Appeal from the United States District Court for the District of Colorado (D.C. No. 07-CV-02052-ZLW).
The opinion of the court was delivered by: O'brien, Circuit Judge.
Before LUCERO, ANDERSON and O'BRIEN, Circuit Judges.
Edward Allen appeals from the district court's sua sponte dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust state remedies. We grant a certificate of appealability (COA) on a single, narrow issue-whether the district court erred in sua sponte dismissing Allen's habeas petition without requesting a response from the government. We affirm.
Allen was convicted in state court of three counts of sexual assault on a child by a person in a position of trust and was sentenced to three concurrent indeterminate terms of ten years to life in prison. His conviction was affirmed by the Colorado Court of Appeals and the Colorado Supreme Court denied his petition for writ of certiorari.
In Colorado, a request for post-conviction relief is usually initiated by a petition for writ of habeas corpus filed with the state district court. See Colo. R. Crim P. 35(c)(3). Allen, however, filed his pro se petition with the Colorado Supreme Court. While unusual and seldom productive, doing so is not improper under Colorado law. See Colo. Rev. Stat. § 13-405-101(1) ("If any person is committed or detained for any criminal or supposed criminal matter, it is lawful for him to apply to the supreme court or district courts for a writ of habeas corpus . . . ."); People ex rel. Wyse v. District Court, 503 P.2d 154, 156 (Colo. 1972) ("In Colorado, [a writ of habeas corpus] may be sought in the Supreme Court or any district court."). Unlike the state district court, however, the Colorado Supreme Court is under no obligation to consider an original habeas petition.*fn1 See Shore v. District Court, 258 P.2d 485, 487 (Colo. 1953) (noting the Colorado Constitution confers original jurisdiction upon the Colorado Supreme Court to issue writs of habeas corpus, but stating such jurisdiction "is discretionary"). It will exercise its original jurisdiction only "in cases of great public importance, or in cases where not to do so would amount to a denial of justice." People v. Martinez, 22 P.3d 915, 921 (Colo. 2001) (en banc). Here, the court elected not to consider the merits of Allen's petition and denied it the day it was filed.
Allen next filed a pro se 28 U.S.C. § 2254 petition for writ of habeas corpus in federal district court, raising five challenges to his conviction. According to the petition, he raised four of the claims on direct appeal and one in his state habeas petition. The magistrate judge ordered Allen to show cause why his petition should not be dismissed for failure to exhaust state remedies, explaining:
It appears that Mr. Allen has failed to exhaust state court remedies for all of his claims because the claim he raised in the original proceeding in the Colorado Supreme Court was not fairly presented to that court. If 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 a fashion does not, for the relevant purpose, constitute fair presentation.
(R. Vol. I, Doc. 6 at 3 (quotations omitted)). The magistrate's show cause order informed Allen he could proceed on his exhausted claims, but warned that his unexhausted claim might be foreclosed because of restrictions on subsequent or successive habeas petitions. Allen chose not to amend his petition. Rather, he asserted in his response to the order to show cause that he had exhausted all claims because his habeas petition was properly presented to the Colorado Supreme Court pursuant to Colo. Rev. Stat. § 13-405-101(1). He did not claim (indeed, he would be hard pressed to claim) the Supreme Court considered the merits of his petition.
The district court reviewed Allen's response and dismissed his petition without prejudice for failure to exhaust state remedies. The court held:
[B]ecause the Colorado Supreme Court declined to address the merits of the claims Mr. Allen raised in his original petition for a writ of habeas corpus, that petition does not constitute fair presentation of the claims asserted . . . . Even assuming that Mr. Allen properly exhausted state court remedies for his four other claims in his direct appeal, the instant action still must be dismissed as a mixed petition because he failed to exhaust state court remedies for the fifth claim.
(R. Vol. I, Doc. 9 at 4.)
The district court also denied Allen's motion for leave to proceed in forma pauperis (ifp)on appeal and denied a COA. We appointed counsel for Allen and invited counsel to brief and seek a COA on any issue counsel deemed to have potential merit, expressing an interest in the impact of Jones v. Bock, 549 U.S. 199 (2007), in the habeas context.*fn2 In his supplemental brief, Allen asserts only one claim-that the district court erred in ...