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

                                   TENTH CIRCUIT                               January 29, 2020

                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
  KATHERINE STEWART FELVEY,

                Petitioner - Appellant,

  v.                                                           No. 19-1405
                                                  (D.C. No. 1:19-CV-01125-LTB-GPG)
  LONG, Warden, Denver Women’s                                (D. Colorado)
  Correctional Facility; and THE
  ATTORNEY GENERAL OF THE
  STATE OF COLORADO,

                Respondents - Appellees.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McHUGH and MORITZ, Circuit Judges.



       Katherine Stewart Felvey, a Colorado state prisoner appearing pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s dismissal without

prejudice of her 28 U.S.C. § 2254 petition for federal habeas corpus relief. Ms. Felvey

also moves to proceed in forma pauperis (“IFP”). Because Ms. Felvey has failed to


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 10th Circuit Rule 32.1.
       1
        Because Ms. Felvey is proceeding pro se, “we liberally construe h[er] filings, but
we will not act as h[er] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
exhaust available state court remedies, we decline to grant a COA, deny her motion to

proceed IFP, and dismiss this matter.

                             PROCEDURAL BACKGROUND

       On January 26, 2017, a jury in El Paso County, Colorado, convicted Ms. Felvey of

second degree assault of a peace officer, resisting arrest, obstructing a peace officer, and

disorderly conduct. On April 10, 2017, the state court judge sentenced her to five years in

prison with three years of mandatory parole.2 A direct appeal followed.

       Ms. Felvey filed the instant petition for a writ of habeas corpus in federal district

court on April 17, 2019. She noted in the petition that the direct appeal of her conviction

remained pending. Ms. Felvey alleged two federal constitutional errors: (1) a violation of

her due process rights stemming from the intentional misrepresentation of the arresting

officer’s birthdate on his probable cause affidavit, and (2) a violation of her Sixth

Amendment speedy trial right stemming from a lack of formal arraignment. Her petition

was coupled with a motion for leave to proceed IFP under 28 U.S.C. § 1915, which the

federal magistrate judge assigned to the case granted.

       Deeming Ms. Felvey’s initial filing deficient, due in part to a failure to exhaust

available state court remedies, the magistrate judge directed her to file an amended

petition. After Ms. Felvey failed to do so, the magistrate judge requested that Colorado

file a pre-answer response limited to the issues of timeliness under 28 U.S.C. § 2244(d)


       2
         Although Ms. Felvey has been released from prison on parole, a state prisoner on
parole remains in custody for purposes of seeking habeas corpus relief. Calhoun v. Att’y
Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014) (citing Jones v. Cunningham, 371
U.S. 236, 242–43 (1963)).
                                              2
and/or exhaustion of state court remedies under § 2254(b)(1)(A). The state’s response,

filed on June 28, 2019, asserted that Ms. Felvey had failed to exhaust state court remedies

because the direct appeal of her conviction was pending. Attached to this response was a

docket from Ms. Felvey’s direct appeal in the Colorado Court of Appeals, indicating that

briefing had been completed just days earlier.

       Ms. Felvey filed a motion to amend her federal habeas petition on July 3, 2019,

seeking to add additional Sixth Amendment claims (ineffective assistance of trial and

appellate counsel) and an Eighth Amendment claim. She thereafter filed her own pre-

answer response—which the magistrate judge treated as a reply brief—asserting that

§ 2254’s exhaustion requirement should be excused under both subsection (b)(1)(B)(i),

“an absence of available State corrective process,” and (b)(1)(B)(ii), “circumstances exist

that render such process ineffective to protect the rights of the applicant.”

       On August 12, 2019, the magistrate judge issued a report and recommendation

concluding that Ms. Felvey’s § 2254 petition should be denied and dismissed without

prejudice for failure to exhaust available state court remedies, and that her motion to

amend should be denied as futile. Ms. Felvey objected, arguing that there had been

“inordinate delay and other justifications for excusing exhaustion” and that Colorado’s

criminal procedures were “ineffective and inadequate.” ROA at 131, 133.

       Applying de novo review, the district court adopted the magistrate judge’s

recommendation in a September 20, 2019 summary order of dismissal. The court

overruled Ms. Felvey’s objections, denied and dismissed her § 2254 petition without

prejudice for failure to exhaust available state court remedies, and denied her a COA.

                                              3
Additionally, the court certified pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from

its order would not be taken in good faith, and thus denied Ms. Felvey leave to proceed

IFP on appeal, without prejudice to the filing of a motion to proceed IFP in the Tenth

Circuit.

       Ms. Felvey filed a timely appeal from the district court’s order and a new

application to proceed IFP. She subsequently filed a combined opening brief and

application for COA with this court.

                                           ANALYSIS

                                A. Certificate of Appealability

       We are without jurisdiction to review the denial of a § 2254 petition unless the

district court or this court first issues a COA. 28 U.S.C. § 2253(c)(1); Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003). Where, as here, a district court denies a § 2254

petition on procedural grounds, a COA will issue only if the petitioner demonstrates “that

jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (emphasis added). “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id. If the petitioner’s showing is deficient as to the

procedural bar, a court should ordinarily deny the COA on those grounds without

reaching the constitutional issue. Id. at 485.

                                                 4
       The district court based its denial of Ms. Felvey’s § 2254 petition on her failure to

exhaust available state court remedies. As we now explain, reasonable jurists could not

conclude either that the district court erred in applying that plain procedural bar or that

Ms. Felvey should be allowed to proceed further.

1.     State Court Exhaustion

       To bring a successful federal habeas petition, a state prisoner must typically first

“exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A);

see, e.g., Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999). “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. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994); see also O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate 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.”). “Generally, a federal court should dismiss

unexhausted claims without prejudice so that the petitioner can pursue available state-

court remedies.” Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006).

       Ms. Felvey has failed to show satisfaction of the exhaustion requirement, as is her

burden. See McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009). The record

indicates that the direct appeal of her state court convictions remains pending, and that

none of her claims have yet been presented to the Colorado Supreme Court.3 There can


       3
       With respect to Ms. Felvey’s appeal, on November 14, 2019, the Colorado Court
of Appeals affirmed in part, reversed in part, and remanded with directions. People v.
                                              5
be no exhaustion of state court remedies while a direct appeal from a state conviction is

pending. Denney v. Kansas, 436 F.2d 587, 588 (10th Cir. 1971). And Ms. Felvey has

conceded this clear lack of exhaustion in multiple filings. Reasonable jurists would

therefore not find the district court’s determination that state court remedies remain

unexhausted to be debatable.4

2.     Exceptions to the Exhaustion Requirement

       Ms. Felvey seeks to excuse her admitted failure to exhaust by invoking the two

exceptions to the exhaustion requirement: “there is an absence of available State

corrective process,” and “circumstances exist that render such process ineffective to

protect the rights of the applicant.” See 28 U.S.C. § 2254(b)(1)(B). She argues that her

ability to exhaust was “obstructed because the record on appeal . . . had been maliciously

and illegally compromised,” and that she “wasted almost 3 years trying to exhaust [her]

claims.” Opening Br. at 5.


Felvey, No. 17CA0975, 2019 WL 6041066, at *1 (Colo. App. Nov. 14, 2019)
(unpublished). On November 27, 2019 the Colorado Court of Appeals denied rehearing.
Id. Thus, the state proceedings have not yet become final.
       4
         The record indicates that the issues raised by Ms. Felvey in her habeas petition
are distinct from those she raised on direct appeal. This mismatch in claims implicates an
anticipatory procedural bar, see Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir.
2002)—Ms. Felvey’s two habeas claims were available on direct appeal, and Colo. R.
Crim. P. 35(c)(3)(VII) bars claims of this type that could have been but were not raised in
a prior proceeding. See Ellis v. Raemisch, 872 F.3d 1064, 1093 n.7 (10th Cir. 2017)
(“proceed[ing] on the assumption” that Rule 35(c)(3)(VII) is an independent and
adequate state procedural ground). We elect not to address this procedural default sua
sponte, however, because the state proceedings are not complete. Additionally, the record
does not conclusively reflect what claims Ms. Felvey raised on direct appeal, and she has
not been given a chance to respond to the anticipatory bar defense. See Hines v. United
States, 971 F.2d 506, 509 (10th Cir. 1992).
                                             6
       Ms. Felvey’s most cogent request for relief from the exhaustion requirement

invokes the futility argument outlined in Harris v. Champion, 938 F.2d 1062 (10th Cir.

1991): “that inordinate, excessive and inexcusable delay in a state appeal process may

excuse the need of a federal habeas petitioner to exhaust state remedies.” Id. at 1065

(internal quotation marks omitted). In Harris, this court objected to a delay of

approximately four years from docketing of the state court appeal until filing of the

opening brief, which was “forced upon an unwilling petitioner by reason of his

indigency.” Id. Here the record indicates that Ms. Felvey endured a delay of

approximately fifteen months between the docketing of her appeal and the filing of an

opening brief by her court-appointed appellate counsel, and roughly an additional nine

months until the filing of the state’s answer. While this timeframe is not immune from

attack under § 2254(b)(1)(B)(ii), the present circumstances of Ms. Felvey’s direct appeal

indicate that the state process was not ineffective: at this date, briefing has been

completed and a decision rendered by the Colorado Court of Appeals. The record also

does not indicate, and Ms. Felvey has not adequately demonstrated, that the delays that

did occur were attributable to deficient or inadequate state corrective process.

       In short, the circumstances here could not give reasonable jurists cause to debate

the district court’s application of the plain procedural bar of failure to exhaust, either due

to “an absence of available State corrective process” or because “such process [was]

ineffective to protect the rights of the applicant.” See 28 U.S.C. § 2254(b)(1)(B).




                                              7
                         B. Motion to Proceed in Forma Pauperis

       Ms. Felvey seeks to proceed in forma pauperis on appeal. To do so, she “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.”

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Ms. Felvey has not met

this burden; our review of the record reveals no nonfrivolous argument in support of her

appeal. We accordingly deny her motion to proceed in forma pauperis.

                                       CONCLUSION

       Because reasonable jurists would not debate whether Ms. Felvey has failed to

exhaust available state court remedies, we DENY her request for a COA and DISMISS

this matter. We also DENY Ms. Felvey’s motion to proceed in forma pauperis on appeal.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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