F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL G. MOYER,
Petitioner-Appellant,
v.
No. 00-1355
PEOPLE OF THE STATE OF (D.C. No. 00-Z-716)
COLORADO and ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
Petitioner-Appellant Michael G. Moyer (“Moyer”) appeals the district
court’s order dismissing his petition for habeas corpus under 28 U.S.C. § 2254.
Moyer pleaded guilty in 1989 to charges of aggravated robbery, assault in the first
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
degree, and mandatory sentencing for a crime of violence – deadly weapon, and
he was sentenced to 35 years’ imprisonment. (Application for Writ of Habeas
Corpus, Ex. I, Appendix A, p. 4).
Moyer did not appeal his conviction, but, in 1995, he filed a petition in a
Colorado district court seeking post-conviction relief and appointment of new
counsel. (Id., Appendix H.) The state district court appointed new counsel, but
eventually denied Moyer’s petition on the ground that he procedurally defaulted
the claim by failing to raise it within a three-year statute of limitations. See Colo.
Stat. Ann. 16-5-402(1). (Id. at Appendix P.) The Colorado Court of Appeals
dismissed his pro se appeal because it was filed 17 months after the district
court’s decision, and was therefore not timely. (Id. at Ex. III; Ex. V.) The
Colorado Supreme Court denied Moyer’s petition for certiorari in November
1999.
Moyer then filed his § 2254 petition in federal district court seeking to
proceed in forma pauperis 1 and alleging: (1) that the Colorado Court of Appeals
abused its discretion in dismissing his petition, thereby violating his rights to due
process and equal protection; (2) that he was denied effective assistance of
counsel in entering his initial guilty plea; (3) that he was denied effective
Moyer’s motion to proceed in forma pauperis was granted by the
1
magistrate judge. (Order 4/27/00).
-2-
assistance of counsel in all of his interactions with Colorado’s criminal justice
system; and (4) that the original sentencing court violated his due process and
equal protection rights by failing adequately to inform him of the consequences of
his plea. (Application for Writ of Habeas Corpus, 6, 7, 9, 9(m).) He now
appeals, and renews his request to proceed in forma pauperis for the purposes of
this appeal.
In order for a federal court to grant relief to a prisoner under § 2254, the
petitioner must demonstrate he has exhausted available avenues for relief in state
court. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Moyer
attributes his failure to bring timely post-conviction proceedings to ineffective
assistance received from his appointed counsel. For substantially the reasons set
forth in the district court’s opinion, however, we find that Moyer’s claims were
nonetheless procedurally defaulted. 2 Cf. Pennsylvania v. Finley, 481 U.S. 551,
554 (1987) (prisoners have no Sixth Amendment right to counsel during post-
conviction proceedings); Parkhurst v. Shillinger, 128 F.3d 1366, 1368-69 (10th
2
Moyer’s claim that the Colorado Court of Appeals violated his rights to
due process and equal protection, of course, did not arise until that court denied
his petition for post-conviction relief. However, Moyer failed to raise that issue
in his petition for cert. to the Colorado Supreme Court, and therefore it is not
exhausted, and it would be procedurally barred if he sought now to raise it in the
Colorado Courts.
-3-
Cir. 1997) (ineffective assistance of counsel does not constitute cause and
prejudice excusing procedural default of post-conviction proceedings).
Therefore, we GRANT Moyer’s petition to proceed in forma pauperis,
DENY a certificate of appealability for claim, and DISMISS his appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-4-