                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 9, 2014
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 JOHN ESTEL CURREN,

              Petitioner - Appellant,

 v.                                                     No. 14-1001
                                                        (D. of Colo.)
 RICK RAEMISCH, Executive                         (D.C. No. 13-CV-02342)
 Director of the Colorado Department
 of Corrections, and JOHN SUTHERS,
 Attorney General,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



      John Estel Curren, a former Colorado state prisoner currently on parole,

proceeding pro se, seeks a certificate of appealability (COA) to appeal from the

dismissal of his habeas petition brought pursuant to 28 U.S.C. § 2241. The

district court dismissed the petition for lack of jurisdiction because Curren had

failed to exhaust his state remedies. We agree with the district court that § 2241




      *
         This order is not binding precedent except under the doctrines of law of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.
was not an available remedy in this case because Curren failed to exhaust his state

remedies.

      Exercising jurisdiction under 28 U.S.C. § 1291, we DENY Curren’s request

for a COA and DISMISS the appeal.

                                I. Background

      Curren resides in Aurora, Colorado, where he is serving mandatory parole.

He was originally sentenced in 2002 to two life sentences plus twenty-four years

following his conviction for two counts of Felony Murder and one count of

Aggravated Robbery. Following an unsuccessful appeal, in 2007 Curren filed a

motion for post-conviction relief under Colorado Rule of Criminal Procedure

35(c). The trial court granted the motion, vacated Curren’s convictions and

sentences, and set a new trial. After the state unsuccessfully appealed the

vacatur, Curren’s second trial was held in April 2011. The jury in the second trial

found Curren guilty of the lesser offense of Accessory to a Crime. The trial court

sentenced Curren to twelve years in prison and awarded 3,503 days of Credit for

Time Already Served. Curren’s counsel then filed a motion for an amended

mittimus. The amended mittimus states that Curren is eligible for earned time

credits nunc pro tunc to April 25, 2002.

      The Colorado Department of Corrections (CDOC) refused to award Curren

an additional 980 days of earned time credits for his incarceration between April

25, 2002, and April 29, 2011. After filing several internal grievances, Curren

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filed a habeas corpus petition in Adams County District Court seeking an award

of the 980 days of earned time credit. The court denied the petition, stating that

the habeas petition must be filed in the county in which Curren resided at the time

he filed the petition. Curren then filed a Colorado Appellate Rule 21 petition

with the Colorado Supreme Court requesting an Order to Show Cause challenging

the Adams County District Court’s decision, which the Colorado Supreme Court

denied. Curren then filed this § 2241 petition for habeas corpus in federal district

court.

         The district court dismissed Curren’s § 2241 petition because he had failed

to exhaust his state remedies. This appeal followed.

                                     II. Analysis

         This court reviews the district court’s dismissal of a § 2241 petition de

novo and reviews factual findings for clear error. United States v. Miller, 594

F.3d 1240, 1242 (10th Cir. 2010). A state petitioner may not appeal a denial of

habeas relief without a COA. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, a

petitioner must demonstrate a “substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). When a district court denies a habeas

petition on procedural grounds, a COA should issue only when the petitioner

shows that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). In considering these two

components, the court may dispose of the application solely on procedural

grounds if the answer to the procedural issue is “more apparent from the record

and arguments.” Id. at 485.

      A habeas petitioner under § 2241 is required to exhaust both state court and

administrative remedies. Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002).

To exhaust his state remedies, a habeas petitioner “must have first fairly

presented the substance of his federal habeas claim to state courts.” Hawkins v.

Mullin, 291 F.3d 658, 668 (10th Cir. 2002). “Fair presentation” requires that the

“substance of a federal habeas corpus claim” must have been presented to the

state courts. Picard v. Connor, 404 U.S. 270, 278 (1971). To have properly

presented his claim, 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) (citations and internal quotation marks omitted).

But presenting the claim 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” does not constitute “fair presentation.” Castille v. Peoples, 489

U.S. 346, 351 (1989) (citations omitted); see also Parkhurst v. Shillinger, 128

F.3d 1366, 1369 (10th Cir. 1997) (petition for discretionary state supreme court

review did not constitute fair presentation).




                                         -4-
      We agree with the district court that Curren did not exhaust his state

remedies. Curren filed a petition for habeas relief under Colorado Revised

Statute § 13-45-101 in the Adams County District Court, the same court where his

criminal trial took place. Although Colorado authorizes a petitioner to appeal to

the Colorado Supreme Court a state district court’s denial of a petition for writ of

habeas corpus, see Colo. Rev. Stat. § 13-4-102(1)(e); Velarde v. Zavaras, 960

P.2d 1162, 1163 (Colo. 1998) (noting that Colorado Supreme Court has exclusive

jurisdiction over appeals from final judgments of district courts in civil habeas

cases); accord Leske v. Golder, 124 P.3d 863, 865 (Colo. Ct. App. 2005), Curren

did not file a direct appeal of the Adams County District Court’s dismissal of his

petition based on improper venue. Instead, Curren filed a Petition Requesting

Order to Show Cause with the Colorado Supreme Court pursuant to Colorado

Appellate Rule 21. The Colorado Supreme Court in its discretion may decline to

address the merits of claims asserted in an original petition for an extraordinary

writ sought under Colorado Appellate Rule 21. See Colo. App. R. 21(a)(1)

(“Relief under this rule is extraordinary in nature and is a matter wholly within

the discretion of the Supreme Court.”); Rogers v. Best, 171 P.2d 769, 770 (Colo.

1946). Moreover, relief under Rule 21 “shall be granted only when no other

adequate remedy, including relief available by appeal . . . is available.” Colo.

App. R. 21(a)(1). As a result, denial of a Rule 21 petition does not stand for the




                                         -5-
proposition that the Supreme Court has considered the merits of the petitioner’s

argument. Bell v. Simpson, 918 P.2d 1123, 1125 n.3. (Colo. 1996) (en banc).

      Because the Colorado Supreme Court’s review of Curren’s petition for an

extraordinary writ was discretionary and limited and because Curren failed to file

a direct appeal of the district court’s dismissal of his habeas petition, we find that

Curren’s presentation of his habeas claim was not fair presentation to the state

supreme court. See, e.g., Castille, 489 U.S. at 351; Chitwood v. Davis, 434 F.

App’x 741 (10th Cir. 2011) (filing original writ of habeas corpus in Colorado

Supreme Court without directly appealing district court’s denial was not proper

presentation).

      We therefore hold that no reasonable jurist could debate that the district

court erred in dismissing Curren’s § 2241 application. For these reasons, we find

that Curren has failed to exhaust his state court remedies.

                                 III. Conclusion

      For the reasons stated above, we DENY Curren’s request for a COA and

DISMISS this appeal.

                                        ENTERED FOR THE COURT

                                        Timothy M. Tymkovich
                                        Circuit Judge




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