                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 26 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 MICHAEL G. MOYER,

          Petitioner-Appellant,
 v.
                                                       No. 00-1355
 PEOPLE OF THE STATE OF                             (D.C. No. 00-Z-716)
 COLORADO and ATTORNEY                                   (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.




      Petitioner-Appellant Michael G. Moyer (“Moyer”) appeals the district

court’s order dismissing his petition for habeas corpus under 28 U.S.C. § 2254.

Moyer pleaded guilty in 1989 to charges of aggravated robbery, assault in the first


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
degree, and mandatory sentencing for a crime of violence – deadly weapon, and

he was sentenced to 35 years’ imprisonment. (Application for Writ of Habeas

Corpus, Ex. I, Appendix A, p. 4).

        Moyer did not appeal his conviction, but, in 1995, he filed a petition in a

Colorado district court seeking post-conviction relief and appointment of new

counsel. (Id., Appendix H.) The state district court appointed new counsel, but

eventually denied Moyer’s petition on the ground that he procedurally defaulted

the claim by failing to raise it within a three-year statute of limitations. See Colo.

Stat. Ann. 16-5-402(1). (Id. at Appendix P.) The Colorado Court of Appeals

dismissed his pro se appeal because it was filed 17 months after the district

court’s decision, and was therefore not timely. (Id. at Ex. III; Ex. V.) The

Colorado Supreme Court denied Moyer’s petition for certiorari in November

1999.

        Moyer then filed his § 2254 petition in federal district court seeking to

proceed in forma pauperis 1 and alleging: (1) that the Colorado Court of Appeals

abused its discretion in dismissing his petition, thereby violating his rights to due

process and equal protection; (2) that he was denied effective assistance of

counsel in entering his initial guilty plea; (3) that he was denied effective




       Moyer’s motion to proceed in forma pauperis was granted by the
        1

magistrate judge. (Order 4/27/00).

                                          -2-
assistance of counsel in all of his interactions with Colorado’s criminal justice

system; and (4) that the original sentencing court violated his due process and

equal protection rights by failing adequately to inform him of the consequences of

his plea. (Application for Writ of Habeas Corpus, 6, 7, 9, 9(m).) He now

appeals, and renews his request to proceed in forma pauperis for the purposes of

this appeal.

      In order for a federal court to grant relief to a prisoner under § 2254, the

petitioner must demonstrate he has exhausted available avenues for relief in state

court. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Moyer

attributes his failure to bring timely post-conviction proceedings to ineffective

assistance received from his appointed counsel. For substantially the reasons set

forth in the district court’s opinion, however, we find that Moyer’s claims were

nonetheless procedurally defaulted. 2 Cf. Pennsylvania v. Finley, 481 U.S. 551,

554 (1987) (prisoners have no Sixth Amendment right to counsel during post-

conviction proceedings); Parkhurst v. Shillinger, 128 F.3d 1366, 1368-69 (10th




      2
        Moyer’s claim that the Colorado Court of Appeals violated his rights to
due process and equal protection, of course, did not arise until that court denied
his petition for post-conviction relief. However, Moyer failed to raise that issue
in his petition for cert. to the Colorado Supreme Court, and therefore it is not
exhausted, and it would be procedurally barred if he sought now to raise it in the
Colorado Courts.

                                         -3-
Cir. 1997) (ineffective assistance of counsel does not constitute cause and

prejudice excusing procedural default of post-conviction proceedings).

      Therefore, we GRANT Moyer’s petition to proceed in forma pauperis,

DENY a certificate of appealability for claim, and DISMISS his appeal.



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




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