                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 WILLIE T. HAYES,

          Petitioner-Appellant,

 v.                                                            No. 00-1088
                                                                 (D. Colo.)
 JUANITA NOVAK; ATTORNEY GENERAL                           (D.Ct. No. 99-Z-2154)
 FOR THE STATE OF COLORADO,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Willie T. Hayes, a state prisoner appearing pro se, appeals the

district court’s decision denying his federal habeas corpus petition filed pursuant

to 28 U.S.C. § 2254 and a certificate of appealability. We exercise our

jurisdiction under 28 U.S.C. § 2253(a), deny Mr. Hayes’ request for a certificate

of appealability, and dismiss his appeal.



      The entire underlying procedural disposition of Mr. Hayes’ state litigation

is provided in detail in the district court’s decision. In short, after pleading guilty

and receiving his sentence, Mr. Hayes successfully petitioned the state trial court

to reduce his sentence because it applied the wrong sentencing range of four-to-

sixteen years in calculating his sentence, rather than the correct range of four-to-

twelve years. In applying the correct sentencing range, the trial court reduced Mr.

Hayes thirteen-year sentence to twelve years. Shortly thereafter, Mr. Hayes

brought a motion under Colorado Rule of Criminal Procedure 35(c), seeking to

withdraw his guilty plea as involuntary based on an ineffective assistance of

counsel claim. Mr. Hayes claimed his attorney acted ineffectively by failing to

advise him of the correct sentencing range. Following a hearing on the motion,

the state trial court denied Mr. Hayes’ motion, finding he testified the difference

in the sentencing range would not have made a difference in his pleading guilty.




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       Mr. Hayes appealed the state trial court’s decision to the Colorado Court of

Appeals, raising the same issue. The Colorado Court of Appeals considered his

claim on its merits, determining his counsel did not act ineffectively. The

Colorado Supreme Court denied Mr. Hayes’ writ of certiorari. Later, the state

district court denied Mr. Hayes’ post-conviction habeas petition as insufficient on

its face, which the Colorado Supreme Court affirmed on appeal.



       Unsuccessful at the state level, Mr. Hayes filed his federal habeas petition,

claiming his guilty plea was unknowing and involuntary due to his illegal

sentence. The district court assigned the matter to a magistrate judge who issued

an Order to Show Cause, finding Mr. Hayes never raised this issue before the

Colorado Court of Appeals, 1 and therefore, concluding Mr. Hayes failed to

exhaust his state remedies as required under § 2254.



       Mr. Hayes filed a response to the Order to Show Cause, contending he

exhausted the illegal sentencing issue because he raised it in his Rule 35(c)

motion. Following a review of Mr. Hayes’ response to magistrate judge’s show


       1
         While the magistrate judge at one point states Mr. Hayes did not raise the illegal
sentencing issue in “the state courts,” we acknowledge Mr. Hayes did raise the illegal
sentencing range issue in his Rule 35(c) motion, albeit in the guise of an ineffective
assistance of counsel claim.


                                            -3-
cause order, the district court denied his petition, also holding Mr. Hayes failed to

show he exhausted his state remedies.



      On appeal, Mr. Hayes raises the same issue regarding his unknowing and

involuntary plea premised on his illegal sentence, which the magistrate judge and

district court determined he failed to exhaust. Mr. Hayes claims the federal

district court ignored evidence showing he did in fact exhaust his remedies in the

state courts. In support, Mr. Hayes points out he raised the illegal sentence issue

in his Rule 35(c) motion when he claimed his counsel failed to advise him of the

correct sentencing range.



      In order to obtain a certificate of appealability, Mr. Hayes must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Because the district court denied Mr. Hayes’ habeas petition on

procedural grounds without reaching his underlying constitutional claims, we will

only issue a certificate of appealability if Mr. Hayes can show, at the least, that

jurists of reason would find it debatable whether 1) Mr. Hayes stated a valid claim

of the denial of a constitutional right and 2) the district court’s procedural ruling

was correct. See Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1604 (2000).

We review the legal basis for the district court’s denial of Mr. Hayes’ § 2254


                                          -4-
petition de novo and its factual findings under the clearly erroneous standard. See

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct.

944 (2000). As a pro se litigant, Mr. Hayes’ pleadings must be construed

liberally and held to a less stringent standard than formal pleadings drafted by

lawyers. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).



      In determining whether we should issue a certificate of appealability, we

hold in this case Mr. Hayes raises a debatable question as to whether the district

court’s procedural ruling was correct. Thus, we begin with a discussion of the

district court’s procedural ruling on Mr. Hayes’ failure to exhaust his state

remedies. Mr. Hayes’ petition may be considered if he shows he exhausted his

state remedies or that no adequate state remedies are available. Cf. 28 U.S.C.

§ 2254(b)(1). The exhaustion requirement is satisfied only if Mr. Hayes presented

his federal claims to the highest state court, either by direct review or post-

conviction attack. See Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1354

(10th Cir. 1994).



      The record shows Mr. Hayes raised an involuntary guilty plea issue in his

35(c) motion based on alleged ineffective assistance of counsel for failure to

advise him of the correct sentencing range. The Colorado Court of Appeals


                                          -5-
addressed this issue on its merits, determining Mr. Hayes’ counsel did not act

ineffectively. Thus, it is clear Mr. Hayes raised the ineffective assistance of

counsel claim in both his 35(c) motion and on state appeal. However, in his

federal petition, Mr. Hayes did not explicitly set forth an ineffective assistance of

counsel claim. Instead, he claimed only that his plea was unknowing and

involuntary due to his illegal sentence. On appeal, he suggests he exhausted his

state remedies and in support, quotes excerpts from all of his state pleadings in

which he claimed his involuntary plea resulted from his counsel’s actions in

advising him and the court of the wrong sentencing range.



      Construing Mr. Hayes’ federal petition liberally, it is conceivable he

implicitly raised the same ineffective assistance of counsel claim in his federal

petition when he again claimed his plea was involuntary and unknowing based on

application of the incorrect sentencing range. We arrive at this conclusion

because, in the state proceedings, Mr. Hayes maintained his involuntary plea

resulted from his attorney’s actions in advising him of the wrong sentence range.

Therefore, in this case, the fact Mr. Hayes left out any mention of counsel is not

necessarily fatal. Hence, we disagree with the district court and conclude Mr.

Hayes did exhaust his state remedies on his ineffective assistance of counsel

claim and subsequently brought the same claim in his federal petition.


                                          -6-
      Having determined Mr. Hayes exhausted his state remedies, we must next

determine whether jurists of reasons would find it debatable whether Mr. Hayes

has stated a valid claim of a constitutional right concerning his ineffective

assistance of counsel claim. See Slack, ___ U.S. at ___, 120 S. Ct. at 1604. Even

if we liberally construe Mr. Hayes’ federal petition as an ineffective assistance of

counsel claim as he requests, we conclude any alleged deficiency of his counsel in

failing to advise him of the correct sentencing range did not prejudice him. 2 This

is because Mr. Hayes initially pled guilty, thinking his sentence range was four to

sixteen years. Given this plea, Mr. Hayes has not shown why he would not have

also pled guilty to the lesser sentence of four-to-twelve years, if correctly advised.

Moreover, the state trial court found Mr. Hayes testified the difference in the

sentencing range would not have made a difference in his pleading guilty.



      Under the circumstances presented, we hold Mr. Hayes demonstrates he

exhausted his state remedies. However, we conclude Mr. Hayes fails to state a

constitutional claim of ineffective assistance of counsel debatable among jurists.

For this reason, he fails to meet the requirement for issuance of a certificate of


      2
          To prevail on an ineffective assistance of counsel claim, Mr. Hayes must show
either that his counsel’s performance fell below an objective standard of reasonableness
or that the deficient performance was prejudicial to his defense. See Brewer v. Reynolds,
51 F.3d 1519, 1523 & n. 7 (10th Cir. 1995), cert. denied, 516 U.S. 1123 (1996).


                                           -7-
appealability. Thus, we must deny Mr. Hayes a certificate of appealability and

DISMISS his appeal. We nevertheless grant Mr. Hayes’ request to proceed in

forma pauperis.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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