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

                           FOR THE TENTH CIRCUIT                      December 3, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CHAD ANGLE,

             Petitioner - Appellant,

v.                                                        No. 14-1139
                                                 (D.C. No. 1:13-CV-03424-LTB)
LAURIE TAFOYA; THE ATTORNEY                                 (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

             Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.


      Chad Angle seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2254 petition for habeas relief. We deny a COA and

dismiss the appeal.

                                           I

      Angle pled guilty in Colorado state court to second degree assault. He was

sentenced to two years of intensive supervised probation and did not appeal. Shortly

thereafter, the state court found that Angle violated several probation conditions. He

      *
        This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
was sentenced to six years’ incarceration. Again, Angle did not file an appeal in state

court, nor has he filed any state post-conviction motions for relief.

      On December 18, 2013, Angle filed a motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence. But habeas relief is available to state

prisoners under § 2254, not § 2255, which affords habeas relief to federal prisoners.

See Stanko v. Davis, 617 F.3d 1262, 1266-67 (10th Cir. 2010). A magistrate judge

directed Angle to cure this deficiency by filing under § 2254. Angle complied. In a

Pre-Answer Response, the government argued that Angle failed to exhaust state

remedies, as required before a state prisoner can seek relief under § 2254. See

§ 2254(b)(1). The state noted that Angle has until January 2016 to seek post-

conviction relief in Colorado state court under Colo. R. Crim. P. 35(c). Angle replied

that the exhaustion requirement should be excused because his state public defender

prevented him from exhausting, he lacked the legal resources to pursue state claims,

and state remedies would be unusable or ineffective. He also insisted that the district

court address his § 2255 motion.

      The district court dismissed Angle’s § 2254 petition for failure to exhaust state

remedies. It explained that Angle’s claims could not be asserted under § 2255

because he was not challenging a federal sentence and was not in federal custody.

See § 2255(a). And the court ruled that a Colorado Rule 35(c) post-conviction

motion provided an available state corrective process. It also noted that Angle had

sufficient access to legal resources to pursue state remedies, given that he had been


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able to submit federal court filings. Thus, the district court ruled that Angle failed to

meet his evidentiary burden of proving that exhaustion was futile.

                                            II

      Angle may not appeal the denial of a § 2254 petition without a COA.

28 U.S.C. § 2253(c)(1)(A). We will issue a COA only if “the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy

this standard, Angle must demonstrate “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) (quotation omitted).

If § 2254 relief is denied on procedural grounds, the applicant must additionally show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id.

      We construe Angle’s filings liberally because he is a pro se litigant, but we

will not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

“A state prisoner generally may not raise a claim for federal habeas corpus relief

unless he ‘has exhausted the remedies available in the courts of the State.’” Selsor v.

Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting § 2254(b)(1)(A)). “To

exhaust a claim, a state prisoner must pursue it through one complete round of the

State’s established appellate review process, giving the state courts a full and fair

opportunity to correct alleged constitutional errors.” Id. (quotation omitted). Failure


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to exhaust may be excused if “there is an absence of available State corrective

process” or “circumstances exist that render such process ineffective to protect the

rights of the applicant.” § 2254(b)(1)(B)(i), (ii).

      “The state prisoner bears the burden of proving that he exhausted state court

remedies or that exhaustion would have been futile.” Selsor, 644 F.3d at 1026

(citation omitted). Angle has not met his burden. It is undisputed that he has not

presented any of his claims to a Colorado state court. Angle contends that he cannot

obtain a fair and impartial ruling in state court, but advances only implausible and

unsupported allegations in support of that theory. No reasonable jurist would debate

that the district court correctly dismissed his § 2254 petition for failure to exhaust

state remedies.

                                           III

      We DENY Angle’s application for a COA, DENY his motion to proceed in

forma pauperis, and DISMISS this appeal.


                                                 Entered for the Court



                                                 Carlos F. Lucero
                                                 Circuit Judge




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