F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B EN JA M IN A BEY TA ,
Petitioner - A ppellant,
No. 06-1220
v. (D.C. No. 04-CV-00177-M SK-BNB)
(D . Colo.)
AL ESTEP, W arden, L.C.F.;
CO LOR AD O A TTORNEY
GEN ERA L,
Respondents - Appellees.
ORDER
D EN Y IN G C ER TIFICATE OF APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Petitioner-Appellant Benjamin Abeyta, a state inmate appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal from the
district court’s order denying relief on his habeas petition pursuant to 28 U.S.C. §
2254. M r. Abeyta also has moved to hold his appeal in abeyance pending
resolution of Silva v. People, No. 05SC519, 2006 W L 1643229 (Apr. 17, 2006),
currently pending before the Colorado Supreme Court. 1 Because M r. Abeyta has
1
The Colorado Supreme Court has granted certiorari to determine
“[w]hether Petitioner has a constitutional right to assistance of counsel in pursuit
failed to make a “substantial showing of the denial of a constitutional right,” see
28 U .S.C . § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we
deny the COA and dismiss the appeal. Any affect of the Colorado Supreme
Court’s decision in Silva is properly a matter for M r. Abeyta to pursue in the
Colorado state courts. Accordingly, his motion to hold in abeyance will be
denied.
On August 10, 1998, M r. Abeyta was convicted by a jury of second-degree
burglary and theft. The state court determined that M r. Abeyta was a habitual
criminal and sentenced him to a term of 48 years imprisonment. On direct appeal,
the Colorado Court of Appeals affirmed the convictions, and, in April 2000, the
Colorado Supreme Court denied certiorari. Subsequently, the state trial court
denied M r. Abeyta’s motion for post-conviction relief, which the Colorado Court
of Appeals affirmed. In December 2003, the Colorado Supreme Court again
denied certiorari.
M r. Abeyta then filed a § 2254 habeas petition. M r. Abeyta’s petition
contained seven claims:
1) The state failed to disclose exculpatory evidence in violation of M r.
Abeyta’s Fourteenth Amendment right to a fair trial.
2) M r. Abeyta’s Fifth, Sixth, and Fourteenth A mendment rights were
of postconviction relief.” Silva, 2006 W L 1643229, at *1 (Apr. 17, 2006). M r.
Abeyta contends that the outcome of Silva may affect claims 1 through 3 of his §
2254 petition.
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violated w hen a juror was removed for cause at the prosecution’s
request despite defense counsel’s objections and without allowing
defense counsel to rehabilitate the juror.
3) His Fourteenth Amendment right to due process was violated because
insufficient evidence existed to find that he was a habitual criminal.
4) His Fifth, Sixth, and Fourteenth Amendment rights were violated
because he was adjudged a habitual criminal by the court instead of
by a jury.
5) That, contrary to M iranda v. Arizona, 384 U.S. 436 (1966), the trial
court failed to suppress certain statements made by him to the police
while in custody.
6) M r. Abeyta’s trial counsel was ineffective because he failed to
investigate alibi witnesses and because he failed to request recusal of
the trial judge or a change in venue when the trial judge indicated a
bias against M r. Abeyta.
7) M r. Abeyta’s Fourteenth Amendment rights were violated when the
State of Colorado refused to provide him with counsel to assist with
a post-conviction claim for ineffective assistance of counsel.
R. Doc. 34 at 4-5. Upon recommendation of the magistrate judge, and over M r.
Abeyta’s objection, the district court denied the petition. R. Docs. 28, 34. The
district court determined that claims 1-3 were not fairly presented to the state
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courts, w ould now be procedurally barred, and that M r. Abeyta had not shown
cause or a fundamental miscarriage of justice to excuse his procedural default.
The district court rejected ineffective assistance of appellate counsel as grounds
for cause because that claim had not been presented as an independent claim
before the state courts. Claims 4-6 were rejected on the basis that the state
courts’ adjudication of these issues was consistent with 28 U.S.C. § 2254(d)(1) &
(2). C laim 7 was rejected for w ant of a federal constitutional claim.
On appeal, M r. Abeyta argues that (1) the district court abused its
discretion by not granting a stay as to claims 1-3 so he could exhaust his state
remedies. He argues that pursuant to Colo. Rev. Stat. § 16-5-402(2)(d) he
could have exhausted those claims upon a showing of justifiable excuse or
excusable neglect, see People v. Clouse, 74 P.3d 336, 340 (Colo. Ct. App. 2002),
or that in the alternative, the district court should have excused the procedural
default because it occurred w hen he had a right to counsel on direct appeal. He
further argues that (2) Almendarez-Torres v. United States, 523 U.S. 224 (1998),
is no longer viable, thus requiring a jury finding before one can be adjudged a
habitual criminal under Colorado law , (3) his Fifth and Sixth Amendment rights
were violated by police misconduct, and the state fact-finding was not reliable,
(4) he received ineffective assistance of trial counsel based on a failure to conduct
reasonable investigations and discover exculpatory evidence, and (5) under
Colorado law, he could not have presented an ineffective assistance of counsel
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claim on direct appeal, accordingly, he has a constitutional right to assistance of
counsel in his first collateral attack.
W e do not think that the district court’s resolution of the claims in M r.
Abeyta’s habeas petition is reasonably debatable, and the claims raised on appeal
do not alter that conclusion. W e comment briefly on M r. Abeyta’s challenge to
the district court’s determination that claims 1-3 should be considered
procedurally barred. M r. Abeyta suggests that the district court should have
stayed his habeas petition so he could seek to exhaust claims 1-3 in the Colorado
courts. “[S]tay and abeyance is only appropriate w hen the district court
determines there was good cause for the petitioner’s failure to exhaust his claims
first in state court.” Rhines v. W eber, 544 U.S. 269, 277 (2005). Additionally,
the petitioner must demonstrate the claims are potentially meritorious. Id. at 278.
M r. Abeyta argued in his objections to the magistrate’s recommendation
that the Colorado courts might excuse the state time-bar; thus, it might be
possible to exhaust claims 1-3 and avoid having them considered procedurally
barred. R. Doc. 30 at 3, Doc. 32 at 1-2. The district court was w ell within its
discretion to decide that M r. Abeyta’s reasons given for failure to
exhaust–including difficulty obtaining the record in his first state post-conviction
matter, lack of library access, and lack of counsel–did not constitute a sufficient
showing of justifiable excuse or excusable neglect, let alone good cause (factually
or legally) for the failure to exhaust. Although M r. Abeyta faults the district
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court for not notifying him that he had the option to proceed on the exhausted
claims or dismiss his entire petition without prejudice, the district court
proceeded in a reasonable manner given the one-year limitation period, 28 U.S.C.
§ 2244(d)(1), and its rejection of a stay.
W e must also consider M r. Abeyta’s motion to hold this appeal in abeyance
until the Colorado Supreme Court issues its opinion in Silva. No federal
constitutional right to counsel exists in post-conviction collateral attacks.
Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); United States v. Prows, 448
F.3d 1223, 1229 (10th Cir. 2006). Should the Colorado Supreme Court find, in
Silva, that prisoners posses the right to counsel as a matter of state constitutional
law, M r. Abeyta may pursue any proper remedies in state court. Because § 2254
is limited to violations of federal law , the outcome in Silva is irrelevant to M r.
Abeyta’s federal habeas petition.
W e G RA N T IFP status, D ENY the motion to hold in abeyance, DENY a
COA and DISM ISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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