                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          May 23, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    CHARLES W ILLIAM FLETCHER,
    III-EL,

                Petitioner-A ppellant,
                                                           No. 05-1349
    v.                                                (D.C. No. 04-CV-2320)
                                                            (D . Colo.)
    GARY GOLDER, W arden; JOHN W .
    SU THERS, Attorney General of the
    State of Colorado,

                Respondents-Appellees.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




         Petitioner Charles Fletcher, appearing pro se, appeals the district court’s

dismissal of his federal habeas corpus application under 28 U.S.C. § 2254 for

failure to exhaust state court remedies. Because petitioner’s direct appeal in state



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
court has yet to be adjudicated, we AFFIRM the district court’s application of the

exhaustion requirement to bar his federal petition.

      Petitioner was convicted in Colorado in 2001 of numerous crimes,

including kidnaping, assault, aggravated robbery, and attempted second-degree

murder. A s a habitual felon, he was sentenced to 320 years’ imprisonment.

He filed a direct appeal with the Colorado Court of Appeals in February 2003.

W hile that appeal was pending (and, indeed, it is still pending), petitioner filed

his pro se § 2254 habeas application. In it, petitioner raised three constitutional

challenges to his state court conviction, as well as a due process claim that the

state’s appellate process was ineffective and, therefore, excused the requirement

that he exhaust state remedies.

      In general, “[b]efore 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); see also 28 U.S.C.

§ 2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not be

granted unless it appears that the applicant has exhausted the remedies available

in the courts of the State.”). State claims remain unexhausted if state proceedings

remain pending at the time the petition is filed.




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      Nonetheless, we have held that unjustified delay by a state court in

adjudicating a direct criminal appeal may give rise to both a due process violation

and relief from the exhaustion requirement itself. Harris v. Champion, 15 F.3d

1538, 1555, 1557 (10th Cir. 1994) (holding that “inexcusable or inordinate delay

by the state in processing claims for relief may make the state process ineffective

to protect the petitioner’s rights and excuse exhaustion”) (quotation omitted);

see also 28 U.S.C. § 2254(b)(1)(B)(ii) (permitting grant of § 2254 application

when state process would be ineffective to protect applicant’s rights). A delay

of more than two years gives rise to a rebuttable presumption of the

“(i) ineffectiveness of state appellate procedures sufficient to excuse exhaustion

on the petitioner’s underlying claims of unconstitutional trial error, and

(ii) prejudice necessary to support an independent constitutional claim of

deprivation of an effective direct appeal because of delay.” Harris v. Champion,

48 F.3d 1127, 1132 (10th Cir. 1995).

      Because petitioner’s direct appeal remains pending in state court, the

district court dismissed his § 2254 habeas application without prejudice for

failure to exhaust state court remedies. In so doing, the district court did not

address the merits of petitioner’s claim that his due process rights had been

violated due to the inordinate delay in the resolution of his direct criminal appeal

or his argument that the exhaustion requirement should be excused. W e granted

petitioner a certificate of appealability under 28 U.S.C. § 2253(c) on the issues of

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“[w]hether [p]etitioner should be excused from exhausting his state remedies

because of inexcusable or inordinate delay by the state of Colorado in

adjudicating his direct appeal,” and whether “[p]etitioner has raised an

independent due process claim arising from Colorado’s delay in adjudicating his

direct criminal appeal.” Order filed Feb. 8, 2006 at 1, 2.

      On appeal, petitioner asserts the same due process and waiver-of-

exhaustion arguments raised in his habeas petition. W e review de novo the

district court’s legal basis for dismissing M r. Fletcher’s petition. Jackson v.

Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). It is clear that the delay in

adjudicating petitioner’s state direct appeal has extended beyond two years from

the filing of his notice of appeal. Thus, there is a presumption of ineffective

appellate process in this case. Nonetheless, we have examined the status of

M r. Fletcher’s state appeal, and we conclude that the presumption has been

rebutted. The appellate process was not ineffective because petitioner, through

his counsel, “affirmatively sought or caused the delay,” Harris, 15 F.3d at 1547,

and the delay was not unjustified under the facts and circumstances of this case,

id. at 1556 (noting that “in particular cases, the [s]tate may show that a delay of

more than two years is justified, and therefore, [that] good cause exists for not

excusing exhaustion.”). The record and state court docket sheet indicate M r.

Fletcher’s court-appointed public defender requested various extensions of time,

delaying the appeal, in order to obtain missing trial transcripts and records he

                                          -4-
considered necessary for the appeal, to substitute new counsel, and to file the

appellate briefs.

      Specifically, M r. Fletcher’s counsel requested and obtained numerous

extensions of time in 2003 to complete the record on appeal. In M ay 2004,

counsel filed a sixteen-volume, nine-envelope record with the Colorado Court of

Appeals. The opening brief was originally due to be filed in June 2004, but

counsel requested and received an extension of time. Then, in August 2004,

counsel requested and obtained a stay of the briefing schedule because he had

determined that a small portion of the designated trial transcripts and many of the

designated exhibits had not, in fact, been transmitted to the state appellate court.

A supplemental record of three trial transcripts was filed in October 2004.

      M r. Fletcher’s counsel later determined, however, that the missing trial

exhibits were still missing from the record on appeal, and were believed to be

lodged with the trial record of M r. Fletcher’s co-defendant. Counsel then

requested a limited remand to settle or correct the trial record. (A week later,

petitioner filed his pro se § 2254 application.) The Colorado Court of Appeals

granted the requested extension, but ordered counsel to file regular status reports.

In M arch 2005, the state court ordered M r. Fletcher’s counsel to file a motion in

the co-defendant’s case to transfer the missing exhibits to M r. Fletcher’s case.

The supplemental record was then filed in July 2005. M r. Fletcher’s counsel then

requested and received permission to withdraw due to a conflict of interest, and

                                          -5-
his new counsel requested and received numerous extensions of time to file

the opening brief.

      In January 2006, the Colorado Court of Appeals ruled that no further

extensions of time would be allowed, and M r. Fletcher’s opening brief was filed

in February 2006. W ith one extension of time, the state filed its answ er brief in

April 2006, and M r. Fletcher’s counsel requested and received an extension of

time to reply by M ay 22, 2006.

      It is clear that the Colorado Court of Appeals has not abandoned

M r. Fletcher’s appeal, as evidenced by its orders granting M r. Fletcher’s multiple

requests for extensions of time in order to obtain the records he considered

necessary to his appeal; requiring status reports because of its concern about the

length of time needed to complete the record; ordering counsel to take action to

obtain the transfer of the needed exhibits from the co-defendant’s file; and

ultimately disallowing additional extensions of time to file the opening brief in

order to expedite the appeal. Notably, the state appellate court’s docket sheet

indicates that the appeal has been tracked for expedited consideration.

M r. Fletcher’s direct appeal is still actively pending. The state has demonstrated

that the delay is not unjustified and that it would be beneficial to allow the state

appeal process to be completed. Thus, we conclude that M r. Fletcher has not

demonstrated that he should be excused from the exhaustion requirement or that

his due process rights have been violated.

                                          -6-
      The judgment of the district court is A FFIRM ED. Appellant’s motion to

proceed in forma pauperis is granted.


                                                 Entered for the Court



                                                 John C. Porfilio
                                                 Circuit Judge




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