                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      May 6, 2016
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



ERIC LAURSON,

              Petitioner - Appellant,

       v.                                               No. 15-1476
                                               (D.C. No. 1:15-CV-00933-LTB)
RANDY LIND; CYNTHIA                                       (D. Colo.)
COFFMAN, The Attorney General of
the State of Colorado,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.


      Proceeding pro se, Eric Laurson seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Laurson has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      In 1998, a Colorado jury convicted Laurson of first degree (felony) murder,

attempted second degree murder, first degree assault, and attempted aggravated
robbery. He was sentenced to life imprisonment without the possibility of parole

plus eighteen years. Laurson challenged both his convictions and his sentence in

a direct criminal appeal, arguing, inter alia, the trial court erred by failing to

properly instruct the jury and by denying his motion for mistrial. People v.

Laurson, 15 P.3d 791, 794-96, 797 (Colo. App. 2000). The Colorado Court of

Appeals rejected all of Laurson’s claims and affirmed his convictions and

sentence. Id. at 798. Laurson’s subsequent petition for certiorari to the Colorado

Supreme Court was denied. Laurson then sought post-conviction relief by filing

two pro se Colo. R. Crim. P. 35(c) motions in state court. 1 He was unsuccessful

at having his convictions overturned.

      On June 18, 2015, Laurson filed an application for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, in the United States District Court for the District

of Colorado. Laurson identified the following alleged errors: (1) trial counsel

was ineffective for failing to request jury instructions and the trial court erred by

failing to instruct the jury on a lesser-included offense, (2) trial counsel was

biased against him, (3) the trial court improperly permitted prejudicial evidence to

be introduced, (4) a biased juror was seated on the jury, (5) his trial counsel was

ineffective for failing to act in his best interest and failing to keep him informed,




      1
       The first of these motions appears to have languished in Colorado state
court for more than ten years.

                                          -2-
(6) he was tried while incompetent, and (7) his federal due process rights were

violated when a state statute was applied in an unconstitutional manner.

      Respondents filed a pre-answer response, arguing Laurson’s § 2254 petition

should be dismissed because the claims he sought to raise were not properly

exhausted in state court. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.

1992) (“In order to satisfy the exhaustion requirement, a federal habeas corpus

petitioner must show that a state appellate court has had the opportunity to rule on

the same claim presented in federal court, or that at the time he filed his federal

petition, he had no available state avenue of redress.” (citation omitted)). The

district court noted the Colorado Court of Appeals declined to address claims (1),

(2), (4), and (5) because they were presented to the appellate court in a “skeletal”

manner during Laurson’s first round of post-conviction proceedings. Based on

this, the district court concluded the claims were procedurally defaulted in

Colorado state court and the state procedural bar was independent and adequate.

As to the remaining claims, the district court concluded Laurson failed to fairly

present those claims to the Colorado state court because he did not “alert[] the

[state] court to the alleged federal nature of the claim[s].” Baldwin v. Reese, 541

U.S. 27, 33 (2004); see also Duncan v. Henry, 513 U.S. 364, 366 (1995) (holding

a § 2254 habeas claim is not exhausted unless it was presented to the state courts

as a federal constitutional claim). The court further ruled these unexhausted

claims would be procedurally barred in state court. See Moore v. Schoeman, 288

                                          -3-
F.3d 1231, 1233 n.3 (10th Cir. 2002) (“‘Anticipatory procedural bar’ occurs when

the federal courts apply procedural bar to an unexhausted claim that would be

procedurally barred under state law if the petitioner returned to state court to

exhaust it.”).

      The district court concluded Laurson failed to demonstrate cause for the

default and actual prejudice or a fundamental miscarriage of justice. Hickman v.

Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). Accordingly, the court dismissed

Laurson’s § 2254 petition with prejudice for failure to exhaust his state court

remedies.

      Laurson cannot appeal the district court’s dismissal of his habeas

application unless he first obtains a certificate of appealability (“COA”). See 28

U.S.C. § 2253(c). To be entitled to a COA, Laurson must show “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, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct).

      Our review of the record demonstrates the district court’s dismissal of

Laurson’s § 2254 petition with prejudice for failure to exhaust state remedies is

not deserving of further proceedings or subject to a different resolution on appeal.

                                          -4-
This court denies Laurson’s application for a certificate of appealability and

dismisses this appeal. Laurson’s motion to proceed in forma pauperis on appeal

is granted.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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