D.C. No. 5:13-CV-00248-C, W.D. Okla.
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
JEROME A. HOLMES Circuit Judge
An Oklahoma court convicted David Clay in 2011 on charges of possessing a stolen vehicle and obstructing an officer. This action began when Mr. Clay filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed the petition without prejudice for failure to exhaust state remedies. Mr. Clay now requests a certificate of appealability ("COA") to challenge the district court's dismissal. He also seeks leave to proceed in forma pauperis ("IFP"). We deny Mr. Clay's application for a COA, deny his request to proceed IFP, and dismiss this matter.
After he entered a guilty plea, Mr. Clay was convicted in 2011 in Oklahoma state court of possession of a stolen vehicle and obstructing an officer. In 2013, he filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court, arguing that he received ineffective assistance of counsel and that he should be permitted to withdraw his guilty plea. On its own motion, the district court ordered Mr. Clay to show cause as to why his petition was not properly dismissed for failure to exhaust available state remedies. Unpersuaded by Mr. Clay's response to the order, the district court adopted a magistrate judge's report and recommendation and dismissed Mr. Clay's petition without prejudice for failure to exhaust state remedies. Mr. Clay filed a notice of appeal. Construing the notice as an application for a COA, the district court denied it.
Mr. Clay now looks to us for a COA so that he may contest the district court's dismissal of his petition.
"Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA . . . ." Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). A COA should be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To justify a COA, the applicant is required to "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.'" Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When, as here, habeas relief is "denied on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show 'that jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling.'" Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (omission in original) (quoting Slack, 529 U.S. at 484). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of a case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. (quoting Slack, 529 U.S. at 484) (internal quotation marks omitted).
"For a federal court to consider a federal constitutional claim in an application for habeas, the claim must be 'fairly presented to the state courts' in order to give state courts the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). "The exhaustion requirement is satisfied if the issues have been 'properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.'" Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)). Where a petitioner has not exhausted his state remedies, "[g]enerally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies." Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006). A habeas "petitioner bears the burden of demonstrating that he has exhausted his available state remedies." McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009) (quoting Oyler v. Allenbrand, 23 F.3d 292, 300 (10th Cir. 1994)) (internal quotation marks omitted).
Mr. Clay's filings with the district court are replete with indications that he has not exhausted his state remedies on his federal habeas claims. For example, in his original petition, Mr. Clay averred that he had not appealed to the highest state court with jurisdiction over his claim "for fear of retaliation, " R. at 6 (Pet. for Writ of Habeas Corpus, filed Mar. 11, 2013), and later stated, "I did not exhaust state remedy [sic] due to a conflict of interest as I have filed a civil rights violation claim against Canadian County Jail, " id. Elsewhere in the petition he noted that his claim for relief in state court was still "pending, " and that he "received a hearing date but chose to request a continuance." Id. at 7; see also id. at 8 ("Date of [state] courts [sic] decision? Pending in District Court."). Along the same lines, Mr. Clay wrote in his response to the district court's show-cause order that he thought "there would be no [j]ustice served in exhausting remedies in state court being so far out of the statue [sic] of limitations." Clay v. State of Oklahoma, Dist. Ct. No. 5:13-cv-248-C, Doc. 7, at 3 (Mot. to Show Cause, filed Mar. 22, 2013). There was no indication in either Mr. Clay's averments to the district court or in the district court record that Oklahoma's high court has passed upon any of Mr. Clay's federal habeas claims, a prerequisite to federal review of his petition. In view of the aforementioned explicit acknowledgments by Mr. Clay that he failed to exhaust his state remedies and in view of the record's silence on the question,  it was proper for the district court to sua sponte dismiss the petition on that ground before the ...