                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 13, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 DOUGLAS A GLASER,

               Petitioner - Appellant,                    No. 13-1292
          v.                                             (D. Colorado)
 V. EVERETT; THE ATTORNEY                      (D.C. No. 1:13-CV-00961-LTB)
 GENERAL OF THE STATE OF
 COLORADO,

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.




      Applicant and appellant, Douglas A. Glaser, a Colorado state prisoner

proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal

the dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The

district court dismissed the petition without prejudice for failure to exhaust state




      *
       This order is not binding precedent, except under the doctrines of law of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.
remedies. After concluding that Mr. Glaser has failed to meet the standard for the

issuance of a COA, we deny him a COA and dismiss this matter.



                                 BACKGROUND

      As stated by the district court, Mr. Glaser was first arrested on February 14,

2005, and “the procedural history of [his criminal] case is extraordinarily tortured

and star-crossed.” People v. Glaser, 250 P.3d 632, 635 (Colo App. 2010). That

2010 Colorado Court of Appeals decision regarding Mr. Glaser described his

procedural history as including, “[a]mong other things, eight rescheduled trial

dates, two mistrials, three replacements of defense counsel (including one because

of a suicide and another because of a mental breakdown mid-trial), one

interlocutory appeal by the prosecution, and two petitions to the supreme court by

defendant.” Id. On January 21, 2010, after the trial court dismissed the charges 1

against Mr. Glaser on state and federal constitutional speedy trial grounds, the

Colorado Court of Appeals reversed and remanded the case with directions to

reinstate the charges. See id.

      Mr. Glaser was subsequently re-arrested in April 2011. Following a trial in

January 2012, he was convicted of securities fraud. Mr. Glaser was convicted of

other charges following trials in June 2012. On August 27, 2012, he was


      1
        Mr. Glaser had been charged with securities fraud and related counts of
theft, forgery, conspiracy and criminal impersonation.

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sentenced by the Denver District Court to a total term of twenty-five years’

imprisonment for all of his convictions. Mr. Glaser then filed a direct appeal to

the Colorado Court of Appeals, and the parties agree (and we have found no

evidence to the contrary) that the direct appeal remains pending in the Colorado

appellate court. 2

       On May 2, 2013, Mr. Glaser filed an Application for a Writ of Habeas

Corpus, challenging the validity of his convictions which resulted in the twenty-

five year sentence. He alleged fifteen claims for relief: (1) inordinate delay with

respect to his direct appeal; (2) denial of a fair trial with respect to the securities

fraud counts; (3) denial of sixth amendment right to effective assistance of

counsel; (4) double jeopardy violation with respect to counts 20-42; (5) double

jeopardy violation with respect to counts 1-19; (6) double jeopardy violation with

respect to count 43; (7) denial of sixth amendment right to a speedy trial; (8)

illegal search and seizure in violation of the Fourth Amendment; (9) denial of due

process based on prosecutorial bias and misconduct; (10) denial of due process

based on the prosecution’s failure to provide a bill of particulars; (11) denial of

due process based on malicious and vindictive prosecution; (12) denial of due

process based on the reinstatement of charges in February 2007; (13) insufficient

evidence to support convictions on securities fraud counts; (14) insufficient


       2
      The case number for Mr. Glaser’s direct appeal pending before the
Colorado Court of Appeals is 12CA1795.

                                           -3-
evidence to support convictions on racketeering count; and (15) cruel and unusual

punishment based on the length of the prison sentence imposed and prison

classification and placement.

      On May 3, 2013, the magistrate judge to whom the matter had been referred

ordered the Respondents/Appellees to file a Pre-Answer Response limited to

raising the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and

exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if

Respondents intended to raise either or both of those defenses at trial. On

May 23, 2013, Respondents filed a Pre-Answer Response in which they argued

that the application should be denied without prejudice for failure to exhaust state

remedies.

      After explaining why claim 15, relating to alleged cruel and unusual

punishment based on the length of Mr. Glaser’s prison sentence and his prison

classification and placement, was not properly raised in a habeas petition, the

magistrate judge considered whether the remaining claims had been exhausted.

Finding that Mr. Glaser had failed to satisfy his burden to show that he had

exhausted the available state remedies, the magistrate judge recommended

dismissal of the complaint. The district court agreed, and dismissed the

complaint without prejudice. The court also denied Mr. Glaser a COA,

concluding that he has “not made a substantial showing of the denial of a

constitutional right.” Order at 8. This request for a COA followed.

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                                   DISCUSSION

      “A COA is a prerequisite to appellate jurisdiction in a habeas action.”

Lockett v. Tramel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .

constitutional claims on the[ir] merits,” the applicant “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a district court’s ruling rests on procedural grounds, the applicant must

prove both “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.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).

      The district court carefully and thoroughly explained why Mr. Glaser’s case

must be dismissed for failure to exhaust. As the court stated, before seeking

federal habeas relief, a state prisoner must first exhaust state remedies, or show

that such remedies are ineffective. 28 U.S.C. § 2254(b)(1). “The exhaustion

requirement is satisfied if the issues have been properly presented to the highest

state court, either by direct review of the conviction or in a post-conviction

attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quotation




                                          -5-
omitted); see Castille v. Peoples, 489 U.S. 346, 351 (1989). The court concluded

that Mr. Glaser had failed to meet his burden to prove exhaustion:

      First, there is no dispute that case number 12CA1795, Mr. Glaser’s
      direct appeal from the judgment of conviction, remains pending in
      the Colorado Court of Appeal. As a result, it is clear that Mr. Glaser
      has not fairly presented any claims to the state courts on direct
      appeal.

             Second, Mr. Glaser fails to demonstrate that he has
      experienced inexcusable or inordinate delay with respect to the state
      court direct appeal proceedings following his sentencing in August
      2012. Inexcusable or inordinate delay in state court proceedings may
      make the state process ineffective to protect a habeas applicant’s
      rights and excuse a failure to exhaust state remedies.

                                        ....

             Third, the Court is not persuaded by Mr. Glaser’s conclusory
      assertion that he has exhausted state remedies because he “has
      clearly presented his federal claims to the Colorado Supreme Court
      on numerous occasions, all of which were denied en banc.” Because
      Mr. Glaser was not sentenced until August 2012, the Court finds that
      he could not have fairly presented to the Colorado Supreme Court in
      any of the proceedings prior to his sentencing all of the claims he
      raises in this action challenging the validity of his conviction and
      sentence. With respect to state court proceedings after his sentencing
      in August 2012, Mr. Glaser contends he has satisfied the exhaustion
      requirement by filing a petition in the Colorado Supreme Court
      pursuant to Rule 21 of the Colorado Rules of Appellate Procedure in
      September 2012. . . .

             The Court finds that the C.A.R. 21 petition Mr. Glaser filed in
      the Colorado Supreme Court in September 2012 does not satisfy the
      fair presentation requirement because a “claim . . . presented [to the
      state’s highest court] for the first and only time in a procedural
      context in which its merits will not be considered unless there are
      special and important reasons therefor . . . does not, for the relevant
      purpose, constitute fair presentation.” Castille, 489 U.S. at 351
      (internal quotation marks and citation omitted); see also Parkhurst v.

                                         -6-
      Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure
      that is discretionary and limited in scope does not constitute fair
      presentation). The Colorado Supreme Court, in its discretion, may
      decline to address the merits of claims asserted in an original petition
      for an extraordinary writ. . . . As a result, the denial of an original
      petition for an extraordinary writ by the Colorado Supreme Court
      does not indicate that the court has considered the merits of the
      argument.

Order at 6-8. We completely agree with the district court’s reasoning and

conclusion. We accordingly deny a COA for Mr. Glaser and dismiss this matter.

Finally, we agree with the district court that this appeal was not taken in good

faith, as there is no basis for challenging the propriety of the court’s decision.

We therefore deny Mr. Glaser’s request to proceed on appeal in forma pauperis

and remind him that he remains liable for all appellate fees. We also deny his

motion to file a supplemental brief.



                                   CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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