                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 19, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



KEVIN HERRERA,

               Petitioner-Appellant,

          v.
                                                        No. 08-1396
                                                       (D. Colorado)
SUSAN JONES, Colorado State
                                              (D.C. No. 1:08-CV-01575-ZLW)
Penitentiary; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

               Respondents-Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      This matter is before the court on Kevin Herrera’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Herrera seeks a COA so he can appeal the district court’s dismissal without

prejudice of his 28 U.S.C. § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant

Herrera’s request to proceed on appeal in forma pauperis. Because Herrera has

not, however, “made a substantial showing of the denial of a constitutional right,”

id. § 2253(c)(2), this court denies his request for a COA and dismisses this

appeal.
      Herrera was convicted in Colorado state court of one count of conspiracy to

commit murder and two counts of accessory to first degree murder; he was

sentenced to a cumulative term of forty-four years’ imprisonment. Herrera’s

convictions were affirmed on direct appeal to the Colorado Court of Appeals and

the Colorado Supreme Court denied Herrera’s petition for a writ of certiorari.

Herrera then filed the instant § 2254 petition in federal district court raising eight

claims of constitutional error. The district court dismissed Herrera’s petition

without prejudice, concluding none of the claims asserted in Herrera’s petition

were exhausted in state court.

      In particular, the district court recognized that although Herrera had

attempted to raise in state court the first seven claims set out in his § 2254

petition, he had done so in a procedurally improper fashion. That is, after having

already filed a brief on direct appeal, state-court appellate counsel sought leave to

file a supplement to the opening brief raising the first seven issues set out in the

instant § 2254 petition. In so doing, state-court appellate counsel informed the

Colorado Court of Appeals that Herrera was insisting the additional issues be

raised on appeal. Nevertheless, the Colorado Court of Appeals denied the motion

to supplement and struck the proposed supplement to the opening brief. Thus,

these issues were never considered on the merits in state court. Because Herrera

had not identified any applicable Colorado law authorizing the filing of

supplements to opening briefs, the district court concluded Herrera’s procedurally

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improper attempt to raise the issues in state court did not exhaust them for

purposes of federal habeas review. Castille v. Peoples, 489 U.S. 346, 351 (1989)

(holding that a “claim has been presented 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, . . . [r]aising the claim in such fashion

does not . . . constitute fair presentation” for purposes of the habeas exhaustion

requirement). As to the eighth claim in Herrera’s § 2254 petition, ineffective

assistance of counsel, the district court simply noted it was unexhausted because

it was not raised on direct appeal or in any state post-conviction proceedings.

      The granting of a COA is a jurisdictional prerequisite to Herrera’s appeal

from the dismissal of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, Herrera must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here,

the district court resolves a habeas petition on procedural grounds, “a COA

should issue when the prisoner 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.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Thus, because the district court resolved Herrera’s habeas petition on

procedural grounds, he can obtain a COA only by showing reasonable jurists

would find debatable both that (1) his petition states a valid claim of the denial of

                                          -3-
a constitutional right, and (2) the district court was correct in its procedural

ruling. Id.

      Having undertaken a review of Herrera’s appellate filings, the district

court’s Order, and the entire record before this court, we conclude Herrera is not

entitled to a COA. The district court’s well-stated dismissal without prejudice of

Herrera’s § 2254 petition on the ground it contained unexhausted claims is not

reasonably subject to debate. Accordingly, this court DENIES Herrera’s request

for a COA and DISMISSES this appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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