                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                       September 18, 2012
                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court

 LEO SIMMONS,

           Petitioner-Appellant,
 v.                                                           No. 12-1254
 JOHN CHAPDELAINE; JOHN                             (D.C. No. 1:12-CV-00130-LTB)
 SUTHERS, The Attorney General of the                          (D. Colo.)
 State of Colorado,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Leo Simmons, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s dismissal of his 28 U.S.C. §

2254 petition for federal habeas relief. Because Simmons has failed to satisfy the

standards for the issuance of a COA, we deny his request and dismiss the matter. We also

deny his request to proceed in forma pauperis on appeal.




       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
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                             Simmons’ state court proceedings

       On June 12, 2008, Simmons was convicted in the District Court of El Paso

County, Colorado, on one count of possession of a controlled substance, and was

sentenced to six years’ imprisonment in the custody of the Colorado Department of

Corrections. Simmons filed a direct appeal. On January 13, 2011, the Colorado Court of

Appeals (CCA) affirmed Simmons’ conviction. The Colorado Supreme Court

subsequently denied certiorari review on May 9, 2011.

       On April 18, 2011, while his direct appeal was pending, Simmons filed with the

state trial court motions for postconviction relief under Colo. R. Crim. P. 35(a) and (c).

The state trial court denied those motions on April 21, 2011. On appeal, however, the

CCA concluded that the state trial court’s “orders . . . were entered while [a direct appeal]

was pending,” and that, consequently, the state trial court “was without jurisdiction to

enter the orders.” ROA, Vol. 1, at 167. The CCA ordered the appeal dismissed without

prejudice. Id.

       On March 22, 2012, Simmons filed with the state trial court a motion for sentence

reconsideration. That motion was denied by the state trial court on March 29, 2012.

                           Simmons’ federal habeas proceedings

       On January 18, 2012, Simmons initiated the instant proceedings by filing a pro se

petition for writ of habeas corpus pursuant to § 2254. Simmons’ petition alleged three

vague claims: (1) “All my constitutional rights was abridged and violated throughout the

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whole [trial] process,” id. at 8; (2) ineffective assistance of trial counsel; and (3) that “a

number of conflicts of interest” existed between Simmons and his trial counsel, id. at 9.

       Due to the vague nature of Simmons’ petition, the magistrate judge assigned to the

case directed Simmons to file an amended petition alleging “specific facts to support each

asserted claim.” Id. at 26. Simmons responded by filing an amended petition on March

2, 2012. The amended petition alleged, among other things, that (1) Simmons’ “bail was

aggravated in the beginning without a hearing,” id. at 34, (2) the prosecution “knowingly

relied on the perjury and false testimony by . . . Detective Barnett,” id. at 36, (3) trial

counsel “was ineffective for wholly failing to prepare to present ‘accurate’ facts regarding

[Simmons’] history or the defense theory of the case,” id., (4) Simmons “was not given

72 hours notice of the alleged restitution amount” ultimately imposed by the trial court at

sentencing, id. at 37, (5) “[t]here were a number of conflicts of interest and potential

conflicts” between Simmons and trial counsel, id. at 38, (6) trial counsel failed to “consult

[a fingerprint or forensic] expert” during “trial preparation,” id., and (7) a former National

Football League player sat on his jury and “was the driving force behind the threatening

of the black jurors,” id. at 40.

       Respondents, at the directive of the magistrate judge, filed a pre-answer response

“addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or

exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A).” Id. at 50.

Respondents noted in their pre-answer response that Simmons, on direct appeal,

“challenged only the admission of evidence of his prior felony crack cocaine conviction

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under Colo. R. Evid. 404(b),” id. at 66-67, and “raised none of his federal habeas claims

on direct appeal,” id. at 67. In turn, respondents argued that, to the extent Simmons

asserted any of the issues in his state “postconviction proceeding, that proceeding failed

to exhaust the claims, as it was dismissed on appeal because the trial court lacked

jurisdiction.” Id. Finally, respondents asserted that Simmons had until July 1, 2014, to

file a timely state postconviction motion raising all of the issues asserted in his federal

habeas petition. Id. Consequently, respondents urged the district court to dismiss the

petition due to Simmons’ failure to exhaust state court remedies.

       On May 29, 2012, the district court issued an order dismissing Simmons’ petition

without prejudice for failure to exhaust state court remedies. The district court also

“certifie[d] pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from [its] Order [wa]s not

taken in good faith, and, therefore, [it denied Simmons] in forma pauperis status . . . for

the purpose of appeal.” Id. at 241.

       Simmons filed a timely notice of appeal, and has since filed with this court a

combined opening brief and application for a COA, as well as a motion for leave to

proceed on appeal without prepayment of costs or fees.

                                              II

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). Where, as here, a district court denies a habeas petition on

                                               4
procedural grounds, a COA will be issued 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       In his opening appellate brief, Simmons suggests it is unnecessary for him to first

seek relief in the state courts, arguing that he is “entitled to . . . have the federal habeas

court make its own independent determination of the federal claims [in his petition]

without being bound by the determination on the merits of that claim reached in state

proceedings.” Aplt. Br. at 7. But Simmons is mistaken on this point. A federal court

generally may not review a claim for federal habeas relief unless “the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

“A claim has been exhausted when it has been ‘fairly presented’ to the state court.”

Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009). “Fair presentation means

that the substance of the claim must be raised in state court. The allegations and

supporting evidence must offer the state courts a fair opportunity to apply controlling

legal principles to the facts bearing upon [the] constitutional claim.” Id. (quotations

omitted).

       After reviewing Simmons’ opening appellate brief and the record on appeal, we

conclude that jurists of reason would not find it debatable whether the district court was

correct in dismissing Simmons’ petition without prejudice for failure to exhaust available

state court remedies. As the district court concluded in dismissing Simmons’ petition, it

                                                5
is undisputed that the claims asserted in Simmons’ federal habeas petition have never

been presented to the Colorado state courts.

      The application for COA is DENIED and this matter is DISMISSED. Simmons’

motion to proceed in forma pauperis on appeal is DENIED.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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