                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 10, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 DAVID BLADE CLAY,

          Petitioner - Appellant,
                                                        No. 13-6119
 v.                                              (D.C. No. 5:13-CV-00248-C)
                                                        (W.D. Okla.)
 STATE OF OKLAHOMA,

          Respondent - Appellee.



                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      An Oklahoma court convicted David Clay in 2011 on charges of possessing

a stolen vehicle and obstructing an officer. This action began when Mr. Clay

filed a pro se 1 petition for a writ of habeas corpus under 28 U.S.C. § 2254. The

district court dismissed the petition without prejudice for failure to exhaust state

remedies. Mr. Clay now requests a certificate of appealability (“COA”) to



      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Clay is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
challenge the district court’s dismissal. He also seeks leave to proceed in forma

pauperis (“IFP”). We deny Mr. Clay’s application for a COA, deny his request

to proceed IFP, and dismiss this matter.

                                           I

      After he entered a guilty plea, Mr. Clay was convicted in 2011 in Oklahoma

state court of possession of a stolen vehicle and obstructing an officer. In 2013,

he filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in federal

district court, arguing that he received ineffective assistance of counsel and that

he should be permitted to withdraw his guilty plea. 2 On its own motion, the

district court ordered Mr. Clay to show cause as to why his petition was not

properly dismissed for failure to exhaust available state remedies. Unpersuaded

by Mr. Clay’s response to the order, the district court adopted a magistrate

judge’s report and recommendation and dismissed Mr. Clay’s petition without

prejudice for failure to exhaust state remedies. Mr. Clay filed a notice of appeal.

Construing the notice as an application for a COA, the district court denied it.

                                           II

      Mr. Clay now looks to us for a COA so that he may contest the district




      2
             In his various filings, Mr. Clay has raised a number of other
arguments. Several are not cognizable as habeas claims, and the remainder were
not presented to the district court in any of the papers Mr. Clay filed prior to the
magistrate judge’s recommendation to dismiss his petition.

                                           2
court’s dismissal of his petition. 3

                                          A

       “Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). A COA

should be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To justify a COA, the

applicant is required to “demonstrate ‘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.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th

Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

       When, as here, habeas relief is “denied on procedural grounds, the


       3
              In his application for a COA, Mr. Clay complains that he was not
appointed an attorney to assist him with his ineffective assistance of counsel
claim. Assuming that he has in mind his federal court proceeding and that the
district court denied such a request (neither of which is clear), Mr. Clay is entitled
to raise this issue without a COA. See Harbison v. Bell, 556 U.S. 180, 183
(2009). Nevertheless, he has not shown that appointment of counsel was
warranted, particularly given the simplicity of the issues, Mr. Clay’s ability to
fully express his position in writing, and the meritlessness of the petition, as
discussed below. See Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001)
(“The decision to appoint counsel [in a habeas proceeding] is left to the sound
discretion of the district court” and should not be disturbed where, inter alia, the
issues are relatively simple); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 861
(10th Cir. 2005) (finding no abuse of discretion in a district court’s refusal to
appoint counsel to a habeas petitioner where the claims were meritless).

                                          3
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.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008)

(omission in original) (quoting Slack, 529 U.S. at 484). “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

a 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. (quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).

                                           B

      “For a federal court to consider a federal constitutional claim in an

application for habeas, the claim must be ‘fairly presented to the state courts’ in

order to give state courts the ‘opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.’” Prendergast v. Clements, 699 F.3d

1182, 1184 (10th Cir. 2012) (quoting Picard v. Connor, 404 U.S. 270, 275

(1971)). “The exhaustion requirement is satisfied if the issues have been

‘properly presented to the highest state court, either by direct review of the

conviction or in a postconviction attack.’” Brown v. Shanks, 185 F.3d 1122, 1124

(10th Cir. 1999) (quoting Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534

(10th Cir. 1994)). Where a petitioner has not exhausted his state remedies,

“[g]enerally, a federal court should dismiss unexhausted claims without prejudice

                                           4
so that the petitioner can pursue available state-court remedies.” Bland v.

Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006). A habeas “petitioner bears the

burden of demonstrating that he has exhausted his available state remedies.”

McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009) (quoting Oyler v.

Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994)) (internal quotation marks

omitted).

      Mr. Clay’s filings with the district court are replete with indications that he

has not exhausted his state remedies on his federal habeas claims. For example,

in his original petition, Mr. Clay averred that he had not appealed to the highest

state court with jurisdiction over his claim “for fear of retaliation,” R. at 6 (Pet.

for Writ of Habeas Corpus, filed Mar. 11, 2013), and later stated, “I did not

exhaust state remedy [sic] due to a conflict of interest as I have filed a civil rights

violation claim against Canadian County[] Jail,” id. Elsewhere in the petition he

noted that his claim for relief in state court was still “pending,” and that he

“received a hearing date but chose to request a continuance.” Id. at 7; see also id.

at 8 (“Date of [state] courts [sic] decision? Pending in District Court.”). Along

the same lines, Mr. Clay wrote in his response to the district court’s show-cause

order that he thought “there would be no [j]ustice served in exhausting remedies

in state court being so far out of the statue [sic] of limitations.” Clay v. State of

Oklahoma, Dist. Ct. No. 5:13-cv-248-C, Doc. 7, at 3 (Mot. to Show Cause, filed

Mar. 22, 2013). There was no indication in either Mr. Clay’s averments to the

                                            5
district court or in the district court record that Oklahoma’s high court has passed

upon any of Mr. Clay’s federal habeas claims, a prerequisite to federal review of

his petition. 4 In view of the aforementioned explicit acknowledgments by Mr.

Clay that he failed to exhaust his state remedies and in view of the record’s

silence on the question, 5 it was proper for the district court to sua sponte dismiss

the petition on that ground before the government had filed a response. See Allen,

568 F.3d at 1202 (affirming a district court’s dismissal of a habeas petition for

      4
              On June 24, 2013, Mr. Clay filed with us a docket sheet from the
Oklahoma Court of Criminal Appeals (“OCCA”) indicating that the OCCA
declined jurisdiction over a post-conviction action by Mr. Clay on May 28, 2013.
The petition for post-conviction relief itself appears to have been submitted to the
OCCA on May 6, 2013. Mr. Clay characterizes the docket sheet as evidence of
exhaustion. Because this document was not filed with the district court in the
first instance (and, indeed could not have been, given that the OCCA’s decision
post-dates the district court’s), we will not consider it here. See United States v.
Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (“This court will not consider
material outside the record before the district court.”); Reid v. Oklahoma, 101
F.3d 628, 630–31 (10th Cir. 1996) (“As a court of review, we may examine
additional documents culled from the district court file and consider new legal
authority, but we may not enlarge the evidentiary record to include material
unavailable to the district court . . . .”). Additionally, even if we were to consider
the OCCA docket, it does not show that Mr. Clay exhausted his state remedies
because exhaustion requires that “the ‘substance’ of the petitioner’s claim[s] [be]
presented to the state courts,” Prendergast, 699 F.3d at 1184 (quoting Connor,
404 U.S. at 278), and it is impossible to tell from the docket what arguments Mr.
Clay made in his action for post-conviction relief before the OCCA and thus
likewise impossible to compare any such arguments to the claims he raised in his
federal habeas petition.
      5
              Mr. Clay also wrote in his petition: “Have all grounds for relief that
you raised in this petition been presented to the highest state court having
[j]urisdiction? (yes).” R. at 8. Aside from this single word, however, all of his
other statements to the district court suggest that his claim for relief was either
never filed in state court or was still pending there.

                                          6
failure to exhaust where the failure “was clear from the face of [the] petition” and

where the petitioner failed to adequately address exhaustion after being instructed

to do so in a show-cause order). Mr. Clay plainly failed to satisfy his burden of

showing that he had exhausted his state remedies.

                                          C

      Failure to exhaust state remedies can be “excused if a petitioner can

‘demonstrate cause for the [failure] and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.’” Magar v. Parker, 490 F.3d 816,

819 (10th Cir. 2007) (quoting Bland, 459 F.3d at 1012). Cause can be

demonstrated by sufficient evidence either that “‘there is an absence of available

State corrective process’ or ‘circumstances exist that render such process

ineffective to protect the rights of the applicant.’” Selsor v. Workman, 644 F.3d

984, 1026 (10th Cir. 2011) (quoting 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii)), cert.

denied, --- U.S. ----, 132 S. Ct. 1558 (2012).

      Liberally construing Mr. Clay’s filings, he has offered several potential

excuses for his failure to exhaust. 6 Specifically, he complains about extortionate


      6
              We consider only the excuses Mr. Clay presented to the district court
prior to the magistrate judge’s recommendation that the district court dismiss the
petition without prejudice for failure to exhaust. The various excuses he
articulated in his objections to the recommendation, in his notice of appeal, and in
his application for a COA are irrelevant to our analysis. See United States v.
                                                                       (continued...)

                                          7
fees exacted by fellow prisoners for use of the law library, inability to access

records for his appeal, difficulty obtaining medications, violent conditions in his

institution, and fear of retaliation for his habeas litigation.

      Mr. Clay has not excused his failure to exhaust. Like the Magar court,

“[w]e have no information before us that would allow us to conclude that” any of

the improprieties alleged by Mr. Clay occurred during the relevant time period.

490 F.3d at 820. Quite to the contrary, as the district court noted, Mr. Clay was

at the time of his habeas corpus litigation below confined in Minnesota and not in

Oklahoma, 7 where the various impediments to exhaustion allegedly existed. Mr.

Clay provided no plausible explanation to the district court as to why he could not

pursue relief in Oklahoma state court, and he therefore cannot excuse his failure

to exhaust. 8 Because “a plain procedural bar [was] present and the district court


      6
        (...continued)
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised
for the first time in objections to the magistrate judge’s report are deemed
waived.”); Sedillo v. Hatch, 445 F. App’x 95, 101–02 (10th Cir. 2011) (applying
that rule to a pro se § 2254 petition), cert. denied, --- U.S. ----, 132 S. Ct. 1762
(2012).
      7
             On August 29, 2013, Mr. Clay filed a notice of change of address
with our court, which appears to indicate that he has been returned to the custody
of the Oklahoma state prison system. His present place of confinement, though,
is not germane to our COA inquiry because he gave the district court no reason to
believe he was unable to pursue his state remedies while litigating his habeas
petition below during his incarceration in Minnesota.
      8
            Given that we find no cause for Mr. Clay’s failure to exhaust, we
need not and do not consider whether he has shown prejudice. See Magar, 490
                                                                    (continued...)

                                            8
[was] 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.” Coppage, 534 F.3d at 1281

(quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).

                                          III

      Accordingly, we deny Mr. Clay’s request for a COA, deny his motion to

proceed IFP, and dismiss this matter.



                                                Entered for the Court



                                                JEROME A. HOLMES
                                                Circuit Judge




      8
       (...continued)
F.3d at 819. Moreover, Mr. Clay has not demonstrated that the dismissal resulted
in a fundamental miscarriage of justice. See id.

                                           9
