                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           May 2, 2006
                   UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                TENTH CIRCUIT                             Clerk of Court


 REYNALDO TANGUMA,

       Petitioner-Appellant,
 v.
                                                        No. 05-1339
                                                (D.C. No. 05-CV-00515-ZLW)
 GARY GOLDER; and THE
                                                          (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents-Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before KELLY, MCKAY, and LUCERO, Circuit Judges.


      Reynaldo Tanguma, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we DENY a COA and DISMISS.

      Tanguma was convicted by a jury of sexual assault on a child while in a

position of trust for forcing his eleven-year-old half-sister to engage in sexual

acts with him and his wife. After the Colorado Court of Appeals rejected his

appeal, Tanguma filed for a writ of certiorari from the Colorado Supreme Court,
arguing that his conviction should be reversed because of erroneously admitted

testimony. His petition was denied.

      Tanguma followed the denial of his writ of certiorari with a motion for

post-conviction relief in state court, claiming ineffective assistance of counsel.

This motion was denied and was not appealed. A second motion for post-

conviction relief followed, alleging that he was entitled to a new trial on the basis

of newly discovered evidence and that he had received ineffective assistance of

counsel. This motion was denied and the appeal was rejected by the court of

appeals.

      Instead of seeking review from the Colorado Supreme Court, Tanguma

filed a habeas petition under § 2254. He claimed that his right to a fair trial was

denied, that he had received ineffective assistance of counsel and that a trial court

ruling impinged upon his right against self-incrimination. A magistrate judge

ordered Tanguma to show cause that he had exhausted his state remedies.

Following Tanguma’s response, the magistrate judge determined that, although

Tanguma may have exhausted state remedies for some of his claims, he did not do

so for all claims. The district court then dismissed Tanguma’s petition without

prejudice on the ground that it was a mixed petition containing exhausted and




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unexhausted claims. Failing to secure a COA from that court, Tanguma now

seeks a COA from this court. 1

      Under 28 U.S.C. § 2254(b)(1), habeas corpus may not be granted unless the

applicant has exhausted the remedies available in the state courts. “The

exhaustion requirement is satisfied if the federal issue has been properly

presented to the highest state court, either by direct review of the conviction or in

a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534

(10th Cir. 1994). Tanguma acknowledged that he did not raise all of his claims in

front of the Colorado Supreme Court. Tanguma therefore did not exhaust these

claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (federal courts may

not grant habeas corpus unless the prisoner has “given the state courts one full




      1
        Tanguma’s petition was filed after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA’s provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under
§ 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be
issued “only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires Tanguma to show “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 v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the district
court denied Tanguma a COA, he may not appeal the district court’s decision
absent a grant of COA by this court.

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opportunity to resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process”).

      Tanguma, however, also presented claims in his habeas petition for which

he had exhausted the remedies available in the state courts. A district court faced

with a mixed petition “may dismiss the petition and allow the petitioner to return

to state court to exhaust his claims [or] . . . . it may deny the petition on the

merits, notwithstanding the petitioner's failure to exhaust his state court

remedies.” Moore v. Schoeman, 288 F.3d 1231. 1232 (10th Cir. 2002) (citations

omitted). The district court’s decision to dismiss Tanguma’s petition without

prejudice was proper.

      For the reasons set forth above, Tanguma’s request for a COA is DENIED

and the appeal is DISMISSED. His motion to proceed in forma pauperis is granted.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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