                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS August 14, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



WILLIAM A. MAUNZ,

             Petitioner - Appellant,

       v.
                                                        No. 13-1230
                                                       (D. Colorado)
DAVID M. ZUPAN, Warden, San
                                               (D.C. No. 1:12-CV-02225-LTB)
Carlos Correctional Facility, CDOC;
THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This case is before the court on William A. Maunz’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis (“IFP”). Maunz seeks a COA so that he can appeal the district

court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition. See

28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from “the final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a state court” unless the petitioner first obtains a COA).
      The district court’s conclusion that Maunz’s habeas claims are unexhausted

is undeniably correct and Maunz’s arguments to the contrary are clearly frivolous.

Maunz was convicted by a Colorado state jury of second degree burglary and

third degree criminal trespass. Maunz’s direct appeal remains pending in the

Colorado Court of Appeals. 28 U.S.C. § 2254(b)(1) (providing habeas corpus

may not be granted unless the petitioner has exhausted his state court remedies);

Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding the exhaustion requirement

is met once a federal claim has been presented fairly to the state courts).

Nevertheless, Maunz asserts he exhausted his state court remedies by asking the

Colorado Supreme Court to exercise its discretionary authority to grant a writ of

certiorari before the Colorado Court of Appeals has rendered judgment. As noted

by the district court, however, a nearly identical assertion was rejected by the

Supreme Court in Castille. 489 U.S. at 351 (holding that if a “claim has been

presented [to the state’s highest court] for the first and only time in a procedural

context in which its merits will not be considered unless there are special and

important reasons therefor, . . . [r]aising the claim in such a fashion does not, for

the relevant purpose, constitute fair presentation” (quotation and citation

omitted)).

      For those reasons set out above, this court denies both Maunz’s request for

a COA and his request to proceed on appeal IFP. 28 U.S.C. § 2253(c)(2)

(providing that to be entitled to a COA, a petitioner must make “a substantial

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showing of the denial of a constitutional right”); DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991) (holding that to be entitled to proceed IFP, a

movant must show, inter alia, “the existence of a reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal”). The appeal is

hereby dismissed and Maunz is ordered to immediately remit the full amount of

the appellate filing fee. All other pending motions are denied.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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