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  • Fitzgerald v. Zenon, 10th Cir. (2005)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Lawrence Fitzgerald's request for a Certificate of Appealability (COA) to appeal the district court's denial of his petition for a writ of habeas corpus. The order summarizes that Fitzgerald challenged his 1991 state conviction through various state post-conviction motions and federal habeas petitions, claiming violations of his constitutional rights during the state post-conviction proceedings. However, the Tenth Circuit finds that Fitzgerald's claims do not allege violations of his rights relating to his underlying conviction and thus do not state cognizable federal habeas claims. As a result, the court denies Fitzgerald's request for a COA and to proceed in forma pauperis.

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    Filed: 2005-06-27 Precedential Status: Precedential Docket: 04-1285

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    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Lawrence Fitzgerald's request for a Certificate of Appealability (COA) to appeal the district court's denial of his petition for a writ of habeas corpus. The order summarizes that Fitzgerald challenged his 1991 state conviction through various state post-conviction motions and federal habeas petitions, claiming violations of his constitutional rights during the state post-conviction proceedings. However, the Tenth Circuit finds that Fitzgerald's claims do not allege violations of his rights relating to his underlying conviction and thus do not state cognizable federal habeas claims. As a result, the court denies Fitzgerald's request for a COA and to proceed in forma pauperis.

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    25 views7 pages

    Fitzgerald v. Zenon, 10th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Lawrence Fitzgerald's request for a Certificate of Appealability (COA) to appeal the district court's denial of his petition for a writ of habeas corpus. The order summarizes that Fitzgerald challenged his 1991 state conviction through various state post-conviction motions and federal habeas petitions, claiming violations of his constitutional rights during the state post-conviction proceedings. However, the Tenth Circuit finds that Fitzgerald's claims do not allege violations of his rights relating to his underlying conviction and thus do not state cognizable federal habeas claims. As a result, the court denies Fitzgerald's request for a COA and to proceed in forma pauperis.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    June 27, 2005

    PATRICK FISHER
    Clerk

    LAWRENCE WILLIAM
    FITZGERALD,
    Petitioner - Appellant,
    v.
    CARL ZENON, Superintendent;
    ATTORNEY GENERAL OF THE
    STATE OF COLORADO,

    No. 04-1285
    (D. Colorado)
    (D.Ct. No. 04-Z-1125)

    Respondents - Appellees.
    ORDER DENYING CERTIFICATE OF APPEALABILITY
    AND DISMISSING APPEAL
    Before SEYMOUR, LUCERO, and OBRIEN, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
    therefore ordered submitted without oral argument.
    Lawrence William Fitzgerald, Jr., a state prisoner appearing pro se, 1 seeks a

    We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318


    F.3d 1183, 1187 (10th Cir. 2003).
    1

    certificate of appealability (COA) allowing him to appeal the district courts


    order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. 2254.
    He also moves to proceed in forma pauperis (ifp) on appeal. Because we
    determine that Fitzgerald has not made a substantial showing of the denial of a
    constitutional right, 28 U.S.C. 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
    483-84 (2000), we deny a COA, dismiss the appeal, and deny his motion to
    proceed ifp.
    Background:
    Fitzgerald is incarcerated at the Arkansas Valley Correctional Facility in
    Crowley, Colorado. He alleges that in 1991 he was sentenced to a term of four
    years in prison after entering an Alford 2 plea to one count of attempted violation
    of a custody order. He did not file a direct appeal, but rather filed several postconviction motions challenging the validity of his conviction in a Colorado
    district court (CDC). On January 28, 1992, Fitzgerald filed a motion to
    reconsider his sentence under Rule 35(b) of the Colorado Rules of Criminal
    Procedure, which the CDC denied on May 13, 1992. On August 11, 1992, he
    filed his first motion challenging the validity of his conviction under Rule 35(c)
    of the Colorado Rules of Criminal Procedure, which the CDC denied on April 25,
    1997. Fitzgerald also filed a motion for the appointment of counsel to assist him
    2

    North Carolina v. Alford, 400 U.S. 25 (1970).


    -2-

    in filing an appeal and preparing a new post-conviction motion, which the CDC
    denied on May 29, 1997. He then filed a motion for reconsideration which the
    CDC did not address. In July 2000, Fitzgerald filed his second Rule 35(c) motion
    which was denied as successive in November 2000. Fitzgerald appealed; the
    Colorado Court of Appeals affirmed the denial of his second Rule 35(c) motion
    but reversed and remanded his ineffective assistance of post-conviction counsel
    claim. Fitzgerald alleges the CDC has failed to act on remand.
    On June 2, 2004, Fitzgerald filed an Application for a Writ of Habeas
    Corpus pursuant to 28 U.S.C. 2254 in the district court (USDC). Fitzgerald
    asserted three claims for relief: 1) the state trial courts failure to consider his
    post-conviction motion on remand violated his due process rights and this failure
    should excuse his failure to exhaust his state court remedies; 2) the state court
    violated his equal protection rights by delaying his post-conviction proceedings
    because of his poverty; and 3) his post-conviction counsel was ineffective. On
    June 18, 2004, the district court dismissed Fitzgeralds habeas corpus application
    for failure to allege a cognizable federal constitutional claim. On July 1, 2004,
    Fitzgerald filed a Motion to Reconsider, which the USDC denied on July 13,
    2004. On July 21, 2004, Fitzgerald filed a Request for Certificate of Probable
    Cause Pursuant to Rule 22(b) which the USDC construed as a Notice of Appeal
    and request for COA. On July 29, 2004, the USDC denied a COA because
    -3-

    Fitzgerald had not made a substantial showing of the denial of a constitutional


    right. Fitzgerald then filed a motion to proceed ifp on appeal. The district court
    denied his motion on August 11, 2004, pursuant to 28 U.S.C. 1915(a)(3),
    concluding the appeal was not taken in good faith because he had not shown the
    existence of a reasoned, nonfrivolous argument on the law and facts in support of
    the issues raised. See F ED . R. A PP . P. 24(a)(1).
    On appeal, Fitzgerald seeks a COA, reasserting the three claims he raised in
    USDC and challenging its failure to grant an evidentiary hearing. He has also
    filed a motion for leave to file a supplemental brief, arguing for the first time that
    the federal district court judge was biased and should have recused herself.
    Ordinarily we do not consider arguments raised for the first time on appeal or not
    ruled upon by the district court. In re Walker, 959 F.2d 894, 896 (10th Cir.
    1992); In re R. Eric Peterson Constr. Co., 951 F.2d 1175, 1182 (10th Cir. 1991).
    However, Fitzgerald claims he was unaware of the putative bias until after he
    filed his appeal. We exercise discretion and grant his motion to file the brief,
    Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir. 1996), but as we
    discuss below, reject his argument that the judge should have recused herself.
    Fitzgerald also renews his motion for leave to proceed ifp on appeal. See F ED . R.
    A PP . P. 24(a)(5).
    Discussion:
    -4-

    After careful consideration of the materials submitted by Fitzgerald against


    the backdrop of the state court record, it is apparent the district courts
    conclusions are not reasonably debatable. See Slack v. McDonald, 529 U.S. 473,
    484 (2000). States are not obligated to provide defendants with post-conviction
    review. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). As such,
    constitutional error [that] focuses only on the States post-conviction remedy and
    not the judgment which provides the basis for . . . incarceration . . . states no
    cognizable federal habeas claim. Sellers v. Ward, 135 F.3d 1333, 1339 (10th
    Cir. 1998); see also 28 U.S.C. 2254(i) (expressly barring relief for claims
    alleging ineffective assistance of counsel in state collateral post-conviction
    proceedings); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993). Each of
    Fitzgeralds claims in federal court challenged the validity of Colorados postconviction procedures. Because the claims did not address the validity of his
    conviction or sentence, they did not state a cognizable federal habeas claim. As
    such, Fitzgerald was not entitled to an evidentiary hearing under 2254.
    Fitzgeralds claim that the judge was required to recuse herself under 28
    U.S.C. 144 and 455 for perceived bias is without merit. To warrant recusal
    under 144, the alleged bias must be personal and extrajudicial. See United
    States v. Irwin, 561 F.2d 198, 200 (10th Cir. 1977); Davis v. Cities Serv. Oil Co.,
    420 F.2d 1278, 1282 (10th Cir. 1970). The mere fact that the district court judge
    -5-

    presided over a separate case and granted summary judgment for parties who were
    indispensable to Fitzgeralds prosecution (Appellants Supp. Br. at 1.) does not
    amount to personal bias or prejudice. The separate case did not involve
    Fitzgerald or his criminal conviction, and even if it did, Fitzgerald provides no
    support for concluding the judge was biased against him, that the bias was
    personal, or that the bias was attributable to an extrajudicial source. Nor does
    455 provide an avenue for recusal as it requires the disqualification of a judge if
    his impartiality might reasonably be questioned. 28 U.S.C. 455(a)(emphasis
    added). Neither a judges knowledge about a party from the judges participation
    in a separate case nor a prior adverse ruling in another proceeding is a ground for
    recusal under 144 or 455. United States v. Cooley, 1 F.3d 985, 993-94 (10th
    Cir. 1993) (collecting cases). 3
    Because Fitzgeralds petition clearly does not state a cognizable
    constitutional claim, he has failed show the existence of a reasoned, nonfrivolous
    argument on the law and facts in support of the issues he raises on appeal. His
    complaint merely consists of conclusory allegations that fail to present any legal
    theory or specific facts that could conceivably amount to a constitutional
    violation. Accordingly, we deny his request to proceed ifp on appeal.
    The claim of bias is especially doubtful here, where the district court judges
    opinion in the separate matter was affirmed on appeal. See Morgan v. Gertz, 166 F.3d
    1307 (10th Cir. 1999).
    3

    -6-

    Conclusion:
    We GRANT Fitzgeralds motion for leave to file a supplemental brief. For
    substantially the same reasons set forth by the district court, we DENY
    Fitzgeralds request for a COA and DISMISS the appeal. We also DENY his
    motion for leave to proceed ifp on appeal. Fitzgerald shall remit the full amount
    of the filing fee within twenty (20) days of this order.
    Entered by the Court:
    Terrence L. OBrien
    United States Circuit Judge

    -7-

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