                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 PATRICK DURAY PORTLEY-EL,

          Petitioner-Appellant,

 v.
                                                    Nos. 09-1544, 09-1545
 HOYT BRILL, Warden, KCCC;                      (D.C. Nos. 1:09-CV-1310-ZLW,
 CORRECTION CORPORATION OF                           1:09-CV-1309-ZLW)
 AMERICA,                                                  (D. Colo.)

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Patrick Portley-El was convicted of various crimes by three different

Colorado state district courts and is now incarcerated at the Kit Carson Correction

Center in Burlington, Colorado. Seeking to challenge his imprisonment, he filed,

pro se, two different petitions for writs of habeas corpus in federal district court,

pursuant to 28 U.S.C. § 2254. The district court dismissed the first petition on

the ground that it challenged judgments entered in more than one court, in



      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of Rule 2(e) of the Rules Governing Section 2254 Cases in the United

States District Courts (“Section 2254 Rules”). The district court denied Mr.

Portley-El’s second petition, which challenged two convictions from the same

court, on the ground that he had failed to exhaust state court remedies before

filing his federal habeas petition, as required by 28 U.S.C. § 2254(b)(1)(A).

       Mr. Portley-El now seeks from us a certificate of appealability (“COA”) to

appeal each of the district court’s dismissals. We may issue a COA only if the

petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). When, as here, the district court dismisses a § 2254

petition on procedural grounds, a COA is warranted only if “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). As a pro se litigant, Mr.

Portley-El is entitled to a solicitous reading of his pleadings. See Van Deelen v.

Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). But, in the end, we conclude

the district court was unquestionably correct to dismiss both of Mr. Portley-El’s

petitions on procedural grounds, and so deny his COA applications and dismiss

his appeals. We address the issues relevant to each of Mr. Portley-El’s petitions

in turn.

                                          I

       Mr. Portley-El’s first § 2254 petition, the subject of appeal No. 09-1544,

challenged five judgments of conviction rendered by three different Colorado

                                         -2-
state district courts (Denver, Adams County, and Arapahoe County district

courts). The district court ordered the respondents to file a pre-answer response

addressing the affirmative defenses of untimeliness and failure to exhaust state

remedies. Their response pressed both of those defenses. In addition, the

respondents noted that Mr. Portley-El’s petition ran afoul of Section 2254 Rule

2(e), which requires that a “petitioner who seeks relief from judgments of more

than one state court must file a separate petition covering the judgment or

judgments of each court.” § 2254 R. 2(e). Invoking this rule, the magistrate

judge directed Mr. Portley-El to amend his petition, within thirty days, to

challenge the judgment or judgments of one court only. If Mr. Portley-El wished

to challenge his remaining convictions from the other two courts, the magistrate

judge advised, he could do so by filing separate petitions. The magistrate judge

further warned that if Mr. Portley-El failed to amend in the time allowed, his

petition would be denied and his action dismissed without prejudice. In the same

order, the magistrate judge denied motions Mr. Portley-El had filed to strike the

respondents’ pre-answer response and enter a default judgment in his favor.

      Though he filed papers requesting factual findings concerning the denial of

his motions, Mr. Portley-El did not amend his habeas petition as directed.

Consequently, the district court dismissed the petition without prejudice.

      Mr. Portley-El attacks this dismissal on several grounds, but none would

lead a reasonable jurist to doubt the correctness of the district court’s ruling.

                                          -3-
First, Mr. Portley-El maintains that he attempted to comply with Section 2254

Rule 2(e) by requesting the district court strike those portions of his habeas

petition attacking his convictions from the Denver and Adams County district

courts, leaving only the challenges to his Arapahoe County convictions. The

district court abused its discretion, Mr. Portley-El appears to argue, by failing to

honor this request and instead requiring him to file an amended petition. We

think not. While pro se litigants are entitled to solicitous readings of their

pleadings, they still must follow the rules of federal procedure, including the

Section 2254 Rules. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3

(10th Cir. 2002); Maunz v. Denver Dist. Court, 160 F. App’x 719, 721 (10th Cir.

2005) (unpublished). The district court afforded Mr. Portley-El a reasonable

opportunity to comply with those rules by submitting a clean amended complaint,

rather than having the court undertake for itself the task of excising the offending

portions. When he did not comply, the court dismissed the defective petition, but

even then without prejudice. No reasonable jurist would conclude this was an

abuse of discretion. Cf. Murray v. Archambo, 132 F.3d 609, 610 (10th Cir. 1998)

(reviewing dismissal for failure to comply with local rules for abuse of

discretion); Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990).

      Second, Mr. Portley-El argues the district court improperly assisted the

respondents by directing them to file a pre-answer response addressing possible

affirmative defenses. Section 2254 Rule 4, however, authorizes the district court

                                         -4-
to “order the respondent to file an answer, motion, or other response.” § 2254 R.

4 (emphasis added). Here, the district court limited that response to timeliness

and exhaustion in the interest of judicial efficiency. No reasonable jurist would

conclude that this action constituted an abuse of discretion. See Garza v. Davis,

596 F.3d 1198, 1205 (10th Cir. 2010). 1 Accordingly, there is no basis to question

the district court’s procedural dismissal of Mr. Portley-El’s first habeas petition.

                                          II

      In his second habeas petition, the subject of appeal No. 09-1545, Mr.

Portley-El attacks only his convictions in Arapahoe County district court, though

on different grounds from his first petition. The district court dismissed this

petition on the ground that Mr. Portley-El failed to exhaust his claims in state

court before seeking federal relief. See 28 U.S.C. § 2254(b)(1)(A). Our own



      1
         Mr. Portley-El also argues the Colorado Attorney General lacked
constitutional or statutory authority to appear on behalf of the respondents, the
operator of a private prison facility and its warden. He thus contends the pre-
answer response filed by the Attorney General should have been stricken and,
because no assertion of affirmative defenses would remain, default judgment
should have been entered against the respondents. Even assuming a litigant may
raise such objections to the identity of an opposing party’s counsel, the
authorities Mr. Portley-El cites do not stand for the remarkable proposition that
the Attorney General is barred from opposing habeas relief for state prisoners in
private prison facilities, who of course remain in the custody of the Colorado
Department of Corrections. See Frazier v. Carter, 166 P.3d 193, 194 (Colo. App.
2007) (involving prisoner at Kit Carson Correctional Facility). Likewise, there is
no merit to Mr. Portley-El’s objections that the district court shouldn’t have
dismissed his habeas petition while his motion seeking factual findings
concerning his motions to strike and enter default judgment was pending.

                                         -5-
review of the record does not lead us to an alternative conclusion, and so we must

deny Mr. Portley-El a COA for this petition.

      To exhaust state remedies, a habeas petitioner “must give the state courts

one full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process,” including discretionary

review by the state supreme court. O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). Here, Mr. Portley-El didn’t directly appeal his convictions. He did,

however, file a petition for a writ of habeas corpus — which he asserts raised the

same claims as his federal petition — in Kit Carson County district court. The

court construed the petition as a motion for post-conviction relief under Colorado

Rule of Criminal Procedure 35(c) and transferred the matter to the sentencing

court (Arapahoe County) as required by state law. 2 Mr. Portley-El did not pursue

his motion in that court, however, nor did he take any appeal then or afterward.

Instead, he moved the Colorado Supreme Court for a writ of habeas corpus under

that court’s original jurisdiction. The supreme court summarily denied his

petition.

      Mr. Portley-El argues all this was enough to fulfill the exhaustion

requirement. It was not. Because the Colorado Supreme Court will not entertain

habeas petitions except in “exceptional” cases, seeking relief directly from that

      2
         Mr. Portley-El asserts the Kit Carson County district court improperly
dismissed his petition, but the court’s order (which Mr. Portley-El attached to his
federal habeas petition) makes clear that it merely transferred venue.

                                        -6-
court doesn’t qualify as fair presentation to state courts for exhaustion purposes.

Allen v. Zavaras, 568 F.3d 1197, 1202-03 (10th Cir. 2009). Instead, Colorado

state prisoners are required first to seek relief in state district court and then

appeal to the supreme court in the normal course. See id. at 1203; Edmiston v.

Colorado, 158 F. App’x 980, 981 (10th Cir. 2005) (unpublished). Though there is

a limited exception when “the Colorado Supreme Court actually considers the

merits of a habeas petition,” Allen, 568 F.3d at 1203, there is nothing to indicate

the court did so here. Neither does Mr. Portley-El — who bears the burden of

proving exhaustion, see McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009)

— contend that it did; rather, he complains that it “readily and expeditiously

denied” his petition, Opening Br. at 15 (No. 09-1545). Thus Mr. Portley-El failed

to exhaust state court remedies before seeking federal habeas relief.

      We may, of course, consider state remedies “exhausted” if no adequate and

effective state remedy remains available. See Gray v. Netherland, 518 U.S. 152,

161-62 (1996). It appears there may be no such remedy here, as the district court

determined that any future state claims would be denied as time-barred or

successive under state law. But that also means Mr. Portley-El has procedurally

defaulted on his state claims, see id., and we “generally do not review issues that

have been defaulted in state court on an independent and adequate state

procedural ground, unless the default is excused through a showing of cause and

actual prejudice or a fundamental miscarriage of justice,” Jackson v. Shanks, 143

                                           -7-
F.3d 1313, 1317 (10th Cir. 1998). Mr. Portley-El has offered no argument —

before either us or the district court — that either of these conditions pertains to

his case. Accordingly, we conclude reasonable jurists could not debate the

correctness of the district court’s dismissal of Mr. Portley-El’s second habeas

petition on procedural grounds. 3

                                         ***

        We deny Mr. Portley-El’s COA applications and dismiss his appeals. We

grant his motions for leave to proceed in forma pauperis. We grant his motions

to supplement his brief and reply to the respondents’ response in appeal No. 09-

1545.

                                        ENTERED FOR THE COURT


                                        Neil M. Gorsuch
                                        Circuit Judge




        3
         Mr. Portley-El also repeats his arguments, from appeal No. 09-1544, that
the district court impermissibly directed the respondents to raise affirmative
defenses and that the Colorado Attorney General improperly represented the
respondents. For the same reasons given in the first appeal, supra Section I, these
arguments do not call into question the correctness of the district court’s
procedural ruling.

                                         -8-
