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

                                                                      December 14, 2005
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                               Clerk of Court


 DAVID E. EDMISTON,

               Petitioner-Appellant,                    No. 05-1172
          v.                                         District of Colorado
 PEOPLE OF THE STATE OF                              (D.C. No. 05-Z-53)
 COLORADO, KEN SALAZAR,
 Attorney General, and JOSEPH
 ORTIZ, Director of D.O.C.,

               Respondents-Appellees.


                                       ORDER *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.



      David E. Edmiston, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

which denied his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Edmiston has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      Mr. Edmiston was convicted in the District Court of Adams County,

Colorado and sentenced to a six-year term of imprisonment for felony menacing

and drinking while intoxicated. He did not appeal his conviction or sentence

directly, instead filing two post-conviction motions in the Adams County District

Court pursuant to Colorado Criminal Procedure Rule 35. The court denied both

post-conviction motions. Mr. Edmiston then filed a motion with the Colorado

Supreme Court for a writ of mandamus pursuant to Colorado Appellate Rule 21

asking the court to vacate his conviction and sentence. The Colorado Supreme

Court denied the motion without discussing its merits.

      On January 12, 2005, Mr. Edmiston filed a pro se application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the

application without prejudice for failure to exhaust state remedies, denied him a

certificate of appealability, and denied his motion to proceed in forma pauperis on

appeal pursuant to 28 U.S.C. § 1915. Mr. Edmiston now appeals.

      Under 28 U.S.C. § 2254(b)(1)(A), federal courts may not grant an

application for a writ of habeas corpus on behalf of a state prisoner unless the

prisoner has “give[n] the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Although Mr. Edmiston properly challenged his conviction and sentence in the


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Adams County District Court pursuant to Colorado Criminal Procedure Rule 35,

he attempted to bypass the normal appellate process by filing a motion for a writ

of mandamus in the Colorado Supreme Court under Colorado Appellate Rule 21.

“Relief under [Rule 21] is extraordinary in nature and . . . shall be granted only

when no other adequate remedy, including relief available by appeal . . . , is

available.” Colo. App. R. 21(a)(1). In Castille v. Peoples, the Supreme Court

held that where a state prisoner has presented his claims to the state’s highest

court for discretionary review, but “in a procedural context in which its merits

will not be considered unless there are special and important reasons,” the

prisoner’s state law remedies are not exhausted. 489 U.S. 346, 351 (1989)

(internal quotation marks omitted). Mr. Edmiston’s Rule 21 motion therefore did

not exhaust his state remedies.

      Mr. Edmiston argues that he should be excused from exhausting state

remedies because there has been an “inordinate delay” in his state court

proceedings. He provides no support for this claim, however, and according to

his application for a writ of habeas corpus, all of his claims raised in the habeas

petition were considered and rejected by the Adams County District Court in his

post-conviction motions.




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      Consequently, the application for a certificate of appealability is DENIED;

the motion to proceed in forma pauperis is DENIED; and the appeal is

DISMISSED.

                                             Entered for the Court,



                                             Michael W. McConnell
                                             Circuit Judge




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