FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 10, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
AZLEN ADIEU FARQUOIT MARCHET,
Petitioner - Appellant,
v. No. 20-4134
(D.C. No. 2:18-CV-00578-TC)
LARRY BENZON, (D. Utah)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Azlen Marchet, a Utah state prisoner appearing pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254
application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A). He also seeks
leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we deny both requests and dismiss this matter.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
Because Mr. Marchet is pro se, we construe his filings liberally, but we do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
I. BACKGROUND
In 2009, a Utah district court sentenced Mr. Marchet to five years to life in prison
on a rape conviction. {ROA at 222.} The Utah Court of Appeals affirmed his
conviction, and the Utah Supreme Court denied certiorari. State v. Marchet, 284 P.3d
668 (Utah Ct. App. 2012), cert. denied, 288 P.3d 1045 (Utah 2012). Mr. Marchet then
filed two petitions for post-conviction relief. Both were dismissed on summary
judgment. The Utah Court of Appeals affirmed those dismissals. {ROA at 779, 830; id.
at 329, 378.} Mr. Marchet did not seek certiorari from the Utah Supreme Court on either
petition.
In 2018, while his second state post-conviction petition was pending, Mr. Marchet
filed a habeas petition in the federal district court under 28 U.S.C. § 2254. {Id. at 5.} He
filed an amended § 2254 petition after the Utah Court of Appeals summarily affirmed the
dismissal of his second state petition. {Id. at 222.}
The state moved to dismiss Mr. Marchet’s § 2254 petition, arguing the issues
raised were unexhausted and procedurally defaulted.2 {Id. at 385.} The district court
agreed and dismissed the petition. {Id. at 856.}
2
The state also argued that Mr. Marchet’s petition was not timely, but the district
court did not address this alternative ground.
2
II. DISCUSSION
A. Legal Background
Before we may exercise jurisdiction over Mr. Marchet’s appeal, he must obtain
COAs for the issues he wishes to raise. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). Where, as
here, the district court dismissed the § 2254 application on procedural grounds, we will
grant a COA only if the applicant can demonstrate both “that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
A petitioner seeking review of a state conviction under 28 U.S.C. § 2254 must first
exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A). To satisfy the
exhaustion requirement, prisoners must fairly present their claims to the state’s highest
court—either by direct appeal or in a post-conviction attack—before asserting the claims
in federal court. Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009); Brown v.
Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999). When a petitioner has failed to exhaust
his claims and “the relevant state courts would now find those claims procedurally
barred, there is a procedural default for purposes of federal habeas review.” Grant v.
Royal, 886 F.3d 874, 892 (10th Cir. 2018) (quotations omitted).
B. Analysis
Mr. Marchet cannot obtain a COA because he failed in his brief to address the
district court’s grounds for dismissing his petition. Moreover, he not only failed to
exhaust his claims in state court but those claims are also subject to anticipatory
3
procedural bar.
In its order dismissing Mr. Marchet’s petition, the district court found that none of
the grounds for relief raised in the petition were exhausted in state court. {Id. at 857-58.}
Mr. Marchet said he raised these claims in his first petition for state post-conviction
relief. {Id. at 227-32.} But even if that is so, he did not seek certiorari from the Utah
Supreme Court on either of his state post-conviction proceedings, and thus failed to
exhaust these claims.
The district court further concluded that any attempt to raise these claims in future
state habeas petitions would be procedurally barred by Utah’s Post-Conviction Remedies
Act, Utah Code Ann. § 78B-9-106(1). {Id. at 859.} The claims are thus procedurally
defaulted. Grant, 886 F.3d at 892.
In his brief to this court, Mr. Marchet does not address the district court’s
exhaustion and procedural default rulings. He thus waives any challenge to them. See
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (The rule that “[a]rguments not clearly
made in a party’s opening brief are deemed waived” applies “even to prisoners who
proceed pro se and therefore are entitled to liberal construction of their filings.”). Mr.
Marchet has not shown that reasonable jurists could debate the correctness of the district
court’s decision. He therefore is not entitled to a COA.
4
III. CONCLUSION
Mr. Marchet has not made the showing required for a COA. We therefore dismiss
this matter. We also deny his request to proceed ifp.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
5