F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 4 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
STANLEY BROWN-BEY,
Petitioner-Appellant, No. 00-1253
v. D. Colo.
STATE OF COLORADO, (D.C. No. 99-M-1273)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and 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.
Mr. Brown-Bey, appearing pro se, appeals from the dismissal of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254 and requests a
certificate of appealability. Mr. Brown-Bey is currently serving a life
sentence upon a conviction of aggravated robbery and sentencing as a
habitual criminal under Colorado law. In his habeas petition, he raised
five issues, three of which the district court determined were unexhausted
claims. He does not contest that three of his claims raised below were
unexhausted. On appeal, Mr. Brown-Bey limits his petition to the two
exhausted issues: (1) waiver of his right to counsel without adequate
warning of his rights and the consequences; and (2) a due process
violation for testimony elicited after Mr. Brown-Bey exercised his Fifth
Amendment privilege against self-incrimination.
We review the district court’s legal determinations with regard to the
denial of a habeas corpus petition de novo. See Rogers v. Gibson , 173
F.3d 1278, 1282 (10th Cir. 1999). We construe the pleadings and papers
of a pro se appellant liberally. See Haines v. Kerner , 404 U.S. 519, 520-
21 (1972) (per curiam). Under the principles of federal-state comity, a
federal court should dismiss a state prisoner’s federal habeas petition if
the petitioner has not exhausted available state court remedies. See id. ;
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Coleman v. Thompson , 501 U.S. 722, 731 (1991). A claim is exhausted if
a state appellate court has had the opportunity to rule on the claim, or if
the petitioner has no available state avenue of redress. See Miranda v.
Cooper , 967 F.2d 392, 398 (10th Cir. 1992).
“If a federal court . . . is faced with a mixed petition [and]
determines that the petitioner’s unexhausted claims would now be
procedurally barred in state court, ‘there is a procedural default for
purposes of federal habeas.’” Harris v. Champion , 48 F.3d 1127, 1131 n.3
(quoting Coleman , 501 U.S. at 735 n.1). Here, the petitioner did not
respond to the state’s claims the unexhausted claims were procedurally
barred under Colorado law, and the district court subsequently denied Mr.
Brown-Bey’s petition.
Mr. Brown-Bey may resubmit his petition and include only the
exhausted claims, or he may seek to exhaust the remaining claims in state
court. See Rose , 455 U.S. at 510 (“Those prisoners who . . . submit mixed
petitions nevertheless are entitled to resubmit a petition with only
exhausted claims or to exhaust the remainder of their claims.”). We note
that “[a] petition filed after a mixed petition has been dismissed under
Rose v. Lundy before the district court adjudicated any claims is to be
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treated as ‘any other first petition’ and is not a second or successive
petition.” Slack v. McDaniel , 120 S. Ct. 1595, 1605 (2000) (quoting
Stewart v. Martinez-Villareal , 523 U.S. 637, 644 (1998)).
Accordingly, we GRANT Mr. Brown-Bey’s motion to proceed in
forma pauperis, DENY his request for a certificate of appealability, and
DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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