                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 4, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT



 CLAUDIA E. BURTON, III,

                 Petitioner-Appellant,                  No. 09-1094
          v.                                        District of Colorado
 ARISTEDES ZAVARAS, Executive                 (D.C. No. 1:08-CV-02179-ZLW)
 Director C.D.O.C. and the
 ATTORNEY GENERAL OF
 COLORADO,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Claudia E. Burton, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow her to appeal from the district court’s order

denying her habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Ms. Burton has failed to make “a

substantial showing of the denial of a constitutional right,” we deny her request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                    Background

      Ms. Burton pled guilty to sexual assault on a child and was sentenced to

eight years’ to life imprisonment in the Colorado Department of Corrections.

Though she did not file a direct appeal, she has filed multiple state post-

conviction motions. She filed a federal petition for habeas relief on October 8,

2008, raising two claims for relief: a claim of ineffective assistance of counsel

with respect to her plea agreement, and a Fifth Amendment self-incrimination

claim. The district court held that both claims were procedurally barred. Dist.

Ct. Or. 6. Ms. Burton now seeks a COA.

                                    Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). 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). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted). Generally, we will not address issues raised for the

first time on appeal, see United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.

2002), nor will we review claims if they “were defaulted in state court on

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independent and adequate state procedural grounds unless . . . [the petitioner] has

demonstrated cause and prejudice or a fundamental miscarriage of justice.” See

Smith v. Mullin, 379 F.3d 919, 925 (10th Cir. 2004).

      Ms. Burton’s application for a COA presents two claims not raised in the

district court: the district court’s denial of her Sixth Amendment right to a jury

trial, and its denial of her due process rights. To the extent Ms. Burton is raising

new claims on appeal, we are unable to address her arguments. Mora, 293 F.3d at

1216. We recognize, however, that we must construe liberally Ms. Burton’s

application as she is not represented by an attorney, see Haines v. Kerner, 404

U.S. 519, 520–21 (1972), and also that the claims she raises now are at least

tangentially related to her ineffective assistance claim raised below. Her claims

all involve an allegation that her plea was not knowing and voluntary, and her due

process claim appears to be an explanation of why these claims are not

procedurally barred. Thus, we will address her claims to the extent that they are

extensions of the ineffective assistance claim made below.

      We hold that the district court properly deemed the ineffective assistance

claim procedurally barred. “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist

would not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.

Here, Ms. Burton failed to raise her ineffective assistance claim in her first round

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of state post-conviction proceedings, thus requiring the Colorado Court of

Appeals to dismiss the claim as procedurally barred under Colo. R. Crim. P.

35(c)(3)(VII) when she raised it in her second round of proceedings. R. at 135.

This is a correct application of a plain procedural bar. Thus, Ms. Burton has not

made a substantial showing of the denial of a constitutional right.

                                    Conclusion

      Accordingly, we DENY Ms. Burton’s request for a COA and DISMISS this

appeal.

      As Ms. Burton has failed to present any non-frivolous arguments in her

appeal, her Motion to Proceed in forma pauperis is DENIED pursuant to 28

U.S.C. 1915(a)(3).

                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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