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

                        FOR THE TENTH CIRCUIT                  October 30, 2018

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

JERRY E. BLAIR,

       Petitioner - Appellant,                    No. 18-1234
v.                                       (D.C. No. 1:18-CV-00138-LTB)
                                                   (D. Colo.)
RICK RAEMISCH, CDOC
Director; STEVEN OWENS, CSP
Warden; ATTORNEY GENERAL
OF THE STATE OF COLORADO,

       Respondents - Appellees.



     ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                  DISMISSING THE APPEAL


Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.


      Mr. Jerry E. Blair sought habeas relief, and the district court ordered

dismissal based on a procedural default in state court. Mr. Blair seeks a

certificate of appealability and leave to proceed in forma pauperis. We

grant leave to proceed in forma pauperis, but we decline to issue a

certificate of appealability.

                    Leave to Proceed in Forma Pauperis

      To obtain leave to proceed in forma pauperis, Mr. Blair must show

that he lacks money to prepay the filing fee and that he brings the appeal in
good faith. 28 U.S.C. § 1915(a)(1), (a)(3); Fed. R. App. P. 24(a)(5). He

satisfies these requirements. Mr. Blair does not have any income or assets,

and the average monthly balance in his prison trust fund account for the

previous six-month period is only $91.76. In addition, we have no reason

to question Mr. Blair’s good faith. We therefore grant leave to proceed in

forma pauperis.

                        Certificate of Appealability

      To appeal, Mr. Blair must obtain a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). Because the district court relied on procedural

grounds in ordering dismissal, Mr. Blair must show that the court’s

disposition was at least reasonably debatable. Laurson v. Leyba, 507 F.3d

1230, 1231–32 (10th Cir. 2007). In our view, the district court’s

disposition was not reasonably debatable.

      Mr. Blair cannot obtain relief because he procedurally defaulted on

his habeas claims. He had raised these claims in the state trial court in his

post-conviction, and the state trial court denied this post-conviction motion

on November 2, 2015. With this ruling, Mr. Blair had only 49 days to file a

notice of appeal, 1 but he waited over three months to file the document. In

light of his failure to meet the 49-day deadline, the state court of appeals

dismissed the appeal. Given the dismissal of the appeal based on

timeliness, the federal district court concluded that the habeas claims are

1
      Colo. App. R. 4(b)(1).
                                      2
procedurally defaulted. See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th

Cir. 1993) (holding that a habeas claim was procedurally defaulted based

on the failure to timely appeal in state court). And in this appeal, Mr. Blair

does not question the federal district court’s reasoning.

      In light of this procedural default, Mr. Blair can pursue federal

habeas relief only upon a showing of (1) cause and prejudice or (2) a

fundamental miscarriage of justice. Jackson v. Shanks, 143 F.3d 1313,

1317 (10th Cir. 1998). To demonstrate “cause” for procedural default, he

must show that “some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.” Murray v.

Carrier, 477 U.S. 478, 488 (1986). Alternatively, a fundamental

miscarriage of justice requires a showing of actual innocence. Id. at 496.

      Mr. Blair contends that the trial court never ruled on the post-

conviction motion. This contention is contradicted by the record, for the

trial court’s order on November 2, 2015, expressly denied the post-

conviction motion. The order explained that the court had already denied

two previous motions and was denying the latest motion, too.

      Mr. Blair does not identify any external factor that would have

prevented him from filing a notice of appeal in the 49-day period. He was

apparently mistaken about whether the trial court had ruled on the post-

conviction motion. But that mistake is not external to the defense and,

therefore, does not supply cause for a procedural default. See Lepiscopo v.

                                      3
Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994) (explaining that even though

the claimant was pro se, he could avoid a procedural default only by

showing an “objective factor external to the defense”). In addition, Mr.

Blair has not argued actual innocence. Given the absence of cause or a

fundamental miscarriage of justice, Mr. Blair cannot overcome the

procedural default. In light of this procedural default, the federal district

court’s dismissal of the habeas petition was not subject to reasonable

debate.

                                     * * *

      Because Mr. Blair’s habeas claims were procedurally defaulted in

state court, the federal district court’s ruling was not reasonably debatable.

We therefore

           decline to issue a certificate of appealability and

           dismiss the appeal.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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