                   UNITED STATES COURT OF APPEALS
                         FOR THE TENTH CIRCUIT


 ROBERT DAVID KNAPP,

       Petitioner-Appellant,

 v.

 RANDY HENDERSON; ATTORNEY
 GENERAL OF THE STATE OF                                No. 97-1188
 COLORADO; COLORADO STATE                           (District of Colorado)
 PAROLE BOARD,                                       (D.C. No. 95-S-370)

       Respondents-Appellees.




                                      ORDER
                               Filed November 9, 1998


Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.


      This matter is before the court on appellant’s petition for rehearing

pursuant to Fed. R. App. P. 40. A majority of the original panel has voted to deny

rehearing. The petition is denied. The second sentence and the last sentence of

the order and judgment filed on October 6, 1998 have been amended, however, in

response to the unusual procedural history of this case and the procedural

implications pursuant to the Antiterrorism and Effective Death Penalty Act of
1996, as outlined in the petition for rehearing. The amended order and judgment

is attached.

      Judge HOLLOWAY would grant the petition for rehearing.


                                     Entered for the Court
                                     PATRICK FISHER, Clerk of Court


                                     By:
                                             Jeanne E. Herrick-Stare
                                             Counsel to the Clerk/Deputy Clerk




                                       -2-
                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 9 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


ROBERT DAVID KNAPP,

          Petitioner-Appellant,

v.

RANDY HENDERSON; ATTORNEY
                                                       No. 97-1188
GENERAL OF THE STATE OF
                                                   (District of Colorado)
COLORADO; COLORADO STATE
                                                    (D.C. No. 95-S-370)
PAROLE BOARD,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.



      Petitioner-Appellant Robert David Knapp appeals the district court’s

summary dismissal of his Petition for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 by a Person in State Custody, in which he claimed that his present

confinement is illegal due to Colorado’s loss of jurisdiction. Concluding that


      *
       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.
Knapp failed to exhaust his state remedies, we vacate the district court’s judgment

and remand for the district court to hold in abeyance pending appellant’s

exhaustion of state remedies, as more fully described herein. 1

                                 BACKGROUND

      In 1970, following a Colorado jury trial, Knapp was convicted of first-

degree murder and sentenced to life in prison. In 1984, the Colorado State Board

of Parole paroled Knapp to Michigan. In 1985, Knapp violated his parole by

committing a felony, criminal sexual conduct. As a result of the felony, Knapp

was sentenced by a Michigan court to a five-year term of imprisonment and began

serving his sentence in 1986. Shortly after Knapp’s arrest in Michigan, the

Colorado State Board of Parole issued an arrest warrant for Knapp as a parole

violator based on the Michigan crime. For a period of time, Michigan officials

communicated with Colorado officials regarding Knapp’s status and his likely

date of release.

      In 1988, while still in custody, Knapp mailed a letter to the Colorado State

Board of Parole, requesting that his Colorado parole be terminated or that he be

allowed to complete his parole in Michigan following his release. According to


      1
        Because petitioner filed his petition before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, the Act’s certificate of
appealability provisions do not apply. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). We grant
petitioner a certificate of probable cause.

                                         -2-
Knapp, he never received a response. Knapp was released from custody in

Michigan in 1989. Colorado authorities made no effort at that time to arrange for

Knapp’s return to Colorado. Instead, following his release, Knapp settled in

Michigan, obtained gainful employment, got married, and became a father. In

1993, Knapp was arrested for the Colorado parole violation. His parole was

revoked, and he was returned to the custody of the Colorado Department of

Corrections.

      Knapp filed a pro se petition for a writ of habeas corpus in Colorado

district court. In his petition, Knapp claimed, among other things, that Colorado

lost jurisdiction over him by failing to take any action between his release in 1989

and his arrest in 1993. In denying the petition, the state district court ignored

Knapp’s loss of jurisdiction claim. Rather than appealing the court’s denial of his

petition, Knapp next filed a pro se petition for a writ of habeas corpus and/or writ

of mandamus in the Colorado Supreme Court, raising only the loss of jurisdiction

issue. The Colorado Supreme Court denied Knapp’s petition without comment.

Knapp then filed the instant petition in which he argues that his custody in

Colorado violates the United States Constitution because Colorado abandoned

jurisdiction over him.

      While the proceedings below were convoluted, the federal district court

ultimately denied Knapp’s petition on the merits without holding a hearing. The


                                          -3-
district court did not decide whether Knapp had properly exhausted his state

remedies, but instead found that Knapp’s petition failed to allege facts sufficient

to state a due process claim.

                                   DISCUSSION

      A state prisoner bringing a federal habeas petition must show that he has

exhausted his state court remedies. See 28 U.S.C. § 2254(b); see also Picard v.

Connor, 404 U.S. 270, 275 (1971). To satisfy the exhaustion requirement, federal

claims must be “fairly presented to the state courts” in order to give state courts

the “opportunity to pass upon and correct alleged violations of its prisoners’

federal rights.” Connor, 404 U.S. at 275 (internal quotations omitted); see also

Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). It is not sufficient that

all the facts necessary to support a federal claim were before the state court or

that a similar state-law claim was made. See Anderson v. Harless, 459 U.S. 4, 6

(1982) (per curiam). “If state courts are to be given the opportunity to correct

alleged violations of prisoners’ federal rights, they must surely be alerted to the

fact that the prisoners are asserting claims under the United States Constitution.”

Henry, 513 U.S. at 365-66. This is not to suggest, however, that petitioner need

invoke “talismanic language” or cite “book and verse on the federal constitution.”

Nichols v Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989) (internal quotations

omitted); see also Connor, 404 U.S. at 278. Instead, the crucial inquiry is


                                         -4-
whether the “substance” of the petitioner’s claim has been presented to the state

courts in a manner sufficient to put the courts on notice of the federal

constitutional claim. 2 See Connor, 404 U.S. at 278; Nichols, 867 F.2d at 1252.

      In Knapp’s present petition, he alleges that Colorado, as a result of its

inaction, abandoned jurisdiction over him and that its later incarceration of Knapp

thus violated his due process rights. Cf. Piper v. Estelle, 485 F.2d 245, 246 (5th

Cir. 1973) (per curiam) (discussing standard for due process claim based on

waiver of jurisdiction). After carefully reviewing Knapp’s petition to the

Colorado Supreme Court, as well as his petition to the state district court, which

Knapp submitted to the Colorado Supreme Court as an exhibit, this court

concludes that Knapp failed to appropriately apprise the Colorado Supreme Court

that he was asserting a federal due process claim.

      In the petition Knapp filed with the Colorado Supreme Court, he framed his

claim in terms of abandonment of jurisdiction, not in terms of due process. While

the petition Knapp filed in the state district court came closer to presenting a due



      2
        Respondents argue that the Supreme Court’s opinion in Duncan v. Henry,
513 U.S. 364 (1995) (per curiam), imposes a new labeling requirement on
petitioners, requiring petitioners to specifically label their claims as federal
claims before the state courts. We need not decide whether Henry effected a
change in the exhaustion requirements because we conclude below that even
absent such a labeling requirement, Knapp failed to fairly present his claim to the
Colorado courts. Nevertheless, Henry is instructive of the need to alert state
courts to the federal nature of a claim.

                                          -5-
process claim, stating that the issue it presented involved “jurisdictional loss

affecting fundamental rights of the accused,” it did not include in the loss of

jurisdiction section any analysis of the manner in which Knapp’s fundamental

rights were violated. Nor do the cases cited by Knapp in his state habeas petitions

address Knapp’s due process claim. Instead, the cases cited by Knapp address

long arm statutes and the requirement that a state have sufficient contacts to

exercise jurisdiction. See e.g., Circle A Drilling Co. v. Sheehan, 251 F. Supp. 242

(D. Colo. 1966); Viernes v. District Court, 509 P.2d 306 (Colo. 1973) (en banc).

Knapp’s petitions do not cite any case, federal or state, addressing the due process

concerns implicated by delay in returning an individual to custody. 3 Under these

circumstances, we cannot say that Knapp fairly presented and gave notice of his

due process claim to the Colorado Supreme Court. 4 Knapp’s failure to assert a

      3
        Knapp contends that his citation of a federal case, Circle A Drilling
Company v. Sheehan, 251 F. Supp. 242, 243 (D. Colo. 1966), for the proposition
that the “constitutionality” of the exercise of jurisdiction depends on the facts of
the case alerted the Colorado courts that Knapp was relying on federal law.
Circle A Drilling Company, however, does not address the due process issues
raised by Knapp and therefore is not sufficient to fairly alert the Colorado courts
that Knapp was asserting a violation of his due process rights based on
Colorado’s delay in returning him to custody. For similar reasons, Knapp’s
contention that Colorado law and federal law use identical standards for
determining whether a state’s delay in returning an individual to custody violates
due process is equally unavailing. In this case, Knapp never fairly presented
either his federal due process claim or an equivalent state due process claim to the
Colorado Supreme Court.
      4
          The dissent relies upon a reference on the second page of the petition
                                                                        (continued...)

                                           -6-
due process claim is especially pronounced when, as here, he specifically raised

other federal constitutional claims. Cf. Henry, 513 U.S. at 366.

      Having concluded that Knapp failed to exhaust his federal due process

claim before the Colorado courts, this court must next consider whether he is now

procedurally barred from bringing his habeas claim. See Coleman v. Thompson,

501 U.S. 722, 750 (1991) (holding federal habeas review of claims is barred when

“a state prisoner has defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule”). Absent special circumstances,

Colorado courts will not ordinarily entertain successive motions for post-

conviction relief. See Turman v. Buckallew, 784 P.2d 774, 780 (Colo. 1989) (en

banc). This court, however, declines to speculate whether the Colorado courts

would find special circumstances in the context of this case. Therefore, rather




      4
        (...continued)
before the state district court to a due process claim against the Colorado Board
of Parole. Initially, however, this claim was presented as part of petitioner’s
“second issue” which is an ineffective assistance of counsel claim. More
importantly, the due process claims directed at the Colorado Board of Parole in
the state district court were discretely and specifically based on a procedural right
to a de novo hearing and procedural irregularities before the parole board.
Finally, the dissent’s reliance on the state’s recognition of a federal due process
claim in its appellate brief is misplaced. The state addressed the merits of the
claim because Knapp’s entire opening brief was dedicated to the merits and did
not address procedural default. The state’s responsive brief did, however, argue
procedural default as an alternative ground for affirmance. Respondents-
Appellees’ Answer Brief at 41-42.

                                         -7-
than deem petitioner’s claim procedurally barred, this court will permit Knapp to

return to the Colorado courts to exhaust his due process claim. 5

                                  CONCLUSION

      Because this court concludes that Knapp failed to exhaust his claims before

the Colorado courts, we VACATE the judgment of the United States District

Court for the District of Colorado dismissing Knapp’s petition with prejudice, and

REMAND to the district court with directions to hold the petition in abeyance

pending appellant’s exhaustion of state remedies. Appellant shall submit a status


      5
        The federal district court’s summary dismissal of Knapp’s petition was
inappropriate. In dismissing Knapp’s petition, the district court relied on the
standard provided in Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, which provides that “[i]f it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the petitioner to be notified.” As in other civil actions,
summary dismissal is inappropriate in habeas corpus proceedings “unless it
appears without a doubt that the petitioner can prove no set of facts which would
entitle him to relief.” O’Blasney v. Solem, 774 F.2d 925, 926 (8th Cir. 1985).
       After reviewing Knapp’s habeas petition to the federal district court, this
court concludes that the petition alleged sufficient facts to state a due process
claim. Knapp’s petition specifically invoked his Fourteenth Amendment due
process rights. Factually, the petition alleged, among other things, that Michigan
notified Colorado multiple times that Knapp was being released; Colorado did not
respond to Michigan’s request that Colorado retake custody of Knapp; Michigan
discharged Knapp without any supervision; Knapp got married, had children, and
obtained gainful employment; over three years later, Colorado had Knapp arrested
in Michigan; Colorado provided perjured testimony to obtain the warrant for
Knapp’s arrest; and Colorado then re-incarcerated Knapp. These allegations,
along with Knapp’s invocation of the Fourteenth Amendment, are sufficient to
withstand summary dismissal. This court therefore vacates the district court’s
dismissal of Knapp’s petition with prejudice.

                                          -8-
report to the district court within 180 days of the date of this order, and then

successively within 180 days of that status report and each status report thereafter

as necessary, outlining the steps he has taken to exhaust state court remedies and

the progress of the matter in the state court. At such time as the state court

remedies have been exhausted, appellant shall so notify the district court

immediately, and the district court shall reactivate consideration of appellant’s

§ 2254 habeas corpus petition. Should appellant fail to submit status reports as

described herein or fail to notify the district court at the conclusion of state court

action on this matter, the district court may then dismiss appellant’s § 2254

habeas petition with prejudice.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




                                           -9-
No. 97-1188, Knapp v. Henderson

HOLLOWAY, Circuit Judge, concurring and dissenting:

       I agree with the majority opinion in vacating the district court’s order of dismissal

with prejudice of Knapp’s petition for reasons stated forcefully in footnote 5 of the

opinion. However, I am unable to agree with the majority opinion’s conclusion that

Knapp failed to appropriately apprise the Colorado Supreme Court that he was asserting a

federal due process claim. Accordingly, I must respectfully dissent from that holding of

the majority.

       In its analysis of the issue of exhaustion, the majority properly turns to the

controlling statute, 28 U.S.C. § 2254(b), and to the controlling opinions of the Supreme

Court, Duncan v. Henry, 513 U.S. 364 (1995) (per curiam); Anderson v. Harless, 459

U.S. 4 (1982) (per curiam); and Picard v. Connor, 404 U.S. 270 (1971). As the majority

properly notes, if state courts are to be given the opportunity to correct alleged violations

of prisoners’ federal rights, “they must surely be alerted to the fact that prisoners are

asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. at

365-66.

       However, I am particularly impressed by our own opinion in Nichols v. Sullivan,

867 F.2d 1250, 1252 (10th Cir. 1989), which the majority cites, and which came after

Picard and Anderson. In Nichols, we recognized that to exhaust a federal claim in state

court, a petitioner need not invoke “talismanic language” or cite “book and verse on the

federal constitution.” Thus, I agree with the majority that the crucial inquiry is whether
the substance of petitioner’s claim has been presented to the state courts in a manner

sufficient to put those courts on notice of the federal constitutional claim. From careful

examination of Knapp’s petition for habeas or mandamus relief in the Colorado Supreme

Court (Case No. 94-SA-379), and his Application for a Writ of Habeas Corpus in the

district court of Denver County (Case No. 61,774), I am convinced that Knapp did

appropriately apprise the Colorado courts that he was asserting a federal due process

claim.

         First, in the habeas application in the Colorado district court, attached to the

petition to the Colorado Supreme Court, page 2, Knapp listed as an issue to be

considered, whether “the Colorado Board of Parole violate[d] the Defendant’s Due

Process of law as mandated by the Fourteenth Amendment of the United States

Constitution, and the Constitution of the United States, and the Constitution of the State

of Colorado.” That issue is not framed specifically in terms of the waiver of jurisdiction

or inaction and delay of the Parole Board, but the claim and issue as above stated cannot

be ignored as the proper backdrop for detailed averments that followed. On the same

page 2 of his application in the Colorado district court, furnished also to the Colorado

Supreme Court, Knapp turned to his allegations that Michigan kept Colorado informed as

to all proceedings concerning him, including his felony charge in Michigan, and then his

later release from the Michigan State Department of Corrections in July 1989 without

parole supervision.


                                               -2-
       Knapp’s application to the Colorado district court, page 6, alleged that Colorado

waived jurisdiction of the body of defendant by its actions, and in support of his issue on

loss of jurisdiction, he cited Circle A Drilling Co. v. Sheehan, 251 F. Supp. 242 (D. Colo.

1966). It is true, as the majority notes, that Knapp did not have a case on all fours to cite

about delay in returning an individual to custody, but he surely laid out the facts and

circumstances of delay, waiver, and his theory. Moreover, the Circle A Drilling Co.

opinion of Judge Doyle, cited by Knapp, specifically recognized, although in the context

of a long arm statute, that the “issue for determination is whether, consistent with the

concepts of due process indicated by the United States Supreme Court in the cases of

International Shoe Co. . . . ,” jurisdiction over the defendant could exist. (Emphasis

added and additional citation omitted). I note further that in Knapp’s “Issues and

Arguments” portion of his application for habeas relief in the Colorado district court,

page 12, Knapp stated further that

       the state allowed a 3½ year time passage before they chose to arrest parolee
       and give him a parole violation revocation hearing, thus they denied him his
       due process rights to a prompt hearing. [A]nd further still according to the
       contentions of this defendant-petitioner, had no right to re-arrest him after
       this length of delay.

       It can be argued that the due process denial to Knapp by delay charged above was

based on a procedural right and irregularities before the parole board. However, this

hearing delay was plainly related to the delay in rearresting Knapp, and I would not parse

the pleading so finely and insulate the rearrest from the due process averment.


                                             -3-
       To me, it is significant that the Answer Brief of Respondents-Appellees itself

recognizes that the issue of reincarceration of Knapp does involve federal due process

principles. That brief outlined the rule that when a prisoner becomes available for return

to complete serving a sentence, an unreasonable and culpable delay by the state seeking

his return may be held to constitute a waiver, abandonment or loss of jurisdiction. Id. at

25. That Answer Brief significantly concludes:

              Such a judicial finding of waiver of jurisdiction is based on the
       determination that, under the circumstances, the prisoner’s reincarceration
       by the state would be inconsistent with due process principles of
       fundamental fairness. Hence a claim of such waiver states a federal
       constitutional claim which is cognizable on habeas review and which, on
       occasion, has been the basis for the granting of 28 U.S.C. § 2254 relief.

Answer Brief of Respondents-Appellees at 25 (emphasis added).

       Of course, the state courts “must surely be alerted to the fact that the prisoners are

asserting claims under the United States Constitution.” Duncan, 513 U.S. at 365-66. I

am persuaded that here the Colorado courts were fairly alerted to the federal

constitutional nature of Knapp’s claim, as the Colorado Attorney General’s Office was,

according to their brief quoted above.

       Accordingly, with respect to the exhaustion issue, I must respectfully dissent.




                                             -4-
                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  OCT 6 1998
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk


ROBERT DAVID KNAPP,

           Petitioner-Appellant,

v.
                                                             No. 97-1188
                                                         (District of Colorado)
RANDY HENDERSON; ATTORNEY
                                                          (D.C. No. 95-S-370)
GENERAL OF THE STATE OF
COLORADO; COLORADO STATE
PAROLE BOARD,

           Respondents-Appellees.




                                   ORDER AND JUDGMENT*


Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.



       Petitioner-Appellant Robert David Knapp appeals the district court’s summary

dismissal of his Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a

Person in State Custody, in which he claimed that his present confinement is illegal due to

Colorado’s loss of jurisdiction. Concluding that Knapp failed to exhaust his state


       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.
remedies, we vacate the district court’s judgment and remand for dismissal without

prejudice.1

                                         BACKGROUND

       In 1970, following a Colorado jury trial, Knapp was convicted of first-degree

murder and sentenced to life in prison. In 1984, the Colorado State Board of Parole

paroled Knapp to Michigan. In 1985, Knapp violated his parole by committing a felony,

criminal sexual conduct. As a result of the felony, Knapp was sentenced by a Michigan

court to a five-year term of imprisonment and began serving his sentence in 1986.

Shortly after Knapp’s arrest in Michigan, the Colorado State Board of Parole issued an

arrest warrant for Knapp as a parole violator based on the Michigan crime. For a period

of time, Michigan officials communicated with Colorado officials regarding Knapp’s

status and his likely date of release.

       In 1988, while still in custody, Knapp mailed a letter to the Colorado State Board

of Parole, requesting that his Colorado parole be terminated or that he be allowed to

complete his parole in Michigan following his release. According to Knapp, he never

received a response. Knapp was released from custody in Michigan in 1989. Colorado

authorities made no effort at that time to arrange for Knapp’s return to Colorado. Instead,


       1
        Because petitioner filed his petition before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, the Act’s certificate of
appealability provisions do not apply. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). We grant
petitioner a certificate of probable cause.

                                             -2-
following his release, Knapp settled in Michigan, obtained gainful employment, got

married, and became a father. In 1993, Knapp was arrested for the Colorado parole

violation. His parole was revoked, and he was returned to the custody of the Colorado

Department of Corrections.

       Knapp filed a pro se petition for a writ of habeas corpus in Colorado district court.

In his petition, Knapp claimed, among other things, that Colorado lost jurisdiction over

him by failing to take any action between his release in 1989 and his arrest in 1993. In

denying the petition, the state district court ignored Knapp’s loss of jurisdiction claim.

Rather than appealing the court’s denial of his petition, Knapp next filed a pro se petition

for a writ of habeas corpus and/or writ of mandamus in the Colorado Supreme Court,

raising only the loss of jurisdiction issue. The Colorado Supreme Court denied Knapp’s

petition without comment. Knapp then filed the instant petition in which he argues that

his custody in Colorado violates the United States Constitution because Colorado

abandoned jurisdiction over him.

       While the proceedings below were convoluted, the federal district court ultimately

denied Knapp’s petition on the merits without holding a hearing. The district court did

not decide whether Knapp had properly exhausted his state remedies, but instead found

that Knapp’s petition failed to allege facts sufficient to state a due process claim.

                                       DISCUSSION

       A state prisoner bringing a federal habeas petition must show that he has exhausted


                                              -3-
his state court remedies. See 28 U.S.C. § 2254(b); see also Picard v. Connor, 404 U.S.

270, 275 (1971). To satisfy the exhaustion requirement, federal claims must be “fairly

presented to the state courts” in order to give state courts the “opportunity to pass upon

and correct alleged violations of its prisoners’ federal rights.” Connor, 404 U.S. at 275

(internal quotations omitted); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

curiam). It is not sufficient that all the facts necessary to support a federal claim were

before the state court or that a similar state-law claim was made. See Anderson v.

Harless, 459 U.S. 4, 6 (1982) (per curiam). “If state courts are to be given the

opportunity to correct alleged violations of prisoners’ federal rights, they must surely be

alerted to the fact that the prisoners are asserting claims under the United States

Constitution.” Henry, 513 U.S. at 365-66. This is not to suggest, however, that petitioner

need invoke “talismanic language” or cite “book and verse on the federal constitution.”

Nichols v Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989) (internal quotations omitted);

see also Connor, 404 U.S. at 278. Instead, the crucial inquiry is whether the “substance”

of the petitioner’s claim has been presented to the state courts in a manner sufficient to

put the courts on notice of the federal constitutional claim.2 See Connor, 404 U.S. at 278;


       2
        Respondents argue that the Supreme Court’s opinion in Duncan v. Henry,
513 U.S. 364 (1995) (per curiam), imposes a new labeling requirement on
petitioners, requiring petitioners to specifically label their claims as federal
claims before the state courts. We need not decide whether Henry effected a
change in the exhaustion requirements because we conclude below that even
absent such a labeling requirement, Knapp failed to fairly present his claim to the
                                                                          (continued...)

                                             -4-
Nichols, 867 F.2d at 1252.

       In Knapp’s present petition, he alleges that Colorado, as a result of its inaction,

abandoned jurisdiction over him and that its later incarceration of Knapp thus violated his

due process rights. Cf. Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (per curiam)

(discussing standard for due process claim based on waiver of jurisdiction). After

carefully reviewing Knapp’s petition to the Colorado Supreme Court, as well as his

petition to the state district court, which Knapp submitted to the Colorado Supreme Court

as an exhibit, this court concludes that Knapp failed to appropriately apprise the Colorado

Supreme Court that he was asserting a federal due process claim.

       In the petition Knapp filed with the Colorado Supreme Court, he framed his claim

in terms of abandonment of jurisdiction, not in terms of due process. While the petition

Knapp filed in the state district court came closer to presenting a due process claim,

stating that the issue it presented involved “jurisdictional loss affecting fundamental

rights of the accused,” it did not include in the loss of jurisdiction section any analysis of

the manner in which Knapp’s fundamental rights were violated. Nor do the cases cited by

Knapp in his state habeas petitions address Knapp’s due process claim. Instead, the cases

cited by Knapp address long arm statutes and the requirement that a state have sufficient

contacts to exercise jurisdiction. See e.g., Circle A Drilling Co. v. Sheehan, 251 F. Supp.


       2
        (...continued)
Colorado courts. Nevertheless, Henry is instructive of the need to alert state
courts to the federal nature of a claim.

                                              -5-
242 (D. Colo. 1966); Viernes v. District Court, 509 P.2d 306 (Colo. 1973) (en banc).

Knapp’s petitions do not cite any case, federal or state, addressing the due process

concerns implicated by delay in returning an individual to custody.3 Under these

circumstances, we cannot say that Knapp fairly presented and gave notice of his due

process claim to the Colorado Supreme Court.4 Knapp’s failure to assert a due process

claim is especially pronounced when, as here, he specifically raised other federal


       3
        Knapp contends that his citation of a federal case, Circle A Drilling
Company v. Sheehan, 251 F. Supp. 242, 243 (D. Colo. 1966), for the proposition
that the “constitutionality” of the exercise of jurisdiction depends on the facts of
the case alerted the Colorado courts that Knapp was relying on federal law.
Circle A Drilling Company, however, does not address the due process issues
raised by Knapp and therefore is not sufficient to fairly alert the Colorado courts
that Knapp was asserting a violation of his due process rights based on
Colorado’s delay in returning him to custody. For similar reasons, Knapp’s
contention that Colorado law and federal law use identical standards for
determining whether a state’s delay in returning an individual to custody violates
due process is equally unavailing. In this case, Knapp never fairly presented
either his federal due process claim or an equivalent state due process claim to the
Colorado Supreme Court.
       4
        The dissent relies upon a reference on the second page of the petition
before the state district court to a due process claim against the Colorado Board
of Parole. Initially, however, this claim was presented as part of petitioner’s
“second issue” which is an ineffective assistance of counsel claim. More
importantly, the due process claims directed at the Colorado Board of Parole in
the state district court were discretely and specifically based on a procedural right
to a de novo hearing and procedural irregularities before the parole board.
Finally, the dissent’s reliance on the state’s recognition of a federal due process
claim in its appellate brief is misplaced. The state addressed the merits of the
claim because Knapp’s entire opening brief was dedicated to the merits and did
not address procedural default. The state’s responsive brief did, however, argue
procedural default as an alternative ground for affirmance. Respondents-
Appellees’ Answer Brief at 41-42.

                                            -6-
constitutional claims. Cf. Henry, 513 U.S. at 366.

       Having concluded that Knapp failed to exhaust his federal due process claim

before the Colorado courts, this court must next consider whether he is now procedurally

barred from bringing his habeas claim. See Coleman v. Thompson, 501 U.S. 722, 750

(1991) (holding federal habeas review of claims is barred when “a state prisoner has

defaulted his federal claims in state court pursuant to an independent and adequate state

procedural rule”). Absent special circumstances, Colorado courts will not ordinarily

entertain successive motions for post-conviction relief. See Turman v. Buckallew, 784

P.2d 774, 780 (Colo. 1989) (en banc). This court, however, declines to speculate whether

the Colorado courts would find special circumstances in the context of this case.

Therefore, rather than deem petitioner’s claim procedurally barred, this court will permit

Knapp to return to the Colorado courts to exhaust his due process claim.5


       5
        The federal district court’s summary dismissal of Knapp’s petition was
inappropriate. In dismissing Knapp’s petition, the district court relied on the
standard provided in Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, which provides that “[i]f it plainly appears from the
face of the petition and any exhibits annexed to it that the petitioner is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the petitioner to be notified.” As in other civil actions,
summary dismissal is inappropriate in habeas corpus proceedings “unless it
appears without a doubt that the petitioner can prove no set of facts which would
entitle him to relief.” O’Blasney v. Solem, 774 F.2d 925, 926 (8th Cir. 1985).
       After reviewing Knapp’s habeas petition to the federal district court, this
court concludes that the petition alleged sufficient facts to state a due process
claim. Knapp’s petition specifically invoked his Fourteenth Amendment due
process rights. Factually, the petition alleged, among other things, that Michigan
                                                                         (continued...)

                                            -7-
                                      CONCLUSION

       Because this court concludes that Knapp failed to exhaust his claims before the

Colorado courts, we VACATE the judgment of the United States District Court for the

District of Colorado, dismissing Knapp’s petition with prejudice, and REMAND to the

district court with directions to dismiss the petition without prejudice.

                                           ENTERED FOR THE COURT:



                                           Michael R. Murphy
                                           Circuit Judge




       (...continued)
       5

notified Colorado multiple times that Knapp was being released; Colorado did not
respond to Michigan’s request that Colorado retake custody of Knapp; Michigan
discharged Knapp without any supervision; Knapp got married, had children, and
obtained gainful employment; over three years later, Colorado had Knapp arrested
in Michigan; Colorado provided perjured testimony to obtain the warrant for
Knapp’s arrest; and Colorado then re-incarcerated Knapp. These allegations,
along with Knapp’s invocation of the Fourteenth Amendment, are sufficient to
withstand summary dismissal. This court therefore vacates the district court’s
dismissal of Knapp’s petition with prejudice.

                                             -8-
No. 97-1188, Knapp v. Henderson

HOLLOWAY, Circuit Judge, concurring and dissenting:

       I agree with the majority opinion in vacating the district court’s order of dismissal

with prejudice of Knapp’s petition for reasons stated forcefully in footnote 5 of the

opinion. However, I am unable to agree with the majority opinion’s conclusion that

Knapp failed to appropriately apprise the Colorado Supreme Court that he was asserting a

federal due process claim. Accordingly, I must respectfully dissent from that holding of

the majority.

       In its analysis of the issue of exhaustion, the majority properly turns to the

controlling statute, 28 U.S.C. § 2254(b), and to the controlling opinions of the Supreme

Court, Duncan v. Henry, 513 U.S. 364 (1995) (per curiam); Anderson v. Harless, 459

U.S. 4 (1982) (per curiam); and Picard v. Connor, 404 U.S. 270 (1971). As the majority

properly notes, if state courts are to be given the opportunity to correct alleged violations

of prisoners’ federal rights, “they must surely be alerted to the fact that prisoners are

asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. at

365-66.

       However, I am particularly impressed by our own opinion in Nichols v. Sullivan,

867 F.2d 1250, 1252 (10th Cir. 1989), which the majority cites, and which came after

Picard and Anderson. In Nichols, we recognized that to exhaust a federal claim in state

court, a petitioner need not invoke “talismanic language” or cite “book and verse on the

federal constitution.” Thus, I agree with the majority that the crucial inquiry is whether
the substance of petitioner’s claim has been presented to the state courts in a manner

sufficient to put those courts on notice of the federal constitutional claim. From careful

examination of Knapp’s petition for habeas or mandamus relief in the Colorado Supreme

Court (Case No. 94-SA-379), and his Application for a Writ of Habeas Corpus in the

district court of Denver County (Case No. 61,774), I am convinced that Knapp did

appropriately apprise the Colorado courts that he was asserting a federal due process

claim.

         First, in the habeas application in the Colorado district court, attached to the

petition to the Colorado Supreme Court, page 2, Knapp listed as an issue to be

considered, whether “the Colorado Board of Parole violate[d] the Defendant’s Due

Process of law as mandated by the Fourteenth Amendment of the United States

Constitution, and the Constitution of the United States, and the Constitution of the State

of Colorado.” That issue is not framed specifically in terms of the waiver of jurisdiction

or inaction and delay of the Parole Board, but the claim and issue as above stated cannot

be ignored as the proper backdrop for detailed averments that followed. On the same

page 2 of his application in the Colorado district court, furnished also to the Colorado

Supreme Court, Knapp turned to his allegations that Michigan kept Colorado informed as

to all proceedings concerning him, including his felony charge in Michigan, and then his

later release from the Michigan State Department of Corrections in July 1989 without

parole supervision.


                                               -2-
       Knapp’s application to the Colorado district court, page 6, alleged that Colorado

waived jurisdiction of the body of defendant by its actions, and in support of his issue on

loss of jurisdiction, he cited Circle A Drilling Co. v. Sheehan, 251 F. Supp. 242 (D. Colo.

1966). It is true, as the majority notes, that Knapp did not have a case on all fours to cite

about delay in returning an individual to custody, but he surely laid out the facts and

circumstances of delay, waiver, and his theory. Moreover, the Circle A Drilling Co.

opinion of Judge Doyle, cited by Knapp, specifically recognized, although in the context

of a long arm statute, that the “issue for determination is whether, consistent with the

concepts of due process indicated by the United States Supreme Court in the cases of

International Shoe Co. . . . ,” jurisdiction over the defendant could exist. (Emphasis

added and additional citation omitted). I note further that in Knapp’s “Issues and

Arguments” portion of his application for habeas relief in the Colorado district court,

page 12, Knapp stated further that

       the state allowed a 3½ year time passage before they chose to arrest parolee
       and give him a parole violation revocation hearing, thus they denied him his
       due process rights to a prompt hearing. [A]nd further still according to the
       contentions of this defendant-petitioner, had no right to re-arrest him after
       this length of delay.

       It can be argued that the due process denial to Knapp by delay charged above was

based on a procedural right and irregularities before the parole board. However, this

hearing delay was plainly related to the delay in rearresting Knapp, and I would not parse

the pleading so finely and insulate the rearrest from the due process averment.


                                             -3-
       To me, it is significant that the Answer Brief of Respondents-Appellees itself

recognizes that the issue of reincarceration of Knapp does involve federal due process

principles. That brief outlined the rule that when a prisoner becomes available for return

to complete serving a sentence, an unreasonable and culpable delay by the state seeking

his return may be held to constitute a waiver, abandonment or loss of jurisdiction. Id. at

25. That Answer Brief significantly concludes:

              Such a judicial finding of waiver of jurisdiction is based on the
       determination that, under the circumstances, the prisoner’s reincarceration
       by the state would be inconsistent with due process principles of
       fundamental fairness. Hence a claim of such waiver states a federal
       constitutional claim which is cognizable on habeas review and which, on
       occasion, has been the basis for the granting of 28 U.S.C. § 2254 relief.

Answer Brief of Respondents-Appellees at 25 (emphasis added).

       Of course, the state courts “must surely be alerted to the fact that the prisoners are

asserting claims under the United States Constitution.” Duncan, 513 U.S. at 365-66. I

am persuaded that here the Colorado courts were fairly alerted to the federal

constitutional nature of Knapp’s claim, as the Colorado Attorney General’s Office was,

according to their brief quoted above.

       Accordingly, with respect to the exhaustion issue, I must respectfully dissent..




                                             -4-
