                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 17, 2005
                                TENTH CIRCUIT
                                                                         Clerk of Court

 MICHAEL JAMES PERRY,
               Petitioner-Appellant,                    No. 05-3170
          v.                                   (D.C. No. 04-CIV-3329-SAC)
 DAVID R. McKUNE, Warden,                                (D. Kan.)
 Lansing Correctional Facility; PHILL
 KLINE, Attorney General of Kansas,
               Respondents-Appellees.


                           ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



      After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist 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.

      Petitioner Michael James Perry pleaded guilty to two counts of rape and

was sentenced in Kansas state court to 147 months’ imprisonment for each count,



      *
       This order and judgment is not binding precedent, except under the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.
to be served consecutively. Mr. Perry’s conviction was upheld on direct appeal to

the Kansas Court of Appeals. He then sought the discretionary review of the

Kansas Supreme Court, but, because he failed to take a timely appeal, the Kansas

Supreme Court refused to hear his appeal. Mr. Perry now relies on 28 U.S.C. §

2254 to challenge his conviction. He argues that he is entitled to relief from his

state court conviction because (1) of prosecutorial misconduct, (2) his plea

agreement was coerced, and (3) he received ineffective assistance of counsel.

The district court dismissed Mr. Perry’s claim for failure to exhaust available

state court remedies and denied Mr. Perry’s request for a Certificate of

Appealability.

      Mr. Perry now seeks from this court a Certificate of Appealability. To

grant a Certificate of Appealability, Mr. Perry must make a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994). To meet

this burden, he must demonstrate “that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation omitted). The relevant question regarding Mr. Perry’s petition is

whether he exhausted his state court remedies.

      To qualify for relief under § 2254, Mr. Perry must first exhaust his state


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court remedies. 28 U.S.C. § 2254(b) (2004). We have held that “[t]he exhaustion

requirement is satisfied if the federal issue has been properly presented to the

highest state court, either by direct review of the conviction or in a postconviction

attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)

(citing Charles A. Wright et al., Federal Practice and Procedure § 4264.1 at 341

(1988)). Mr. Perry’s argument that he has exhausted his state court remedies fails

for the reason that, when review by the highest state court is denied for

procedural reasons, the exhaustion requirement is not satisfied. See Steele v.

Young, 11 F.3d 1518, 1521 (10th Cir. 1993).

      To avoid losing his § 2254 claims after a procedural default at the state

level, Mr. Perry must either show cause for the procedural default or show that

the failure to hear his claim will lead to a miscarriage of justice. The Supreme

Court has explained:

      In all cases in which a state prisoner has defaulted his federal claims
      in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claims is barred unless
      the prisoner can demonstrate cause for the default and actual
      prejudice as a result of the alleged violation of federal law, or
      demonstrate that failure to consider the claims will result in a
      fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show cause and excuse the

procedural default, a petitioner must establish that “some objective factor external

to the defense impeded counsel’s efforts to comply with the State’s procedural


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rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Absent cause for the

procedural default, a petitioner must make a “colorable showing of factual

innocence” to demonstrate a fundamental miscarriage of justice and avoid §

2254’s exhaustion requirement. Demarest v. Price, 130 F.3d 922, 941 (10th Cir.

1997) (citing Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)).

      Mr. Perry has failed to exhaust his state law remedies, has not shown cause

for his procedural default, and has not demonstrated that dismissal of his claim

will result in a fundamental miscarriage of justice. We have carefully reviewed

Mr. Perry’s brief, the district court’s orders dated October 5, 2004, and March 30,

2005, and the record on appeal. Nothing in the facts, the record on appeal, or

Mr. Perry’s filings raises an issue that requires granting a Certificate of

Appealability. For substantially the same reasons set forth by the district court in

its orders, we cannot say “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner.” Slack, 529 U.S. at 484.

      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge


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