                                                                                   F I L E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 February 15, 2007
                                       TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                                    Clerk of Court


 DYWAND DAYTRON JULIEN,

           Petitioner-Appellant,
 v.                                                                 No. 06-1462
 JAMES E. ABBOTT, and THE                              (D.C. No. 06-cv-1191-ZLW-BNB)
 ATTORNEY GENERAL OF THE                                         (D. Colorado)
 STATE OF COLORADO, JOHN
 WESLEY SUTHERS,

           Respondents-Appellees.




               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Dywand Julien, a Colorado prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2254 habeas petition and moves for leave to proceed in forma pauperis on appeal.

Because jurists of reason would not find it debatable whether the district court was correct

in its procedural ruling, we deny his request and dismiss the matter.




       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
                                               I.

                                               A.

       Julien did not file a formal notice of appeal. As a result, we first must determine

whether we have jurisdiction over Julien’s request for a COA. See Rodgers v. Wyoming

AG, 205 F.3d 1201, 1204 (10th Cir. 2000) (“‘This court cannot exercise jurisdiction

absent a timely notice of appeal.’”) (citation omitted). We have held that a document,

“such as an application for . . . [a] certificate of appealability, is the functional equivalent

of a notice of appeal if it contains the three elements of notice required by Rule 3(c)” of

the Federal Rules of Appellate Procedure: “(a) a specification of the party or parties

taking the appeal; (b) a designation of the judgment, order, or part thereof being appealed;

and (c) the name of the court to which the appeal is taken.” Id. at 1204-05. Julien’s

request for a COA specifies Julien in the caption as the party taking the appeal, designates

the district court’s order and judgment of dismissal as the decision being appealed, and

names this court as the one to which Julien’s appeal is taken. As Julien filed his request

for a COA fifteen days after the order and judgment of dismissal, his request for a COA

was timely filed under Rule 4. Because Julien filed a timely request for a COA that

satisfied the notice requirements in Rule 3(c), we can treat that document as a notice of

appeal and exercise jurisdiction over Julien’s appeal.

                                               B.

       When a federal district court denies a state prisoner’s § 2254 habeas petition, the

prisoner must obtain a COA to appeal the denial. Davis v. Roberts, 425 F.3d 830, 833

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(10th Cir. 2005). In this case, the district court denied Julien’s habeas petition for failing

to exhaust state remedies, and did not reach the merits of his underlying claims. When a

district court denies a § 2254 habeas petition on such a procedural ground, the Supreme

Court of the United States has advised appellate courts to apply the following standard:

       [A] COA should issue when the prisoner shows, at least, that jurists of reason
       would find it debatable whether the petition states a 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. . . . 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. In such a circumstance, no appeal would be
       warranted.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Julien’s appeal fails the second part of the Slack test: whether jurists of reason

would find it debatable whether the district court was correct in its procedural ruling. “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.” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (citing Smith

v. Atkins, 678 F.2d 883, 884-85 (10th Cir. 1982) (per curiam)). The record in this case

reveals no resolution of Julien’s postconviction proceeding at the trial court level.

Although Julien unsuccessfully petitioned the Colorado Supreme Court to review his

postconviction claims, that petition sought to invoke the Colorado Supreme Court’s

discretionary power to hear cases under its original jurisdiction. C OLO. R. A PP. P.

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21(a)(1) (“Relief under this rule is extraordinary in nature and is a matter wholly within

the discretion of the Supreme Court. Such relief shall be granted only when no other

adequate remedy, including relief available by appeal or under C.R.C.P. 106, is

available.”). In Parkhurst v. Shillinger, 128 F.3d 1366 (10th Cir. 1997), we concluded

that applying for similar relief with the Wyoming Supreme Court – a petition for a writ of

certiorari which was “left to the sound discretion of the court” and which was confined to

cases where no alternative remedy exists – does not constitute exhaustion. Id. at 1369.

The prisoner’s action failed to exhaust his claim, because “‘where 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, raising the claim in

such a fashion does not, for the relevant purpose, constitute fair presentation.’” Id.

(quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)).

       Julien disputes none of this – in fact, he admits that he “by-passed [the] state court

postconviction collateral process . . . . ” Aplt. Br. at 3. Julien argues that the district court

erroneously characterized his petition as arguing that he had exhausted his claims in state

court. See id. at 4 (“The district court incorrectly construed my habeas complaint and

show cause response and erroneously relied on the belief that I thought I had exhausted

state remedies when I presented the seven claims in the complaint to the Colorado State

Supreme Court in the [Rule 21] petition that was denied on December 2, 2004.”). Instead

of attempting to show exhaustion, Julien argues that the exhaustion requirement should

not apply to him because his discovery of the trial judge’s recusal in a separate criminal

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case “justified an excuse of the exhaustion requirement and rendered state court process

ineffective to protect the remaining claims, which were raised in the properly filed

pending postconviction motion of December 22, 2003[,] even though I sought other

relief.” Id.

       While exhausting available state remedies may be excused when “circumstances

exist that render such process ineffective to protect the rights of the applicant,” 28 U.S.C.

§ 2254(b)(1)(B)(ii), Julien offers no explanation why the recusal so taints the state court

postconviction proceeding as to render it ineffective. Indeed, Julien informs us that he

filed a supplemental petition for postconviction relief raising the information about the

judge’s recusal in early 2005 and that he continued to litigate the case in state court as

recently as February 2006. As a result, Julien’s claims remain unexhausted. As a failure

to exhaust is a procedural bar which the district court was correct to invoke, a reasonable

jurist could not conclude that the district court erred in dismissing Julien’s petition.

                                              II.

       We DENY Julien’s request for a COA and DISMISS this matter. We also DENY

Julien’s motion to proceed in forma pauperis.

                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




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