laurson also requires a COA to appeal the denials of his two Rule

60(b) motions. See Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir. 2006)

(“[W]e conclude that a COA is required to appeal from the denial of a true Rule

60(b) motion.”). The district court dismissed Mr. Laurson’s habeas application as

barred by the statute of limitations after he failed to respond to the order to show

cause. Even if Mr. Laurson could justify his failure to respond to the order, the

court was correct to deny the 60(b) motions unless Mr. Laurson presented a

meritorious argument for why his habeas application should not be dismissed as
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time-barred in the first place. For the reasons discussed above, Mr. Laurson’s

arguments for equitable tolling lack merit.

We conclude that reasonable jurists would not debate the correctness of the

district court’s procedural rulings. Accordingly, we DENY Mr. Laurson’s

application for a COA and DISMISS this matter. We GRANT Mr. Laurson’s

motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge