DELMART E.J.M. VREELAND, II, Petitioner - Appellant,
JOHN DAVIS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees
D.C. No. 1:12-CV-02039-LTB D. Colo.
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
JEROME A. HOLMES Circuit Judge
In 2006, Delmart Vreeland, II was convicted in Colorado state court on various charges related to sex offenses and drugs. Mr. Vreeland initiated the instant action when he 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. Vreeland now requests a certificate of appealability ("COA") to challenge the district court's dismissal. He also seeks leave to proceed in forma pauperis ("IFP"), requests from our court appointment of counsel, and appeals the district court's denial of counsel. We deny Mr. Vreeland's application for a COA, deny him IFP status, and dismiss this matter.
Mr. Vreeland's state convictions were entered on December 11, 2006. For various reasons not relevant to our disposition, the Colorado Court of Appeals ("CCA") had not yet rendered a decision on his direct appeal when, on August 3, 2012, he filed his federal petition for habeas corpus. While Mr. Vreeland's federal petition was pending, the CCA affirmed Mr. Vreeland's conviction. Shortly thereafter, the district court dismissed Mr. Vreeland's petition without prejudice for failure to exhaust state court remedies and declined to issue a COA.
Mr. Vreeland appears before us seeking a COA in order to challenge the district court's dismissal of his petition. He raises two arguments. First, Mr. Vreeland asks us to excuse exhaustion as a result of the undue, state-created delay in his direct appeal. Second, he makes out an independent due process claim based on the same delay. We take up—and reject—each argument in turn.
"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)). 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).
In his application for a COA, Mr. Vreeland indicates that he is currently petitioning the Colorado Supreme Court for discretionary review of his direct appeal. Thus, by his own admission, he has not satisfied the exhaustion requirement. See Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) ("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 ...