F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 12 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
VERNON JOSEPH TURLEY,
Petitioner-Appellant,
v. No. 04-1111
(District of Colorado)
GARY WATKINS; ATTORNEY (D.C. No. 00-N-2519 (BNB))
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
Proceeding pro se, Vernon Joseph Turley seeks a certificate of
appealability (“COA”) so he can appeal the district court’s dismissal of the habeas
petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A)
(providing that no appeal may be taken from a final order disposing of a § 2254
petition unless the petitioner first obtains a COA).
After two separate jury trials, Turley was convicted, inter alia, of three
counts of first-degree sexual assault, three counts of second-degree kidnapping,
and one count of robbery. The Colorado Court of Appeals affirmed all of
Turley’s convictions in unpublished opinions. On May 13, 1994, Turley filed a
motion in Colorado state court pursuant to Rule 35(c) of the Colorado Rules of
Criminal Procedure seeking post-conviction relief. Shortly thereafter, counsel
was appointed to represent Turley in his state post-conviction proceedings. The
state trial court granted counsel’s motion to withdraw on December 16, 1998 and
new counsel was appointed.
On December 20, 2000, Turley filed a pro se § 2254 habeas corpus petition
in the United States District Court for the District of Colorado. Deficiencies in
the petition were corrected by Turley on March 21, 2001. In his petition, Turley
alleged that he received ineffective assistance of counsel during pretrial
proceedings, at trial, and at the sentencing hearing. He also alleged that his
appellate attorney and the attorney who represented him in his state post-
conviction proceedings were both ineffective. At the time Turley filed his § 2254
petition, his state post-conviction proceedings were still pending in Colorado state
court.
In response to an order to show cause entered by the federal district court,
Respondents argued that Turley’s § 2254 petition should be dismissed because he
failed to exhaust his state remedies. Specifically, Respondents alleged that
resolution of the three claims raised in Turley’s § 2254 petition was still pending
in Colorado state court. The matter was referred to a United States magistrate
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judge who prepared a comprehensive report and recommendation which
recommended dismissing Turley’s habeas petition because Turley failed to
exhaust his state remedies. Acknowledging that Turley’s state post-conviction
motion was filed in 1994 and further noting that Turley’s appeal from the denial
of post-conviction relief had been pending in the Colorado Court of Appeals since
November 6, 2002, the magistrate judge nevertheless concluded that Turley and
his counsel were responsible for the delay in adjudicating Turley’s state post-
conviction motion. The district court adopted the magistrate judge’s
recommendation, and refused to excuse the exhaustion requirement. The court
consequently dismissed Turley’s § 2254 petition without prejudice.
To be entitled to a COA, Turley must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct). Our review of the record
demonstrates that the district court’s dismissal of Turley’s § 2254 petition is not
deserving of further proceedings or subject to a different resolution on appeal.
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Accordingly, we deny Turley’s request for a COA, deny his motion to proceed in
forma pauperis on appeal, and dismiss this appeal.
Entered for the Court
PATRICK FISHER, Clerk of Court
By:
Deputy Clerk
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