                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 17, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 TREMAINE JERNIGAN,
 a/k/a TRAMAINE JERNIGAN,

             Petitioner-Appellant,
                                                        No. 11-2066
 v.                                         (D.C. No. 1:10-CV-00701-MCA-CG)
                                                         (D.N.M.)
 LAURENCE JARAMILLO;
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

             Respondents-Appellees.




          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Tramaine Jernigan, 1 a state prisoner proceeding pro se, 2 seeks a certificate


      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
          The docket sheet of the United States District Court for the District
of New Mexico identifies the petitioner as “Tramaine” Jernigan, and Mr. Jernigan
                                                                    (continued...)
of appealability (“COA”) to challenge the district court’s dismissal of his 28

U.S.C. § 2254 habeas petition. Exercising jurisdiction under 28 U.S.C. §§ 1291

and 2253(a), we deny Mr. Jernigan’s application for a COA and dismiss his

appeal.

                                 BACKGROUND

      In 2008, Mr. Jernigan was convicted of second-degree murder and

tampering with evidence in the Twelfth Judicial District Court in Otero County,

New Mexico. 3 He appealed to the New Mexico Court of Appeals, raising a single

state-law sentencing issue. The New Mexico Court of Appeals rejected his




      1
        (...continued)
also refers to himself by the first name “Tramaine” in his pro se federal habeas
petition. We acknowledge, however, that some orders—including the district
court order at issue here—and filings in both Mr. Jernigan’s instant federal habeas
case, and in a prior state habeas case commenced by him, refer to Mr. Jernigan by
the first name “Tremaine.” We refer to Mr. Jernigan by the same first name that
he used for himself in filing his federal habeas petition—i.e., Tramaine.
      2
             Because Mr. Jernigan is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
      3
              Mr. Jernigan was first tried and convicted on two counts of second-
degree murder and attempted second-degree murder in 2001, for which he was
sentenced to twenty-eight years’ imprisonment. The New Mexico Court of
Appeals affirmed his conviction and sentence. Mr. Jernigan then sought further
review with the Supreme Court of New Mexico, which granted his petition for a
writ of certiorari, reversed his conviction for attempted second-degree murder on
one of the two counts, and remanded Mr. Jernigan’s case for re-trial. It is Mr.
Jernigan’s second trial—conducted in 2008—that forms the basis of his instant
habeas action.

                                         2
challenge and affirmed. 4 Mr. Jernigan then filed a habeas corpus petition in the

state district court, raising a bevy of claims under the United States Constitution.

The court denied the petition. From this denial, Mr. Jernigan filed a petition for

writ of certiorari in the Supreme Court of New Mexico; it denied certiorari.

      On July 23, 2010, Mr. Jernigan filed a federal habeas petition in United

States District Court for the District of New Mexico in which he raised eighteen

claims, alleging ineffective assistance of counsel, prosecutorial misconduct, and

violations of his right to due process. Mr. Jernigan’s petition was referred to a

magistrate judge who concluded that Mr. Jernigan had failed to exhaust several of

the claims in the state courts, and recommended that the court afford Mr. Jernigan

fourteen days to elect to proceed without the unexhausted claims (i.e., to seek

habeas relief only as to the exhausted claims). Absent such an election, the

magistrate judge recommended dismissal without prejudice of Mr. Jernigan’s

entire habeas petition.

      On March 15, 2011, the district court adopted the magistrate judge’s

recommendations and, because Mr. Jernigan would agree to dismissal of only

some of the unexhausted claims, the court dismissed his entire habeas petition


      4
             Mr. Jernigan filed a petition for writ of certiorari in the New Mexico
Supreme Court, raising the same state-law sentencing issue; the petition was
denied. Perhaps not surprisingly, that issue is not before us in Mr. Jernigan’s
habeas action. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on
state-law questions.”).

                                          3
without prejudice. The court subsequently and summarily denied his application

for a COA . Mr. Jernigan now seeks a COA from this court to challenge the

district court’s dismissal of his § 2254 habeas petition.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Williams v. Jones, 571 F.3d 1086,

1088 (10th Cir. 2009). Thus, “[w]e will issue a COA ‘only if the applicant has

made a substantial showing of the denial of a constitutional right.’” Allen v.

Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2)).

In order to make such a showing, the applicant 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.” United States v. Taylor,

454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)) (internal quotation marks omitted). “In other words, the applicant

must show that the district court’s resolution of the constitutional claim was

either ‘debatable or wrong.’” Id. (quoting Slack, 529 U.S. at 484).

      In determining whether to grant a COA, this court conducts an “overview

of the claims in the habeas petition and a general assessment of their merits.”

United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted).

                                          4
However, “[t]his threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of th[ose] claims.” Miller-El, 537 U.S.

at 336. When the district court denies an applicant relief “on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

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

correct in its procedural ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th

Cir. 2008) (quoting Slack, 529 U.S. at 484).

                                    DISCUSSION

      In his application for a COA, Mr. Jernigan presents four arguments: (1) that

he is entitled to an evidentiary hearing; (2) that the district court “committed . . .

plain error” when it ruled that Mr. Jernigan had filed a mixed habeas petition that

contained both exhausted and unexhausted claims because he “presented all issues

to the state [district] and supreme court,” Aplt. Opening Br. at 4–5; (3) that his

defense counsel rendered ineffective assistance in failing to conduct any pre-trial

investigation; and (4) that his Fourteenth Amendment right to due process was

violated when the State “threatened and coerced” a witness into testifying, when

“the prosecutor soothed a distraught witness while she testified,” and when Mr.

Jernigan was brought into court wearing a prison jumpsuit and handcuffs, id. at 6.

Because the district court correctly determined that Mr. Jernigan had filed a

mixed habeas petition that contained both exhausted and unexhausted claims and

                                           5
properly dismissed his action when he declined to proceed on only the exhausted

claims, we need not reach the merits of Mr. Jernigan’s four arguments.

      Under § 2254, “[a]n application for a writ of habeas corpus on behalf of a

person in custody pursuant to a judgment of a State court shall not be granted

unless it appears that the applicant has exhausted the remedies available in the

courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This “exhaustion doctrine” is

grounded upon principles of comity and federalism; accordingly, it “seeks to

afford the state courts a meaningful opportunity to consider allegations of legal

error without interference from the federal judiciary.” Vasquez v. Hillery, 474

U.S. 254, 257 (1986). In order to satisfy the doctrine, “state prisoners must give

the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review

process”—that is, a state prisoner seeking federal habeas relief generally must

have first submitted each of his claims to the State’s highest court. O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); see 2 Randy Hertz & James S. Liebman,

Federal Habeas Corpus Practice and Procedure § 23.3[b], at 1205–06 (6th ed.

2011) (“[T]he petitioner satisfies her exhaustion burden by raising a claim at all

stages of the state’s appellate review process (including discretionary state

appeals).”). “A state prisoner bears the burden of showing he has exhausted

available state remedies.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir.

1995). Consequently, Mr. Jernigan bore the burden of demonstrating that he had

                                          6
exhausted each of his habeas claims with the New Mexico Supreme Court—New

Mexico’s highest court.

      When faced with a mixed petition, a federal court may “permit the

petitioner to dismiss the unexhausted claims and proceed with the exhausted

claims.” Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009) (quoting

Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)) (internal quotation marks

omitted); see id. (explaining that a district court presented with a “mixed” habeas

petition “can do one of four things: (1) dismiss the mixed petition in its entirety;

(2) stay the petition and hold it in abeyance while the petitioner returns to state

court to raise his unexhausted claims; (3) permit the petitioner to dismiss the

unexhausted claims and proceed with the exhausted claims; or (4) . . . deny the

petition on the merits” (alteration omitted) (citations omitted) (quoting Harris,

553 F.3d at 1031) (internal quotation marks omitted)); see also Rose v. Lundy,

455 U.S. 509, 510 (1982) (“[W]e hold that a district court must dismiss such

‘mixed petitions,’ leaving the prisoner with the choice of returning to state court

to exhaust his claims or of amending or resubmitting the habeas petition to

present only exhausted claims to the district court.”); Hertz & Liebman, supra,

§ 23.1, at 1184 (“[F]ederal district courts not only must dismiss entirely

unexhausted habeas corpus petitions and individual unexhausted claims but also,

generally, must dismiss ‘mixed’ habeas corpus petitions—i.e., petitions

containing both exhausted claims and even a single unexhausted claim or portion

                                          7
of a claim—pending exhaustion of the unexhausted claims.”).

      As the magistrate judge correctly determined in her recommendation, which

the district court later adopted, the claims identified in Sections 2(b), 2(d), 8(b),

and 10 5 of Mr. Jernigan’s federal habeas petition—that is, his claims that the

prosecutor impermissibly “massaged and soothed” a distraught witness while she

testified at his preliminary hearing, that his trial counsel was ineffective in

questioning a witness regarding her inconsistent statements, that he was denied

due process when he was photographed in a prison jumpsuit in front of the

decedent victim’s mother, and that he received ineffective assistance of state

appellate counsel—were never raised in his petition for a writ of certiorari to the

New Mexico Supreme Court. R., Vol. I, at 685, 687 (Proposed Findings &

Recommended Disposition, filed Dec. 22, 2010). Nowhere in his state certiorari

petition did Mr. Jernigan assert anything resembling an argument that the

prosecutor committed misconduct by “massaging” a witness. And, while his

petition for certiorari does contain an allegation that he was deprived of effective

assistance of counsel when his trial counsel impermissibly questioned a “Ms.

Wells” about her inconsistent statements, id. at 617 (Pet. for Writ of Certiorari,

filed May 26, 2010) (emphasis added), his habeas petition mentions only the


      5
              Although Mr. Jernigan did not separate his allegations under each of
the numeric grounds listed in his habeas petition, both the magistrate judge and
the district court apparently separated his claims into subsections for ease of
reference—e.g., 2(a), 2(b), 2(c), 2(d). We adopt the same procedure here.

                                           8
“changed . . . trial testimony” of witness Jean Hawkins, id. at 11 (Pet. for Writ of

Habeas Corpus, filed July 23, 2010).

      Additionally, while Mr. Jernigan generally alleged in his state certiorari

petition that he was denied due process when he was brought into court wearing a

prison jumpsuit and handcuffs, he did not allege—as he did in his habeas

petition—that his photograph was taken while he stood next to the victim’s

mother. And finally, though Mr. Jernigan alleges in his federal habeas petition

that he was denied effective assistance of counsel by his appellate attorney, his

state petition for a writ of certiorari only alleges that his trial counsel was

ineffective. It is therefore clear from the record that Mr. Jernigan failed to

exhaust each of these claims, and, consequently, the district court had every right

to dismiss his habeas petition in light of his refusal to proceed without those

unexhausted claims. See Fairchild, 579 F.3d at 1156.

      We also note that the fact that Mr. Jernigan attached his state habeas

petition and the resulting state district court order—both of which squarely

addressed these unexhausted claims—to his state petition for a writ of certiorari is

irrelevant. The Supreme Court has held that the exhaustion doctrine is not

satisfied where a petitioner attaches lower court filings or opinions but fails to

separately assert the claims that they present in his state certiorari petition. See

Baldwin v. Reese, 541 U.S. 27, 31 (2004). Similarly, this court has rejected

petitioners’ attempts to “incorporate by reference” their previous filings, noting

                                           9
that our circuit rules strongly discourage such conduct. See 10th Cir. R. 28.4

(“Incorporating by reference portions of lower court or agency briefs or pleadings

is disapproved.”); Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613,

623–24 (10th Cir. 1998) (“Like other circuit courts, we do not consider this

[incorporation by reference] acceptable argument.”); see also Argota v. Miller,

No. 10-6251, 2011 WL 2133690, at *2 (10th Cir. May 31, 2011) (“At the outset,

we decline to consider Mr. Argota’s first eight claims for relief, as he seeks to

incorporate those claims wholesale . . . merely by referencing the § 2254 habeas

petition that he filed in the district court.”). Accordingly, the district court was

correct in basing its dismissal, in part, upon its observation “that attaching lower

court documents does not fairly present claims which are not included within the

writ petition itself.” R., Vol. I, at 724.

       In sum, because the district court correctly concluded that Mr. Jernigan had

failed to exhaust all of the claims asserted in his § 2254 habeas petition,

reasonable jurists could not debate the propriety of the district court’s procedural

decision to dismiss his habeas petition on account of these unexhausted claims.

Therefore, Mr. Jernigan has not cleared the double hurdle and is not entitled to a

COA.




                                             10
                              CONCLUSION

     For the foregoing reasons, we DENY Mr. Jernigan’s application for a COA

and DISMISS his appeal.




                                  ENTERED FOR THE COURT



                                  Jerome A. Holmes
                                  Circuit Judge




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