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

                            FOR THE TENTH CIRCUIT                          March 3, 2017
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
DIRK BROWN,

      Petitioner - Appellant,

v.                                                        No. 16-1110
                                                 (D.C. No. 1:15-CV-01748-PAB)
JASON LENGERICH, BVCC Warden;                               (D. Colo.)
THE ATTORNEY GENERAL OF THE
STATE OF COLORADO,

      Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Dirk Brown was convicted in Colorado state court of kidnapping, aggravated

robbery, conspiracy, and theft. He was adjudicated a habitual offender and sentenced

to an aggregate term of 256 years in prison. His direct appeal failed to afford him

relief and the state supreme court denied certiorari. While his direct appeal was

pending, he filed several motions in state court alleging newly discovered evidence


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
asserting the detective who testified at his trial gave false testimony. After his state

appellate remedies failed he did not seek any other relief from the state courts to

challenge his conviction.1 Instead, he filed this 28 U.S.C. § 2254 habeas petition.

The district judge granted him leave to proceed without prepayment of fees, but

denied habeas relief and denied a certificate of appealability (COA). Proceeding

pro se, as he did in the district court, Brown now seeks a COA from this court. We

deny the request and dismiss this matter.

I.    BACKGROUND

      Brown’s convictions resulted from the robbery of a pawn shop. As soon as the

shop opened, two robbers walked in, both wearing disguises and carrying guns. One

robber held the two shop employees and a customer at gunpoint. The other robber

smashed a jewelry case with a crowbar and put the jewelry from the case into a duffel

bag. He then took a bottle of detergent from the duffel, poured detergent on the

jewelry case, and dropped the bottle on the floor. After taking personal possessions

from the store employees and the customer, the robbers fled. They were in the shop

for under three minutes. One of the store employees had pressed a panic button, so

police soon arrived. A responding detective noticed bright red smears on the handle

of the detergent bottle, which she took for blood.



1
       Brown refers to a related civil case and appeal he filed against the police
department in state court. See Brown v. Sheridan Police Dep’t, No. 15CA0801,
2016 WL 3130975 (Colo. Ct. App. June 2, 2016) (unpublished). Claims made in the
civil case cannot support his habeas claims.

                                            2
       The three smears on the bottle were tested for blood; two were blood, one was

not. The blood smears matched Brown’s DNA. That evidence was the only direct

link between him and the robbery. He suggested the detergent bottle was taken from

a public laundromat prior to the robbery.

       A jury convicted him in 2010. The Colorado Court of Appeals (CCA)

affirmed his conviction and sentence in 2014, and the Colorado Supreme Court

denied certiorari in 2015.

II.    DISCUSSION

       A.      Applicable Law

       A COA is required for a state prisoner to appeal from a denial of federal

habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). “Where a district

[judge] has rejected the constitutional claims on the merits, the showing required to

satisfy [28 U.S.C.] § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district [judge’s] assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). In contrast, where the district judge decided the petitioner was not entitled to

habeas relief based on a procedural default, a COA will not issue unless the petitioner

“shows, at least, 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.” Id.



                                             3
      Because the Antiterrorism and Effective Death Penalty Act of 1996
      (AEDPA) applies here, we keep in mind that when a state court previously
      adjudicated the merits of a claim, a federal court may grant habeas relief
      only if that state court decision “was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as determined
      by the Supreme Court of the United States,” 28 U.S.C. 2254(d)(1), or “was
      based on an unreasonable determination of the facts in light of the evidence
      presented in the State court proceeding,” id. § 2254(d)(2).
Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015), cert. denied, 136 S. Ct.

1524 (2016).

      We have liberally construed Brown’s pro se filings. See Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,

“take on the responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record.” Id. Moreover, “pro se parties [must] follow

the same rules of procedure that govern other litigants.” Id. (internal quotation marks

omitted).

      B.       Sufficiency of the Evidence

      According to Brown the detective’s testimony about fresh blood smears on the

detergent bottle was incredible because of the time lapse between the robbers’ exit

and the police officers’ arrival a few minutes after the robbers left. From that

dubious hypothesis he claims the evidence was insufficient to convict him.2 The

CCA addressed and rejected his claim on direct appeal.


2
       Brown now advances a claim of newly discovered evidence based on the
surveillance videotape of the robbery. He says the tape shown to the jury was
doctored to reflect the police officers’ arrival one minute after the robbers departed,
while the alleged newly discovered tape shows the officers’ actual arrival five and
                                                                              (continued)
                                             4
       The district judge concluded the CCA reasonably applied the clearly

established Supreme Court standard for evidence sufficiency announced in Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (“[W]hether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”). He also, correctly,

refused to re-determine witness credibility in a federal habeas proceedings.

See Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Finally, he concluded, Brown

failed to make the necessary showing to establish a due process violation with respect

to the allegations of perjury on the part of the detective. See Napue v. Illinois,

360 U.S. 264, 269 (1959) (stating prosecutor who knowingly presents false evidence

violates due process); United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir.

2002) (“In order to establish a due process violation, the [defendant] must show that

(1) [the witness’s] testimony was in fact false, (2) the prosecution knew it to be false,

and (3) the testimony was material.”). The propriety of those decisions is not

debatable.




one-half minutes later. Brown briefly mentioned this theory in his post-judgment
motion for a COA in the district court (with respect to the detective’s alleged
perjury), but, critically, he did not raise it in his habeas petition or otherwise bring it
to the attention of the judge. Consequently, the claim was not addressed and we
deem it waived. Cf. Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015)
(“Because the argument was not raised in his habeas petition, it is waived on
appeal.”), cert. denied, 136 S. Ct. 1180 (2016).

                                             5
      C.     Destruction of Evidence

      Brown asserted the lab employees committed a Fourteenth Amendment due

process violation when they destroyed exculpatory evidence in testing the blood

smears on the detergent bottle and in dusting the bottle for fingerprints. The CCA

rejected this claim. The law is clear: “unless a criminal defendant can show bad faith

on the part of the [lab employees], failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S.

51, 58 (1988). Brown made no bad-faith showing.

      D.     Fourth Amendment Violation

      In state court Brown asserted the warrant for his arrest was invalid and his

arrest was illegal because the warrant described the person sought as six feet, four

inches tall and weighing 465 pounds, while he is six feet tall and weighs 160 pounds.

      The state trial judge found no evidence of the wrong person being arrested.

The federal district judge also considered the claim and determined the state-court

proceedings afforded Brown an opportunity for full and fair litigation of his Fourth

Amendment claim, so review in federal court was barred. See Stone v. Powell,

428 U.S. 465, 494 (1976) (“[W]here the State has provided an opportunity for full

and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” (footnote omitted)).




                                           6
      E.     Alleged Newly Discovered Evidence/Brady Claim

      Brown appears to make two claims based on the alleged newly discovered

evidence he speculates is in an Internal Affairs Investigation Report prepared by the

police department. He claimed the investigation was in response to his complaint

asserting the investigating detective committed perjury when she testified the blood

stains on the detergent bottle were fresh. The state court record indicates, however,

the report was not released due to confidentiality rules. Nevertheless, based on this

speculation, Brown made two related claims: (1) the newly discovered evidence

rendered his conviction unconstitutional, and (2) the newly discovered evidence

formed the basis of a Brady due process claim.3

      In the federal habeas proceedings, Brown requested discovery of the Internal

Affairs Investigation Report and the detective’s employment file to show she

engaged in misconduct in his case. A habeas petitioner must show “good cause” to

be entitled to discovery. See Rules Governing Section 2254 Cases, Rule 6(a);

see also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (stating good cause requires

“specific allegations” showing “reason to believe” the petitioner may “be able to

demonstrate that he is entitled to relief.” (ellipsis and internal quotation marks

omitted)). Acknowledging clear law, the district judge denied Brown’s discovery

request because he failed to show good cause. Brown’s speculation about the


3
       “Under Brady [v. Maryland, 373 U.S. 83 (1963)], the prosecution has a duty to
disclose material impeachment evidence that is favorable to the defense.”
McCormick v. Parker, 821 F.3d 1240, 1246 (10th Cir. 2016).

                                            7
contents of the files, the judge concluded, did not constitute a specific allegation

indicating entitlement to habeas relief and, further, the allegation was insufficient to

support Brown’s conclusory claim about the detective having given false testimony at

his trial. We find no abuse of discretion in the decision to deny Brown’s discovery

request. See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir. 1999) (reviewing

district judge’s decision on good cause for abuse of discretion).

      Turning to the substance, Brown did not exhaust either claim in the state

courts. Although he filed various motions in the state trial court asserting the newly

discovered investigation report showed the detective had testified falsely at his trial,

he did not appeal the orders denying his motions to the CCA. And Brown’s state trial

court motions did not raise a Brady claim.

      The district judge did not consider the merits of either claim because Brown

failed to exhaust them in the state courts. See 28 U.S.C. § 2254(b)(1) (precluding

habeas review unless the applicant has exhausted state-court remedies, no state

remedy is available, or the available process is “ineffective to protect the rights of the

applicant”); accord O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate

prisoners must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate review

process.”).

      “Generally, 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). But Brown cannot now appeal the

                                             8
state trial court’s orders entered in 2012, 2013, and 2014 denying his postconviction

motions claiming newly discovered evidence. See Colo. App. R. 4(b) (requiring

notice of appeal in criminal case to be filed within 49 days after entry of the order

appealed from).4

      As for the Brady claim, Brown could theoretically return to state district court

to exhaust this claim. If he did so, however, the state courts would decline to

consider the claim because it could have been presented earlier. See

Colo. R. Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that could have

been presented in an appeal previously brought or postconviction proceeding

previously brought . . . .”). In addition, a motion collaterally attacking his 2010

conviction is now time-barred. See Colo. Rev. Stat. § 16-5-402(1) (requiring

collateral attack on conviction to be filed within three years for felonies such as

Brown’s).

      Thus, these claims were subject to an “anticipatory procedural bar.”

See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“‘Anticipatory

procedural bar’ occurs when the federal courts apply procedural bar to an

unexhausted claim that would be procedurally barred under state law if the petitioner

returned to state court to exhaust it.” (internal quotation marks omitted)). To avoid

      4
        Rule 26(b) of the Colorado Rules of Appellate procedure provides “[t]he
appellate court for good cause shown may upon motion enlarge the time prescribed
by these rules or by its order for doing any act, or may permit an act to be done after
the expiration of such time . . . .” Brown’s case suggests no factors favoring a late
appeal for good cause. See People v. Baker, 104 P.3d 893, 897-98 (Colo. 2005)
(discussing factors relevant to allowing appeal to be reinstated under Rule 26(b)).

                                            9
the anticipatory procedural bar, Brown would need to show either (1) “cause” for

failing to present the claims in earlier proceedings and resulting “prejudice” or (2) a

fundamental miscarriage of justice based on a credible showing of actual innocence.

Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014).

      In the federal habeas proceedings Brown made a cursory claim of actual

innocence but made no claim of cause for not exhausting or presenting his claims

earlier. After noting the state of the law, the federal district judge held Brown’s

claims were subject to anticipatory procedural default and he failed to demonstrate

cause for the procedural default. The court further held Brown’s conclusory

assertion of actual innocence was inadequate to excuse the procedural bar.

See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding to state a credible claim that

constitutional error caused the conviction of an innocent person “requires petitioner

to support his allegations of constitutional error with new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial”). Any attempt to exhaust at this

late date, the district judge concluded, would be time-barred and Colorado’s

procedural bar on successive petitions was an independent and adequate state

procedural ground. The district judge found no applicable exceptions to the

exhaustion requirement and Brown has not shown how the judge’s analysis is

reasonably debatable.

      Brown requested the federal habeas time bar be tolled. But the district judge

did not dismiss any of Brown’s claims as filed outside the habeas time bar, so no

                                           10
tolling of the time bar was necessary. See 28 U.S.C. § 2244(d)(1) (establishing a

one-year statute of limitations to file motions under 28 U.S.C. § 2254). Brown did

not demonstrate a basis in the district court for an evidentiary hearing, so we find no

abuse of discretion in the decision to deny such a hearing. See Hooks v. Workman,

606 F.3d 715, 731 (10th Cir. 2010) (reviewing denial of an evidentiary hearing for

abuse of discretion).

III.   CONCLUSION

       The rulings of the district judge were, in all respects, well considered and

proper. More important, they are not even debatably incorrect. We deny a COA and

dismiss this matter.

       That leaves only the matter of filing and docketing fees. Brown was initially

permitted to proceed in forma pauperis (ifp) in the district court. After the district

judge denied his habeas petition, denied him a COA, and denied a flurry of his

post-decision motions, Brown filed a notice of appeal. At that point the district judge

could and should have reviewed Brown’s ifp status to determine whether his appeal

could be taken in good faith. Fed. R. App. P. 24(a)(3)(A). Unfortunately, that did

not happen so his ifp status automatically continued, Fed. R. App. P. 24(a)(3), and he

was permitted to proceed on appeal without prepayment of filing and docketing fees.

But that does not end the matter. Only prepayment of fees is excused, not the fees

themselves. 28 U.S.C. § 1915(a)(1). Brown is responsible for the full amount of the




                                           11
filing and docketing fees ($505.00). Payment is to be made to the Clerk of the

District Court.


                                          Entered for the Court


                                          Terrence L. O’Brien
                                          Circuit Judge




                                         12
