                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       July 2, 2009
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 DAVID R. BROWN,

              Petitioner - Appellant,                    No. 09-3070
 v.                                                      (D. Kansas)
 RAY ROBERTS, Warden; STEPHEN                 (D.C. No. 5:07-CV-03227-SAC)
 N. SIX, Attorney General of Kansas,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      David R. Brown, a Kansas state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to challenge the dismissal of his application for

habeas relief. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of

§ 2254 relief). The district court dismissed the application on the ground that

Mr. Brown had failed to exhaust state remedies. Because a reasonable jurist

could not debate the correctness of the court’s decision, we deny his application

for a COA and dismiss the appeal.

I.    BACKGROUND

      Mr. Brown was convicted in Kansas state court in 1997 on charges of

attempted aggravated robbery and kidnaping. He filed a notice of appeal in 1997
but his counsel failed to perfect or otherwise pursue the appeal in the Kansas

appellate courts. Mr. Brown does not suggest that he has pursued any of his

claims in state collateral proceedings. See Kan. Stat. Ann. § 60-1507 (permitting

collateral attack on sentence). In 2005 Mr. Brown filed an application for habeas

relief under 28 U.S.C. § 2254 in the United States District Court for the District

of Kansas, alleging ineffective assistance of counsel and other constitutional

claims. The court dismissed the application as time-barred and Mr. Brown

appealed. We held that dismissal was proper. See Brown v. Roberts, 177 F.

App’x 774, 778 (10th Cir. 2006). But we observed that because the Kansas state

courts had not entered a formal order dismissing Mr. Brown’s 1997 direct appeal,

the appeal was potentially “alive.” Id. at 777. Accordingly, we vacated the

district court’s decision and remanded “with instructions to dismiss the petition

without prejudice for failure to exhaust available remedies in state court.” Id. at

780. 1

         Back in state court, Mr. Brown filed a motion to docket his direct appeal

out of time. The Kansas Court of Appeals summarily denied the motion on

May 1, 2007, and the Kansas Supreme Court affirmed the denial shortly

thereafter. Presuming that his claims had been exhausted, Mr. Brown filed a new

§ 2254 application in federal court on August 30, 2007. The application was

         1
        We also rejected several claims that Mr. Brown had raised with regard to
a 1981 conviction. See Brown, 177 F. App’x at 776. Mr. Brown has not
reasserted those claims in his present habeas application.

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liberally construed by the district court to raise claims of (1) ineffective

assistance of trial and appellate counsel, (2) cruel and unusual punishment, and

(3) a defective complaint or information, depriving the trial court of jurisdiction.

      Again the district court dismissed for failure to exhaust. The court

observed that Kansas courts can entertain a defendant’s untimely appeal when his

attorney “failed to perfect and complete” an initial appeal. State v. Ortiz, 640

P.2d 1255, 1258 (Kan. 1982). Finding no indication that Mr. Brown had alerted

the Kansas courts to the potential applicability of this doctrine, the court

concluded that relief in state court was still a possibility. Mr. Brown now seeks a

COA from this court to challenge the dismissal.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

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substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of a 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.

      A state prisoner must exhaust available state-court remedies before seeking

habeas relief in federal court. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999). To exhaust a claim, a habeas applicant must

pursue it through “one complete round of the State’s established appellate review

process,” giving the state courts a “full and fair opportunity” to correct alleged

constitutional errors. O’Sullivan, 526 U.S. at 845.

      Here, reasonable jurists could not debate the district court’s conclusion that

Mr. Brown has failed to exhaust available state remedies. Although the general

rule in Kansas is that an untimely appeal must be dismissed, Ortiz recognized an

exception for defendants whose attorneys failed to perfect an appeal. See State v.

Patton, 195 P.3d 753, 758–69 (Kan. 2008). That exception may well apply here.

The record contains a letter from Mr. Brown’s former appellate counsel in which

he states that he “dropped the ball big time!” in relation to Mr. Brown’s 1997

direct appeal. R. Vol. I at 141. According to the letter, counsel filed a notice of

appeal and Mr. Brown wrote him to ask what issues he intended to raise; but the

                                           -4-
appeal was never perfected because Mr. Brown’s file was inadvertently stored in

a “closed files box” and thereafter forgotten. Id. There is no indication that

Mr. Brown argued for the application of the Ortiz exception when moving the

Kansas state courts to permit him to file an untimely appeal. Because remedies

under Ortiz may still be available, a reasonable jurist could not dispute the

correctness of dismissing Mr. Brown’s § 2254 application on exhaustion grounds.

III.   CONCLUSION

       We DENY Mr. Brown’s request for a COA and DISMISS this appeal. His

motion to proceed in forma pauperis is granted.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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