                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 24 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 BENITO NEGRON,

           Petitioner-Appellant,
 v.                                                       No. 99-1592
 CHARLES RAY, Warden;                                     No. 00-1052
 ATTORNEY GENERAL OF THE                              (D.C. No. 99-Z-2168)
 STATE OF COLORADO,                                         (D.Colo.)

           Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Benito Negron, a prisoner at the Bent County Correctional Facility at Las

Animas, Colorado, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Because Negron’s direct appeal is still pending before a Colorado appellate court,

the district court dismissed Negron’s habeas petition without prejudice for failure

to exhaust state remedies. The district court also denied Negron’s requests for a

certificate of appealability (“COA”) and for leave to proceed in forma pauperis on

appeal. We deny Negron’s request for a COA and dismiss Negron’s appeals.

      The Supreme Court’s recent decision in      Slack v. McDaniel , 120 S. Ct. 1595

(2000) controls our analysis of Negron’s request for a COA. In most cases, 28

U.S.C. § 2253(c)(2) requires a prisoner to make a “substantial showing of the

denial of a constitutional right” to obtain a COA. When a district court denies a

prisoner’s request for a COA on procedural grounds without reaching the merits

of the prisoner’s claims – as the district court in this case did when it dismissed

Negron’s petition for failure to exhaust state court remedies – a slightly different

standard applies. In these circumstances, “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.” Slack , 120 S. Ct. at 1604 (relying on   Barefoot v. Estelle , 463 U.S. 880,

893 & n.4 (1983)). Each component of this showing “is part of a threshold

inquiry, and a court may find that it can dispose of the application in a fair and

prompt manner if it proceeds first to resolve the issue whose answer is more


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apparent from the record and arguments.”         Id. The maxim that a court will not

pass upon a constitutional question when a case can be resolved on other grounds

“allows and encourages the court to first resolve procedural issues.”      Id. (citing

Ashwander v. TVA , 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

       “Jurists of reason” would not find it debatable whether Negron exhausted

his state court remedies before seeking habeas relief. “Before a federal court may

grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in

state court. In other words, the state prisoner must give the state courts an

opportunity to act on his claims before he presents those claims to a federal court

in a habeas petition.”   O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999);     accord

Brown v. Shanks , 185 F.3d 1122, 1124 (10th Cir. 1999). This exhaustion

requirement is satisfied if the issues raised in the petition “have been ‘properly

presented to the highest state court, either by direct review of the conviction or in

a postconviction attack.’”   Brown , 185 F.3d at 1124 (quoting     Dever v. Kansas

State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994)). Negron does not dispute

that the direct appeal of his conviction remains pending. As a result, Negron has

not had an opportunity to present the issues raised in his habeas petition to the

Colorado Supreme Court.

       Negron’s argument that he should be exempt from the exhaustion

requirement is unconvincing. Negron claims that he has been subjected to


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“inordinate delays” during the course of his state court appeal, and that these

delays make the state appellate process “ineffective.” It is true that “[i]nordinate

and unjustified delay by the state in adjudicating a direct criminal appeal can

‘make the state process ineffective to protect the petitioner’s rights.’”   Harris v.

Champion , 48 F.3d 1127, 1132 (10th Cir. 1995) (citation and one set of internal

quotation marks omitted). A delay of more than two years in adjudicating a direct

criminal appeal “creates a presumption that the state appellate process is

ineffective.” Carpenter v. Young , 50 F.3d 869, 870 (10th Cir. 1995);       accord

Harris , 48 F.3d at 1132. Here, however, the record indicates that Negron filed his

notice of appeal in the state court case on May 26, 1999. The delay of almost 12

months Negron has experienced undoubtedly has been frustrating, but it is

insufficient to suspend the exhaustion requirement.

       Negron’s motion for leave to proceed in forma pauperis is GRANTED.

Negron’s request for a COA is DENIED and the appeals are DISMISSED. The

mandate shall issue forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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