                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 14, 2010
                   UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT


 STEVEN DOUGLAS McCARY,

             Petitioner-Appellant,

 v.                                                    No. 10-1272
                                             (D.C. No. 1:10-CV-00789-ZLW)
 ARI ZAVARAS; JOHN SUTHERS,                             (D. Colo.)
 Attorney General of the State of
 Colorado,

             Respondents-Appellees.



 STEVEN DOUGLAS McCARY,

             Petitioner-Appellant,

 v.                                                    No. 10-1273
                                             (D.C. No. 1:10-CV-01035-ZLW)
 ARI ZAVARAS; BRIGHAM SLOAN;                            (D. Colo.)
 JOHN SUTHERS, Attorney General of
 the State of Colorado,

             Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

     After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
                                                                    (continued...)
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      In two separate cases, Steven McCary, a Colorado state inmate proceeding

pro se, 1 seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C.

§ 2253(c)(1)(A) so that he may challenge the district court’s denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254. 2 Because the district court

denied a COA in each case, our jurisdiction arises under 28 U.S.C. §§ 1291 and

2253(a). We hold that in neither case could a reasonable jurist conclude that the

district court’s denial was incorrect. See Slack v. McDaniel, 529 U.S. 473, 484

(2000). Accordingly, in each case, we DENY Mr. McCary’s application for a

COA and DISMISS the appeal.

                               I. BACKGROUND

      In his petitions to the district court, Mr. McCary sought to challenge two

separate state court convictions: a July 2007 conviction for felony trespassing and

menacing, for which he received a twelve-year sentence; and a September 2008

      *
       (...continued)
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. McCary is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
      2
          In the interest of judicial efficiency, we resolve the issues raised by
Mr. McCary’s two cases in one order.

                                         2
conviction for felony trespassing and violating the conditions of his felony bail

bond, where he was adjudicated to be a habitual offender and sentenced to

eighteen years in prison. Mr. McCary filed his § 2254 petitions with the United

States District Court for the District of Colorado during the pendency of his direct

appeals of these convictions to the Colorado Court of Appeals.

      Mr. McCary raised five claims across his two petitions to the district court.

Regarding his 2007 conviction, Mr. McCary asserted that he was denied a fair

trial because his conviction was based on testimony that was known to be false

and perjured; that he was provided ineffective assistance of counsel; and that his

due process rights were violated because evidence that allegedly would have

supported a choice-of-evils defense was withheld. McCary v. Zavaras, No. 1:10-

cv-01035-ZLW, 2010 WL 2400664, at *1 (D. Colo. June 15, 2010).

      As for his 2008 conviction, Mr. McCary claimed that it was based on

perjured testimony, which his attorneys and the prosecutor conspired to conceal.

He also made the somewhat contradictory allegation that the prosecution failed to

disclose exculpatory evidence, and that his attorneys, whom he alleged had the

exculpatory information which the prosecution sought to hide, also failed to

present that evidence to the jury at his trial. McCary v. Zavaras, No. 1:10-cv-

00789-ZLW, 2010 WL 2428746, at *1 (D. Colo. June 15, 2010).

      The district court dismissed both petitions without prejudice on procedural

grounds, noting that direct appeals in both cases were still pending and that Mr.

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McCary had therefore failed to exhaust his state remedies pursuant to 28 U.S.C.

§ 2254(b)(1)(A). Mr. McCary argued that exhaustion was unnecessary in these

cases because “circumstances exist that render such process ineffective to protect

the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). In particular, Mr.

McCary argued that exhaustion was unnecessary because both his trial counsel

and counsel on direct appeal had either failed or refused to present exculpatory

evidence—viz., evidence that Mr. McCary claims would show that he is actually

innocent. The district court rejected that argument, however, stating that

                [e]ven assuming trial and appellate counsel have
                provided ineffective assistance by failing to present
                exculpatory evidence, Mr. McCary fails to
                demonstrate that he cannot pursue his claims and
                present the exculpatory evidence in a state court
                postconviction motion after his direct appeal
                concludes. In fact, to the extent Mr. McCary is
                claiming counsel was ineffective, the Colorado
                Supreme Court “has expressed a preference for
                having ineffective assistance of counsel claims
                brought in [postconviction] Crim. P. 35(c)
                proceedings.”

McCary, 2010 WL 2428746, at *2 (quoting People v. Thomas, 867 P.2d 880, 886

(Colo. 1994)). Mr. McCary seeks COAs to appeal from these district court

decisions.

                                  II. ANALYSIS

      “A COA is a jurisdictional pre-requisite to our review” of the dismissal of a

§ 2254 petition. Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006); accord


                                          4
28 U.S.C. § 2253(c)(1)(A). We may only issue a COA where the applicant “has

made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. § 2253(c)(2)). To

overcome this hurdle, Mr. McCary must show that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack, 529 U.S. at 484 (internal quotation marks omitted); accord

Miller-El, 537 U.S. at 336; Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.

2009); Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008). Where the

district court ruled on procedural grounds, a COA may be granted only when

“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,

529 U.S. at 484 (emphasis added).

      It is well-settled law that, as a matter of comity, federal courts should not

consider a claim in habeas corpus proceedings until after the state courts have had

the opportunity to act. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam);

Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir. 1988); accord 28 U.S.C.

§ 2254(b)(1)(A). Stated another way, “[a] state prisoner generally must exhaust

available state-court remedies before a federal court can consider a habeas corpus

petition.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see also

                                           5
Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002).

      To satisfy the exhaustion requirement, a habeas petitioner “must give the

state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process,” including

discretionary review by the state’s highest court. O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999); see Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534

(10th Cir. 1994) (“The exhaustion requirement is satisfied if the highest court

exercises discretion not to review the case.”); 2 Randy Hertz & James S.

Liebman, Federal Habeas Corpus Practice & Procedure § 23.3b (5th ed. 2005)

(“[T]he petitioner satisfies her exhaustion burden by raising a claim at all stages

of the state’s appellate review process (including discretionary state appeals).”);

see also Dever, 36 F.3d at 1534–35 (noting that this opportunity for the state

court to resolve the federal constitutional issues can come either on direct review

of the conviction or in a post-conviction attack). Further, “[i]t is not enough that

all the facts necessary to support the federal claim were before the state

courts”—the substance of the federal habeas corpus claim must be fairly

presented to the state courts. Anderson, 459 U.S. at 6.

      We agree with the district court that Mr. McCary has not exhausted his

available state court remedies in these cases, and thus federal review under

§ 2254 is inappropriate. When Mr. McCary filed his two petitions with the

federal district court, his appeals challenging both convictions were pending

                                          6
before the Colorado Court of Appeals. We recognize that “[a]n appellate court

may give relief if state remedies are exhausted by the time it acts, even if those

remedies were not exhausted when the habeas corpus petition was filed.” Osborn,

861 F.2d at 616 (quoting Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th

Cir. 1984)) (internal quotation marks omitted); see 1 Hertz & Liebman, supra, §

13.3b (“[E]xhaustion of state remedies is not a necessary precondition to the

filing of a federal habeas corpus petition, but is instead a condition that must be

fulfilled before relief may be granted.”). However, such is not the case in this

instance. Mr. McCary’s direct appeal from his 2008 conviction remains

unresolved. Further, while the state appeals court has recently affirmed Mr.

McCary’s 2007 conviction and sentence, see People v. McCary, No. 07CA2277,

2010 WL 2956741 (Colo. App. July 29, 2010), he has yet to perfect his petition to

the Colorado Supreme Court.

      We make no determination as to the merits of the substantive issues raised

in Mr. McCary’s applications. We only conclude that reasonable jurists could not

find the district court’s exhaustion determination debatable, let alone wrong.

Accordingly, we deny COAs to Mr. McCary.

      We also deny Mr. McCary leave to proceed in forma pauperis, as he has

failed to identify “the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

                                          7
937 F.2d 502, 505 (10th Cir. 1991)) (internal quotation marks omitted).

                              III. CONCLUSION

      For the foregoing reason, we DENY Mr. McCary’s requests for COAs, and

DISMISS these matters. We further DENY Mr. McCary leave to proceed in

forma pauperis.

                                      ENTERED FOR THE COURT

                                      Jerome A. Holmes
                                      Circuit Judge




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