                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                              June 9, 2010

                                  TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                   Clerk of Court



 CLIFFORD N. WOODS,

          Petitioner-Appellant,
                                                         No. 09-1419
 v.                                            (D.C. No. 1:09-CV-00238-ZLW)
                                                          (D. Colo.)
 MIKE ARELLANO, Warden,

          Respondent-Appellee.




                                     ORDER *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.



      Petitioner-Appellant Clifford N. Woods, appearing pro se, seeks a

certificate of appealability (COA) from this court to appeal the district court’s

dismissal of his 28 U.S.C. § 2241 petition for habeas relief. See 28 U.S.C. §

2253(c)(1)(a). He also seeks leave to proceed in forma pauperis (“ifp”). Because

Mr. Woods failed to exhaust his claims in state court, we deny his request for a




      *
       This order is not binding precedent, except under the doctrines of law of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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
COA. We also deny his request to proceed ifp. 1

      On May 1, 2006, Mr. Woods pled guilty to one count of witness tampering

(05CR1843) in violation of Colo. Rev. Stat. § 18-8-707. He received a four-year

suspended sentence, subject to his successful completion of four years’ probation.

He did not timely file a direct appeal.

      In January 2007, Mr. Woods was charged in a separate case (07CR243)

with two counts of first degree burglary in violation of Colo. Stat. Ann. §

18-4-202(1), two counts of third degree assault in violation of Colo. Stat. Ann. §

18-3-204, and one count of obstruction of telephone or telegraph service in

violation of Colo. Stat. Ann. § 18-9-306.5. The complaint in that case was

subsequently amended to include three counts of habitual criminal sentence

enhancer. A jury convicted Mr. Woods of third degree assault, obstruction of

telephone or telegraph service, and violation of a protective order, but acquitted

him of the other charges.

      In the meantime, a complaint for revocation of probation in 05CR1843 was

filed based on the charges pending in 07CR243. A joint hearing was held on

February 28, 2008 regarding the probation revocation in 05CR1853 and the

sentencing in 07CR243. At that hearing, the court revoked Mr. Woods’s



      1
        We deny Mr. Woods’s pending motion for summary judgment filed with
this court on December 17, 2009, and his motion for default judgment filed on
January 14, 2010.

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probation and imposed a four-year sentence, to be served consecutively to the

sentences being imposed in 07CR243. In the latter case, the court sentenced Mr.

Woods to concurrent sentences of twenty-four months’ imprisonment for the

assault, twenty-four months’ imprisonment for the obstruction, and twelve

months’ imprisonment for violation of the protective order, with 410 days’ credit

for time served. Mr. Woods’s direct appeal in 07CR243 is currently pending in

the Colorado Court of Appeals.

      On March 5, 2009, Mr. Woods filed a petition for federal habeas relief

pursuant to 28 U.S.C. § 2241. His petition asserted various denials of his

constitutional rights (Claim I), attacked the legality of his sentence in 07CR243

(Claim II), and asserted that he was not given a probation revocation evidentiary

hearing in 05CR1853 in violation of his due process rights (Claim III). The

magistrate judge instructed Mr. Woods to file an amended petition to raise only

claims that challenged the execution of his sentence under § 2241. Compare

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28

U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must

be filed in the district where the prisoner is confined.”), with Davis v. Roberts,

425 F.3d 830, 834 (10th Cir. 2005) (“To the extent that [petitioner] is challenging

the validity or legality of the sentence he is currently serving, his claim should be

brought under § 2254.”). Nevertheless, two of the three issues Mr. Woods

asserted in his amended petition raised claims properly brought under 28 U.S.C. §

                                          -3-
2254.

        On April 30, 2009, the district court issued an order dismissing all but one

of Mr. Woods’s claims on the basis that they did not challenge the execution of

his sentence and thus § 2241 did not serve as the proper vehicle for collateral

attack. The court held, however, that Mr. Woods’s challenge to the absence of a

probation revocation hearing (“Claim III”) was properly brought under § 2241.

The court issued an order directing the state of Colorado to provide a limited

response addressing the affirmative defenses of timeliness under 28 U.S.C. §

2244(d) and/or exhaustion of state court remedies.

        In its response, the state contended, inter alia, that Mr. Woods had not

exhausted Claim III in Colorado state court. The state urged that the petition

should be denied because Mr. Woods failed to establish the requisite cause and

prejudice for the default, or to demonstrate the presence of a fundamental

miscarriage of justice, necessary to overcome the procedural bar.

        Upon review, the district court observed that Mr. Woods had not addressed

the state’s procedural bar argument, nor had he made the requisite showing of

cause, prejudice, or a fundamental miscarriage of justice. The court concluded

that “Claim Three was not properly exhausted and now is procedurally barred,”

and dismissed the petition. Mr. Woods seeks a COA to appeal the district court’s

ruling.

        Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

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U.S.C. § 2254(d), a COA is a jurisdictional prerequisite to our review of the

dismissal of a § 2241 petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006). We will issue a COA only if the petitioner

has made a “substantial showing of the denial of a constitutional right.” See 28

U.S.C. § 2253(c)(2). Where, as here, the district court dismisses a petition on

procedural grounds, the petitioner “must [also] demonstrate . . . that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling.” See Clark, 468 F.3d at 713 (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)). In determining whether Mr. Woods has made such a

showing, “[w]e review the district court’s factual findings for clear error and its

legal conclusions de novo.” Id. at 714.

      We agree with the district court that Mr. Woods’s due process challenge to

his probation revocation (Claim III) was the only claim challenging the execution

of his sentence and was therefore the only claim properly before the court pursuant

to 28 U.S.C. § 2241. 2 With respect to that claim, “[i]t has been settled since Ex

parte Royall, 117 U.S. 241 (1886), that a state prisoner must normally exhaust

available state judicial remedies before a federal court will entertain his petition

for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971). Mr. Woods did


      2
        To the extent that Mr. Woods’s petition for a COA raises issues outside
the scope of his original habeas petitions, we will not address them. See
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“[A] federal appellate court does
not consider an issue not passed upon below.”).

                                          -5-
not pursue Claim III in state court and thereby failed to exhaust his state court

remedies. He has not made a showing of “rare and exceptional circumstances,”

see Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) (quoting Davis v. Johnson,

158 F.3d 806, 811 (5th Cir. 1998)), sufficient to excuse his failure to exhaust on

equitable grounds. We therefore conclude that reasonable jurists could not debate

the propriety of the district court’s procedural ruling.

      Accordingly, we DENY Mr. Woods’s request to proceed ifp, DENY his

request for a COA, and DISMISS this appeal.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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