                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             July 22, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JASON BROOKS,

      Petitioner - Appellant,
                                                            No. 15-1209
v.                                                 (D.C. No. 1:14-CV-02276-CBS)
                                                           (D. Colorado)
LOU ARCHULETA, Warden; CYNTHIA
COFFMAN, the Attorney General of the
State of Colorado,

      Respondents - Appellees.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________


      Jason Brooks filed a federal habeas petition pursuant to 28 U.S.C. § 2254

seeking relief from his Colorado state court conviction for securities fraud. A United

States Magistrate Judge, sitting pursuant to the consent of the parties, dismissed in

part and denied in part the petition. Proceeding pro se,1 Mr. Brooks now asks this


      *
         This order is not binding precedent, except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Mr. Brooks is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). But we will not
undertake the role of advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of
court for a certificate of appealability (COA) to allow him to appeal these decisions.

For the reasons we explain, we deny Mr. Brooks a COA and dismiss the matter.

                                    I.   BACKGROUND

      The state of Colorado indicted Mr. Brooks on twenty-five counts of securities

fraud and one count of theft. He pled guilty to four of the securities fraud counts and

agreed to pay a set amount of restitution. In exchange, the state agreed to dismiss the

remaining charges. Immediately before sentencing, Mr. Brooks, who claimed to be

unaware that evidence related to the dismissed counts could be used against him at

sentencing, advised his attorney that he wished to withdraw his plea agreement.

According to Mr. Brooks, his attorney advised him that he could not do so. Thus,

Mr. Brooks did not move to withdraw his plea and the court sentenced him to 32

years’ imprisonment.

      Mr. Brooks filed a direct appeal with the Colorado Court of Appeals, but

subsequently dismissed it. He then filed a motion for postconviction relief pursuant

to Rule 35(c) of the Colorado Rules of Criminal Procedure, in which he asserted five

claims for relief: (1) “Counsel was ineffective by misadvising Defendant of the effect

of the plea;” (2) “Counsel was ineffective for failing to consult or employ a

Securities Fraud, Business Law, and/or Contract Law expert;” (3) “Counsel was

ineffective at Sentencing;” (4) “Counsel was ineffective when the errors are




liberal construction stops, however, at the point at which we begin to serve as his
advocate.”).

                                           2
considered cumulatively;” and (5) the trial court erred in the advisement of penalties.

Mr. Brooks also alleged his trial counsel erroneously told him he could not withdraw

his guilty plea prior to the sentencing hearing.

      The state trial court denied Mr. Brooks’s motion and Mr. Brooks appealed this

denial to the Colorado Court of Appeals. On direct review, the Colorado Court of

Appeals determined that Mr. Brooks had appealed only the trial court’s rejection of

his claim that trial counsel was deficient for erroneously advising him he could not

withdraw his plea, and limited its inquiry accordingly. Turning to the merits, the

court determined Mr. Brooks was not entitled to relief on this claim because he could

not establish that, but for counsel’s allegedly erroneous advice, the result of the

proceeding would have been different as required by Strickland v. Washington, 446

U.S. 668 (1984). The court reasoned that under Colorado law, a defendant is

permitted to withdraw his or her plea only where there exists “a fair and just” reason

for withdrawal. See Kazadi v. People, 291 P.3d 16, 21 (Colo. 2012); see also Colo. R.

Crim. P. 32(d).2 Although Mr. Brooks claimed he was “under the impression that the

only victims that would be allowed to file victim impact statements were the victims

of the charges he was pleading to and not . . . the victims of the charges that were

dismissed,” the Colorado Court of Appeals credited the state trial court’s finding that

      2
        For example, “Such a showing includes instances where a defendant was
surprised or influenced into a plea of guilty to which the person had a defense; where
a plea of guilty was entered by mistake or under a misconception of the nature of the
charge; where such plea was entered through fear, fraud, or official
misrepresentation; where it was made involuntarily; or where ineffective assistance
of counsel occurred in the process.” Kazadi v. People, 291 P.3d 16, 21 (Colo. 2012).

                                            3
Mr. Brooks was aware that harm to victims of dismissed counts could be used at

sentencing. Thus, the Colorado Court of Appeals concluded that even if Mr. Brooks

had filed a motion to withdraw his plea, the motion would not have been granted. As

a result, it held Mr. Brooks’s ineffective assistance of counsel claim failed because he

could not establish that, but for counsel’s alleged deficient performance, the result of

the proceeding would have been different.

      Mr. Brooks then filed an application for habeas relief in the United States

District Court for the District of Colorado, reasserting the claims raised in his initial

motion for postconviction relief. Specifically, he brought eight claims:

      (1) trial counsel was ineffective by “failing to consult or employ a securities
          fraud, business fraud, business law, or contract law expert because counsel
          was not proficient in the . . . applicable substantive and procedural laws of
          securities fraud” (Claim One);
      (2) trial counsel was ineffective by “misadvising the applicant of the effect of
          his plea” (Claim Two);
      (3) trial counsel was ineffective by “providing inadequate representation at
          sentencing” (Claim Three);
      (4) trial counsel was ineffective and violated due process by “erroneously
          telling the applicant he could not withdraw his guilty plea prior to
          sentencing” (Claim Four);
      (5) the trial court violated due process by “failing to properly advise the
          applicant of the effect of his plea” (Claim Five);
      (6) the state trial court violated due process “by denying [Mr. Brooks]
          postconviction relief based on inaccurate and incomplete information”
          (Claim Six);
      (7) the Colorado Court of Appeals violated due process by “deciding to
          deny . . . postconviction relief based on inaccurate and incomplete
          information” (Claim Seven); and
      (8) trial counsel was ineffective “when the errors are considered cumulatively”
          (Claim Eight).




                                            4
      In a thorough and well-reasoned opinion, the Magistrate Judge dismissed all of

Mr. Brooks’s claims, with the exception of the portion of Claim Four alleging

ineffective assistance of counsel in advising Mr. Brooks he could not withdraw his

plea. Specifically, the Magistrate Judge concluded that Claims One, Two, Three,

Five, Eight, and the due process portion of Claim Four were procedurally barred

because, after the state trial court dismissed these claims, Mr. Brooks failed to fairly

present them to the Colorado Court of Appeals for appellate review. The Magistrate

Judge further held that Claims Six and Seven should be dismissed because there is no

federal constitutional right to postconviction review in the state courts. Then, turning

to the merits of the ineffective assistance portion of Claim Four, the Magistrate Judge

concluded Mr. Brooks was not entitled to habeas relief because the Colorado Court of

Appeals had reasonably determined he was not prejudiced by counsel’s alleged

deficiencies. Accordingly, the Magistrate Judge dismissed in part and denied in part

Mr. Brooks’s habeas petition. Mr. Brooks sought reconsideration, which the

Magistrate Judge denied. Mr. Brooks now seeks a COA from this court to appeal

these decisions.




                                            5
                                       II.   ANALYSIS

      To obtain a COA, Mr. Brooks must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, he must show

“that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (internal quotation marks omitted). In his request for a COA,

Mr. Brooks asserts that reasonable jurists would debate the Magistrate Judge’s

resolution on the merits of his ineffective assistance of counsel claim contained in

Claim Four, as well as the Magistrate Judge’s exhaustion ruling with respect to

Claims One, Two, Three, Five, and Eight.3 We consider each contention in turn.

           A. Reasonable jurists would not debate whether Mr. Brooks is entitled to
                                  habeas relief on Claim Four.

      We turn first to the merits of the ineffective assistance portion of Claim Four,

the only claim the Magistrate Judge considered to be exhausted. In this claim,

Mr. Brooks persists in his contention that trial counsel was ineffective for

“erroneously telling . . . [him] he could not withdraw his guilty plea prior to

sentencing.” But Mr. Brooks is entitled to habeas relief only if he can show the state

court’s resolution of this claim (1) “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, as


      3
        Mr. Brooks does not challenge the Magistrate Judge’s dismissal of Claims
Six and Seven, nor does he contest the district court’s dismissal of the due process
claim contained in Claim Four. Therefore, we do not consider these claims further.

                                             6
determined by the Supreme Court;” or (2) “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). In evaluating the state court’s

resolution, we presume its factual determinations are correct “absent clear and

convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)

(citation omitted). “[A]nd a decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court

proceeding.” Id. (citation omitted).

      In challenging the Colorado Court of Appeals’ resolution of this claim, Mr.

Brooks argues that the relevant clearly established federal law is the framework set

forth in Hill v. Lockhart, 474 U.S. 52 (1985). In Hill, the Supreme Court held that to

establish prejudice under Strickland in challenging a guilty plea based on ineffective

assistance of counsel, a defendant must demonstrate a reasonable probability that, but

for counsel’s alleged errors, he would not have pled guilty but would instead have

insisted on going to trial. Id. at 59. According to Mr. Brooks, he would not have pled

guilty and would have insisted on going to trial had he known the sentencing court

could consider victims of dismissed counts. Thus, he contends the Colorado Court of

Appeals unreasonably determined he was not prejudiced.

      But as the Magistrate Judge explained, Hill is not applicable here because Mr.

Brooks’s allegation in Claim Four is that he would have attempted to withdraw his



                                           7
guilty plea if counsel had not advised him—post plea agreement—that he could not

do so. For this reason, the relevant prejudice inquiry is not whether Mr. Brooks

would have pled guilty in the first place, but whether Mr. Brooks could have

successfully withdrawn his plea.4 By focusing its analysis accordingly, the Colorado

Court of Appeals unquestionably applied the correct legal standard.

      Likewise, we agree with the Magistrate Judge that the Colorado Court of

Appeals’ determination that Mr. Brooks was not prejudiced because he did not

establish a “fair and just” reason to withdraw his plea is supported by sufficient facts.

Indeed, the state trial court specifically found Mr. Brooks was aware that evidence

related to the dismissed counts could be introduced at sentencing because, among

other things, (1) the signed plea agreement provided that additional evidence could

be submitted to the trial court prior to sentencing; (2) Mr. Brooks specifically agreed

to a restitution amount that included sums owed to individuals on dismissed counts,

and; (3) before being sentenced, Mr. Brooks submitted a letter to the court indicating

awareness that his actions had impacted all victims reflected in the restitution

agreement, which included victims of the dismissed charges.

      In an effort to discredit these factual findings, Mr. Brooks argues two facts

show he was not aware the court could consider evidence from victims of dismissed

counts at sentencing. First, he notes he previously rejected a different plea agreement


      4
         Hill could have relevance to Claim Two, in which Mr. Brooks asserts counsel
failed to advise him of the effect of his plea. But as we explain below, Mr. Brooks
failed to exhaust Claim Two, thereby precluding review of this claim in federal court.

                                            8
that included counts related to some of these victims. Second, he directs our attention

to the following statement he made at sentencing:

       However, they do not sit behind me as victims. They sit behind me as
       my parents, yes, but also as investors who’re yet to be paid back. Just as
       the other 61 people who are not listed in any of the charges that I am
       pleading to today. . . . I need to remind everyone in this courtroom that
       I’m pleading to four individual counts of securities fraud involving four
       people.

       Even if this evidence could be viewed as supporting Mr. Brooks’s claim he

was not aware the court could consider evidence related to the dismissed counts at

sentencing, they fall far short of overcoming the statutory presumption of correctness

we afford the state court’s contrary finding. Thus, the Colorado Court of Appeals’

determination that the result of the proceeding would not have been different,

irrespective of counsel’s alleged deficient performance, was not objectively

unreasonable in light of the evidence. For this reason, reasonable jurists would not

debate that the Magistrate Judge correctly denied Mr. Brooks habeas relief on Claim

Four for ineffective assistance of counsel, and Mr. Brooks is not entitled to a COA on

this issue.

              B. Reasonable jurists would not debate that Mr. Brooks failed to exhaust
                              Claims One, Two, Three, Five, and Eight.

       We now consider whether reasonable jurists could debate whether Mr. Brooks

properly exhausted his remaining claims. “A party exhausts a claim in state court

when it has been ‘fairly presented.’” Williams v. Trammell, 782 F.3d 1184, 1210

(10th Cir. 2015) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “‘Fair



                                            9
presentation,’ in turn, requires that the petitioner raise in state court the ‘substance’

of his federal claims.” Id. (quoting Picard, 404 U.S. at 278). To have properly

presented his claim in state court, the petitioner must have presented his claim

through one “complete round of the State’s established appellate review process.”

Woodford v. Ngo, 548 U.S. 81, 92 (2006) (internal citations and quotation marks

omitted). Although the exhaustion requirement is not jurisdictional, it is “strictly

enforced.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). It may be

avoided only if “the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008).

       We have carefully considered Mr. Brooks’s Opening Brief to the Colorado

Court of Appeals, in which he challenged the state trial court’s denial of his request

for postconviction relief. We think it beyond reasonable debate that Mr. Brooks did

not fairly present Claims One, Two, Three, Five, or Eight.5 For instance, in Claim

Two, Mr. Brooks asserts that counsel was deficient by failing to instruct him that the

sentencing court could consider victims of dismissed charges. Although Mr. Brooks

raised this claim in his initial motion for postconviction relief, he did not fairly

reassert the substance of it to the Colorado Court of Appeals as required to properly

       5
        In reaching this conclusion, we note that Mr. Brooks was appointed legal
counsel in his appeal of the denial of postconviction relief. Accordingly, the
Colorado Court of Appeals was under no obligation to read his Opening Brief with
any special liberality. Cf. People v. Bergerud, 223 P.3d 686, 696–97 (Colo. 2010)
(broadly construing a pro se defendant’s papers “to ensure he is not denied review of
important constitutional issues simply for his inability to articulate his concerns
within the legal lexicon”).


                                            10
exhaust it. To the contrary, the only substantive legal analysis contained in Mr.

Brooks’s Opening Brief relates to Claim Four: that counsel was deficient for

erroneously advising him that he could not withdraw his plea.6 Mr. Brooks’s Opening

Brief did contend—as a factual matter—that he was not aware the court could

consider the impact on victims of dismissed offenses at sentencing and this

discussion was relevant to Claim Four because, if true, might provide Mr. Brooks

with a “fair and just” reason for withdrawing his plea. See Kazadi, 291 P.3d at 21.

But Mr. Brooks’s reference to these facts in arguing the merits of Claim Four does

not constitute fair presentment of Claim Two, a related but wholly different claim for

relief.7 See, e.g., Schempp v. Lucre Mgmt. Grp., LLC, 75 P.3d 1157, 1161 (Colo.

App. 2003) (holding that a party must inform the court as to the specific errors relied

upon, supporting facts in the record, and legal authority supporting claims, and

refusing to consider an issue that was inadequately briefed). Compare Robertson v.

      6
         Mr. Brooks’s Opening Brief states that in his motion for postconviction
relief, Mr. Brooks “claimed he was denied his constitutional right to counsel by the
public defender’s failure to advise him that the unproven allegations charged in the
dismissed counts would be used against him at sentencing.” But mere recitation of a
claim previously raised, without corresponding legal analysis, is insufficient to fairly
present the issue to the Colorado Court of Appeals. Cf. Wilkinson v. Timme, 503 F.
App’x 556, 560 (10th Cir. 2012) (unpublished opinion) (holding that referencing or
implicitly incorporating a supplemental motion filed in the trial court fails to satisfy
the fair presentation requirement).
      7
        Similarly, we reject Mr. Brooks’s argument that the Magistrate Judge erred
when he, like the Colorado Court of Appeals, considered facts related to Claim Two
in resolving Claim Four. As explained, whether Mr. Brooks was aware that victims of
dismissed counts would be considered at sentencing is relevant to the resolution of
Claim Four, and the Magistrate Judge was therefore correct in considering the
Colorado Court of Appeals’ findings of fact on this issue.

                                           11
Roberts, 386 F. App’x 797, 805 (10th Cir. 2010) (unpublished opinion) (holding that

raising a related theory before a state court is insufficient to meet the fair

presentation standard), with Berg v. Foster, 244 F. App’x 239, 245 (10th Cir. 2007)

(holding that a claim was exhausted where the opening brief included sufficient facts

and argument to fairly present the issue to the appellate court).8

       Likewise, Mr. Brooks’s Opening Brief is devoid of any argument related to the

substance of Claims One, Three, Five, and Eight. Mr. Brooks seems to concede as

much, but nevertheless argues these claims were exhausted because the Colorado

Court of Appeals necessarily considered them when affirming the denial of

postconviction relief. Not so. In fact, the Colorado Court of Appeals specifically

addressed only Claim Four, reasoning that “[o]n appeal, [Mr. Brooks] challenge[d]

only the district court’s summary dismissal of his allegation that counsel told him he

could not withdraw his plea.” And it expressly considered abandoned any other issue

not asserted on appeal. Thus, Mr. Brooks’s argument that the court implicitly

addressed these claims is unavailing.

       In sum, Mr. Brooks failed to fairly present Claims One, Two, Three, Five, and

Eight to the state court, and reasonable jurists would not debate that the Magistrate

Judge was entitled to dismiss them as unexhausted. And Mr. Brooks has made no




       8
        Though not binding, we find unpublished decisions from this court to be
persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential,
but may be cited for their persuasive value.”).

                                            12
effort to demonstrate an exception to the exhaustion requirement. Thus, he is not

entitled to a COA on this issue.

                                   III.   CONCLUSION

      For the foregoing reasons, we deny a COA and dismiss the matter.

                                           Entered for the Court




                                           Carolyn B. McHugh
                                           Circuit Judge




                                          13
