                                                                                FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               March 28, 2006
                                    TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                                Clerk of Court

 LARRY GORDON,

           Petitioner-Appellant,
 v.                                                           No. 05-1474
 AL ESTEP, Warden of the Limon                       (D.C. No. 05-CV-1091-ZLW)
 Correctional Facility, and                                 (D. Colorado)
 JOHN SUTHERS, THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

           Respondents-Appellees.



                                           ORDER*


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



       Petitioner Larry Gordon, a Colorado prisoner appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s dismissal without

prejudice of his 28 U.S.C. § 2254 habeas petition. Because Gordon has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

deny his request and dismiss the appeal.




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        This order is not binding precedent, except under the doctrines of law of the case,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

       On December 22, 1993, Gordon was convicted in the District Court of Denver

County, Colorado, in Case No. 93CR1049, on one count of menacing, one count of

second degree kidnapping, and one count of assault in the third degree, as a result of

incidents that occurred on November 28, 1991. Although it is not entirely clear from the

record, it appears that Gordon made an unsuccessful attempt to appeal these convictions

to the Colorado Court of Appeals. In early 1995, Gordon also filed with the Colorado

Supreme Court a petition for writ of certiorari seeking review of the Colorado Court of

Appeals’ decision. That petition was apparently denied by the Colorado Supreme Court.

       On July 5, 2005, Gordon filed in federal district court a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Gordon’s petition alleged that (1) he “was illegally

extradite[d] back to the state of Colorado in violation of customary international law,”

and (2) was subjected to torture as a pretrial detainee (including poisoning, denial of

sleep, denial of medical treatment, and the intentional infliction of physical and mental

suffering). ROA, Doc. 5 at 5. On July 28, 2005, the magistrate judge directed Gordon to

file an amended petition limiting his claims to those properly raised in a habeas

proceeding, demonstrating exhaustion of state court remedies, and demonstrating the

timeliness of his claims. On August 18, 2005, Gordon filed an amended petition that

essentially added three additional claims: (1) ineffective assistance of trial counsel, (2)

prosecutorial misconduct (submission of false information to the trial court and jury), and

(3) denial of proper jury instructions. The amended petition failed, however, to clarify

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when each of the claims asserted in the amended petition had been presented to and ruled

on by the Colorado appellate courts. Accordingly, on September 29, 2005, the district

court dismissed Gordon’s amended petition without prejudice. The district court

subsequently denied Gordon’s motion for reconsideration, as well as his request for a

COA. Gordon has now filed an application for COA with this court.

                                              II.

       “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

“When the district court denies a habeas petition on procedural grounds without reaching

the prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

       Under 28 U.S.C. § 2254(b)(1)(A), federal courts may not grant an application for a

writ of habeas corpus on behalf of a state prisoner unless the prisoner has “give[n] the

state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). Here, the district court concluded, and we agree,

that Gordon has failed to establish that he gave the Colorado state courts such an

opportunity. Although Gordon has included in his appellate pleadings a copy of the

                                              -3-
petition for writ of certiorari he filed with the Colorado Supreme Court, it is clear that the

petition for writ of certiorari did not include all of the claims that he now includes in his

federal habeas petition. Accordingly, we agree with the district court that Gordon has

failed to establish that he exhausted his state court remedies with respect to each of the

claims asserted in his amended petition.1

       The request for a COA is DENIED, the request to proceed in forma pauperis on

appeal is DENIED, and the appeal is DISMISSED.

                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




       1
          Gordon’s claim that he was tortured by Arapahoe County officials while awaiting
trial is not a viable claim for habeas relief. Rather, it would have to be asserted in a civil
rights action filed pursuant to 42 U.S.C. § 1983. That said, however, it appears to us that
the torture claim, as well as all of the remaining claims asserted in Gordon’s amended
petition, are untimely.

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