430 F. App'x 718
10th Cir.2011Background
- Lamar, proceeding pro se, seeks a COA to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition.
- Lamar was convicted of sexual assault in 2007 and sentenced to 35 years to life; direct appeal proceeded with a pro se reply after counsel withdrew.
- The Colorado Court of Appeals affirmed the conviction but remanded for resentencing; subsequent rehearing petitions and Colorado Supreme Court certiorari were denied.
- Lamar filed a § 2254 petition in 2010 claiming due process and access-to-courts concerns, asserting failure of adequate appellate review and improper appointment of appellate counsel.
- Respondents argued the petition should be dismissed for failure to exhaust state remedies because Lamar had not sought post-conviction relief under Colo. R. Crim. P. 35; the district court agreed and dismissed without prejudice.
- The district court concluded Lamar had not exhausted state remedies as his direct appeal from resentencing remained pending in state court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of state remedies for §2254 petition | Lamar exhausted claims via state rehearing and certiorari proceedings | Lamar did not exhaust because no proper state post-conviction review and direct appeal pending | Exhaustion not satisfied; district court's dismissal without prejudice affirmed; COA denied |
| entitlement to a COA on procedural grounds | Reasonable jurists would debate the procedural dismissal | Procedural dismissal correct given lack of exhaustion | COA denied; no debatable procedural ruling |
| Effect of pending direct appeal on exhaustion analysis | Pending state direct appeal prevents federal exhaustion | Pending appeal does not cure exhaustion issues and may foreclose relief | Pending state appeal does not alter the exhaustion outcome; COA denied |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 474 (2000) (COA standard for procedurally dismissed habeas petitions requires debatable claims and debatable procedural ruling)
- Daegele v. Crouse, 429 F.2d 503 (10th Cir. 1970) (exhaustion when direct appeal remains pending)
- Castille v. Peoples, 489 U.S. 346 (1989) (fair presentation limitations when raised only in procedural contexts)
- Bowser v. Boggs, 20 F.3d 1060 (10th Cir. 1994) (exhaustion by raising claim in petition for rehearing)
- Miranda v. Cooper, 967 F.3d 392 (10th Cir.) (exhaustion and procedural presentation considerations in federal habeas)
- Kelly v. Central Bank & Trust Co., 794 P.2d 1037 (Colo. Ct. App. 1989) (refusal to consider argument raised for the first time in a petition for rehearing)