                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 6, 2012
                                      PUBLISH                    Elisabeth A. Shumaker
                                                                     Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 BRIAN VICTOR PRENDERGAST,

              Petitioner-Appellant,                        No. 12-1166
       v.                                                  (D. of Colo)
 TOM CLEMENTS, Executive Director                 (D.C. No. 11-cv-03263-LTB)
 of the Colorado Department of
 Corrections, and JOHN SUTHERS,
 Attorney General of the State of
 Colorado,

              Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.



TYMKOVICH, Circuit Judge.



      Brian Victor Prendergast, a Colorado state prisoner proceeding pro se,

requests a certificate of appealability to appeal the district court’s denial of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also

asks this court for leave to proceed in forma pauperis. For the reasons set forth
below, we deny him in forma pauperis status, deny the application for a COA,

and dismiss this matter. 1

                                 I. Background

      Prendergast was convicted by jury trial in Arapahoe County District Court

on twelve counts of securities fraud and one count of theft over $15,000. He

appealed his conviction and was sentenced to concurrent terms of ten years of

probation on each count. On October 9, 2003, the Colorado Court of Appeals

affirmed his conviction on direct appeal. See People v. Prendergast, 87 P.3d 175

(Colo. Ct. App. 2003). On April 12, 2004, the Colorado Supreme Court denied

certiorari review.

      After his conviction, Prendergast violated the terms of his probation on a

number of occasions and was accordingly resentenced. Then, on August 28,

2009, after having revoked his probation, a state trial court resentenced him to

concurrent terms of six years in the Colorado Department of Corrections. On

March 24, 2011, the Colorado Court of Appeals affirmed this resentencing.

Prendergast did not seek further review of the resentencing ruling at the Colorado



      1
         As is the case here, “[i]f an application [for habeas relief] was denied by
the district court on procedural grounds, the applicant must show ‘that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.’” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). As explained below, the
petitioner has not shown that jurists of reason would find the district court’s
ruling unreasonable.

                                         -2-
Supreme Court. Instead, on December 13, 2011, Prendergast filed in federal

district court the application for federal habeas relief that we review here.

      Prendergast’s application presented five claims. Two attacked the

constitutionality of his August 2009 resentencing. The other three attacked the

basis of his original conviction from 2003. The district court dismissed the two

claims related to the 2009 resentencing for failure to exhaust state-court remedies.

Further, the court dismissed as untimely the three claims related to the original

conviction.

      We now review these two bases for dismissal and find no reason to disturb

these rulings from the district court.

                                    II. Analysis

      A. Exhaustion of State Court Remedies

      At the district court, Prendergast presented two claims related to his 2009

resentencing and based on alleged violations of due process and the Double

Jeopardy Clause. The district court, in dismissing the due process claim, held

that when Prendergast raised it at the Colorado Court of Appeals, he did not

present the claim as having a federal constitutional dimension.

      As to the double-jeopardy claim, the district court concluded Prendergast

had not exhausted state court remedies on the claim because it was not raised on




                                          -3-
direct appeal. In this appeal, Prendergast disputes the district court’s analysis on

both claims. 2

      For a federal court to consider a federal constitutional claim in an

application for habeas, the claim must be “fairly presented to the state courts” in

order to give state courts the “opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275

(1971) (internal quotations omitted). Indeed, “[i]f state courts are to be given the

opportunity to correct alleged violations of prisoners’ federal rights, they must

surely be alerted to the fact that the prisoners are asserting claims under the

United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per

curiam). A petitioner need not invoke “talismanic language” or cite “book and

verse on the federal constitution.” Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th

Cir. 1989) (internal quotations omitted); see also Connor, 404 U.S. at 278.

Rather, the crucial inquiry is whether the “substance” of the petitioner’s claim has

been presented to the state courts in a manner sufficient to put the courts on

      2
         The State of Colorado did not argue that Prendergast failed to exhaust
these claims by not appealing his adverse resentencing ruling to the Colorado
Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (holding that a
defendant’s failure to appeal to a state’s highest court, even if the review at that
court is discretionary, constitutes a failure to exhaust state court remedies). The
State (and the district court) do cite Boerckel, but not for this specific proposition.
It appears we could sua sponte apply the Boerckel nonexhaustion argument to
these claims. See Granberry v. Greer, 481 U.S. 129, 131-35 (1987); see also
Wood v. Milyard, 132 S. Ct. 1826, 1832-33 (2012). We see no need to do so here
and therefore address only the nonexhaustion argument advanced by the State in
the district court.

                                          -4-
notice of the federal constitutional claim. Connor, 404 U.S. at 278; Nichols, 867

F.2d at 1252.

      Pendergrast did not satisfy this standard with regard to either of his attacks

on resentencing. At the Colorado Court of Appeals, Prendergast only argued that

the trial court abused its discretion in considering certain evidence at his

resentencing hearing. We see nothing in Prendergast’s briefing there to alert the

state court about a federal constitutional claim. 3 While Prendergast’s reply brief

suggests that the state trial court’s abuse of discretion might have violated due

process, the constitutional argument could not initially be raised in a reply brief

and would have been waived. Thus, the only argument properly before the state

court was not constitutional in nature. Further, there is absolutely no mention of

the double jeopardy claim that Prendregast now raises. The district court

therefore correctly concluded Prendergast did not exhaust state-court remedies as

to either claim.

      Prendergast suggests two reasons why he should be exempted from this

exhaustion requirement, neither of which we find persuasive. First, Prendergast

suggests he no longer has “an adequate and effective” state-court remedy as the

      3
         Prendergast points to the opening brief’s reliance on state statutes as
evidence that he was raising a federal constitution claim. He suggests that state
statues are the equivalent of the state constitution and that any violation of state
constitutional rights invokes a violation of federal constitutional rights. Both of
these assertions misinterpret basic precepts of constitutional law: rights based in
statute are not the same as constitutional rights and it is possible to commit a state
constitutional violation without violating the federal constitution.

                                          -5-
time to raise these claims on direct review has expired. Because he is barred from

bringing these claims on direct review, he argues he should be “excused” from the

exhaustion requirements. Yet well-established precedent on habeas forecloses our

excusing Prendergast’s failure to raise this claim in state court, regardless of

whether he is now procedurally barred in that court from raising the claim. See,

e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (noting that “letting the

time run” on state remedies as a means of fulfilling the exhaustion requirement

would “undercut the values that [the requirement] serves”) (quoting id. at 853

(Stevens, J. dissenting)).

      Second, Prendergast argues for an exemption from the exhaustion rule

because his failure to exhaust derives from the ineffective assistance of his legal

counsel. On this claim, we agree with the district court that Edwards v.

Carpenter, 529 U.S. 446, 453 (2000), requires Prendergast to have first raised this

claim in a state-court post-conviction proceeding. Because Prendergast has not

taken this step, we cannot find cause for the procedural default of his two

unexhausted claims.

      We therefore decline to disturb the district court’s ruling on these two

claims.

      B. Untimeliness

      At the district court, Prendergast presented three claims challenging the

constitutionality of his 2003 conviction. Applying the Antiterrorism and

                                          -6-
Effective Death Penalty Act of 1996 (AEDPA), the district court concluded all

three of these claims were time barred. Prendergast disputes the district court’s

application of AEDPA’s statute of limitations provision to these claims.

         AEDPA sets a one-year limitations period for filing a § 2254 application.

28 U.S.C. § 2244(d)(1). As provided by the statute, the limitations period begins

to run on the latest of four possible dates. Relevant here, a judgment becomes

final when the defendant has exhausted all direct appeals in state court and the

time to petition for a writ of certiorari from the United States Supreme Court has

expired (i.e., 90 days after the decision by the state’s highest court). See 28

U.S.C. § 2244(d)(1)(A); Fleming v. Evans, 481 F.3d 1249, 1257–58 (10th Cir.

2007).

         The district court concluded Prendergast’s conviction became final on July

11, 2004, ninety days after the Colorado Supreme Court denied certiorari review

of the ruling from the Colorado Court of Appeals. Because Prendergast did not

raise claims attacking the original conviction until over seven years later, these

claims would clearly exceed the one-year limitations period for filing an

application under 28 U.S.C. § 2244. Thus, absent some form of tolling or

equitable relief, these three claims would be time-barred under AEDPA.

         Prendergast resists this conclusion by suggesting that because he timely

raised claims on his 2009 resentencing, the attacks on his original conviction are

now somehow resurrected. Some non-binding authority supports this argument.

                                           -7-
Prendergast points us to Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th

Cir. 2007). The Eleventh Circuit’s reasoning in Ferreira relied in large part on

an earlier opinion, Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003), which more

directly supports Prendergast’s position.

      In Walker, a state prisoner presented an application for habeas raising five

claims. Id. at 1242. Four of these claims attacked the basis of his conviction

and, on their own, would have been time-barred under AEDPA. The fifth claim

was timely and challenged the constitutionality of the prisoner’s resentencing.

This resentencing claim was also presented on direct review in state courts. Id.

at 1242 & n. 3. Thus, the Walker court was presented with four untimely claims

and one timely claim. Id.

      The Walker court concluded that the one timely claim made the four

otherwise untimely claims once again timely. The court reasoned that because

§ 2244(d)(1) mandates that the limitations period “shall apply to an application

for a writ of habeas corpus,” a court must “look at whether the ‘application’ is

timely, not whether the individual ‘claims’ within the application are timely.” Id.

at 1243. Invoking § 2244(d)(1)(D), the court reasoned that because “the date on

which the factual predicate of [the resentencing claim] could have been

discovered through the exercise of due diligence” was within the one-year

limitations period, all five claims were timely. Id.




                                         -8-
      Prendergast invites us to apply this same rule to his application by

measuring the AEDPA statute of limitations for all five of his claims from the

date his resentencing became final. Because his resentencing claim was filed

within the one-year limitations period under AEDPA, adopting the Walker rule

would make the attacks on his conviction timely. For several reasons, however,

we decline to adopt the Walker rule in Prendergast’s case.

      First, in Walker no dispute existed about whether the defendant had

properly exhausted state court remedies on the timely-filed resentencing claim.

As we noted above, however, Prendergast has failed to properly exhaust his

resentencing claims in state court. To extend the Walker rule to allow

timely-filed but unexhausted state remedies to provide a vehicle for a federal

court to reach the merits on untimely claims would undercut AEDPA’s goal of

requiring state courts to first address such claims.

      Second, even if Prendergast had properly exhausted his state court remedies

on the resentencing claims, we would decline to endorse the Eleventh Circuit’s

position in Walker. Rather, we are persuaded that then-Judge Alito’s opinion in

Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), provides a strong alternative to

the Walker rule.

      In Fielder, the Third Circuit considered two claims in a habeas petition: an

untimely claim involving prosecutorial misconduct and a timely one involving

newly discovered evidence not known to the petitioner at the time of trial. Id. at

                                          -9-
118. In a maneuver similar to the one endorsed in Walker, the petitioner argued

that because the claim related to the newly discovered evidence was timely, the

prosecutorial misconduct claim was also timely, as it was part of the same

application. Id.

          Fielder rejected this argument. Rather, the Third Circuit returned to the

text of § 2244(d)(1)(D) and reasoned that the Eleventh Circuit’s interpretation

requires implicitly reading this subsection “as if it refers to the latest date on

which the factual predicate of any claim presented could have been discovered

through the exercise of due diligence.” Id. (emphasis in original). The court

noted that this implicit reading of the statute is not what the statute actually

states.

          The court continued:

          this reference to “the latest” date does not appear in subsection (D)
          and it does not pertain to the issue at hand. The reference to “the
          latest” date in § 2244(d)(1) tells a court how to choose from among
          the four dates specified in subsections (A) through (D) once those
          dates are identified. This language does not tell a court how to
          identify the date specified in subsection (D) in a case in which the
          application contains multiple claims. Accordingly, there is nothing
          in § 2244(d) that suggests that a court should follow the Walker
          interpretation and select the latest date on which the factual predicate
          of any claim presented in a multi-claim application could have
          reasonably been discovered. It would be just as consistent with the
          statutory language to pick the earliest date.

Id. The court went on to conclude § 2244(d)(1) should be applied on a

claim-by-claim basis. First, a claim-by-claim approach was consistent with how


                                            -10-
statutes of limitations are generally applied in civil and criminal cases, and there

was no indication that Congress intended to depart from this norm in AEDPA. Id.

at 118–19.

      And second, the court determined that “a claim-by-claim approach is

necessary in order to avoid results that we are confident Congress did not want to

produce.” Id. at 119-20. Indeed, if the Walker court was correct on Congress’s

intentions in AEDPA, then a “late-accruing federal habeas claim . . . [would]

open the door for the assertion of other claims that had become time-barred years

earlier,” well after the time when the evidence to consider such other claims

might have been discarded. Id. at 120.

      We are persuaded by the Third Circuit’s reasoning in Fielder. Indeed, we

might add that the Walker rule creates a perverse incentive for potential habeas

petitioners with otherwise time-barred constitutional claims to violate the terms of

their sentence. Under Walker, a petitioner who had failed to raise now

time-barred claims would have reason to commit some infraction, incur

resentencing, allege a constitutional violation in the resentencing, and resuscitate

the time-barred claims.

      A number of other courts have endorsed Fielder’s rejection of Walker. See,

e.g., Mardesich v. Cate, 668 F.3d 1164, 1170–71 (9th Cir. 2012); Maldonado v.

Thaler, 662 F. Supp. 2d 684, 700–01 (S.D. Tex. 2009); Khan v. United States,

414 F. Supp. 2d 210, 216 (E.D.N.Y. 2006); see also Bachman v. Bagley, 487 F.3d

                                         -11-
979, 983–85 (6th Cir. 2007) (distinguishing Walker yet determining that applying

the Walker rule would be foreclosed by Sixth Circuit precedent that mirrored

Fielder’s reasoning). Further, the Eleventh Circuit itself appears poised to

reconsider—if not disavow—Walker, as the court reviews that holding en banc.

See Zack v. Tucker, 666 F.3d 1265 (11th Cir. 2012), reh’g en banc granted, 678

F.3d 1203 (11th Cir. 2012). Therefore, again, we decline to disturb the district

court’s correct conclusion that these three claims are untimely.

                                III. Conclusion

      Based on the foregoing analysis, we DENY petitioner’s application for a

certificate of appealability, DISMISS this matter, and DENY his motion to

proceed in forma pauperis.




                                        -12-
