                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 11, 2009
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                               TENTH CIRCUIT                         Clerk of Court



 MICHAEL D. BARRY,

             Petitioner - Appellant,                    No. 08-1451
 v.                                                    (D. Colorado)
 MR. REID, Warden; JOE ORTIZ,              (D.C. No. 1:06-CV-01848-LTB-BNB)
 Executive Director DOC; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

             Respondents - Appellees.


         ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Michael D. Barry, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2254

application for habeas relief. See 28 U.S.C. § 2253(c) (requiring COA to appeal

dismissal of § 2254 application). The United States District Court for the District

of Colorado dismissed the application without prejudice because some of

Mr. Barry’s claims were not cognizable under § 2254, and the remainder had not

been properly exhausted in state court. Because a reasonable jurist could not

debate the correctness of this decision, we deny a COA and dismiss the appeal.
      Mr. Barry was convicted in Colorado state court in 2002 on a charge of

second-degree assault stemming from an incident in which he spat in the face of a

prison official at the Fremont Correctional Facility. He was sentenced to five

years’ imprisonment. Represented by counsel, Mr. Barry appealed to the

Colorado Court of Appeals in 2005, arguing that the trial court (1) had deprived

him of his Sixth Amendment right to counsel by failing to investigate allegations

that his appointed trial counsel had a conflict of interest; and (2) had violated his

due-process rights by preventing him from presenting evidence that he lacked the

requisite specific intent because of his mental-health problems. The court of

appeals affirmed his conviction on February 1, 2007. See People v. Barry,

No. 03CA2424, 2007 WL 273499, at *1 (Colo. Ct. App. Feb. 1, 2007). Mr. Barry

then petitioned the Colorado Supreme Court for a writ of certiorari.

      In the meantime Mr. Barry filed a pro se § 2254 application in federal court

on September 18, 2006. His application claimed 11 reversible errors: (1) he

received ineffective assistance of trial counsel; (2) the trial court violated his

right to “conflict free counsel” when the judge denied his request for new

counsel, removed him from the courtroom, and continued the trial without his

presence, R. Vol. 1 at 14; (3) the court refused to allow evidence of his mental

state, which would have shown that the assault “resulted due to fear for [his]

life,” id.; (4) the court violated his due-process rights by declining to consider a

pro se posttrial motion alleging multiple violations of court rules, instead

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“negat[ing it] for another unrelated [motion] by counsel,” id. at 15; (5) he was

denied his right to testify at trial because of his mental illness and his distrust of

his attorney, who, he believed, would not “ask the questions necessary to provide

evidence of his innocence,” id.; (6) he was incompetent to stand trial; (7) the

prosecution suborned perjury from a witness; (8) the prosecution prejudiced the

trial court by providing it with a falsified medical report stating that he had

hepatitis; (9) his right to appeal had been “delayed/denied” to prevent exposure of

electronic devices used to torture Colorado inmate, id. at 17; (10) he was

somehow “prevented from accessing coun[s]el” by the use of wireless electronic

devices “to stimulate the brain and bring about violent behavior and for electro-

shock therapy,” id. at 18; and (11) he was subjected to “obstruction of justice”

because (a) an “electronic device” at the prison was “used to bait inmates into

assault,” id., (b) his mail had been blocked (preventing him from consulting with

an attorney), (c) falsified testimony at trial covered up evidence of medical

malpractice at the prison, and (d) medically induced psychosis prevented him

from presenting evidence in his defense.

      The state responded that Mr. Barry’s direct appeal was still pending and

that the state trial record was with the Colorado Court of Appeals, making access

to it difficult. A federal magistrate judge—observing that “[t]he nature of

[Mr. Barry’s] attempts to exhaust his claims in the state courts, and the status of

his direct appeal, are not clear from the record,” id. Vol. 2 at 11—set an

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evidentiary hearing for April 2, 2007. The day after the hearing, the magistrate

judge issued a recommendation that Mr. Barry’s entire application be dismissed

without prejudice. The recommendation stated as follows: Two of Mr. Barry’s

claims (claim 10 and part of claim 11) challenged his conditions of confinement

and were therefore not cognizable under 28 U.S.C. § 2254. Two of Mr. Barry’s

other claims (a portion of claim 2 and all of claim 3) had been ruled on by the

Colorado Court of Appeals but the Colorado Supreme Court had yet to pass on his

petition for certiorari, so these claims had not been exhausted. And as for the

remainder of Mr. Barry’s claims, he had “admitted at the [April 2] hearing that he

has not exhausted [those] claims in state court,” asserting that they were “‘not

legally presentable’ or ‘were left out by the appeal attorney.’” Id. at 89. In

concluding that dismissal without prejudice was appropriate, the magistrate judge

observed that Mr. Barry would have three years after the state supreme court

ruling to bring a collateral attack in state court, see Colo. Rev. Stat.

§ 16-5-402(1); that the Colorado appellate courts had not unreasonably delayed

his appeal (much of the delay being attributable to Mr. Barry); and that the one-

year limitation period under 28 U.S.C. § 2244 (d)(1)(A) would not begin before

the state supreme court ruled on his certiorari petition.

      A month later, the Colorado Supreme Court denied Mr. Barry’s certiorari

petition. See Barry v. People, No. 07SC189, 2007 WL 1310367, at *1 (Colo.




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May 7, 2007) (en banc). On February 12, 2008, the federal district court adopted

the magistrate judge’s recommendation in full.

      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). This standard

requires “a demonstration that . . . includes showing 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.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court's resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

as Mr. Barry’s was in part, the 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.” Id.

      Dismissal of Mr. Barry’s § 2254 application was clearly correct. In

general, a habeas applicant must exhaust available state-court remedies before

seeking federal habeas relief, see 28 U.S.C. § 2254(b)(1)(A); and a district court

should ordinarily dismiss a § 2254 application that contains both exhausted and

unexhausted claims, see Rhines v. Webber, 544 U.S. 269, 275–78 (2005). Even if

one or two of Mr. Barry’s claims were exhausted when the Colorado Supreme

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Court denied his certiorari petition, he still has several unexhausted claims. On

occasion a district court may properly stay federal proceedings rather than dismiss

a § 2254 application containing unexhausted claims. See id. at 278. But

Mr. Barry has not argued in favor of a stay and we see no error in the district

court’s not ordering a stay sua sponte. No reasonable jurist could dispute that

dismissal was appropriate.

      We DENY a COA and DISMISS this appeal. We GRANT Mr. Barry’s

motion for leave to proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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