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

                                                                         February 13, 2006
                       UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                   TENTH CIRCUIT                            Clerk of Court


 RAPHAEL SIMS,

                  Petitioner-Appellant,                   No. 05-2190
          v.                                              (D. of N.M.)
 PATRICK SNEDEKER, Warden,                        (D.C. No. CIV-05-101-WPJ)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                    *




Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.               **




      Petitioner-Appellant Raphael Sims, proceeding      pro se, 1 appeals the District

of New Mexico’s dismissal of his federal habeas corpus     application for failure to

exhaust state court remedies. Because Sims’s state court habeas corpus


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has 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 cause is therefore ordered submitted without oral argument.
      1
       We construe Sims’s appellate filings liberally. See Cummings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998).
application has yet to be adjudicated, we AFFIRM the district court’s application

of the exhaustion requirement to bar his federal petition.

                                     I. Discussion

       A prerequisite to federal jurisdiction over petitions for habeas relief is

exhaustion of state remedies. 28 U.S.C. § 2254(b)(1)(A)      . In general,

       [b]efore a federal court may grant habeas relief to a state prisoner, the
       prisoner must exhaust his remedies in state court. In other words, the
       state prisoner must give the state courts an opportunity to act on his
       claims before he presents those claims to a federal court in a habeas
       petition.

O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999). This court has further

explained that state claims remain unexhausted if state proceedings remain

pending at the time the petition is filed.   Robertson v. Utah , 119 F. App’x 212

(10th Cir. 2004) (unpublished).

       Sims filed a habeas corpus petition in New Mexico state court on October

26, 2004 and (without waiting for a decision) filed a petition for a writ of

certiorari to the New Mexico Supreme Court on December 3, 2004. Less than two

months later, Sims filed this federal habeas petition on January 31, 2005.

Apparently due to a combination of miscommunication and his own impatience,

Sims filed a second federal habeas petition on March 25, 2005. The District of

New Mexico dismissed both petitions without prejudice on April 6, 2005, holding

that because Sims’s state habeas petition was still pending in the New Mexico


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state courts, the state claims were unexhausted. The district court reaffirmed its

dismissal on July 26, 2005 in response to Sims’s timely motion for

reconsideration under Fed. R. Civ. P. 59(e). Given that Sims conceded his state

habeas petition was still pending at the time the district court reviewed the federal

petition, the district court correctly dismissed his federal habeas corpus petition

for failure to exhaust state remedies.

      On appeal, Sims appears to argue that his failure to exhaust should be

excused. (Pet. Br. at 4). Construing his argument liberally, Sims asks us to hold

that New Mexico’s failure to rule on his habeas corpus petition constitutes an

“absence of available state corrective process” or creates circumstances that

render such process “ineffective to protect his rights” under 28 U.S.C.

§ 2254(b)(1)(B). This provision provides:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      unless it appears that – . . .
             (B)(I) there is an absence of available State corrective process; or
             (ii) circumstances exist that render such process ineffective to
             protect the rights of the applicant.

Under our cases construing the predecessor to this provision, we must ordinarily

defer to state processes:

      comity requires that the petitioner exhaust his state appeals unless he
      can show such “inordinate, excessive and inexcusable delay” in the
      state appeal process that exhaustion would render his rights ineffective
      to review the alleged trial errors.

                                         -3-
Harris v. Champion 938 F.2d 1062, 1069 (10th Cir. 1991) (citing       Jones v. Crouse ,

360 F.2d 157, 158 (10th Cir. 1966)). Sims made no showing to the district court

that his state habeas petition was languishing as a result of inordinate, excessive

and inexcusable delay. In fact, it would have been virtually impossible for him to

do so: at the time of the district court’s dismissal of his petition, Sims’s state

habeas petition had been before the New Mexico courts for only five and a half

months.

       In the past, we have held that a delay of fifteen months in adjudicating a

state petition may give rise to “grave concerns in the realm of due process.”

Prescher v. Crouse , 431 F.2d 209, 211 (10th Cir. 1970) (holding on the basis of

evidence presented that “special circumstances” excused a fifteen-month delay).

And we have allowed an evidentiary hearing to determine whether a delay of

eighteen months is inordinate or inexcusable under the statute.     See Jones, 360

F.2d at 158. Sims, however, has not provided any showing of substantial delay in

this case attributable to state officials or any effect by the alleged delay on his

claims for review. Accordingly, the district court properly dismissed petition for

failure to exhaust state remedies.

                                   II. Conclusion

       For the foregoing reasons, we AFFIRM the district court, and DENY



                                            -4-
Sims’s request for a certificate of appealability.



                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




                                              -5-
