                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 22, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 XEZAKIA ROUSE,

               Petitioner - Appellant,                   No. 13-2121
          v.                                              (D. N.M.)
 ANTHONY ROMERO,                            (D.C. No. 1:11-CV-00405-JCH-SMV)

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and applicant, Xezakia Rouse, proceeding pro se, seeks a

certificate of appealability (“COA”) to enable him to appeal the dismissal of his



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order may be cited under the
terms and conditions of 10th Cir. R. 32.1.
28 U.S.C. § 2254 petition for failure to exhaust state remedies. Finding that he

has failed to meet the requirements for the issuance of a COA, we deny him a

COA and dismiss this appeal.

      Mr. Rouse pled no contest in state court and was found guilty of unlawfully

taking a motor vehicle, a third degree felony, in March 2011. He was further

found to be an habitual offender and was sentenced to seven years’ imprisonment,

with three of the years suspended. Mr. Rouse apparently pursued neither a direct

appeal nor any state post-conviction remedies. 1

      Mr. Rouse then filed the instant 28 U.S.C. § 2254 petition on May 5, 2011.

Respondent argued simply that the petition should be dismissed because Mr.

Rouse failed to exhaust his state court remedies. The magistrate judge to whom

the matter was referred issued proposed findings and a recommended disposition,

concluding that the case should be dismissed on its merits, without making any

ruling on exhaustion. Then, on March 6, 2012, the district court adopted the

proposed findings and dismissed the case with prejudice. On appeal, our court

granted a COA on two claims alleging ineffective assistance of counsel and

denied a COA on Mr. Rouse’s other claims. 2 After Respondent sought a remand

      1
       Mr. Rouse claims that he attempted, pro se, to file a direct appeal, but his
appeal was never docketed because it was not notarized.
      2
        The two ineffective assistance of counsel claims on which our court
granted a COA were Mr. Rouse’s claim that his trial counsel was ineffective for
failing to honor his (Mr. Rouse’s) request to appeal his conviction, and for failing
                                                                      (continued...)

                                         -2-
for a “hearing and consideration of the state court record,” our court granted the

uncontested remand. Respondent supplemented the record and, after further

proceedings, the magistrate judge ultimately recommended that the case be

dismissed because Mr. Rouse had failed to exhaust his state court remedies on the

two ineffective assistance of counsel claims because he had failed to present them

to the New Mexico Supreme Court.

      Mr. Rouse filed objections 3 to the magistrate judge’s proposed findings.

The district court subsequently dismissed Mr. Rouse’s case without prejudice,

finding that he had not met his burden of showing that his ineffective-assistance-

of-counsel claims were exhausted. The court also denied all of Mr. Rouse’s other

motions and requests. This request for a COA to allow an appeal followed. 4

      “A COA is a prerequsite to appellate jurisdiction in a habeas action.”

Lockett v. Tramel, 711 F. 3d 1218, 1230 (10th Cir. 2013). It may issue “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .


      2
       (...continued)
to pursue an argument that the charge against him should be dismissed for failure
to comply with the Interstate Agreement on Detainers Act.
      3
       We note that the district court observed that, along with Mr. Rouse’s
objections, he also “[t]rue to form, . . . filed a slew of unnecessary and repetitive
documents, which have done nothing but increase the delay in this case.” Mem.
Op. & Order at 4 n.5.
      4
       It appears that the district court did not address the issue of the availability
of a COA. Mr. Rouse has, nonetheless, sought a COA in our court.

                                          -3-
constitutional claims on the[ir] merits,” the applicant “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a district court’s ruling rests on procedural grounds, the applicant must

prove both “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).

      The district court carefully and thoroughly explained why Mr. Rouse’s case

must be dismissed for failure to exhaust. It explained the exhaustion requirement

and correctly applied it to Mr. Rouse’s case. We cannot improve on the district

court’s explanation and analysis. 5 Mr. Rouse has failed to develop any ground

for disagreeing with or questioning that court’s discussion, reasoning and holding.

We therefore agree with the district court that, for substantially the reasons stated

by the court in its order of dismissal, Mr. Rouse has failed to establish that he is

entitled to the issuance of a COA.




      5
        We only note that no one, including the district court, specifically
addressed the issue of anticipatory default. See Anderson v. Sirmons, 476 F.3d
1131, 1139 n.7 (10th Cir. 2007). As we explained, “‘[a]nticipatory procedural
bar’ occurs when the federal courts apply procedural bar to an unexhausted claim
that would be procedurally barred under state law if the petitioner returned to
state court to exhaust it.” Id. (quoting Moore v. Schoeman, 288 F.3d 1231, 1233
n.3 (10th Cir. 2002)).

                                          -4-
      For the foregoing reasons, we DENY Mr. Rouse a COA and DISMISS this

matter. We also DENY all pending motions, including Mr. Rouse’s motion for

release on personal recognizance without surety.

                                             ENTERED FOR THE COURT

                                             Stephen H. Anderson
                                             Circuit Judge




                                       -5-
