                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 12 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


VERNON JOSEPH TURLEY,

       Petitioner-Appellant,

v.                                                      No. 04-1111
                                                    (District of Colorado)
GARY WATKINS; ATTORNEY                           (D.C. No. 00-N-2519 (BNB))
GENERAL OF THE STATE OF
COLORADO,

       Respondents-Appellees.




                                      ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, Vernon Joseph Turley seeks a certificate of

appealability (“COA”) so he can appeal the district court’s dismissal of the habeas

petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from a final order disposing of a § 2254

petition unless the petitioner first obtains a COA).

      After two separate jury trials, Turley was convicted, inter alia, of three

counts of first-degree sexual assault, three counts of second-degree kidnapping,

and one count of robbery. The Colorado Court of Appeals affirmed all of
Turley’s convictions in unpublished opinions. On May 13, 1994, Turley filed a

motion in Colorado state court pursuant to Rule 35(c) of the Colorado Rules of

Criminal Procedure seeking post-conviction relief. Shortly thereafter, counsel

was appointed to represent Turley in his state post-conviction proceedings. The

state trial court granted counsel’s motion to withdraw on December 16, 1998 and

new counsel was appointed.

         On December 20, 2000, Turley filed a pro se § 2254 habeas corpus petition

in the United States District Court for the District of Colorado. Deficiencies in

the petition were corrected by Turley on March 21, 2001. In his petition, Turley

alleged that he received ineffective assistance of counsel during pretrial

proceedings, at trial, and at the sentencing hearing. He also alleged that his

appellate attorney and the attorney who represented him in his state post-

conviction proceedings were both ineffective. At the time Turley filed his § 2254

petition, his state post-conviction proceedings were still pending in Colorado state

court.

         In response to an order to show cause entered by the federal district court,

Respondents argued that Turley’s § 2254 petition should be dismissed because he

failed to exhaust his state remedies. Specifically, Respondents alleged that

resolution of the three claims raised in Turley’s § 2254 petition was still pending

in Colorado state court. The matter was referred to a United States magistrate


                                            -2-
judge who prepared a comprehensive report and recommendation which

recommended dismissing Turley’s habeas petition because Turley failed to

exhaust his state remedies. Acknowledging that Turley’s state post-conviction

motion was filed in 1994 and further noting that Turley’s appeal from the denial

of post-conviction relief had been pending in the Colorado Court of Appeals since

November 6, 2002, the magistrate judge nevertheless concluded that Turley and

his counsel were responsible for the delay in adjudicating Turley’s state post-

conviction motion. The district court adopted the magistrate judge’s

recommendation, and refused to excuse the exhaustion requirement. The court

consequently dismissed Turley’s § 2254 petition without prejudice.

      To be entitled to a COA, Turley must show “that jurists of reason would

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

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Turley’s § 2254 petition is not

deserving of further proceedings or subject to a different resolution on appeal.




                                          -3-
Accordingly, we deny Turley’s request for a COA, deny his motion to proceed in

forma pauperis on appeal, and dismiss this appeal.

                                     Entered for the Court
                                     PATRICK FISHER, Clerk of Court



                                     By:
                                             Deputy Clerk




                                       -4-
