                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                            TENTH CIRCUIT                      March 12, 2015

                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
XEZAKIA ROUSE,

      Petitioner - Appellant,
                                                  No. 14-2212
v.
                                           (1:13-CV-01246-JCH-GBW)
                                                   (D. N.M.)
STATE OF NEW MEXICO
CORRECTIONS DEPARTMENT,

      Respondent - Appellee.



      ORDER DENYING A CERTIFICATE OF APPEALABILITY
               AND DISMISSING THE APPEAL


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



     This appeal grew out of an application for habeas relief by Mr.

Xezakia Rouse. In the application, Mr. Rouse challenged his underlying

conviction based on two claims of ineffective assistance of counsel,

alleging failures to appeal and to urge dismissal of the charges based on

violation of the Interstate Agreement on Detainers Act. The district court

dismissed the application without prejudice, holding that the ineffective

assistance claims had not been exhausted in state court.
      Mr. Rouse requests a certificate of appealability to appeal the denial

of habeas relief. Because no reasonable jurist would find the claim

exhausted, we hold that Mr. Rouse is not entitled to a certificate of

appealability. Thus, we dismiss the appeal.

I.    Standard for a Certificate of Appealability

      To appeal, Mr. Rouse needs a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A). For the certificate, Mr. Rouse must show that reasonable

jurists could find the district court’s ruling on exhaustion debatable or

wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).

II.   Exhaustion of State Court Remedies

      Federal law requires exhaustion of state court remedies. 28 U.S.C.

§ 2254(b)(1)(A). To exhaust the claims, Mr. Rouse must “fairly present”

the substance to the state’s highest court, giving it a fair opportunity to

decide the merits. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

      In a prior habeas case, the district court held that the same two issues

were unexhausted. Rouse v. Romero, No. 11-cv-405-JCH/SMV (D. N.M.

June 25, 2013) (Dkt. 157) (unpublished). We dismissed a later appeal,

holding that the district court’s ruling on exhaustion was not reasonably

debatable. Rouse v. Romero, 531 F. App’x 907 (10th Cir. 2013)

(unpublished).

      Since this ruling, Mr. Rouse filed a new habeas petition in the state

supreme court. But, he did not allege ineffective assistance of counsel

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based on the attorney’s failure to appeal or to invoke the Interstate

Agreement on Detainers Act. The New Mexico Supreme Court later denied

relief, but had no reason to address the ineffectiveness claims involving

the failure to appeal or invoke the Interstate Agreement on Detainers Act.

Thus, Mr. Rouse has not presented the ineffective assistance claims to the

state supreme court since our determination that the claims were

unexhausted.

      In these circumstances, we again conclude that reasonable jurists

could not debate the correctness of the district court’s holding on

exhaustion. Accordingly, we decline to issue a certificate of appealability

and dismiss the appeal.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    For the Court




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