                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 22, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 DONALD R. GONZALES,

               Petitioner - Appellant,                   No. 09-1436
          v.                                            (D. Colorado)
 WARDEN HARTLEY; THE                          (D.C. No. 1:09-CV-01090-ZLW)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.


      Donald R. Gonzales, a Colorado state prisoner, filed a pro se application

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

District of Colorado. The court dismissed the application as procedurally barred

because (1) he had failed to exhaust his claims in state court, (2) he no longer had

available any adequate and effective remedy under Colorado law, and (3) he had


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent except under the doctrines of law of the case, res judicata,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.
failed to show cause and prejudice to overcome the procedural default. He seeks

a certificate of appealability (COA) from this court to appeal the dismissal of his

application. See 28 U.S.C. § 2253(c)(1)(a) (requiring COA to appeal dismissal of

application). We grant the COA and reverse and remand for further proceedings.

The district court erred in dismissing Mr. Gonzales’s application on procedural

grounds without first addressing two arguments raised by him in that court: (1)

whether a state habeas petition filed by Mr. Gonzales satisfied the exhaustion

requirement and (2) whether ineffective assistance of his state appellate counsel

was cause for his procedural default.

I.    BACKGROUND

      On December 1, 2004, a jury in Colorado state court convicted

Mr. Gonzales of second-degree assault and violation of a protective order. He

was sentenced to consecutive terms of 16 years’ imprisonment on the assault

conviction and 2 years’ imprisonment for violating the protective order. The

Colorado Court of Appeals affirmed his convictions and sentence, and the

Colorado Supreme Court denied his petition for a writ of certiorari.

      On May 11, 2009, Mr. Gonzales filed his § 2254 application. He

challenged the validity of his convictions on four grounds: (1) that the trial

court’s denial of his request to represent himself violated his constitutional right

to self-representation; (2) that his convictions for both assault and violating a

protective order subjected him to double jeopardy; (3) that his rights under Brady

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v. Maryland, 373 U.S. 83 (1963), were violated by the trial court’s exclusion

of—and his attorney’s suppression of—an allegedly pornographic DVD that,

according to the victim, was the reason for Mr. Gonzales’s assault; and (4) that

the trial court’s refusal to give his attorney access to the victim’s medical records

prevented him from showing that the victim was uninjured and violated, in his

words, his “right to confront witness, Brady equal protection of the law, and due

process,” R. at 10, and resulted in ineffective assistance of counsel.

      The district court held that Mr. Gonzales had failed to exhaust his state

remedies on each of his four claims because he had not presented his first three

claims to the Colorado Court of Appeals, and had failed in the state trial court to

preserve his fourth claim for appellate review. The court further held that

Colorado law prohibited him from raising any of these claims in any future

postconviction proceeding, so his § 2254 claims were procedurally barred.

Finally, the court held that Mr. Gonzales had failed to overcome the procedural

bar by demonstrating cause and prejudice or a miscarriage of justice.

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

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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. Where 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

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.

      Because Mr. Gonzales has proceeded pro se in his § 2254 proceedings, we

construe his pleadings liberally. See Straley v. Utah Bd. of Pardons, 582 F.3d

1208, 1210 n.1 (10th Cir. 2009). We need consider only two of the arguments

raised by Mr. Gonzales in this court: (1) that he satisfied the exhaustion

requirement through his state habeas petition and (2) that any procedural default

should be excused because of the ineffectiveness of his appellate counsel on

direct appeal. These arguments were also presented to the district court. He

raised the first argument in a pleading responding to the state’s motion to dismiss

his § 2254 application for failure to exhaust. Mr. Gonzales asserted that the

claims set forth in his § 2254 application had been raised in a state habeas

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petition in Crowley County District Court in Colorado. See R. at 319

(Mr. Gonzales’s “Addendum to reply to pre-answer response”). The state argued

that the habeas proceeding did not satisfy the exhaustion requirement, see id. at

321–23 (State’s “Supplement to Pre-Answer Response”); but the district court did

not address the matter. See Dever v. Kansas State Penitentiary, 36 F.3d 1531,

1535 (10th Cir. 1994) (applicant’s state habeas petition satisfied exhaustion

requirement).

      As for the claims of ineffective assistance of appellate counsel,

Mr. Gonzales alleged in a “Reply to Pre-Answer Response” filed on July 9, 2009,

that “I first attempted to get my [appellate] attorney to address the issues raised in

my pro-se 35(c), to which she replied and I quote ‘I also explained that as your

attorney I will decide what issues are appellate issues.’” R. at 251. He further

stated that his attorney’s “failure to raise on appeal nonfriv[o]lous constitutional

claims upon which his client has insisted must constitute ‘cause and prejudice’ for

any resulting procedural default under state law.” Id. Attachments to that

pleading show that Mr. Gonzales was referring to the first three claims in his

§ 2254 application. The district court, however, did not address whether

ineffective assistance constituted cause to excuse Mr. Gonzales’s procedural

default. Cf. Coleman v. Thompson, 501 U.S. 722, 753–54 (1991) (ineffective

assistance can be cause for a default).




                                          -5-
      The district court erred in not addressing the merits of either of these

arguments. They are best considered by the district court in the first instance.

Accordingly, we GRANT Mr. Gonzales’s application for a COA, and REVERSE

and REMAND to the district court for further proceedings. We GRANT his

motion to proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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