                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 19, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



ANDREW MARK LAMAR,

              Petitioner - Appellant,

       v.
                                                         No. 11-1131
ARISTEDES ZAVARAS, Executive                            (D. Colorado)
Director of the Department of                  (D.C. No. 1:10-CV-02420-ZLW)
Corrections; JOHN W. SUTHERS, the
Attorney General of the State of
Colorado,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.


      Proceeding pro se, Andrew Mark Lamar seeks a certificate of appealability

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

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

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

petitioner first obtains a COA). Because Lamar has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).
      On April 27, 2007, a Colorado jury convicted Lamar of sexual assault. He

was sentenced to an indeterminate term of thirty-five years to life. Lamar’s

appointed counsel initiated a direct appeal and filed an opening brief raising five

issues: (1) the trial court erred by denying Lamar’s request to change his plea to

not guilty by reason of insanity, (2) Lamar’s waiver of his right to be represented

by counsel during his trial was constitutionally deficient, (3) the prosecution

committed misconduct during the trial, (4) the trial court erred by failing to rule

on Lamar’s motion for a new trial, and (5) Lamar’s sentence was illegal. After

filing the opening brief, Lamar’s counsel was permitted to withdraw. Although

the Colorado Court of Appeals (“CCA”) allowed Lamar to proceed with the

appeal pro se, it denied his request to strike the opening brief or file a

supplemental brief. He did, however, file a pro se reply brief.

      The CCA affirmed Lamar’s conviction but remanded the matter for

resentencing. Lamar filed a petition for rehearing from that ruling, raising, inter

alia, constitutional claims related to the CCA’s refusal to permit him to file a pro

se opening brief. That petition and Lamar’s subsequent petition for certiorari to

the Colorado Supreme Court were both denied.

      On November 19, 2010, Lamar filed an application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the

District of Colorado. In this application, Lamar characterized his claims as

follows: (1) he was deprived of his due process right to an adequate appellate

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review, (2) he was deprived of his due process right to maintain control over his

appeal when the CCA “forced” an appellate lawyer on him, and (3) he was

deprived of his First Amendment right to access the courts. The first two of these

claims were included in the issues Lamar raised in his state petition for rehearing;

he argues the third claim was presented by implication.

      Respondents filed a pre-answer response, arguing Lamar’s § 2254 petition

should be dismissed without prejudice because the claims he sought to raise were

not exhausted in state court. See Miranda v. Cooper, 967 F.3d 392, 398 (10th

Cir. 1992) (“In order to satisfy the exhaustion requirement, a federal habeas

corpus petitioner must show that a state appellate court has had the opportunity to

rule on the same claim presented in federal court, or that at the time he filed his

federal petition, he had no available state avenue of redress.” (citation omitted)).

Specifically, Respondents noted Lamar failed to seek post-conviction review of

his claims in state court pursuant to Colo. R. Crim. P. 35. The district court

agreed and dismissed Lamar’s § 2254 petition without prejudice for failure to

exhaust his state court remedies. The court rejected Lamar’s argument that his

claims were fairly presented to the state court in the petition for rehearing and the

petition for certiorari filed with the Colorado Supreme Court, concluding they

were not presented in a procedurally proper manner. Kelly v. Cent. Bank & Trust

Co., 794 P.2d 1037, 1044-45 (Colo. Ct. App. 1989) (refusing to consider an

argument raised for the first time in a petition for rehearing).

                                          -3-
      Lamar cannot appeal the district court’s dismissal of his habeas application

unless he first obtains a certificate of appealability (“COA”). See 28 U.S.C.

§ 2253(c). To be entitled to a COA, Lamar must show “that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a

district court dismisses a habeas petition on procedural grounds, a petitioner is

entitled to a COA only if he shows both that reasonable jurists would find it

debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct).

      In his original § 2254 petition filed on November 8, 2010, Lamar notified

the court that he has appealed the sentence imposed on May 5, 2010, after the

matter was remanded by the CCA for resentencing. The state court docket

indicates Lamar’s opening brief was filed on June 17, 2011, and the answer brief

is not due until November 29, 2011. Accordingly, because Lamar’s direct appeal

from his conviction and sentence is still pending before the Colorado courts, he

has not exhausted all available state remedies. 1 See Daegele v. Crouse, 429 F.2d

503, 504-05 (10th Cir. 1970) (holding federal habeas proceeding was properly

dismissed for failure to exhaust state remedies when petitioner’s direct appeal

from resentencing was still pending in state court at the time he sought habeas

      1
        The one-year limitations period set out in 28 U.S.C. § 2244(d)(1)(A) will
not begin to run until Lamar’s direct appeal is resolved by the Colorado state
courts.

                                         -4-
relief). Accordingly, our review of the record demonstrates the district court’s

dismissal of Lamar’s § 2254 petition without prejudice for failure to exhaust state

remedies 2 is not deserving of further proceedings or subject to a different

resolution on appeal. This court denies Lamar’s application for a certificate of

appealability and dismisses this appeal. Lamar’s motion to proceed in forma

pauperis on appeal is granted. All other outstanding motions are denied as

moot.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




        2
        In light of our conclusion that Lamar’s direct appeal is still pending in
state court, it is unnecessary for this court to decide whether the federal
constitutional claims he seeks to raise in his § 2254 habeas petition were fairly
presented to the Colorado courts in the petition for rehearing. See Castille v.
Peoples, 489 U.S. 346, 351 (1989) (“[W]here the claim has been presented for the
first and only time in a procedural context in which its merits will not be
considered unless there are special and important reasons therefor, [r]aising the
claim in such a fashion does not, for the relevant purpose, constitute fair
presentation.” (citation and quotations omitted)). But see Bowser v. Boggs, 20
F.3d 1060, 1063 & 1063 n.4 (10th Cir. 1994) ((concluding state habeas petitioner
exhausted his state remedies by raising a claim challenging the adjudication of his
appeal in a petition for rehearing).

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