                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      October 4, 2006
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 B EN JA M IN A BEY TA ,

          Petitioner - A ppellant,
                                                        No. 06-1220
 v.                                          (D.C. No. 04-CV-00177-M SK-BNB)
                                                          (D . Colo.)
 AL ESTEP, W arden, L.C.F.;
 CO LOR AD O A TTORNEY
 GEN ERA L,

          Respondents - Appellees.



                                      ORDER
                 D EN Y IN G C ER TIFICATE OF APPEALABILITY




Before KELLY, M cKA Y, and LUCERO, Circuit Judges.




      Petitioner-Appellant Benjamin Abeyta, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal from the

district court’s order denying relief on his habeas petition pursuant to 28 U.S.C. §

2254. M r. Abeyta also has moved to hold his appeal in abeyance pending

resolution of Silva v. People, No. 05SC519, 2006 W L 1643229 (Apr. 17, 2006),

currently pending before the Colorado Supreme Court. 1 Because M r. Abeyta has


      1
        The Colorado Supreme Court has granted certiorari to determine
“[w]hether Petitioner has a constitutional right to assistance of counsel in pursuit
failed to make a “substantial showing of the denial of a constitutional right,” see

28 U .S.C . § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we

deny the COA and dismiss the appeal. Any affect of the Colorado Supreme

Court’s decision in Silva is properly a matter for M r. Abeyta to pursue in the

Colorado state courts. Accordingly, his motion to hold in abeyance will be

denied.

      On August 10, 1998, M r. Abeyta was convicted by a jury of second-degree

burglary and theft. The state court determined that M r. Abeyta was a habitual

criminal and sentenced him to a term of 48 years imprisonment. On direct appeal,

the Colorado Court of Appeals affirmed the convictions, and, in April 2000, the

Colorado Supreme Court denied certiorari. Subsequently, the state trial court

denied M r. Abeyta’s motion for post-conviction relief, which the Colorado Court

of Appeals affirmed. In December 2003, the Colorado Supreme Court again

denied certiorari.

      M r. Abeyta then filed a § 2254 habeas petition. M r. Abeyta’s petition

contained seven claims:

      1)     The state failed to disclose exculpatory evidence in violation of M r.

             Abeyta’s Fourteenth Amendment right to a fair trial.

      2)     M r. Abeyta’s Fifth, Sixth, and Fourteenth A mendment rights were


of postconviction relief.” Silva, 2006 W L 1643229, at *1 (Apr. 17, 2006). M r.
Abeyta contends that the outcome of Silva may affect claims 1 through 3 of his §
2254 petition.

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             violated w hen a juror was removed for cause at the prosecution’s

             request despite defense counsel’s objections and without allowing

             defense counsel to rehabilitate the juror.

      3)     His Fourteenth Amendment right to due process was violated because

             insufficient evidence existed to find that he was a habitual criminal.

      4)     His Fifth, Sixth, and Fourteenth Amendment rights were violated

             because he was adjudged a habitual criminal by the court instead of

             by a jury.

      5)     That, contrary to M iranda v. Arizona, 384 U.S. 436 (1966), the trial

             court failed to suppress certain statements made by him to the police

             while in custody.

      6)     M r. Abeyta’s trial counsel was ineffective because he failed to

             investigate alibi witnesses and because he failed to request recusal of

             the trial judge or a change in venue when the trial judge indicated a

             bias against M r. Abeyta.

      7)     M r. Abeyta’s Fourteenth Amendment rights were violated when the

             State of Colorado refused to provide him with counsel to assist with

             a post-conviction claim for ineffective assistance of counsel.

R. Doc. 34 at 4-5. Upon recommendation of the magistrate judge, and over M r.

Abeyta’s objection, the district court denied the petition. R. Docs. 28, 34. The

district court determined that claims 1-3 were not fairly presented to the state

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courts, w ould now be procedurally barred, and that M r. Abeyta had not shown

cause or a fundamental miscarriage of justice to excuse his procedural default.

The district court rejected ineffective assistance of appellate counsel as grounds

for cause because that claim had not been presented as an independent claim

before the state courts. Claims 4-6 were rejected on the basis that the state

courts’ adjudication of these issues was consistent with 28 U.S.C. § 2254(d)(1) &

(2). C laim 7 was rejected for w ant of a federal constitutional claim.

      On appeal, M r. Abeyta argues that (1) the district court abused its

discretion by not granting a stay as to claims 1-3 so he could exhaust his state

remedies. He argues that pursuant to Colo. Rev. Stat. §      16-5-402(2)(d) he

could have exhausted those claims upon a showing of justifiable excuse or

excusable neglect, see People v. Clouse, 74 P.3d 336, 340 (Colo. Ct. App. 2002),

or that in the alternative, the district court should have excused the procedural

default because it occurred w hen he had a right to counsel on direct appeal. He

further argues that (2) Almendarez-Torres v. United States, 523 U.S. 224 (1998),

is no longer viable, thus requiring a jury finding before one can be adjudged a

habitual criminal under Colorado law , (3) his Fifth and Sixth Amendment rights

were violated by police misconduct, and the state fact-finding was not reliable,

(4) he received ineffective assistance of trial counsel based on a failure to conduct

reasonable investigations and discover exculpatory evidence, and (5) under

Colorado law, he could not have presented an ineffective assistance of counsel

                                         -4-
claim on direct appeal, accordingly, he has a constitutional right to assistance of

counsel in his first collateral attack.

      W e do not think that the district court’s resolution of the claims in M r.

Abeyta’s habeas petition is reasonably debatable, and the claims raised on appeal

do not alter that conclusion. W e comment briefly on M r. Abeyta’s challenge to

the district court’s determination that claims 1-3 should be considered

procedurally barred. M r. Abeyta suggests that the district court should have

stayed his habeas petition so he could seek to exhaust claims 1-3 in the Colorado

courts. “[S]tay and abeyance is only appropriate w hen the district court

determines there was good cause for the petitioner’s failure to exhaust his claims

first in state court.” Rhines v. W eber, 544 U.S. 269, 277 (2005). Additionally,

the petitioner must demonstrate the claims are potentially meritorious. Id. at 278.

      M r. Abeyta argued in his objections to the magistrate’s recommendation

that the Colorado courts might excuse the state time-bar; thus, it might be

possible to exhaust claims 1-3 and avoid having them considered procedurally

barred. R. Doc. 30 at 3, Doc. 32 at 1-2. The district court was w ell within its

discretion to decide that M r. Abeyta’s reasons given for failure to

exhaust–including difficulty obtaining the record in his first state post-conviction

matter, lack of library access, and lack of counsel–did not constitute a sufficient

showing of justifiable excuse or excusable neglect, let alone good cause (factually

or legally) for the failure to exhaust. Although M r. Abeyta faults the district

                                          -5-
court for not notifying him that he had the option to proceed on the exhausted

claims or dismiss his entire petition without prejudice, the district court

proceeded in a reasonable manner given the one-year limitation period, 28 U.S.C.

§ 2244(d)(1), and its rejection of a stay.

      W e must also consider M r. Abeyta’s motion to hold this appeal in abeyance

until the Colorado Supreme Court issues its opinion in Silva. No federal

constitutional right to counsel exists in post-conviction collateral attacks.

Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); United States v. Prows, 448

F.3d 1223, 1229 (10th Cir. 2006). Should the Colorado Supreme Court find, in

Silva, that prisoners posses the right to counsel as a matter of state constitutional

law, M r. Abeyta may pursue any proper remedies in state court. Because § 2254

is limited to violations of federal law , the outcome in Silva is irrelevant to M r.

Abeyta’s federal habeas petition.

      W e G RA N T IFP status, D ENY the motion to hold in abeyance, DENY a

COA and DISM ISS the appeal.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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