                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

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


 WILLIE T. HAYES,

              Petitioner - Appellant,

 v.                                                      No. 13-1201
                                                (Case No. 1:12-CV-02590-LTB)
 JAMES FALK, D.O.C. Sterling                               (D. Colo.)
 Correctional Facility; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO JOHN
 SUTHERS,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This matter is before the court on the pro se request of Petitioner Willie T.

Hayes for a certificate of appealability to appeal the district court’s denial of his

28 U.S.C. §2254 habeas corpus petition.

      Petitioner pleaded guilty to attempted first degree criminal trespass on

November 14, 2011. He was subsequently sentenced to eighteen months of



      *
        This order is not binding precedent, except under the doctrines of law of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.
imprisonment, plus one year of parole. Petitioner did not file a direct appeal

following his plea and sentence. Instead, he filed a motion for postconviction

relief pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure on

March 26, 2012. In his Rule 35(c) motion, Petitioner raised claims concerning an

apparent clerical error resulting in the appearance of an incorrect address for the

location of Petitioner’s attempted trespass on the complaint and criminal

information underlying Petitioner’s guilty plea. After considering Petitioner’s

Rule 35(c) motion on the merits, the state trial court denied it on July 30, 2012.

      Petitioner next submitted a petition to the Colorado Supreme Court for a

writ of mandamus pursuant to Rule 21 of the Colorado Appellate Rules. In his

Rule 21 petition, Petitioner again raised the claims concerning the incorrect

address. The Colorado Supreme Court denied the petition without a hearing on

August 30, 2012. Thereafter, Petitioner appealed the state trial court’s denial of

his Rule 35(c) motion for postconviction relief.

      On September 28, 2012, Petitioner filed the instant habeas corpus petition

in federal district court, reasserting the claims regarding the incorrect address.

On October 2, 2012, while Petitioner’s habeas petition was pending, he moved the

Colorado Court of Appeals to dismiss his appeal of the denial of his Rule 35(c)

motion. On October 17, 2012, the Colorado Court of Appeals dismissed the

appeal. Finally, after court-ordered pre-answer briefing, the federal district court

denied Petitioner’s habeas petition on April 26, 2013, holding that Petitioner’s

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asserted claims were unexhausted before the state courts and procedurally barred

from federal review.

      In denying the petition, the district court noted that by failing to pursue his

claims regarding the incorrect address through appeal of the state trial court’s

denial of his Rule 35(c) motion, Petitioner failed to exhaust state court remedies

prior to seeking habeas relief. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (requiring that a petitioner “give the state courts one full opportunity to

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

established appellate review process” prior to seeking habeas relief). The district

court further noted that Petitioner’s attempt to pursue those claims through a Rule

21 petition to the Colorado Supreme Court did not constitute exhaustion of state

remedies for purposes of habeas review. See Castille v. Peoples, 489 U.S. 346,

351 (1989) (holding that a claim raised in a “procedural context in which its

merits will not be considered unless there are important reasons therefor” does

not fulfill the exhaustion requirement (internal quotation marks omitted)); see

also Scott v. Warden of Buena Vista Corr. Facility, 457 F. App’x 712, 715 (10th

Cir. 2011). The district court also noted that any subsequent attempts by

Petitioner to raise his claims regarding the incorrect address would be barred in

state court by Rule 35(c)(3)(VI) of the Colorado Rules of Criminal Procedure

which states, with exceptions inapplicable to Petitioner’s circumstances, “[t]he

court shall deny any claim that was raised and resolved in a prior appeal or


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postconviction proceeding on behalf of the same defendant.” Thus, the district

court ultimately held Petitioner’s claims regarding the incorrect address are

procedurally barred from federal review. See Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991) (holding that if an applicant for habeas relief “failed to

exhaust state remedies and the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would now find the

claims procedurally barred . . . . there is a procedural default” (citations

omitted)); see also Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007)

(stating, “this court does not address issues that have been defaulted in state court

on an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice”

(quotation marks omitted)).

      Petitioner now seeks a COA to appeal the district court’s denial of habeas

relief. In his COA application to this court, petitioner primarily reasserts the

merits of his claims raised before the district court. However, Petitioner argues

further that his claims should be excused from the exhaustion requirement and

exempt from the procedural bar for federal habeas review because the regular

state appellate process would have been too slow to provide him with adequate

relief and because failure to consider his claims has resulted in a fundamental

miscarriage of justice.

      Generally, to obtain a COA, a petitioner must make a “substantial showing


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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here,

the district court denied Petitioner’s “habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim” the prisoner must

demonstrate, among other things, that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling” in order to obtain a

COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). After thoroughly reviewing

the record and Petitioner’s filings on appeal, we conclude reasonable jurists

would not debate the district court’s procedural disposition of Petitioner’s habeas

petition.

      Reasonable jurists would not debate that Petitioner’s circumstances do not

render the “‘available State corrective process . . . ineffective to protect the rights

of the [Petitioner]’” such that he is exempted from the exhaustion requirement

and the procedural default of his claims. Dever v. Kan. State Penitentiary, 36

F.3d 1531, 1534 (10th Cir. 1994) (quoting 28 U.S.C. § 2254(b)). Further,

reasonable jurists would not debate Petitioner has failed to demonstrate that the

procedural default of his claims has resulted in a miscarriage of justice sufficient

to overcome the procedural bar for federal review. United States v. Cervini, 379

F.3d 987, 990-92 (10th Cir. 2004).

      Therefore, for substantially the same reasons given by the district court, we

DENY Petitioner’s request for a certificate of appealability and DISMISS the




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appeal. However, the motion to proceed on appeal without prepayment of costs

or fees is GRANTED.

                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




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