                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          April 12, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 DAVID R. BROWN,

               Petitioner-Appellant,                    No. 05-3314
          v.                                         District of Kansas
 RAY ROBERTS; ATTORNEY                          (D.C. No. 05-CV-3160-SAC)
 GENERAL OF KANSAS,

               Respondents-Appellees.


                           ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.


      David R. Brown, a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order which denied his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(B).


      *
        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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                       I. Factual and Procedural Background

      Mr. Brown was convicted of aggravated armed robbery in 1981 (“the 1981

conviction”) and sentenced as a habitual offender to ten to forty years in prison.

Brown v. Nelson, 33 Fed. App’x 976, 976–77 (10th Cir. Apr. 26, 2002). In 1992

he won postconviction relief and received a reduced sentence, from which he

received an immediate conditional release. Id. at 977. Soon after, in 1996, he

violated the conditions of his release by committing attempted aggravated robbery

and five counts of kidnapping (“the 1996 conviction”), and he was sentenced as a

parole violator. Id.

      In previous postconviction litigation, Mr. Brown challenged his 1981

conviction, arguing that pursuant to Kansas administrative regulations he was

entitled to an unconditional release in 1992. Id. If successful, that petition would

have invalidated the parole-violator term imposed as part of the sentence for the

1996 conviction. Id. Mr. Brown first pressed this argument before the Kansas

courts, but the Kansas Court of Appeals found no merit to the claim in 1998, and

the Kansas Supreme Court denied a subsequent petition for review as untimely.

Id. He then advanced the same argument in a petition for a writ of habeas corpus

in federal court. The district court dismissed the petition as procedurally

defaulted, and in 2002 both the district court and this Court denied requests for a

COA. Id. at 977–78.


                                         -2-
      Mr. Brown filed a new petition for a writ of habeas corpus in March 2005,

challenging both the 1981 and 1996 convictions on due process and equal

protection grounds. His principal claim was that court-appointed attorneys were

ineffective because they failed to pursue appeals in a timely manner. The district

court dismissed the petition as time barred with respect to both convictions. As to

the 1981 conviction, the district court held that “Petitioner’s bare claim that

appointed counsel failed to file a petition for review in [a] state habeas appeal for

over thirteen years is clearly time barred.” Order of Apr. 13, 2005, at 2. As to

the 1996 conviction, the district court noted that Mr. Brown had failed to file for

habeas relief within the one-year limitation period of 28 U.S.C. § 2244(d)(1), and

that no extraordinary circumstances justified equitable tolling of the limitations

period.

                                   II. Discussion

A. 1981 Conviction

      This petition under 28 U.S.C. § 2254 is a “second or successive habeas

corpus application” insofar as it challenges the 1981 conviction. See 28 U.S.C. §

2244(b)(2). Before filing this claim in his petition before the district court, Mr.

Brown was required to “move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” Id. § 2244(b)(3)(A).

Had he done so, a three-judge panel of this Court would have determined within


                                          -3-
30 days whether the application “makes a prima facie showing that the application

satisfies the requirements of [subsection 2244(b)].” Id. § 2244(b)(3)(B)–(D). In

a second or successive petition, claims already presented in a prior application are

dismissed automatically, and claims not presented in a prior application must be

dismissed unless they rely on a “new rule of constitutional law” or on new facts

that could not have been discovered previously through the exercise of due

diligence. Id. §2244(b)(1)–(2).

      In this case, Mr. Brown neither sought nor obtained authorization from this

Court to file a second or successive petition concerning the 1981 conviction.

Accordingly, the district court lacked subject-matter jurisdiction over claims

related to the 1981 conviction. See United States v. Gallegos, 142 F.3d 1211,

1212 (10th Cir. 1998) (per curiam). As we explained in Coleman v. United

States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam), “when a second or

successive petition for habeas corpus relief under § 2254 or a § 2255 motion is

filed in the district court without the required authorization by this court, the

district court should transfer the petition or motion to this court in the interest of

justice pursuant to [28 U.S.C.] § 1631.” Although we must vacate the district

court’s April 13, 2005 order dismissing the petition with respect to the 1981

conviction, see United States v. Avila-Avila, 132 F.3d 1347, 1348–49 (10th Cir.

1997) (per curiam), we will construe Mr. Brown’s request for a COA as an


                                           -4-
application for leave to file a successive petition for habeas corpus relief under §

2254, see Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (per curiam).

       Based on our review of Mr. Brown’s application, we hold that he has failed

to make a prima facie showing that the successive petition satisfies the

requirements of § 2244(b). Mr. Brown invokes no new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court, and he does

not rely on a factual predicate that was previously undiscoverable through due

diligence. His arguments instead emphasize readily available facts about the

sequence of events in the procedural history of his earlier habeas petition and

request for postconviction relief in state court. Accordingly, we deny his

application for leave to file a successive petition for habeas corpus relief in the

district court.

B. 1996 Conviction

       This petition represents Mr. Brown’s first application for habeas relief with

respect to the 1996 conviction, and the district court properly exercised

jurisdiction over those claims. The denial of a petition for habeas corpus relief

under § 2254 may be appealed only if the district court or this Court first issues a

COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). When the district court denies the application on procedural grounds,


                                          -5-
a petitioner must demonstrate that jurists of reason would find two issues

debatable: (1) whether the district court was correct in its procedural ruling; and

(2) whether the petition states a valid claim of the denial of a constitutional right.

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

      1. The District Court’s Procedural Ruling

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

sets a one-year limitations period for filing petitions for habeas corpus relief. See

28 U.S.C. § 2244(d)(1). That period runs from the latest of several dates,

including “the date on which the judgment became final by the conclusion of

direct review or the expiration of time for seeking such review.” Id. §

2244(d)(1)(A). Mr. Brown contends that his direct appeal is still pending before

the state courts, and that the one-year period has not yet started to run. 1

      According to Mr. Brown, his direct appeal in state court “filed on 7-1-97, is

still legally pending under Kansas law.” Petitioner’s Op. Br. 3a-2. At first

glance, that claim seems preposterous. Mr. Brown indeed filed a notice of appeal


      1
       More precisely, Mr. Brown argues that he is eligible for statutory tolling of
the one-year period based on 28 U.S.C. § 2244(d)(2), which tolls the limitation
period during the pendency of an application for state post-conviction relief. He
contends that his direct appeal remains valid and unresolved before the state
courts, and thus that his application for relief is still pending. Section 2244(d)(2)
applies only to applications for “State post-conviction or other collateral review,”
however, not to a direct appeal in state court. Because Mr. Brown is proceeding
pro se, we liberally construe his argument as a claim that his conviction never
became final in state court for purposes of § 2244(d)(1)(A).

                                          -6-
with the Kansas district court on July 1, 1997, but neither Mr. Brown nor his

counsel took any action to pursue the appeal in the Kansas courts for the next

seven years. Specifically, so far as the record discloses, Mr. Brown has not filed

a docketing statement with the appellate courts, as required by Kansas Supreme

Court rules. See Kan. Sup. Ct. R. 2.041(a) (requiring the appellant to file a

docketing statement within 21 days after filing a notice of appeal). An August

2005 letter from the office of the clerk of the Appellate Courts of Kansas

confirms that “[n]o appeal has been docketed” concerning the 1996 conviction.

Id. Ex. 6. Under the procedural rules that governed Mr. Brown’s appeal in 1997,

failure to file a timely docketing statement “shall be deemed to be an

abandonment of the appeal and the district court shall enter an order dismissing

the appeal.” Kan. Sup. Ct. R. 5.051 (1997 ed.) (amended Sept. 6, 2005).

      On closer inspection, however, Mr. Brown’s direct appeal may remain

alive, having fallen into a kind of appellate limbo in the Kansas court system.

Under Kansas law, the “[f]ailure of the appellant to take any of the further steps

to secure the review of the judgment appealed from does not affect the validity of

the appeal.” Kan. Stat. Ann. § 60-2103(a). For reasons that are not clear, the

district court never entered an order dismissing Mr. Brown’s appeal despite the

mandatory language of Rule 5.051. See Petitioner’s Op. Br. 3a-2, Ex. 5 (state

district court docket containing an entry for the notice of appeal on July 1, 1997,


                                         -7-
but no subsequent entry dismissing the appeal). Deepening the mystery over the

status of Mr. Brown’s appeal, the Kansas Supreme Court revised Rule 5.051 in

2005 such that the failure to file a timely docketing statement “shall be presumed

to be an abandonment of the appeal and the district court may enter an order

dismissing the appeal.” Kan. Sup. Ct. R. 5.051 (2005 ed.) (emphasis added). It is

not clear, as a matter of Kansas procedural law, whether Mr. Brown’s direct

appeal is now governed by the old “deemed” abandoned language and mandatory

dismissal, or the new “presumed” abandoned language and optional dismissal.

Moreover, Kansas law may yet permit Mr. Brown to docket the appeal. For

example, he may be able to request permission to docket the appeal out of time,

which immediately deprives the state district court of jurisdiction to dismiss the

appeal under Rule 5.051 until the appellate courts can consider the request. See

Sanders v. City of Kansas City, 858 P.2d 833, 835 (Kan. Ct. App. 1993).

Alternatively, before any district court order dismissing the appeal “shall be

final,” Mr. Brown is entitled to a period of 30 days in which to request

reinstatement of the appeal “for good cause shown.” Kan. Sup. Ct. R. 5.051.

Because no such order ever issued, and Mr. Brown’s appeal remains “valid” by

statute, direct review in the Kansas courts may not have reached its “conclusion”

for purposes of § 2244(d)(1)(A), notwithstanding the fact that neither the parties

nor the courts have acted on it for seven years.


                                         -8-
      Of course, none of this confusion over the status of Mr. Brown’s direct

appeal means that his petition should be granted. To the contrary, a live direct

appeal in state court dooms the petition because of the separate requirement that

an application “shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. §

2254(b)(1)(A). Thus the district court was unquestionably correct to dismiss the

petition: either the conviction became final in 1997 and Mr. Brown failed to file

within the one-year limitations period, or some combination of direct and

collateral review remains available to Mr. Brown in state court and he has failed

to exhaust those remedies.

      The reason given by the district court for dismissing the petition may have

significant consequences. Dismissal of a petition as time barred operates as a

dismissal with prejudice, meaning that future applications will be treated as

“second or successive” petitions subject to the heightened requirements of §

2244(b). Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003). When the

petitioner fails to exhaust state court remedies, however, we generally dismiss the

petition without prejudice, giving the petitioner an opportunity to pursue those

remedies in state court. Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997).

Following a dismissal without prejudice and proper exhaustion in state court, a




                                          -9-
petitioner may re-file a habeas application in federal court without satisfying the

requirements for “second or successive” petitions. Slack, 529 U.S. at 485–86.

      Given the uncertainty surrounding the status of Mr. Brown’s direct appeal

in state court and the potentially significant consequences for Mr. Brown of a

dismissal with prejudice, reasonable jurists could debate whether the district court

was correct in its procedural ruling dismissing the petition as time barred.



      2. Mr. Brown’s Claim of the Denial of a Constitutional Right

      Even if the district court erred in its procedural ruling, this Court may not

grant a COA unless Mr. Brown makes “a substantial showing of the denial of a

constitutional right,” which “includes showing that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Id. at 483–84 (internal quotation marks omitted).

      Mr. Brown’s chief argument is that his court-appointed counsel was

deficient for failing to perfect any direct appeal in state court. This Court has

held that “[w]here . . . appellate counsel negligently fails to perfect an appeal,

counsel’s failure necessarily constitutes ineffective assistance.” Johnson v.

Champion, 288 F.3d 1215, 1229–30 (citing Evitts v. Lucey, 469 U.S. 387, 397

(1985)). In this case, Mr. Brown’s counsel inexcusably neglected to pursue the


                                         -10-
direct appeal at all. In a January 2005 letter to a state prosecutor, the attorney

explained that shortly after he was ordered to handle the state-court appeal in July

1997, “[t]he file somehow wound up being stored in a closed files box.”

Petitioner’s Op. Br., Ex. A. As a result, the attorney filed a notice of appeal in

the Kansas courts, but promptly forgot about the case and took no action for more

than seven years. The letter expresses embarrassment about the error: “it would

appear that we dropped the ball big time!” Id. We can hardly defer to counsel’s

professional judgment about the issues deserving appellate review under the

circumstances.

      In his brief, Mr. Brown sets forth each of his potential claims on direct

appeal in a single, concise sentence. His only challenge to the conviction is that

his trial counsel “did not get records of denial of federal prosecutor to prosecute

case, due to no evidence’s [sic] of crime.” Petitioner’s Op. Br. 2-2. He

challenges two aspects of his counsel’s performance at sentencing: first, that

counsel failed to request a downward departure; and second, that Mr. Brown “had

to object to criminal history [him]self.” Id. at 2-2 to 2-3. Finally, he complains

that his two co-defendants, Orlando Mitchell and David E. Carter, faced the same

charges but received probation, while he was sentenced to a prison term of 261

months. Id. Although the record discloses few details about these claims, and we

intimate no view on the merits, there is no dispute that Mr. Brown’s counsel


                                          -11-
failed to raise any of them—or indeed any other potential issues—on direct

appeal. We therefore hold that reasonable jurists could debate whether the

petition raises a valid constitutional claim of ineffective assistance of appellate

counsel.

       3. Disposition on the Merits

       Because we have concluded that reasonable jurists could question whether

the district court was correct in its procedural ruling to dismiss the petition with

prejudice, and reasonable jurists could question whether the petition states a valid

claim of the denial of a constitutional right, Slack, 529 U.S. at 484, we grant a

COA.

       At this stage, however, there is no point in further appellate proceedings.

Given the uncertain status of Kansas procedural law, we believe the best course is

to vacate the decision below and remand to the district court with instructions to

dismiss Mr. Brown’s petition without prejudice, for failure to exhaust his state-

court remedies. See 28 U.S.C. § 2254(b)(1)(A) (providing that a habeas petition

shall not be granted unless it “appears” that the petitioner has exhausted his state

court remedies). This will enable Mr. Brown to pursue his 1997 state court

appeal and give the state courts an opportunity to determine the status of his

direct appeal in the first instance.

                                   III. Conclusion


                                         -12-
      We VACATE the order of the district court insofar as it dismissed claims

related to the 1981 conviction, and DENY Mr. Brown’s implied request for

authorization to file those claims with the district court. We GRANT Mr. Brown

a COA and VACATE the judgment of the district court as to claims related to the

1996 conviction. We REMAND claims related to the 1996 conviction with

instructions to dismiss the petition without prejudice for failure to exhaust




available remedies in state court. We DENY Mr. Brown’s motion for production

of documents as moot.

                                               Entered for the Court,



                                               Michael W. McConnell
                                               Circuit Judge




                                        -13-
