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

                            FOR THE TENTH CIRCUIT                             March 13, 2017
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
JASON BROOKS,

      Petitioner - Appellant,

v.                                                          No. 16-1344
                                                   (D.C. No. 1:16-CV-00895-LTB)
LOU ARCHULETA, Warden; CYNTHIA                                (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Jason Brooks, a Colorado state prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. He also seeks leave to proceed in forma pauperis. Exercising jurisdiction under

28 U.S. § 1291 and 2253, we decline these requests and dismiss his appeal.

                                    BACKGROUND

      Brooks pleaded guilty to four counts of securities fraud and was sentenced to 32

years’ imprisonment and ordered to pay $5,131,760.90 in restitution. In July 2015, while

imprisoned, Brooks received notice from a Colorado court clerk explaining that his


      1
      Because Brooks appears pro se, we liberally construe his petition. Clark v.
Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006).
restitution obligation was subject to Colo. Rev. Stat. § 18-1.3-603(4), which adds a

monthly 1% interest charge. In August 2015, Brooks petitioned the Colorado trial court

for post-conviction relief, raising claims of ineffective assistance of counsel and breach

of the plea agreement. Both claims rested on no one having told him about the interest

charge before he pleaded. The trial court denied relief because it determined that

Brooks’s claims were untimely and procedurally barred. Brooks bypassed direct review

in the state courts and asked this court to authorize a second or successive habeas

petition.2 Although we denied authorization, we stated that if Brooks’s claims arose from

new events, his petition wouldn’t be second or successive.

       In March 2016, Brooks petitioned the Colorado trial court for post-conviction

relief, claiming this time that the 1% interest made his sentence illegal. The trial court

denied that relief after determining that Brooks had raised no new issues. Brooks

appealed to the Colorado Court of Appeals. Before the Colorado Court of Appeals

decided his appeal, he filed a habeas petition in federal district court. The federal district

court dismissed his claim on failure-to-exhaust grounds. Brooks now seeks a COA to

appeal the district court’s denial of relief.

                                        DISCUSSION

       Brooks must obtain a COA to appeal the district court’s denial of habeas relief. 28

U.S.C. § 2253(c)(1). Unless Brooks makes “a substantial showing of the denial of a

constitutional right,” we will not grant a COA. § 2253(c)(2). A substantial showing


       2
       Brooks had filed an earlier habeas petition that we dismissed on the merits.
See Brooks v. Archuleta, 621 F. App’x 921 (10th Cir. 2015).
                                                2
means “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 v. McDaniel, 529 U.S.

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)) (internal

quotations omitted). Here, the district court denied Brooks’s habeas petition on a

procedural ground—failure to exhaust state remedies. When a district court denies a

petition on procedural grounds without reaching the underlying claim, the substantial-

showing standard still applies. See id. at 478. Thus, unless Brooks can show that

reasonable jurists would debate “whether the district court was correct in its procedural

ruling,” we will not issue a COA. Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.

2000) (quoting Slack, 529 U.S. at 478) (internal quotation marks omitted).

I.     Failure to Exhaust State Court Remedies

       Brooks filed a habeas petition with the federal district court before the Colorado

Court of Appeals reached a decision. Under the exhaustion-of-remedies requirement, a

petitioner must present the federal issue “to the highest state court.” Dever v. Kansas

State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Because Brooks failed to present

his claim to the highest Colorado court, we conclude that reasonable jurists could not

debate the correctness of the district court’s ruling that Brooks had failed to exhaust his

state remedies. Even so, Brooks asserts that the district court erred by (1) incorrectly

applying the law; (2) failing to defer to the state court’s fact findings; and (3) failing to

excuse the exhaustion requirement. Each of his arguments revolves around a central issue

of whether the district court should have excused Brooks’s failure to exhaust.

                                               3
       “Where a state has raised and preserved the issue of procedural default, federal

courts generally do not review issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless the default is excused through

a showing of cause and actual prejudice or a fundamental miscarriage of justice.” Jackson

v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). In support of his argument that the

district court should have excused his failure to exhaust, Brooks asserts that he can show

cause and prejudice because the factual basis for his claims—the 1% interest charge—

was not reasonably available to him. Our review shows that the factual basis for Brooks’s

claims was reasonably available because it arose before he filed the post-conviction

motions. Specifically, in July 2015, the factual basis arose when Brooks received the

court clerk’s notice. Therefore, by August 2015, when he filed for post-conviction relief,

Brooks knew the claims’ factual basis. In fact, he based his claims for post-conviction

relief on the 1% interest charge. Thus, Brooks has failed to show cause for his failure to

exhaust.

II.    Leave to Proceed in Forma Pauperis

       Brooks also filed a motion to proceed in forma pauperis. To receive in forma

pauperis status, Brooks 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.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)

(alteration in original) (quoting McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812

(10th Cir. 1997)). We find no reasoned, nonfrivolous argument here and so we deny

Brooks’s motion to proceed in forma pauperis.

                                             4
                                  CONCLUSION

      For the reasons stated above, we DENY Brooks’s request for a COA and his

request to proceed in forma pauperis and DISMISS his appeal.



                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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