                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 15 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


ABRON ARRINGTON,

          Petitioner - Appellant,

v.                                                       No. 01-1529
                                                     (D.C. No. 01-Z-1447)
MICHAEL WILLIAMS; ATTORNEY                              (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,

          Respondents - Appellees.




                             ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      Proceeding pro se, Abron Arrington seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s dismissal of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). In 1990, a Colorado jury found Arrington guilty

of first degree murder, aggravated robbery, second degree burglary, and three

counts of crime of violence. Arrington appealed, arguing that the prosecution

improperly struck the only remaining black juror from the venire panel.

Arrington’s conviction was reversed by the Colorado Court of Appeals and the

matter remanded for a new trial. See People v. Arrington, 843 P.2d 62 (Colo. Ct.

App. 1992). Arrington was retried and again convicted; his conviction was

affirmed on appeal.

      Pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure,

Arrington filed a Motion to Vacate Conviction with the state district court in El

Paso County, Colorado (the “Rule 35(c) motion”). Arrington’s motion was

denied on July 17, 2000. The record reveals that the court’s order denying the

Rule 35(c) motion was forwarded to Arrington by his counsel on August 15, 2000.

According to Arrington, he received the district court’s order and his attorney’s

letter on August 28, 2000. Arrington then wrote to his attorney requesting his




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case file and indicating that he intended to appeal the district court’s denial of the

Rule 35(c) motion.

      Arrington filed a notice of appeal on October 10, 2000 which was accepted

by the Colorado Court of Appeals as timely filed and he was granted leave to

proceed in forma pauperis on appeal. The Colorado Court of Appeals’ Register

of Actions indicates that Arrington filed his pro se opening brief on January 5,

2001 and that the brief was stricken pursuant to an order dated January 26, 2001

because court records indicated Arrington was represented on appeal by the state

public defender’s office. After a protracted campaign by Arrington to proceed

pro se, Arrington’s counsel withdrew 1 and his pro se opening brief was finally

accepted by the Colorado Court of Appeals. On June 13, 2002, the Colorado

Court of Appeals entered an order affirming the state district court’s denial of

Arrington’s Rule 35(c) motion.

      On June 27, 2001, before the issue of his pro se status was resolved by the

Colorado Court of Appeals and before that court considered his appeal on the

merits, Arrington filed the instant § 2254 habeas petition in federal district court.

Arrington raised two issues in his petition: (1) that his trial counsel rendered


      1
       It appears that the Colorado Court of Appeals allowed Arrington’s first
appellate attorney from the Colorado Public Defender’s Office to withdraw on
October 3, 2001 and on the same day appointed another attorney through the
Office of Alternative Defense Counsel. Arrington’s second attorney was allowed
to withdraw on November 9, 2001. Arrington then proceeded pro se on appeal.

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constitutionally ineffective assistance and (2) that he was denied a fair trial

because the prosecution withheld material, exculpatory evidence. Because

Arrington’s appeal from the denial of his Rule 35(c) motion was not yet final, the

court ordered Arrington to show cause why his § 2254 petition should not be

dismissed for failure to exhaust state post-conviction remedies. The court also

instructed Arrington to show cause why his § 2254 petition was not barred by the

one-year statute of limitations applicable to federal habeas corpus petitions. See

28 U.S.C. §2244(d).

      Arrington filed a response to the court’s order to show cause, arguing that

he was prevented from pursuing his claims before the Colorado Court of Appeals

because they refused to allow him to proceed pro se. He also argued that his

federal habeas was timely and provided support for his assertion that his

conviction did not become final until after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). After considering

Arrington’s response, the district court concluded that he had failed to exhaust his

state remedies but that it would not deny his § 2254 petition on that basis because

it was clear that he no longer had an adequate and effective remedy available in

state court. The district court, however, concluded that Arrington’s claims were

procedurally barred and he had failed to overcome the bar by demonstrating cause

for the default and actual prejudice or that the failure to consider his claims


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would result in a fundamental miscarriage of justice. The court dismissed the §

2254 petition without ruling on the timeliness issue or addressing the merits of

the claims raised by Arrington.

      Before he is entitled to a COA, Arrington must make a “substantial

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

his § 2254 petition was dismissed on procedural grounds, Arrington may make

this showing by demonstrating “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). In his

application for a COA and appellate brief filed with this court, Arrington again

argues that he was prevented from pursuing state post-conviction relief because

he was not allowed to proceed pro se before the Colorado Court of Appeals. The

application and brief, however, were filed shortly after the Colorado Court of

Appeals allowed him to proceed pro se and before that court subsequently

disposed of his appeal on the merits. Arrington also argues that he has

demonstrated both cause for any procedural default and actual prejudice. Further,

he argues that the failure to consider his claims on the merits would result in a

fundamental miscarriage of justice because he is actually innocent.




                                          -5-
      Because of the unusual posture of this case, at the time it was presented to

the district court the court lacked all the information necessary to fully evaluate

whether Arrington’s claims are procedurally barred and whether his § 2254

petition was timely filed. Based on the information currently before this court,

we conclude that “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id. We have also taken a “quick

look” at the substantive claims raised in Arrington’s § 2254 petition and further

conclude that “jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right.” Id.; see also Gibson v.

Klinger, 232 F.3d 799, 803 (10th Cir. 2000). Accordingly, we grant Arrington a

COA on the issues of whether the claims raised in his § 2254 petition are

procedurally barred and whether his petition is timely filed. The matter is

remanded to the district court with instructions to vacate its order dismissing

Arrington’s § 2254 petition and to re-examine whether Arrington’s claims are

procedurally barred 2 and whether his § 2254 petition was timely. This court

expresses no opinion on the resolution of those issues or the ultimate disposition


      2
        Nothing in the record before this court indicates whether Arrington filed a
petition for a writ of certiorari with the Colorado Supreme Court after the
Colorado Court of Appeals affirmed the denial of his Rule 35(c) motion. See
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding that “a prisoner who
fails to present his claims in a petition for discretionary review to a state court of
last resort” has not properly exhausted the claims). The district court may find it
necessary to address this issue on remand.

                                          -6-
of the substantive claims raised in Arrington’s petition. If, however, the district

court concludes that it is appropriate to address the merits of Arrington’s claims,

it must apply the standard dictated by the AEDPA. See Trice v. Ward, 196 F.3d

1151, 1159 (10th Cir. 1999) (“Under the AEDPA, a state prisoner will be entitled

to federal habeas corpus relief only if he can establish that a claim adjudicated by

the state courts resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” (quoting 28 U.S.C. § 2254(d))).

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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