                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 9, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 CHARLES JEFFREY MCMILLIAN,

              Petitioner-Appellant,                       No. 08-1294
 v.                                                      (D. Colorado)
 TONY CAROCHI, Warden, and                  (D.C. No. 1:05-CV-00985-WDM-MJW)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents-Appellees.



                                      ORDER


Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.


      Charles Jeffrey McMillian, a Colorado state prisoner appearing pro se, filed

this application for a certificate of appealability (COA), see 28 U.S.C. §

2253(c)(1)(A), seeking to challenge the district court’s dismissal of his 28 U.S.C.

§ 2254 habeas petition. He also seeks leave to proceed in forma pauperis (ifp) on

appeal. Because he is proceeding pro se, we review Mr. McMillian’s pleadings

and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                 I. BACKGROUND

      Mr. McMillian pleaded guilty in Colorado state court to charges of

conspiracy to commit first-degree murder, retaliation against a witness,

second-degree murder, and aggravated motor vehicle theft. Prior to sentencing,

he filed a motion under Rule 32(d) of the Colorado Rules of Criminal Procedure

to withdraw his guilty plea. That motion was denied and he was sentenced to

sixty-four years’ imprisonment. The Colorado Court of Appeals affirmed, and on

May 22, 1997, the Colorado Supreme Court denied certiorari review. The period

of time before which a conviction becomes final continues “until after the United

States Supreme Court has denied review, or, if no petition for certiorari is filed,

after the time for filing a petition for certiorari with the Supreme Court has

passed.” Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). Mr. McMillian’s

conviction thus became final on August 22, 1997.

      Before his conviction became final, Mr. McMillian filed a motion for

postconviction relief pursuant to Rule 35 of the Colorado Rules of Criminal

Procedure on May 22, 1997. That motion was denied on February 18, 1998, and

Mr. McMillian’s appeal of that denial was dismissed by the Colorado Court of

Appeals on April 15, 1999. The Colorado Supreme Court subsequently denied his

petition for a writ of certiorari on September 27, 1999.




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      Mr. McMillian then filed a second Rule 35 motion for postconviction relief

on April 17, 2000. It was denied and Mr. McMillian’s appeal of that denial was

dismissed by the Colorado Court of Appeals. The Colorado Supreme Court

subsequently denied his petition for a writ of certiorari on April 25, 2005. Mr.

McMillian filed a § 2254 habeas petition on May 31, 2005. The district court

dismissed his petition as untimely, and we reversed and remanded, holding that

the § 2254 habeas petition was timely filed. See McMillian v. Carochi, 198 F.

App’x 766 (10th Cir. Oct. 12, 2006)

      Upon the reinstatement of Mr. McMillian’s § 2254 petition, the district

court referred it to the magistrate judge for a report and recommendation. In his

petition, Mr. McMillian contended that (1) his guilty plea was not a free and

voluntary act, because he was under the influence of benzodiazepine (Halcion),

which had been prescribed by the Arapahoe County Detention Facility Center for

a closed head injury, in violation of his Sixth and Fourteenth Amendment rights;

(2) he received ineffective assistance of counsel on five separate occasions from

counsels’ several failures to investigate the defense of involuntary intoxication

(from Halcion) at the time of the crime, when he entered his plea, during

sentencing and during the direct appeal; and (3) the accumulated errors in

contentions (1) and (2) violated his right to equal protection.




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                                  II. DISCUSSION

      The magistrate judge, in a thorough recommendation, recommended that

Mr. McMillian had not previously raised his third claim, which alleged that the

accumulated errors violated his right to equal protection; thus the claim was

unexhausted. Similarly, the magistrate judge found that Mr. McMillian did not

exhaust four of the five ineffective assistance of counsel claims. The magistrate

judge found no exception to the exhaustion rule applicable to Mr. McMillian’s

claims. See 28 U.S.C. § 2254(b), (c) (delineating exceptions); Coleman v.

Thompson, 501 U.S. 722, 750 (outlining the “fundamental miscarriage of justice”

exception to exhaustion).

      The magistrate judge also recommended that the above claims were also

defaulted in state court on an independent and adequate state procedural ground,

citing Colo. R. Crim P. R. 35(c)(3)(VII). See Turman v. Buckallew, 784 P.2d 774,

780 (Colo. 1989) (“We have emphasized that where a post-conviction application

is filed, it should contain all factual and legal contentions of which the applicant

knew at the time of filing, and failure to do so will, unless special circumstances

exist, ordinarily result in a second application containing such grounds being

summarily denied.”) (internal quotation marks omitted). Again, the magistrate

judge determined that federal habeas review of these claims was barred. See

Coleman, 501 U.S. at 750 (“In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and adequate state


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procedural rule, federal habeas review of the claims is barred unless the prisoner

can demonstrate cause for the default 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.”).

      Finally, the magistrate judge concluded that Mr. McMillian had exhausted

his remaining claims ((1) involuntary plea because he was under the influence of

Halcion and (2) ineffective assistance of plea counsel for allowing him to enter a

guilty plea while under the influence). The magistrate judge concluded, however,

that these remaining claims were also procedurally defaulted in state court on an

independent and adequate state ground (Mr. McMillian’s failure to raise them in

the state court proceedings in a timely manner), as determined by the Colorado

Court of Appeals.

      In rejecting these claims as successive, the Colorado Court of Appeals

noted that Mr. McMillian

      raised no new bases for relief that differed from those raised in his
      Crim. P. 32(d) motion or his first Crim. P. 35(c) motions. In his
      previous two motions, defendant raised both ineffective assistance of
      plea counsel and his “impaired mental condition.” The argument
      advanced here was available to defendant when he filed his Crim. P.
      32(d) motion to withdraw his plea and his first Crim. P. 35(c) motion.

Rec. doc. 42, at 20 (Mag. Rep. & Rec., filed March 24, 2008) (quoting the

Colorado Court of Appeals’ holding). Again, applying Coleman’s rigorous




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standards, the magistrate judge found no cause or prejudice, nor any fundamental

miscarriage of justice resulting from this procedural default. See 501 U.S. at 749.

      The district court carefully reviewed Mr. McMillian’s claims and his

objections to the recommendation, and accepted each of the magistrate judge’s

recommendations. In so doing, the district court judge similarly concluded that it

was unable to find Mr. McMillian’s third argument (equal protection violation) or

four of the five subparts of the ineffective assistance of counsel claim anywhere

“in the portions of the state record provided to me.” Rec. vol. II, doc. 10, at 6

(Dist. Ct. Order, filed July 24, 2008).

      The district court also agreed that Mr. McMillian’s remaining claims ((1)

he was impaired and under the influence of Halcion at the time of his plea, and

(2) counsel was ineffective for failing to raise this claim) were defaulted in state

court on independent and adequate state grounds. It rejected Mr. McMillian’s

arguments regarding cause and prejudice, concluding that he “has made no

showing that the claim that he was on Halcion at the time of his guilty plea, or

that his counsel failed to raise such claim, was not reasonably available to him

upon diligent inquiry.” Id. at 9.

      Finally, the district court determined that Mr. McMillian could not establish

that a fundamental miscarriage of justice would result from the its failure to

review the claim. “To demonstrate a fundamental miscarriage of justice, [Mr.

McMillian] must demonstrate that a constitutional error has probably resulted in


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the conviction of one who is actually innocent.” Id. at 9 (citing Bousely v. United

States, 523 U.S. 614, 623 (1998)).

      The district court also noted that the Colorado Court of Appeals succinctly

summarized that there was substantial evidence of guilt against Mr. McMillian,

which included his accomplice’s implication of him as a full participant in the

murder, corroborating witness testimony, rental car records, and Mr. McMillian’s

own statements to the police. The district court reviewed and rejected Mr.

McMillian’s objection to the Report and Recommendation on this point, noting

that it found “no argument in the objection, or any reference to admissible

evidence, indicating actual innocence.” Rec. vol. II, doc. 10, at 10. The district

court determined that Mr. McMillian failed to show that a denial of a review of

his claims would result in a fundamental miscarriage of justice and dismissed Mr.

McMillian’s § 2254 petition with prejudice, dismissed Mr. McMillian’s motion to

proceed ifp, and denied Mr. McMillian’s request for a COA.

      Having reviewed the appellate record and Mr. McMillian’s briefs, we hold,

for substantially the same reasons as contained in the magistrate judge’s

recommendations and the district court’s order, that no reasonable jurist could

debate the correctness of the district court’s rulings.




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                               III. CONCLUSION

     Because jurists of reason would not find the district court’s conclusions

debatable, we DENY Mr. McMillian’s request for a COA, DENY his request to

proceed IFP, and DISMISS the matter.

                               Entered for the Court,




                               ELISABETH A. SHUMAKER, Clerk




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