FILED
United States Court of Appeals
Tenth Circuit
April 26, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WILLIS LEE ROUSE,
Petitioner-Appellant,
v.
No. 11-1440
(D.C. No. 1:11-CV-01401-LTB)
DOUG DARR, Warden, Adams
(D. Colo.)
County Jail; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Petitioner-Appellant Willis Lee Rouse, a state prisoner, challenges the
district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. §
*
This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
2254. Proceeding pro se, 1 Mr. Rouse now seeks a Certificate of Appealability
(“COA”) to appeal the district court’s denial of his petition. We deny his
application for a COA and dismiss this matter.
I. Background
In 2005, a Colorado state court convicted Mr. Rouse of stalking after he
pleaded guilty to the charge. 2 As a consequence of this stalking conviction, the
state court imposed a condition that Mr. Rouse had to register as a sex offender.
But Mr. Rouse failed to do so and, on August 11, 2010, he pleaded guilty to one
count of failure to register as a sex offender. The state court sentenced Mr. Rouse
to three years’ probation, but then on April 1, 2011, the state court revoked Mr.
Rouse’s probation and sentenced him to 18 months in a detention facility. Mr.
Rouse did not file a direct appeal or otherwise challenge this conviction in state
court. Instead, on May 25, 2011, Mr. Rouse filed a petition for a writ of habeas
corpus before the United States District Court for the District of Colorado
challenging his detention on the failure-to-register conviction.
Mr. Rouse raised three claims before the district court in his amended
1
Because Mr. Rouse is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
2
Mr. Rouse had asserted a defense to the stalking charge—that he was
common-law married to the minor victim. However, at that time his marriage to
the minor victim was not recognized by the State of Colorado. Later, a Colorado
court did recognize the validity of Mr. Rouse’s marriage retroactively to May 15,
2002—a date prior to Mr. Rouse’s stalking conviction.
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petition: (1) his 2005 stalking conviction is an “unlawful charge” because his
marriage to his minor wife was legal; (2) his 2010 failure-to-register conviction is
an “injustice” because his marriage to his minor wife was legal; and (3) his
constitutional right to marry has been violated.
On September 13, 2011, the district court denied Mr. Rouse’s amended
petition for two reasons. 3 First, the district court stated that Mr. Rouse failed to
exhaust his state-court remedies on his failure-to-register conviction because he
had not filed any action in Colorado state court challenging his conviction or
sentence. Although the district court noted that Mr. Rouse’s time to file a direct
appeal had lapsed, he still had time under Colorado law to seek postconviction
relief. Second, the district court stated that Mr. Rouse’s challenge to his stalking
conviction was irrelevant to his federal attack on his failure-to-register
conviction.
In addition to denying Mr. Rouse’s petition in its September 13 order, the
district court denied Mr. Rouse’s request for a COA. Mr. Rouse then filed a
timely notice of appeal. Later, the district court also denied Mr. Rouse leave to
proceed in forma pauperis on appeal.
II. Discussion
We lack jurisdiction to consider the merits of a habeas appeal unless a
3
The district court first addressed the timeliness of Mr. Rouse’s
habeas petition and found the petition to be timely because he filed it within the
one-year period of limitations provided in 28 U.S.C. § 2244(d)(1)(A).
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petitioner obtains a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). Further, where the district court denies a
petition on procedural grounds, the petitioner must demonstrate “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).
With that legal framework in mind, Mr. Rouse presents three issues in his
request for a COA: (1) he did not commit the crime of failure to register for a sex
offense; (2) he would not have pleaded guilty to the 2005 charge of stalking if (a)
he had not been wrongfully charged with “sexual assault on a child,” and (b) the
Colorado courts had not erred by initially refusing to recognize his common-law
marriage, thus depriving him of a total defense to all charges; and (3) he has been
unable to exhaust his state remedies in a timely manner because of the actions of
the Colorado Attorney General’s office.
First, as noted, Mr. Rouse argues that he was “wrongfully charged” with
the failure-to-register crime because he did not commit the crime of stalking as he
was validly married to the minor victim. Aplt. Opening Br. at 4. On this claim,
the district court held that “Mr. Rouse continues to have a state remedy for
exhausting his habeas corpus claims,” and the petition had to be dismissed for
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failure to exhaust state remedies. R. at 158 (Order of Dismissal, filed Sept. 13,
2011).
It is well-established that a state prisoner must “normally exhaust available
state judicial remedies before a federal court will entertain his petition for habeas
corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971); see Bland v. Sirmons, 459
F.3d 999, 1011 (10th Cir. 2006) (explaining that a state prisoner generally must
exhaust available state-court remedies before a federal court can consider a
habeas corpus petition by fairly presenting the claim in state court—that is, the
petitioner must have raised the “substance” of the federal claim in state court).
The exhaustion requirement is satisfied if the issues have been “properly
presented to the highest state court, either by direct review of the conviction or in
a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534
(10th Cir. 1994).
Here, we agree with the district court that it was not appropriate to consider
Mr. Rouse’s petition because he offered no evidence to show that he made any
attempt to appeal his conviction, or to file for postconviction relief in state court.
As Mr. Rouse has the burden of proof to show exhaustion, Hernandez v. Starbuck,
69 F.3d 1089, 1092 (10th Cir. 1995) (“A state prisoner bears the burden of
showing he has exhausted available state remedies.”); see also Fuller v. Baird,
306 F. App’x 430, 431 n.3 (10th Cir. 2009) (citing Hernandez for the same legal
rule), the district court was unquestionably correct in dismissing Mr. Rouse’s
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petition. And Mr. Rouse fails to show that reasonable jurists could disagree. 4
Second, Mr. Rouse argues that he was “wrongfully charged [with] sexual
assault . . . [and since his] marriage was wrongfully invalidat[ed], [he was]
stripp[ed] . . . of [his] legal defense[,] and [he] was left with no choice but to
plead guilty to [the] lesser offense[—stalking].” Aplt. Opening Br. at 4
(capitalization altered). Mr. Rouse presented this same claim to the district court,
which held that “Mr. Rouse’s collateral attack of the stalking conviction is not
relevant to his current attack on his failure to register as a sex offender.” R. at
158.
On this claim, Mr. Rouse has failed to carry his “burden [in his COA
application] of demonstrating that reasonable jurists could at least debate the
correctness of the district court’s resolution [of this claim].” Argota v. Miller,
424 F. App’x 769, 771 (10th Cir. 2011). As we have stated (and repeatedly
implied) in the COA context, it is not the role of this court to examine the details
of a particular claim without the applicant at least “identifying for our
consideration any alleged errors in the district court’s fact-finding or legal
4
Mr. Rouse’s frustration with the district court’s unwillingness to
reach the merits his claims is palpable. However, it is important to underscore
that—contrary to Mr. Rouse’s suggestion before the district court, R., Vol. 1, at
142 (Pet’r’s Reply to Pre-Answer Br., filed July 15, 2011) (noting that what
should matter is a petitioner’s innocence, not whether “technical[ities] arise, such
as exhaustion of state rem[e]dies”)—the exhaustion requirement is not just some
technicality, but rather it is grounded in the important policy of “comity,
reflecting the mutuality of respect between state and federal courts,” Demarest v.
Price, 130 F.3d 922, 943 (10th Cir. 1997).
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analysis.” Id. (citing United States v. Springfield, 337 F.3d 1175, 1178 (10th Cir.
2003) (holding that the appellant waived his claim on appeal “because he failed to
address that claim in either his application for a COA or his brief on appeal”)).
While we are fully aware of the special solicitude afforded a pro se
petitioner like Mr. Rouse, it is nevertheless “not the proper function of the . . .
court to assume the role of advocate for the pro se litigant.” DiCesare v. Stuart,
12 F.3d 973, 979 (10th Cir. 1993). Mr. Rouse mostly “reasserts in a conclusory
fashion the arguments he made before the district court,” and “does not
adequately point out why the [district court] erred” in its order of dismissal.
United States v. Celio, No. 11–1410, 2012 WL 581388, at *3 (10th Cir. Feb. 23,
2012) (unpublished). Instead, he merely pieces together “a skeletal set of facts
and legal principles that he claims entitle him to relief, without offering us any
specifics as to how the facts and law together mandate his desired result.” Id.
This is simply not enough for us to consider this particular claim.
Finally, Mr. Rouse argues that the Colorado Attorney General’s office has
“denied [him] the ability to exhaust [his] state remedies in a timely manner . . .
[because of its] failure to file [an] answer brief.” Aplt. Opening Br. at 3
(capitalization altered). In this argument, Mr. Rouse appears to blame his failure
to exhaust with regard to his failure-to-register conviction on the purported
dilatory conduct of the State’s counsel in his state collateral proceedings attacking
his stalking conviction. See R., Vol. 1, at 141 (“It amazes me that the people
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could (A.G.) file a quit[e] lengthy pre-answer brief for this court . . . and could
not keep the briefing schedu[le] [in the state collateral proceedings] . . . .”
(emphasis added)). We are hard-pressed to see the connection between these two
matters. Further, as noted, the district court concluded that Mr. Rouse’s state
challenge to his stalking conviction was not relevant to the resolution of his
habeas petition involving his failure-to-register conviction. And Mr. Rouse has
not given us any basis to believe that reasonable jurists would question the
correctness of this determination.
III. Conclusion
Having reviewed the record and Mr. Rouse’s petition, we conclude that
jurists of reason could not disagree with the district court’s resolution of his
claims. Therefore, we DENY Mr. Rouse’s request for a COA and DISMISS this
matter. Mr. Rouse’s motion for leave to proceed in forma pauperis is
GRANTED.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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