                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  MAY 30 1997
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 TIMOTHY DUNCAN,

               Petitioner-Appellant,

 v.                                                    Case No. 96-2076

 LAWRENCE BARRERAS, Warden,                            (D.C. 95-CV-131)
 New Mexico State Penitentiary;                        (District of New Mexico)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

               Respondents-Appellees.



                              ORDER AND JUDGMENT*


Before BRORBY, LOGAN, and HENRY, Circuit Judges.



       Petitioner-appellant Timothy Duncan appeals the district court’s order dismissing

his petition for a writ of habeas corpus on the ground that he failed to exhaust state post-

conviction remedies. Also before this court is the question of whether we should grant

Mr. Duncan a certificate of appealability. We exercise jurisdiction pursuant to 28 U.S.C.




       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 1291, grant Mr. Duncan a certificate of appealability, and reverse and remand this case

to the district court.

       Mr. Duncan was convicted on two counts of armed robbery in a New Mexico state

court and is serving a thirty-four year sentence. Mr. Duncan appealed his conviction to

the New Mexico Court of Appeals arguing, among other things, that his due process

rights were violated because the prosecutor vindictively sought to enhance his sentence in

his second trial after he successfully appealed the exclusion of defense evidence from his

first trial. The state court of appeals affirmed, and the New Mexico Supreme Court

subsequently denied Mr. Duncan’s petition for a writ of certiorari. Mr. Duncan then filed

the present 28 U.S.C. § 2254 petition in federal court, raising the prosecutorial

vindictiveness claim presented on direct appeal. Prior to pursuing federal habeas relief,

however, Mr. Duncan did not pursue the state post-conviction remedies available to him.

The petition was referred to a magistrate judge, who recommended that the district court

dismiss Mr. Duncan’s petition because he had not exhausted his state post-conviction

remedies as required pursuant to 28 U.S.C. § 2254(c). The district court adopted the

magistrate judge’s recommendation and dismissed Mr. Duncan’s petition without

prejudice. Subsequently, the district court denied Mr. Duncan’s application for a

certificate of probable cause to pursue this appeal.




                                              2
                              I. Certificate of Appealability

       As a preliminary matter, we must decide whether to issue Mr. Duncan a certificate

of appealability. Section 102 of the Antiterrorism and Effective Death Penalty Act

(AEDPA) of 1996 requires state habeas petitioners to obtain certificates of appealability

prior to seeking appellate review of final orders in habeas proceedings. Pub.L. 104-132,

110 Stat. 1217-18 (codified at 28 U.S.C. § 2253). This court has held that the amended §

2253 applies retroactively to appeals filed prior to the passage of the AEDPA on April 24,

1996, as is the case here. See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert.

denied, 117 S. Ct. 746 (1997). A habeas petitioner is entitled to a certificate of

appealability only if the petitioner has made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2553(c)(2)(1994). We have previously recognized that

the standard for granting a certificate of appealability under the AEDPA is the same as

the standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880 (1983).

See Lennox, 87 F.3d at 434. Under the Barefoot standard, a certificate will issue only

where the petitioner has demonstrated that the issues raised are debatable among jurists of

reason, a court could resolve the issues differently, or the questions presented are

deserving of further proceedings. 463 U.S. at 893 n.4.

       In his habeas petition and appellate briefs, Mr. Duncan characterizes his habeas

claim as a “vindictive prosecution” claim. While, as the defendant points out, Mr.

Duncan does not clearly articulate the constitutional right on which his prosecutorial


                                              3
vindictiveness claim is based, he does assert that this claim is identical to his vindictive

prosecution claim on direct appeal--which alleged a violation of his due process right

under the United States Constitution. Given that Mr. Duncan alludes to the violation of a

federal constitutional right in his petition and appellate briefs, and our conclusion below

that Mr. Duncan is correct that the district court erred in dismissing his petition for failure

to exhaust his state post-conviction remedies, we grant him a certificate of appealability.



                   II. Exhaustion of State Post-Conviction Remedies

       The magistrate judge’s findings and recommendations, which were adopted by the

district court, recommended dismissal of Mr. Duncan’s habeas petition because of his

failure to exhaust state post-conviction remedies. Mr. Duncan does not dispute that he

did not pursue state post-conviction relief prior to filing the present habeas action.

Rather, Mr. Duncan argues that the Supreme Court’s interpretation of the 28 U.S.C. §

2254(c) exhaustion requirement makes clear that if the issue on habeas is the same as that

presented on direct appeal, there is no need to exhaust state post-conviction remedies

prior to seeking habeas relief.

       Section 2254(b) of the habeas statute requires that a habeas petitioner in state

custody exhaust his or her available state court remedies prior to seeking habeas relief.1


       1
             Because the substance of 28 U.S.C. §§ 2254(b) and (c) as related to this
appeal was not altered by the AEDPA amendments, we express no opinion as to whether
the AEDPA amendments of these sections apply retroactively in this case. However,

                                               4
In applying this state exhaustion requirement, § 2254(c) provides that “[a]n applicant

shall not be deemed to have exhausted the remedies available in the courts of the State,

within the meaning of this section, if he has the right under the law of the State to raise,

by any available procedure, the question presented.” 28 U.S.C. § 2254(c). While the

plain meaning of the section appears rather straightforward, the Supreme Court has

applied a judicial exception to this language. The exception allows a petitioner to avoid

state post-conviction collateral review where a state court has had the opportunity to rule

on the substance of the federal claim. In explaining this provision, the Court has stated:

       Read narrowly, [the] language [of § 2254(c)] appears to preclude a finding
       of exhaustion if there exists any possibility of further state-court review.
       We have, however, expressly rejected such a construction, Brown v. Allen,
       344 U.S. 443, 448-49, n.3 (1953), holding instead that once the state courts
       have ruled upon a claim, it is not necessary for a petition “to ask the state
       for collateral relief, based upon the same evidence and issues already
       decided by direct review.” Id. at 447. This interpretation reconciles §
       2254(c) with § 2254(b), which provides that federal habeas review will lie
       where state corrective processes are “ineffective to protect the rights of the
       prisoner.” It would be inconsistent with the latter provision, as well as with
       underlying principles of comity, to mandate recourse to state collateral
       review whose results have effectively been predetermined, or permanently
       to bar from federal habeas prisoners in States whose post-conviction
       procedures are technically inexhaustible.

Castille v. Peoples, 489 U.S. 346, 350 (1989).




because the district court and the parties relied on the prior version of the habeas statute,
our statutory citations are to the version of the statute which existed prior to the passage
of the AEDPA.

                                              5
       Applying the above exception, it is clear that the magistrate judge’s

recommendation, on which the district court’s order is based, is incorrect. The magistrate

judge recommended dismissal solely because Mr. Duncan had state post-conviction

appeals available to him and had not exhausted them. The magistrate and district judges

did not discuss in any manner the exception created by the Court or analyze whether it

should be applied in this case. Such a ruling is not justified under the applicable law.

However, before reversing the district court’s order dismissing Mr. Duncan’s petition, we

must first examine whether the New Mexico state courts had the opportunity to rule on

the substance of the federal claim presented in Mr. Duncan’s habeas petition.

       To demonstrate compliance with the state exhaustion requirement, a habeas

applicant must show that “the substance of a federal habeas corpus claim must first be

presented to the state courts.” Picard v. Connor, 404 U.S. 270, 278 (1971); see also,

Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989). Presentation of a claim’s

“substance” does not require the defendant to cite “‘book and verse on the federal

constitution.’” Picard, 404 U.S. at 278 (quoting Daugherty v. Gladden, 257 F.2d 750, 758

(9th Cir. 1958)). Rather, it is only necessary that the federal claim be “fairly presented”

to the state courts so that they have the first opportunity to hear the claim sought to be

vindicated by the federal habeas petition. Id. at 275. “Although the Supreme Court has

interpreted the ‘fair presentation’ standard as requiring more than that ‘all the facts

necessary to support the federal claim were before the state courts, . . . or that a somewhat


                                              6
similar state-law claim was made,’ the language of Picard makes clear that a failure to

invoke talismanic language . . . should not be the basis for a finding of nonexhaustion.”

Nichols, 867 F.2d at 1251 (citations omitted).

          In this case, Mr. Duncan “fairly presented” the substance of his prosecutorial

vindictiveness claim as a federal constitutional claim before the state courts. His direct

appeal challenged the prosecutor’s actions as a violation of his due process rights under

federal constitutional standards. See Rec. vol. I, doc. 15, ex. C at 10-17 (Docketing

Statement of Defendant-Appellant dated August 5, 1992) and ex. H at 24-25 (Defendant’s

Brief In Chief dated June 30, 1993). Mr. Barreras himself admits that Mr. Duncan

presented this claim as a federal constitutional claim in the New Mexico courts. See

Aple’s Br. at 9 (“Petitioner’s brief in chief in the New Mexico Court of Appeals and his

certiori petition in the New Mexico Supreme Court both referred to specific provisions of

the federal Constitution, and both contained discussions of numerous United States

Supreme Court and Circuit Court of Appeals [sic] cases.”). Furthermore, the New

Mexico Court of Appeals, in denying Mr. Duncan’s appeal, fully analyzed his

prosecutorial vindictiveness claim as a due process violation under the federal

constitutional standards set forth by the United States Supreme Court. See Rec. vol. I,

doc. 15, ex. J at 2-8 (New Mexico v. Duncan, No. 13,981 (N.M. App. 1994). Thus, Mr.

Duncan clearly presented the “legal” substance of his federal claim to the New Mexico

courts.


                                                7
       However, the “fair presentation” test also requires that the state court has had an

opportunity to rule on the claim in light of the full factual record in the case. See Jones v.

Hess, 681 F.2d 688, 694 (10th Cir. 1982). This court held in Jones that “where a federal

habeas petitioner presents newly discovered evidence or other evidence not before the

state courts such as to place the case in a significantly different posture, the state courts

must be given an opportunity to consider the evidence.” Id. We also held, however, that

mere “bits of evidence” that were not before the state courts will not render a petitioner’s

claim unexhausted. Id. At this point in the habeas process we have no reason to believe

that Mr. Duncan seeks to introduce new evidence in support of his prosecutorial

vindictiveness claim. His habeas petition relies solely on the state trial record, and he has

not sought a federal evidentiary hearing. Thus, we conclude on the record before us that

Mr. Duncan has exhausted his state remedies in accordance with 28 U.S.C. § 2254(c) by

“fairly presenting” the substance of his federal habeas claim to the New Mexico state

courts on his direct appeal.2

       For the foregoing reasons, we grant Mr. Duncan a certificate of appealability and

reverse the district court’s order dismissing his petition for failure to exhaust his state




       2
               We limit our holding to the legal and factual issues presented in the record
now before us. In the event that Mr. Duncan later seeks to introduce additional evidence
in his habeas proceeding beyond that permitted by Jones, our holding does not preclude
the district court from revisiting the state exhaustion requirement under 28 U.S.C. §§
2254(b) and (c).

                                               8
post-conviction remedies. We remand this case to the district court for further

proceedings. The mandate shall issue forthwith.


                                                  Entered for the Court,


                                                  Robert H. Henry
                                                  Circuit Judge




                                            9
