                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 20, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT




 DELMART E.J.M. VREELAND, II,

          Petitioner - Appellant,

 v.
                                                        No. 13-1170
 JOHN DAVIS; THE ATTORNEY                      (D.C. No. 1:12-CV-02039-LTB)
 GENERAL OF THE STATE OF                                  (D. Colo.)
 COLORADO,

          Respondents - Appellees.




                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      In 2006, Delmart Vreeland, II was convicted in Colorado state court on

various charges related to sex offenses and drugs. Mr. Vreeland initiated the

instant action when he filed a pro se 1 petition for a writ of habeas corpus under 28


      *
              This order is not binding precedent except under the doctrines of law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.
      1
              Because Mr. Vreeland is proceeding pro se, we construe his filings
                                                                    (continued...)
U.S.C. § 2254. The district court dismissed the petition without prejudice for

failure to exhaust state remedies. Mr. Vreeland now requests a certificate of

appealability (“COA”) to challenge the district court’s dismissal. He also seeks

leave to proceed in forma pauperis (“IFP”), requests from our court appointment

of counsel, and appeals the district court’s denial of counsel. We deny Mr.

Vreeland’s application for a COA, deny him IFP status, and dismiss this matter. 2

                                         I

      Mr. Vreeland’s state convictions were entered on December 11, 2006. For

various reasons not relevant to our disposition, the Colorado Court of Appeals

(“CCA”) had not yet rendered a decision on his direct appeal when, on August 3,


      1
        (...continued)
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
      2
              Mr. Vreeland asks us to appoint him counsel. Because of our
ultimate disposition of his request for a COA (that is, our denial of it), we deny
that request as moot. Mr. Vreeland also objects to the district court’s failure to
appoint him counsel. He does not require a COA to present this objection on
appeal, see Harbison v. Bell, 556 U.S. 180, 183 (2009), but the district court did
not abuse its discretion in refusing to appoint counsel. Mr. Vreeland is fully
capable of expressing his position in writing, the issues are not particularly
complex, and, as discussed below, his petition was properly dismissed. See
Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001) (“The decision to
appoint counsel [in a habeas proceeding] is left to the sound discretion of the
district court” and should not be disturbed where, inter alia, the issues are
relatively simple); Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 861 (10th Cir.
2005) (finding no abuse of discretion in a district court’s refusal to appoint
counsel to a habeas petitioner where the claims were meritless). Accordingly, we
have no occasion to disturb the district court’s decision to deny Mr. Vreeland
appointed counsel.

                                         2
2012, he filed his federal petition for habeas corpus. While Mr. Vreeland’s

federal petition was pending, the CCA affirmed Mr. Vreeland’s conviction.

Shortly thereafter, the district court dismissed Mr. Vreeland’s petition without

prejudice for failure to exhaust state court remedies and declined to issue a COA.

                                          II

      Mr. Vreeland appears before us seeking a COA in order to challenge the

district court’s dismissal of his petition. He raises two arguments. First, Mr.

Vreeland asks us to excuse exhaustion as a result of the undue, state-created delay

in his direct appeal. Second, he makes out an independent due process claim

based on the same delay. We take up—and reject—each argument in turn.

                                          A

      “Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). A COA

should be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To justify a COA, the

applicant is required to “demonstrate ‘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.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th

Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

                                          3
      When, as here, habeas relief is “denied on procedural grounds, the

applicant faces a double hurdle. Not only must the applicant make a substantial

showing of the denial of a constitutional right, but he must also show ‘that jurists

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

procedural ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008)

(omission in original) (quoting Slack, 529 U.S. at 484). “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

a case, a reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

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

                                           B

      “For a federal court to consider a federal constitutional claim in an

application for habeas, the claim must be ‘fairly presented to the state courts’ in

order to give state courts the ‘opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.’” Prendergast v. Clements, 699 F.3d

1182, 1184 (10th Cir. 2012) (quoting Picard v. Connor, 404 U.S. 270, 275

(1971)). Where a petitioner has not exhausted his state remedies, “[g]enerally, a

federal court should dismiss unexhausted claims without prejudice so that the

petitioner can pursue available state-court remedies.” Bland v. Sirmons, 459 F.3d

999, 1012 (10th Cir. 2006).

      In his application for a COA, Mr. Vreeland indicates that he is currently

                                           4
petitioning the Colorado Supreme Court for discretionary review of his direct

appeal. Thus, by his own admission, he has not satisfied the exhaustion

requirement. See Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (“The

exhaustion requirement is satisfied if the issues have been ‘properly presented to

the highest state court, either by direct review of the conviction or in a

postconviction attack.’” (emphasis added) (quoting Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)).

                                          C

      Failure to exhaust state remedies can be “excused if a petitioner can

‘demonstrate cause for the [failure] and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.’” Magar v. Parker, 490 F.3d 816,

819 (10th Cir. 2007) (quoting Bland, 459 F.3d at 1012). Cause can be

demonstrated by sufficient evidence either that “‘there is an absence of available

State corrective process’ or ‘circumstances exist that render such process

ineffective to protect the rights of the applicant.’” Selsor v. Workman, 644 F.3d

984, 1026 (10th Cir. 2011) (quoting 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii)), cert.

denied, --- U.S. ----, 132 S. Ct. 1558 (2012).

      Mr. Vreeland asks us to excuse his failure to exhaust because of the delay

in his direct appeal. “‘[I]nexcusable or inordinate delay by the state in processing

claims for relief’ may make the state process ineffective to protect the petitioner’s

                                           5
rights and excuse exhaustion.” Harris v. Champion, 15 F.3d 1538, 1555 (10th

Cir. 1994) (“Harris II”) (quoting Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d

Cir. 1986)). However, we did not say in Harris II, nor have we said anywhere

else, that failure to exhaust can be excused on the basis of a delay that has already

ended. That is the situation we confront here, as the delay Mr. Vreeland relies

upon—i.e., the delay at the CCA—is over. In all of the cases cited by Harris II in

the relevant passage, the failure to exhaust was excused, if at all, because the

highlighted delay was ongoing. See id. at 1554–56 and cases cited therein. 3

      This only stands to reason. Where the delay has come to a close, the

comity concerns underlying the exhaustion requirement compel the federal courts

to allow the state litigation to run its course. See Burkett v. Cunningham, 826

F.2d 1208, 1218 (3d Cir. 1987) (holding that because delay in state appeal had

been resolved and case was before state supreme court, “it is appropriate to allow

that court, in the first instance, to hear petitioner’s claims”); Seemiller v. Wyrick,

663 F.2d 805, 807 (8th Cir. 1981) (per curiam) (“After the district court entered

its decision, the state court held a hearing on Seemiller’s claims. Thus, real



      3
              In Harris v. Champion, 938 F.2d 1062, 1064–65 (10th Cir. 1991)
(“Harris I”), we presented another list of cases to support the same proposition.
Again, nary a one of them held that an excuse for exhaustion could be found
where the relevant delay was no longer a problem. Id. We did cite Smith v.
Kansas, 356 F.2d 654, 655 (10th Cir. 1966), which has language that might be
read to that effect, but that decision is unclear on whether it found an excuse or a
due process violation and unclear on what remedy it was ordering.

                                           6
progress has been made in the state proceedings, and we think that exhaustion

may not yet be excused by us.”).

                                         D

      The appropriate remedy to seek in a situation like the present one is not

waiver of the exhaustion requirement, but rather habeas relief for the delay as an

independent due process claim. See Cody v. Henderson, 936 F.2d 715, 718 (2d

Cir. 1991) (“[E]ven when the habeas petitioner seeks release from custody based

on delay or denial of his right to appeal and his conviction is thereafter affirmed

by the state appellate court, the affirmance does not by itself moot the habeas

petition because undue appellate delay raises a legitimate due process claim.”

(emphasis added)); see generally Harris II, 15 F.3d at 1558–67 (discussing the

due process remedy for delay in direct appeal from conviction in state court). To

prevail on a due process claim of this sort, a petitioner in Mr. Vreeland’s position

must show prejudice from the delay, and such prejudice must render the

“confinement constitutionally deficient.” Harris II, 15 F.3d at 1566 (quoting

Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir. 1990)) (internal quotation marks

omitted). Therefore, “[a]n untainted affirmance of a petitioner’s state appeal

while his habeas petition is pending makes clear that the petitioner was confined

pursuant to a valid judgment of conviction throughout the period of delay.” Id.

(quoting Cody, 936 F.2d at 720) (internal quotation marks omitted). An

affirmance is “untainted” when the petitioner fails to show “that the appeal would

                                         7
have had a different result absent the delay.” Diaz, 905 F.2d at 653. Mr.

Vreeland does not even purport to make that showing regarding the CCA’s

affirmance of his convictions on direct appeal, and we consequently have no

reason to believe that any of his convictions would have been reversed had his

appeal been processed more expeditiously. Indeed, Mr. Vreeland’s real complaint

at this stage is merely that it may take a lot longer for him to finish exhausting his

state remedies and the effort may be fruitless. This complaint has nothing to do

with prejudice, and does not substantiate his due process argument.

      In short, Mr. Vreeland failed to exhaust his state remedies on any of his

claims and has not excused his failure or made out an independent due process

claim based on the delay. 4 Because “a plain procedural bar [was] present”—i.e.,

failure to exhaust—“and the district court [was] correct to invoke it to dispose of

[the] case, a reasonable jurist could not conclude either that the district court

erred in dismissing the petition or that the petitioner should be allowed to proceed

further.” Coppage, 534 F.3d at 1281 (quoting Slack, 529 U.S. at 484) (internal

quotation marks omitted).

                                          III

      For the reasons set forth above, we deny Mr. Vreeland’s application for a




      4
              Mr. Vreeland also contends that the dismissal caused a miscarriage
of justice, but he does not come remotely close to making such a showing.

                                           8
COA, deny him IFP status, and dismiss this matter.



                                           Entered for the Court



                                           JEROME A. HOLMES
                                           Circuit Judge




                                       9
