                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 11, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 DAVID CHITWOOD,

              Petitioner - Appellant,                    No. 11-1120
       v.                                               (D. Colorado)
 JOHN DAVIS, Warden; JOHN                     (D.C. No. 1:10-CV-02474-ZLW)
 SUTHERS, Attorney General of the
 State of Colorado,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      David Chitwood (Defendant), a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to appeal the denial of his application

under 28 U.S.C. § 2241 for habeas relief. See 28 U.S.C. § 2253(c)(1)(A)

(requiring COA to appeal denial of application). We deny his request for a COA

and dismiss the appeal.

I.    BACKGROUND

      In September 1993, after being temporarily transferred from the custody of

the Missouri Department of Corrections, Defendant pleaded guilty in the District

Court of Jefferson County, Colorado, to one count of second-degree burglary and
one count of second-degree forgery. He was sentenced to concurrent prison terms

of 20 years on the burglary count and 8 years on the forgery count, the “sentence

. . . to run consecutive to [his] sentences in Missouri.” R., Vol. 1 at 21. He then

was returned to prison in Missouri and remained there until he was returned to

Colorado in November 1998. In January 2009 he pleaded guilty to felony

menacing in a separate case in the District Court of Adams County, Colorado, and

the next month he was sentenced to a term of six years in prison consecutive to

his Jefferson County sentence.

      In August 2009 Defendant filed an unsuccessful petition for writ of habeas

corpus in the District Court of Chaffee County, Colorado. Although he did not

appeal that decision, he filed an original petition for writ of habeas corpus with

the Colorado Supreme Court, which was also denied.

      In October 2010, Defendant filed his § 2241 application in the United

States District Court for the District of Colorado. He filed an amended

application in November. The amended application raises three claims, all based

on an alleged mistake by the Colorado Department of Corrections in not setting

the start of his prison term until his 1998 return to Colorado from Missouri. On

February 15, 2011, the district court entered an order dismissing the application

without prejudice on the ground that Defendant had failed to exhaust his state




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remedies; it also denied a COA on his claims. Defendant now seeks a COA from

this court. 1

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, the 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

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


       1
        Although Defendant’s notice of appeal was due on Friday, March 18,
2011, see Fed. R. App. P. 4(a)(1) (requiring that a notice of appeal “be filed with
the district clerk within 30 days after the judgment or order appealed from is
entered”), his motion to proceed on appeal in forma pauperis, which the district
court treated as a notice of appeal, was not docketed until March 21. Federal
Rule of Appellate Procedure 4(c)(1), however, provides that “[i]f an inmate
confined in an institution files a notice of appeal in either a civil or a criminal
case, the notice is timely if it is deposited in the institution’s internal mail system
on or before the last day for filing.” Because Defendant has submitted evidence
that his motion was mailed on March 17, we will treat his appeal as timely.

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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 the 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 generally may not raise a claim for federal habeas corpus

relief unless (1) he “has exhausted the remedies available in the courts of the

State,” 28 U.S.C. § 2254(b)(1)(A), or (2) exhaustion would be futile because

either “there is an absence of available State corrective process” or

“circumstances exist that render such process ineffective to protect the rights of

the applicant.” Id. § 2254(b)(1)(B)(i), (ii). 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 v. Boerckel, 526 U.S. 838, 845

(1999). The applicant bears the burden of proving that he exhausted state-court

remedies or that exhaustion would have been futile. See Clonce v. Presley, 640

F.2d 271, 273 (10th Cir. 1981).

      Defendant has not shown that he exhausted his state remedies. Although

Colorado authorizes a state prisoner to appeal to the Colorado Supreme Court a

state district court’s denial of a petition for writ of habeas corpus, see Colo. Rev.

Stat. § 13-4-102(1)(e) (2011); Tuller v. Neal, 886 P.2d 279, 279 n.1 (Colo. 1994),



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Defendant did not appeal the state district court’s denial of his petition. He

contends that he exhausted his remedies by filing an original petition for writ of

habeas corpus with the Colorado Supreme Court. But that did not suffice. The

exercise of the Colorado Supreme Court’s original jurisdiction appears to be

limited to correcting errors “that cannot be later remedied on appeal,” and it “is

extraordinary relief, limited in purpose and availability, and the court retains the

discretion to choose not to exercise it.” People v. Martinez, 22 P.3d 915, 921

(Colo. 2001) (en banc); see Colo. App. R. 21(a)(1). In particular, a petition

seeking the exercise of the supreme court’s original jurisdiction is “not a

substitute for appeal.” Bell v. Simpson, 918 P.2d 1123, 1125 n.3 (Colo. 1996) (en

banc). Because Defendant’s petition in the state supreme court sought

extraordinary and discretionary relief, it did not fairly present the issues to that

court, and it does not satisfy the exhaustion requirement. See Castille v. Peoples,

489 U.S. 346, 351 (1989); Esquibel v. Williamson, No. 10-1357, 2010 WL

4912310, *2 (10th Cir. Dec. 3, 2010) (unpublished); Edmiston v. Colorado, 158 F.

App’x 980, 981–82 (10th Cir. 2005) (unpublished).

      Thus, Defendant did not exhaust his state remedies. And he has not argued

that exhaustion would have been futile. We therefore hold that no reasonable

jurist could debate that the district court erred in dismissing the Defendant’s

§ 2241 application.



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III. CONCLUSION

      We DENY the application for a COA and DISMISS the appeal. We also

DENY Defendant’s request to proceed in forma pauperis and his motion for

appointment of counsel.

                                    ENTERED FOR THE COURT



                                    Harris L Hartz
                                    Circuit Judge




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