Herrera v. Jones, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
March 19, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
KEVIN HERRERA,
Petitioner-Appellant,
v.
SUSAN JONES, Colorado State
Penitentiary; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
No. 08-1396
(D. Colorado)
(D.C. No. 1:08-CV-01575-ZLW)
Respondents-Appellees.
ORDER DENYING CERTIFICATE

OF APPEALABILITY
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
This matter is before the court on Kevin Herreras pro se requests for a
certificate of appealability (COA) and to proceed on appeal in forma pauperis.
Herrera seeks a COA so he can appeal the district courts dismissal without
prejudice of his 28 U.S.C. 2254 petition. 28 U.S.C. 2253(c)(1)(A). We grant
Herreras request to proceed on appeal in forma pauperis. Because Herrera has
not, however, made a substantial showing of the denial of a constitutional right,
id. 2253(c)(2), this court denies his request for a COA and dismisses this
appeal.
Herrera was convicted in Colorado state court of one count of conspiracy to

commit murder and two counts of accessory to first degree murder; he was
sentenced to a cumulative term of forty-four years imprisonment. Herreras
convictions were affirmed on direct appeal to the Colorado Court of Appeals and
the Colorado Supreme Court denied Herreras petition for a writ of certiorari.
Herrera then filed the instant 2254 petition in federal district court raising eight
claims of constitutional error. The district court dismissed Herreras petition
without prejudice, concluding none of the claims asserted in Herreras petition
were exhausted in state court.
In particular, the district court recognized that although Herrera had
attempted to raise in state court the first seven claims set out in his 2254
petition, he had done so in a procedurally improper fashion. That is, after having
already filed a brief on direct appeal, state-court appellate counsel sought leave to
file a supplement to the opening brief raising the first seven issues set out in the
instant 2254 petition. In so doing, state-court appellate counsel informed the
Colorado Court of Appeals that Herrera was insisting the additional issues be
raised on appeal. Nevertheless, the Colorado Court of Appeals denied the motion
to supplement and struck the proposed supplement to the opening brief. Thus,
these issues were never considered on the merits in state court. Because Herrera
had not identified any applicable Colorado law authorizing the filing of
supplements to opening briefs, the district court concluded Herreras procedurally
-2-
improper attempt to raise the issues in state court did not exhaust them for
purposes of federal habeas review. Castille v. Peoples, 489 U.S. 346, 351 (1989)
(holding that a claim has been presented for the first and only time in a
procedural context in which its merits will not be considered unless there are
special and important reasons therefor, . . . [r]aising the claim in such fashion
does not . . . constitute fair presentation for purposes of the habeas exhaustion
requirement). As to the eighth claim in Herreras 2254 petition, ineffective
assistance of counsel, the district court simply noted it was unexhausted because
it was not raised on direct appeal or in any state post-conviction proceedings.
The granting of a COA is a jurisdictional prerequisite to Herreras appeal
from the dismissal of his 2255 petition. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To be entitled to a COA, Herrera must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). Where, as here,
the district court resolves a habeas petition on procedural grounds, a COA
should issue when the prisoner shows, at least, 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). Thus, because the district court resolved Herreras habeas petition on
procedural grounds, he can obtain a COA only by showing reasonable jurists
would find debatable both that (1) his petition states a valid claim of the denial of
-3-
a constitutional right, and (2) the district court was correct in its procedural
ruling. Id.
Having undertaken a review of Herreras appellate filings, the district
courts Order, and the entire record before this court, we conclude Herrera is not
entitled to a COA. The district courts well-stated dismissal without prejudice of
Herreras 2254 petition on the ground it contained unexhausted claims is not
reasonably subject to debate. Accordingly, this court DENIES Herreras request
for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-

Herrera v. Jones, 10th Cir. (2009)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Herrera v. Jones, 10th Cir. (2009)

Uploaded by

Copyright:

Available Formats

FILED

United States Court of Appeals

March 19, 2009

ORDER DENYING CERTIFICATE

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

Herrera was convicted in Colorado state court of one count of conspiracy to

You might also like