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

                            FOR THE TENTH CIRCUIT                          January 11, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DOUGLAS EDWARD BRUCE,

      Petitioner - Appellant,

v.                                                         No. 17-1250
                                                  (D.C. No. 1:15-CV-01653-REB)
MARIANNE CLEMENTI, Probation                                 (D. Colo.)
Officer; STATE OF COLORADO; THE
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

      Respondents - Appellees.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before HARTZ, KELLY, and O’BRIEN, Circuit Judges.
                  _________________________________

      Douglas Edward Bruce, proceeding pro se, seeks a certificate of appealability

(COA) to appeal the denial of his application for relief under 28 U.S.C. § 2254. See

28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 habeas

petition). We deny a COA and dismiss this appeal.

                                           I

      A Colorado jury convicted Mr. Bruce of tax evasion, filing a false tax return,

attempting to influence a public servant, and failing to file a return or pay taxes. He

      *
         This order is not binding precedent, except under the doctrines of law of the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.
was sentenced to two consecutive 90-day prison terms on the first two convictions,

and six years of probation on all counts, to run concurrently. On direct appeal the

Colorado Court of Appeals (CCA) affirmed the convictions, and on federal habeas

review the United States District Court for the District of Colorado denied relief in

two separate orders.

      The federal district court first dismissed 50 of 56 claims that Mr. Bruce raised

in his amended § 2254 petition because they were procedurally barred. The court

denied one of the six remaining claims on the merits and denied the others after

concluding that the CCA’s rejection of them was not contrary to, or an unreasonable

application of, clearly established federal law, nor an unreasonable determination of

the facts. The court also denied a COA.

                                           II

        A COA is a jurisdictional prerequisite to our review. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). To obtain a COA, Mr. Bruce must make “a

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

He must demonstrate that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Miller-El, 537 U.S. at 336 (internal quotation marks omitted). If the

petition was denied on procedural grounds, he must show, “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

                                           2
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

      A. Procedural Default & Exhaustion

      Federal courts “do not address issues that have been defaulted in state court on

an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Cummings

v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) (internal quotation marks omitted);

see Walker v. Martin, 562 U.S. 307, 316 (2011) (“To qualify as an adequate

procedural ground, a state rule must be firmly established and regularly followed.”

(internal quotation marks omitted)); English v. Cody, 146 F.3d 1257, 1259 (10th Cir.

1998) (“A state procedural ground is independent if it relies on state law, rather than

federal law, as the basis for the decision.”). “[W]hen a petitioner fails to raise his

federal claims in compliance with relevant state procedural rules, the state court’s

refusal to adjudicate the claim ordinarily qualifies as an independent and adequate

state ground for denying federal review.” Cone v. Bell, 556 U.S. 449, 465 (2009).

      In addition, a federal court will not grant a § 2254 applicant relief “unless it

appears that . . . the applicant has exhausted the remedies available in the courts of

the State.” 28 U.S.C. § 2254(b)(1)(A). “A claim has been exhausted when it has

been fairly presented to the state court,” meaning “the petitioner has raised the

substance of the federal claim in state court.” Bland v. Sirmons, 459 F.3d 999, 1011

(10th Cir. 2006) (internal quotation marks omitted). When a claim has not been

exhausted in state court, the federal court may dismiss the claim without prejudice to

                                            3
allow the state court to address its merits. But if an applicant “failed to exhaust state

remedies and the court to which the [applicant] would be required to present his

claims in order to meet the exhaustion requirement would now find the claims

procedurally barred the claims are considered exhausted and procedurally defaulted

for purposes of federal habeas relief.” Thomas v. Gibson, 218 F.3d 1213, 1221

(10th Cir. 2000) (internal quotation marks omitted).

      The district court dismissed the bulk of Mr. Bruce’s claims under these

doctrines. The problem was with the briefing to the CCA. Some of the claims were

never presented to the CCA, and the district court determined that these unexhausted

claims would now be rejected by the state courts as successive.

      Other claims were “presented” to the CCA, but not in proper briefs.

Mr. Bruce’s attorney sought to file a brief that exceeded the CCA’s 9,500-word limit.

See Colo. R. App. P. 28(g)(1). After the CCA denied the request, counsel filed a

brief that apparently complied with the CCA’s word limit. Mr. Bruce, however, filed

a pro se motion to reconsider, seeking to brief 54 additional claims. The CCA denied

the motion, explaining that it does not consider pro se pleadings from counseled

parties. Mr. Bruce’s attorney then moved to amend the opening brief, listing the

same 54 claims, but the CCA denied this request as well, citing its 9,500-word limit.

      Mr. Bruce next filed a deficient pro se § 2254 application in federal court,

followed by an amended application, which raised 56 claims. Many of these claims

had been included in his rejected pro se motion to the CCA. The district court

concluded that those claims were procedurally defaulted under state law.

                                            4
      Mr. Bruce contends that the CCA’s procedural rules prevented him from

adequately presenting his claims in state court. The district court’s rejection of this

contention was clearly correct. Rules against permitting represented parties from

filing pro se briefs and rules setting word limits on briefs are almost-universal rules

necessary for the proper functioning of appellate courts. The Colorado rules that

prevented Mr. Bruce and his attorney from tacking on an additional 50-plus claims in

an addendum to their brief are undoubtedly independent and adequate state grounds.

      Further, in this court Mr. Bruce points to no prejudice suffered from this

limitation on his argument in state court. And he has utterly failed to make the

showing of actual innocence necessary to establish a fundamental miscarriage of

justice that would excuse the procedural default. See Schlup v. Delo, 513 U.S. 298,

324 (1995) (requiring that innocence be supported by “new reliable evidence . . . that

was not presented at trial”).

      B. Merits

      That left six claims for the district court to resolve. On five of the claims no

reasonable jurist could debate the district court’s conclusion that the CCA’s decision

was not contrary to, or an unreasonable application of, federal law, nor an

unreasonable determination of the facts. Those claims by Mr. Bruce were (1) that his

equal-protection rights were violated because he was criminally prosecuted when a

civil remedy was available for the same conduct; (2) that he was denied due process

because the prosecution impeached him on cross-examination based on his pretrial

motion seeking to dismiss the charges on statute-of-limitations grounds; (3) that the

                                            5
prosecution made personal attacks throughout the trial to inflame the passions of the

jury by various means including the use of such words as notorious, charlatan,

outrageous, infamous, and diatribe; (4) that the trial court improperly denied his

request to present evidence of his good character from two Colorado congressmen in

addition to the character evidence already presented from four other witnesses; and

(5) that the trial court improperly denied him the right to conduct redirect of his own

testimony. The district court denied Mr. Bruce’s final claim—that he was denied due

process because the trial court openly sided against him by making derogatory

remarks about his witnesses—on the merits. The thorough opinion of the district

court fully explains why Mr. Bruce is not entitled to relief on any of the six claims.

                                           III

      Because no reasonable jurist could debate the district court’s denial of

Mr. Bruce’s § 2254 application, we deny a COA and dismiss the appeal.

                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




                                           6
