                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                                   May 24, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
MAURICE SABBA SCOTT,

      Petitioner - Appellant,

v.                                                             No. 16-3037
                                                  (D.C. No. 5:15-CV-03270-SAC-DJW)
STATE OF KANSAS; DEREK                                          (D. Kan.)
SCHMIDT, Attorney General of the State
of Kansas,

      Respondents - Appellees.
                      _________________________________

           ORDER DENYINY A CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

       After a Kansas state-court jury convicted Maurice Sabba Scott of possession of

methamphetamine, marijuana, cocaine, and drug paraphernalia, he was sentenced to 20

months’ imprisonment. He appealed his conviction to the Kansas Court of Appeals, see

State v. Scott, 356 P.3d 436 (Kan. 2015), but did not seek review with the Kansas

Supreme Court. He then filed a pro se application under 28 U.S.C. § 2254 in the United

States District Court for the District of Kansas alleging prosecutorial misconduct, the

denial of a fair trial, a violation of his Fifth Amendment privilege against self-

incrimination, and cumulative error. He indicated in his application that he did not file a

       *
         This order is not binding precedent, except under the doctrines of law of the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.
petition for review in the Kansas Supreme Court because his appellate attorney failed to

do so, in violation of Kansas ethical rules.

       The magistrate judge ordered Mr. Scott to show cause why his application should

not be denied for failure to exhaust state remedies as required by 28 U.S.C. § 2254(b)(1).

To satisfy the exhaustion requirement, the applicant “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.” O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). This includes seeking discretionary review by the state’s highest court. See id. at

845–846.

       Mr. Scott responded that he had satisfied the exhaustion requirement by presenting

his claims to the Kansas Court of Appeals and also argued that his procedural default

could be overcome because he had shown a miscarriage of justice. The district court

denied his application and dismissed the action for failure to exhaust administrative

remedies. Mr. Scott now seeks a certificate of appealability (COA) from this court. See

28 U.S.C. § 2253 (c)(1)(A) (requiring COA to appeal denial of § 2254 relief). We deny

the application for a COA and dismiss the appeal.

       “A certificate of appealability may issue . . . only if the applicant has made a

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

“When the district court denies a habeas petition on procedural grounds without reaching

the prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition states a


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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). “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

       In his brief to this court, Mr. Scott reiterates his substantive claims and asserts that

his procedural default should be excused because his appellate counsel was ineffective

for failing to seek review with the Kansas Supreme Court. This argument fails on two

grounds.

       First, Mr. Scott did not raise the ineffectiveness claim in response to the district

court’s order to show cause. We could refuse to consider the argument on that ground

alone. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (issue not raised in

district court in § 2254 proceeding is waived).

       Second, although “counsel’s ineffectiveness in failing properly to preserve the

claim for review in state court will suffice” as cause to excuse procedural default,

“principles of comity and federalism that underlie our longstanding exhaustion doctrine .

. . . require [an ineffective-counsel claim], like others, to be first raised in state court.”

Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000). But Mr. Scott has failed to raise in

Kansas court his claim of ineffective appellate counsel. Nor has he argued that there was

cause for his failure or that he could still raise the issue in state court. Therefore, the


                                                3
ineffectiveness claim is procedurally barred. See Gray v. Netherland, 518 U.S. 152, 162

(1996).

      We conclude that the district court’s ruling would not be debatable by reasonable

jurists. We DENY the application for a COA and DISMISS the appeal.


                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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