FILED
United States Court of Appeals
Tenth Circuit
August 11, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MICHAEL D. BARRY,
Petitioner - Appellant, No. 08-1451
v. (D. Colorado)
MR. REID, Warden; JOE ORTIZ, (D.C. No. 1:06-CV-01848-LTB-BNB)
Executive Director DOC; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Michael D. Barry, a Colorado state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2254
application for habeas relief. See 28 U.S.C. § 2253(c) (requiring COA to appeal
dismissal of § 2254 application). The United States District Court for the District
of Colorado dismissed the application without prejudice because some of
Mr. Barry’s claims were not cognizable under § 2254, and the remainder had not
been properly exhausted in state court. Because a reasonable jurist could not
debate the correctness of this decision, we deny a COA and dismiss the appeal.
Mr. Barry was convicted in Colorado state court in 2002 on a charge of
second-degree assault stemming from an incident in which he spat in the face of a
prison official at the Fremont Correctional Facility. He was sentenced to five
years’ imprisonment. Represented by counsel, Mr. Barry appealed to the
Colorado Court of Appeals in 2005, arguing that the trial court (1) had deprived
him of his Sixth Amendment right to counsel by failing to investigate allegations
that his appointed trial counsel had a conflict of interest; and (2) had violated his
due-process rights by preventing him from presenting evidence that he lacked the
requisite specific intent because of his mental-health problems. The court of
appeals affirmed his conviction on February 1, 2007. See People v. Barry,
No. 03CA2424, 2007 WL 273499, at *1 (Colo. Ct. App. Feb. 1, 2007). Mr. Barry
then petitioned the Colorado Supreme Court for a writ of certiorari.
In the meantime Mr. Barry filed a pro se § 2254 application in federal court
on September 18, 2006. His application claimed 11 reversible errors: (1) he
received ineffective assistance of trial counsel; (2) the trial court violated his
right to “conflict free counsel” when the judge denied his request for new
counsel, removed him from the courtroom, and continued the trial without his
presence, R. Vol. 1 at 14; (3) the court refused to allow evidence of his mental
state, which would have shown that the assault “resulted due to fear for [his]
life,” id.; (4) the court violated his due-process rights by declining to consider a
pro se posttrial motion alleging multiple violations of court rules, instead
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“negat[ing it] for another unrelated [motion] by counsel,” id. at 15; (5) he was
denied his right to testify at trial because of his mental illness and his distrust of
his attorney, who, he believed, would not “ask the questions necessary to provide
evidence of his innocence,” id.; (6) he was incompetent to stand trial; (7) the
prosecution suborned perjury from a witness; (8) the prosecution prejudiced the
trial court by providing it with a falsified medical report stating that he had
hepatitis; (9) his right to appeal had been “delayed/denied” to prevent exposure of
electronic devices used to torture Colorado inmate, id. at 17; (10) he was
somehow “prevented from accessing coun[s]el” by the use of wireless electronic
devices “to stimulate the brain and bring about violent behavior and for electro-
shock therapy,” id. at 18; and (11) he was subjected to “obstruction of justice”
because (a) an “electronic device” at the prison was “used to bait inmates into
assault,” id., (b) his mail had been blocked (preventing him from consulting with
an attorney), (c) falsified testimony at trial covered up evidence of medical
malpractice at the prison, and (d) medically induced psychosis prevented him
from presenting evidence in his defense.
The state responded that Mr. Barry’s direct appeal was still pending and
that the state trial record was with the Colorado Court of Appeals, making access
to it difficult. A federal magistrate judge—observing that “[t]he nature of
[Mr. Barry’s] attempts to exhaust his claims in the state courts, and the status of
his direct appeal, are not clear from the record,” id. Vol. 2 at 11—set an
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evidentiary hearing for April 2, 2007. The day after the hearing, the magistrate
judge issued a recommendation that Mr. Barry’s entire application be dismissed
without prejudice. The recommendation stated as follows: Two of Mr. Barry’s
claims (claim 10 and part of claim 11) challenged his conditions of confinement
and were therefore not cognizable under 28 U.S.C. § 2254. Two of Mr. Barry’s
other claims (a portion of claim 2 and all of claim 3) had been ruled on by the
Colorado Court of Appeals but the Colorado Supreme Court had yet to pass on his
petition for certiorari, so these claims had not been exhausted. And as for the
remainder of Mr. Barry’s claims, he had “admitted at the [April 2] hearing that he
has not exhausted [those] claims in state court,” asserting that they were “‘not
legally presentable’ or ‘were left out by the appeal attorney.’” Id. at 89. In
concluding that dismissal without prejudice was appropriate, the magistrate judge
observed that Mr. Barry would have three years after the state supreme court
ruling to bring a collateral attack in state court, see Colo. Rev. Stat.
§ 16-5-402(1); that the Colorado appellate courts had not unreasonably delayed
his appeal (much of the delay being attributable to Mr. Barry); and that the one-
year limitation period under 28 U.S.C. § 2244 (d)(1)(A) would not begin before
the state supreme court ruled on his certiorari petition.
A month later, the Colorado Supreme Court denied Mr. Barry’s certiorari
petition. See Barry v. People, No. 07SC189, 2007 WL 1310367, at *1 (Colo.
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May 7, 2007) (en banc). On February 12, 2008, the federal district court adopted
the magistrate judge’s recommendation in full.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court's resolution of the constitutional claim was either
“debatable or wrong.” Id. If the application was denied on procedural grounds,
as Mr. Barry’s was in part, the applicant faces a double hurdle. Not only must the
applicant make a substantial showing of the denial of a constitutional right, but he
must also show “that jurists of reason would find it debatable . . . whether the
district court was correct in its procedural ruling.” Id.
Dismissal of Mr. Barry’s § 2254 application was clearly correct. In
general, a habeas applicant must exhaust available state-court remedies before
seeking federal habeas relief, see 28 U.S.C. § 2254(b)(1)(A); and a district court
should ordinarily dismiss a § 2254 application that contains both exhausted and
unexhausted claims, see Rhines v. Webber, 544 U.S. 269, 275–78 (2005). Even if
one or two of Mr. Barry’s claims were exhausted when the Colorado Supreme
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Court denied his certiorari petition, he still has several unexhausted claims. On
occasion a district court may properly stay federal proceedings rather than dismiss
a § 2254 application containing unexhausted claims. See id. at 278. But
Mr. Barry has not argued in favor of a stay and we see no error in the district
court’s not ordering a stay sua sponte. No reasonable jurist could dispute that
dismissal was appropriate.
We DENY a COA and DISMISS this appeal. We GRANT Mr. Barry’s
motion for leave to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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