FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 27, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
RICHARD S. JONES,
Petitioner - Appellant,
v. No. 15-1084
(D.C. No. 1:14-CV-02916-LTB)
WARDEN MILLER, and CYNTHIA (D. of Colo.)
H. COFFMAN, Attorney General of
the State of Colorado,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
Richard Jones seeks a certificate of appealability (COA) to challenge the
district court’s denial of his petition for a writ of habeas corpus filed under 28
U.S.C. § 2254. In that petition, Jones argued that his conviction for escape from
state parole violated the Eighth and Fourteenth Amendments of the United States
Constitution. The district court dismissed the petition, finding that Jones had
failed to exhaust his claims in the Colorado state courts. In his application for a
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
COA, Jones repeats one of the arguments from his § 2254 petition and presents a
new argument based on the Sixth Amendment.
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we deny a COA
and dismiss the appeal.
I. Background
This case finds its origin in two guilty pleas Jones entered in 1991. As a
result of those guilty pleas, a Colorado district court sentenced Jones to eighteen
years in state prison. Jones was eventually released on intensive supervised
parole but while monitored cut off his ankle bracelet and absconded in 2007.
Jones was eventually apprehended and a jury convicted him of felony escape.
After filing an unsuccessful appeal and petitioning for state post-conviction relief,
Jones filed this action under § 2254.
Jones raised two issues in his § 2254 petition. First, Jones argued that his
conviction for escaping from state parole ran afoul of the Fourteenth Amendment
because his sentence of parole was invalid. In short, Jones argued that the district
court that accepted his 1991 plea was required to inform him that he could be
subjected to parole but that it failed to do so. Second, Jones argued that the
Colorado courts lacked jurisdiction to convict him because his parole had been
illegally imposed by a parole officer rather than by a judge. The federal district
court dismissed the petition, finding that Jones had failed to exhaust his claims in
the Colorado state courts.
-2-
In his application for a COA, Jones repeats his argument that his parole was
invalid because he was never informed that he could be subjected to parole and
also raises a new Sixth Amendment argument.
II. Analysis
A COA is a jurisdictional prerequisite to our review of an action under
§ 2254. Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). We will issue a
COA only if the movant demonstrates “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).
In making that determination, “we review the district court’s legal conclusions de
novo and its factual findings under the clearly erroneous standard.” English v.
Cody, 241 F.3d 1279, 1282 (10th Cir. 2001) (internal quotation marks omitted).
A. Failure to Inform of Parole at Initial Sentencing
Jones’s first claim is that his conviction for escape from parole is invalid
under the Fourteenth Amendment because he was not advised that he would be
subject to parole when he pleaded guilty to an underlying offense. According to
Jones, an offender who pleads guilty cannot be subjected to parole under
Colorado law unless he was made aware of that possibility before entering his
plea. See Clark v. People, 7 P.3d 163 (Colo. 2000); Benavidez v. People, 986
-3-
P.2d 943 (Colo. 1999). The district court found that Jones had failed to exhaust
this claim in state court, and we agree.
A federal court cannot grant an application for a writ of habeas corpus
under § 2254 unless the applicant has previously exhausted all adequate and
effective state remedies available for his claim. 28 U.S.C. § 2254(b)(1);
O’Sullivan v. Boerckel, 526 U.S. 838, 842–43 (1999); Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Exhaustion requires that the
federal issue be “properly presented to the highest state court, either by direct
review of the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
Although a petitioner does not need to cite “book and verse on the federal
constitution” to preserve a constitutional claim,” Picard v. Connor, 404 U.S. 270,
278 (1971), “[i]t is not enough that all the facts necessary to support the federal
claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam). At a minimum, the petitioner must have presented the substance of
his claim in state court, and he must have presented his claim as one arising under
the federal constitution. See Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per
curiam).
As the district court correctly found, Jones did not raise this issue on direct
appeal. Although Jones made a similar argument in his state application for
postconviction relief, that argument was based on the Colorado Rules of Criminal
Procedure. Jones never presented the Colorado state courts with a constitutional
-4-
argument relating to the original trial court’s alleged failure to inform him that he
could be subjected to parole after his release from state prison. Because
exhaustion requires that an applicant under § 2254 present his claim to the state
courts as one arising under the federal constitution, see id., we agree with the
district court that Jones failed to exhaust this claim.
B. Right to a Fair Trial
Next, Jones argues that he was deprived of his right to a fair trial, as
guaranteed by the Sixth and Fourteenth Amendments. More specifically, Jones
contends that the trial judge, applying Colorado Rule of Evidence 403, erred in
forbidding Jones from presenting evidence to the jury that the parole from which
he escaped was illegal. Jones presented this argument on direct appeal, both to
the Colorado Court of Appeals and to the Colorado Supreme Court in his petition
for a writ of certiorari.
The problem is that Jones did not make this argument before the federal
district court. Jones’s second and final argument in his § 2254 petition was that
his conviction violated the Eighth and Fourteenth Amendments because the
Colorado courts lacked jurisdiction to convict him for escaping from what was an
illegal parole; he did not make a claim under the Sixth Amendment, argue that the
trial court’s evidentiary ruling deprived him of a fair trial, or challenge the
constitutionality of Rule 403. The factual basis behind Jones’s contention that his
parole was illegal also seems to have changed. Jones complained to the district
-5-
court that he was placed on parole by a parole officer, as opposed to a judge, and
that the parole officer lacked authority to make that decision. In his application
to this court, however, Jones seems to argue that his parole was illegal because of
a time computation error of some sort. As this court has repeatedly held, we will
not consider an issue not raised in the initial § 2254 petition to the district court.
See, e.g., Ochoa v. Workman, 669 F.3d 1130, 1146 n.15 (10th Cir. 2012);
Mehdipour v. Parker, 188 F. App’x 716, 720 (10th Cir. 2006).
III. Conclusion
For the reasons given above, Jones’s application for a COA is DENIED and
the appeal is DISMISSED. We also DENY his request to proceed in forma
pauperis.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
-6-