Welch v. Milyard ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 18, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DANIEL WELCH,
Petitioner-Appellant,
v.
No. 11-1214
(D.C. No. 1:11-CV-00548-LTB)
KEVIN L. MILYARD; THE
(D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Daniel Welch, a Colorado state inmate proceeding pro se, 1 seeks a
certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1)(A) so that
*
This Order is not binding precedent except under the doctrines of law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 appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Mr. Welch 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).
he may challenge the district court’s denial of his application for a writ of habeas
corpus under 28 U.S.C. § 2254. Mr. Welch also moves for leave to proceed in
forma pauperis on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and
2253(a), we deny Mr. Welch’s application for a COA and dismiss this appeal.
We also deny Mr. Welch’s request to proceed in forma pauperis.
BACKGROUND
In October 2005, Mr. Welch pleaded guilty to one count of Sexual Assault
of a Child—Pattern of Abuse, in violation of Colo. Rev. Stat. § 18-3-405(1) and
(2)(d), and was sentenced to twenty years’ imprisonment. His conviction was
affirmed on direct appeal, and the Colorado Supreme Court denied certiorari on
December 31, 2007. At each stage, Mr. Welch raised a single issue: whether
“[t]he trial court abused its discretion when it failed to consider all [the] relevant
sentencing factors[] and exclusively focused on the harm to the victim[] when
sentencing” him. R. at 88 (Aplt.’s Opening Br. in People v. Welch, No.
06CA0358).
Shortly after the Colorado Supreme Court denied review of his direct
appeal, Mr. Welch filed a motion for reconsideration of his sentence pursuant to
Colorado Criminal Procedure Rule 35(b), which the district court promptly denied
in May 2008. A subsequent motion for correction of an illegal sentence filed
pursuant to Colorado Criminal Procedure Rule 35(a) also was denied in February
2009.
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Mr. Welch appealed the denial of his Rule 35(a) motion, arguing that his
sentence—which had been enhanced by virtue of its designation as both an
extraordinary-risk crime and a per se crime of violence—violated the principles
laid down in both Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004). The Colorado Court of Appeals affirmed,
concluding that Mr. Welch’s “Apprendi/Blakely claim . . . is barred because he
could have raised it on direct appeal.” R. at 67 (People v. Welch, No. 09CA0436
(Colo. App. June 17, 2010) (unpublished opinion)) (citing Colo. R. Crim. P.
35(c)(3)(VII)). It further determined that Mr. Welch’s claim would fail regardless
because the “Apprendi/Blakely principles are not implicated here because . . .
[Mr. Welch’s] sentence is within the special penalty range for a class three felony
that is both an extraordinary risk crime and a crime of violence.” Id. at 68.
Following denial of his petition for certiorari to the Colorado Supreme
Court, Mr. Welch initiated the instant habeas proceeding in the United States
District Court for the District of Colorado. In his application for relief, Mr.
Welch asserted a variety of claims, only two of which alleged a federal
constitutional violation, as is required for relief under 28 U.S.C. § 2254. See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.”). Those claims were: (1) that Mr. Welch’s “twenty-year sentence
violates . . . his Sixth Amendment right to trial by jury as articulated in” Apprendi
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and Blakely; and (2) “that his guilty plea was not entered into knowingly and is
invalid because he was not advised of the statutory extraordinary risk or crime of
violence sentencing provisions.” Id. at 127 (Order of Dismissal, filed Apr. 27,
2011). As to his second claim, he also asserted that “he did not admit to a factual
basis to support the sentence imposed.” Id.
The district court denied Mr. Welch’s application for habeas relief,
concluding that both claims were procedurally barred, and that Mr. Welch had
shown neither the cause nor the prejudice necessary for a federal court to consider
his procedurally barred claims. In addition, it denied him a COA. Mr. Welch
now seeks leave from this court to challenge the district court’s decision.
STANDARD OF REVIEW
“A COA is a jurisdictional pre-requisite to our review,” Clark v. Oklahoma,
468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322,
336 (2003)); accord 28 U.S.C. § 2253(c)(1)(A), and we will grant a COA “only
‘if the applicant has made a substantial showing of the denial of a constitutional
right,’” United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting 28
U.S.C. § 2253(c)(2)). To make such a showing, an applicant must demonstrate
“that reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” United States v. Taylor, 454 F.3d
1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484
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(2000)) (internal quotation marks omitted). Put differently, to satisfy this
standard an applicant must show that the district court’s resolution of the
applicant’s constitutional claims was either “debatable or wrong.” Slack, 529
U.S. at 484. Furthermore, where the district court denied the applicant relief “on
procedural grounds, 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.’” Coppage v. McKune, 534
F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484).
DISCUSSION
Before this court, Mr. Welch reasserts both his claim that application of
Colorado’s aggravated sentencing range for extraordinary-risk crimes and per se
crimes of violence contravened the principles of Apprendi and Blakely, as well as
his claim that he was denied due process when the court allowed him to plead
guilty without adequate advisement concerning the consequences of these
aggravated factors. 2 Our review of Mr. Welch’s claims is circumscribed by the
2
Beyond these two challenges, Mr. Welch also hints at additional
claims, including: an ineffective-assistance-of-counsel claim, see Aplt.’s
Combined Opening Br. & Appl. for COA at 10 [hereinafter Aplt.’s Combined Br.]
(“Mr. Welch was relying on his attorney to adequately represent him, and by
raising [only a frivolous] claim that the Court had clearly already taken into
consideration [on direct appeal], no real issue was presented, such as [his] current
claims [for habeas relief], and he was not provided effective assistance.”); an
equal-protection claim, see id. at 14–15 (“As being one similarly situated [to the
(continued...)
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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which
“strictly limits a federal court’s ability to consider issues on habeas review that
the state court deemed procedurally barred.” Hammon v. Ward, 466 F.3d 919,
925 (10th Cir. 2006). Under AEDPA, a federal court may not consider “[c]laims
that are defaulted in state court on adequate and independent state procedural
grounds . . . unless the petitioner can demonstrate cause and prejudice or a
fundamental miscarriage of justice.” Fairchild v. Workman, 579 F.3d 1134, 1141
(10th Cir. 2009) (quoting Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.
2008)) (internal quotation marks omitted). Consequently, in addition to raising
2
(...continued)
defendants in several other cases], and not being afforded the same opportunity
and application of the law, [why] does this [court] continue to deny Mr. Welch his
rights to due process and equal protection of the law?”); and an illegal-sentencing
claim, see id. at 11 (“[N]o Bill of Particulars was filed by the prosecution
specifying a specific date of offense[, and] [t]he prosecution [later] . . . brought
the Appellant’s date inside the crime of violence sentencing range for the pattern
enhanced counts.”).
Because he did not raise these arguments before the district court,
ordinarily we would deem them to be waived. See, e.g., United States v. Windrix,
405 F.3d 1146, 1156 (10th Cir. 2005) (declining to address an issue that the party
“did not argue in district court,” because “in general we will not consider an
argument not raised below,” and “he d[id] not argue on appeal that any special
circumstance requires us to address this contention despite lack of preservation
below”); Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (deeming claims
made by a habeas petitioner “that he did not raise in the district court” to be
waived). Mr. Welch does not now argue that we should review these claims for
plain error; therefore, they are in fact waived, and we give them no further
consideration. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (2011)
(“[T]he failure to argue for plain error and its application on appeal[ ]surely
marks the end of the road for an argument for reversal not first presented to the
district court.”).
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anew his two substantive claims, Mr. Welch also takes issue with the district
court’s conclusion that his two claims are procedurally barred.
I. Apprendi/Blakely Claim
The heart of Mr. Welch’s first argument is that application of Colorado’s
aggravated sentencing range for extraordinary-risk crimes and per se crimes of
violence violated his Sixth Amendment right to have a jury decide facts that
ultimately exposed him to a greater range of punishment. See Apprendi, 530 U.S.
at 490 (“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”). The Colorado Court of
Appeals refused to consider this challenge in Mr. Welch’s Rule 35(a) appeal on
the ground that it was not first raised on direct appeal. See R. at 67 (“We agree
with the People that defendant’s Apprendi/Blakely claim . . . is barred because he
could have raised it on direct appeal.” (citing Colo. R. Crim. P. 35(c)(3)(VII))).
The district court subsequently dismissed this claim as procedurally barred.
Reasonable jurists could not disagree with this conclusion.
“Federal habeas courts are prohibited from ‘review[ing] a question of
federal law decided by a state court if the decision of that court rests on a state
law ground that is independent of the federal question and adequate to support the
judgment.’” Burton v. Atherton, 613 F.3d 973, 989 (10th Cir. 2010) (alteration in
original) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)), cert. denied,
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131 S. Ct. 1783 (2011); accord Byrd v. Workman, — F.3d —, 2011 WL 2084204,
at *5 (10th Cir. 2011). Under Colorado law, a claim that a defendant’s sentence
violated the principles of Apprendi and Blakely must be brought on direct review;
if not, Rule 35(c) prevents the state courts from considering it in the post-
conviction setting. See Colo. R. Crim. P. 35(c)(3)(VII) (instructing courts to
“deny any claim [for post-conviction relief] that could have been presented in an
appeal previously brought or postconviction proceeding previously brought”
except in certain enumerated and inapplicable circumstances); cf. People v.
Glasser, — P.3d —, 2011 WL 1168286, at *11 (Colo. App. 2011) (reversing and
remanding for resentencing based on an Apprendi/Blakely claim raised on direct
appeal); People. v. LePage, — P.3d —, 2011 WL 544019, at *9–10 (Colo. App.
2011) (rejecting defendant’s Apprendi/Blakely claim on direct appeal). Thus, the
district court reasoned that Rule 35(c)—by virtue of Mr. Welch’s failure to raise
the Apprendi/Blakely issue on direct appeal—provided an “adequate and
independent” state law ground for dismissing this claim. See R. at 131 (“The
Court finds that Mr. Welch’s Apprendi claim was defaulted in the state appellate
court on an independent and adequate state procedural ground.” (citing Colo. R.
Crim. P. 35(c)(3)(VII))).
In resisting this conclusion, Mr. Welch does not challenge either the
adequacy or the independence of the state procedural ground; he insists instead
that he has “continuously attempted” to assert his Apprendi/Blakely claim
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throughout his state-court proceedings, thereby making application of this rule
inappropriate. Aplt.’s Combined Br. at 6. However, he points to nothing in the
record that suggests that he raised this issue in his filings on direct appeal—the
only filings that matter for purposes of Rule 35(c)(3)(VII). Moreover, our
independent review of his state-court briefs confirms that the only issue raised
was whether “[t]he trial court abused its discretion when it failed to consider all
[the] relevant sentencing factors[] and exclusively focused on the harm to the
victim[] when sentencing” him. R. at 88 . As a result, Mr. Welch has injected no
doubt into the district court’s determination that these claims were procedurally
defaulted.
Furthermore, we agree with the district court that Mr. Welch has not shown
the cause and prejudice necessary to excuse this default, nor has he shown that
failure to consider this claim will result in a fundamental miscarriage of justice.
See Coleman, 501 U.S. at 750 (“In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.”); accord
Smith, 550 F.3d at 1274.
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Mr. Welch asserts that the “cause” of his procedural default is ineffective
assistance of counsel. See Aplt.’s Combined Br. at 10 (“Mr. Welch was relying
on his attorney to adequately represent him, and by raising [a single, frivolous]
claim that the Court had clearly already taken into consideration, no real issue
was presented . . . and he was not provided effective assistance.”). However, Mr.
Welch did not present a separate and independent claim of ineffective assistance
of direct-appeal counsel to the state courts. Accordingly, in this habeas
proceeding, he is barred from asserting this alleged ineffective assistance as cause
to excuse his procedural default. See Murray v. Carrier, 477 U.S. 478, 488–89
(1986) (“[W]e think that the exhaustion doctrine, which is ‘principally designed
to protect the state courts’ role in the enforcement of federal law and prevent
disruption of state judicial proceedings,’ generally requires that a claim of
ineffective assistance be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” (quoting Rose
v. Lundy, 455 U.S. 509, 518 (1982))); see also Livingston v. Kansas, 407 F.
App’x 267, 273 (10th Cir. 2010) (holding that petitioner’s “fail[ure] to raise the
ineffectiveness of his direct-appeal counsel to the [state courts] in his post-
conviction petition[] . . . preclud[ed] him from asserting it as ‘cause’ for his
procedural default” (citing Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000)));
Gonzales v. Hartley, 396 F. App’x 506, 508–09 (10th Cir. 2010) (“[B]efore Mr.
Gonzales can use ineffective assistance of trial or appellate counsel to establish
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cause for his procedural default, he must first present this argument as an
independent claim to the state court.” (citing Murray, 477 U.S. at 488–89)).
Moreover, Mr. Welch has made no argument as to why our failure to
consider his claim would result in a fundamental miscarriage of justice. That is,
he has made no claim of being actually innocent of the underlying substantive
crime. See Dretke v. Haley, 541 U.S. 386, 393 (2004) (noting that a “fundamental
miscarriage of justice” is “a narrow exception to the cause requirement where a
constitutional violation has ‘probably resulted’ in the conviction of one who is
‘actually innocent’ of the substantive offense” (quoting Murray, 477 U.S. at
496)). Reasonable jurists could not disagree, therefore, with the district court’s
resolution of this claim—it is procedurally barred. Consequently, we deny him a
COA on this issue.
II. Unknowing Plea Claim
Mr. Welch’s second claim is that his plea was not knowing because he was
not notified of the “presumptive range enhancers” prior to entry of his guilty plea.
Aplt.’s Combined Br. at 4. The district court concluded that Mr. Welch had failed
to raise this argument before the state courts, and that the Colorado Rules of
Criminal Procedure would now prohibit him from raising such a claim. As a
result, it dismissed this claim as procedurally defaulted. Again, we conclude that
reasonable jurists could not disagree with the district court’s resolution of this
claim.
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Prior to our consideration of a claim on habeas review, an applicant must
first exhaust his claims in state court. 28 U.S.C. § 2254(b)(1)(A); see Cone v.
Bell, 129 S. Ct. 1769, 1780 (2009) (acknowledging “the longstanding requirement
that habeas petitioners must exhaust available state remedies before seeking relief
in federal court”). In order to exhaust a claim, the applicant “must ‘fairly
present’ his claim in each appropriate state court . . . , thereby alerting that court
to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(quoting Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam)); see
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining that the exhaustion
requirement dictates that a § 2254 petitioner “must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process,” including discretionary
review by the State’s highest court); Wilson v. Workman, 577 F.3d 1284, 1294
(10th Cir. 2009) (en banc) (“The allegations and supporting evidence must offer
the state courts a fair opportunity to apply controlling legal principles to the facts
bearing upon his constitutional claim.” (emphasis added) (quoting Anderson v.
Harless, 459 U.S. 4, 6 (1982) (internal quotation marks omitted)).
If an applicant fails to exhaust his available state-court remedies and state
courts “‘would now find the claims procedurally barred[,]’ the claims are
considered exhausted and procedurally defaulted for purposes of federal habeas
review.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (emphasis
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added) (quoting Coleman, 501 U.S. at 735 n.1); accord Demarest v. Price, 130
F.3d 922, 939 (10th Cir. 1997); see also Woodford v. Ngo, 548 U.S. 81, 92–93
(2006) (“In habeas, state-court remedies are described as having been ‘exhausted’
when they are no longer available, regardless of the reason for their
unavailability. . . . [I]f the petitioner procedurally defaulted those claims, the
prisoner generally is barred from asserting those claims in a federal habeas
proceeding.”).
A careful review of the relevant state-court filings reveals no hint of Mr.
Welch’s plea-related claim, thus indicating that he failed to exhaust it. Mr.
Welch does not suggest that he raised this argument on direct appeal. Moreover,
he appears to concede that he did not explicitly raise this argument in his appeal
from the denial of his Rule 35(a) motion either. He admits “that he only made a
brief reference to th[is] claim[] [in] his Opening Brief,” 3 and that “precise
language was not used when he initiated [this] claim[] to the State Courts.”
Aplt.’s Combined Br. at 5–6. Still, he believes that a single, cryptic reference to
due process, divorced from any reference to the knowing nature of his plea,
should be sufficient to deem this claim exhausted. Mr. Welch argues that he was
3
Mr. Welch is apparently referring to his statement in his opening
brief that he “was not properly charged with crime[ ]of violence or extraordinary-
risk enhancers to have notice consistant [sic] with due process requirements.” R.
at 111. In the context of his Apprendi/Blakely argument, and without referencing
his plea, Mr. Welch also inscrutably noted that he “had not been advised” of “the
extraordinary risk crime enhancement.” Id. at 113.
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entitled to “rely[] on the[] [court’s] judicial power and understanding of the law
and presume[] that [it] would be able to interpret the message he was trying to
convey and . . . would rule accordingly.” Id. at 5. He is mistaken.
Exhaustion—and hence fair presentation—is a question of federal law. See
Castille v. Peoples, 489 U.S. 346, 349–50 (1989) (“[W]e address again what has
become a familiar inquiry: ‘To what extent must the petitioner who seeks federal
habeas exhaust state remedies before resorting to the federal court?’” (quoting
Wainwright v. Sykes, 433 U.S. 72, 78 (1977))); 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and Procedure § 23.3[a], at 1202 n.1
(6th ed. 2011) (noting that “the definition of exhaustion is a matter of federal
law”); cf. Johnson v. Cowley, 40 F.3d 341, 344 (10th Cir. 1994) (“Whether a
petitioner has procedurally defaulted his federal claims is a question of federal
law.”). Nevertheless, our analysis is furthered by an examination of the level of
pleading specificity that the Colorado courts have demanded of pro se litigants.
See Hertz & Liebman, supra, § 23.3[a], at 1202 (noting that the fair-presentation
requirement is generally satisfied when petitioner presents “the federal claim to
the appropriate state courts in the manner required by state law” (emphasis
added)); cf. Boyle v. McKune, 544 F.3d 1132, 1136 (10th Cir. 2008) (“To
determine whether a petitioner has shown the requisite diligence under federal
law, we look to the state law controlling at the time petitioner sought an
evidentiary hearing.”).
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Generally, the Colorado courts have required greater specificity from pro se
litigants than Mr. Welch seems to expect. Although Colorado courts construe pro
se litigants’ filings liberally, see People v. Bergerud, 223 P.3d 686, 696–97 (Colo.
2010), they are instructed “not [to] become a surrogate attorney for a pro se
litigant,” Loomis v. Seely, 677 P.2d 400, 402 (Colo. App. 1983). 4 Therefore,
Colorado courts are disinclined to fashion arguments for pro se litigants from
cryptic references to constitutional wrongs. See, e.g., Manka v. Martin, 614 P.2d
875, 878 (Colo. 1980) (“Appellants claim that they believed they were identifying
the issue at the trial level by citing 42 U.S.C. [§] 1983 in their complaints. A
mere recitation of 42 U.S.C. [§] 1983, a federal statute recognizing a cause of
action in a citizen of the United States arising from a deprivation of constitutional
rights, is not sufficient to identify as an issue the constitutionality of particular
Colorado statutes.”).
4
This approach is in harmony with our own. See Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[O]ur role is not to act as [a pro
se litigant’s] advocate.”); United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009) (“[B]ecause Pinson appears pro se, we must construe his
arguments liberally; this rule of liberal construction stops, however, at the point
at which we begin to serve as his advocate.”), cert. denied, 130 S. Ct. 1548
(2010); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (stating that
although “[a] pro se litigant’s pleadings are to be construed liberally,” it is not
“the proper function of the district court to assume the role of advocate for the
pro se litigant”); see also Schwartz v. N.M. Corr. Dept. of Prob. & Parole, 384 F.
App’x 726, 729 (10th Cir. 2010) (noting that, although we construe pro se
litigants’ filings liberally, “[t]his liberal treatment is not without limits”).
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Mr. Welch bears the burden of proof to establish fair presentation. See,
e.g., 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.”).
It is a burden he has clearly failed to meet. Our review of the record satisfies us
that Mr. Welch’s single, isolated reference to “due process” in his Rule 35(a)
appeal, free from any context, did not fairly present this federal constitutional
claim to the state courts, and therefore—as the district court concluded—this
claim is unexhausted. See, e.g., People v. McNeely, 68 P.3d 540, 545 (Colo. App.
2002) (“For a defendant to fairly present a constitutional claim, the court must
‘surely be alerted’ to the constitutional argument.” (quoting Duncan, 513 U.S. at
365). 5
Furthermore, were Mr. Welch to attempt to raise this claim in the state trial
court at this juncture, it would be dismissed. Colorado prohibits successive Rule
5
In asserting that he properly presented this claim to the state courts,
Mr. Welch cites arguments he made in his reply brief and in his petition for
rehearing in his Rule 35(a) appeal. Even assuming that the arguments were
squarely presented in both filings, that would not prove exhaustion. Colorado
courts do not consider claims raised for the first time in either a reply brief or a
petition for rehearing. See Justi v. RHO Condo. Ass’n, — P.3d —, 2011 WL
2474460, at *6 (Colo. App. 2011) (“Because we will not address issues raised for
the first time in an appellant’s reply brief, we decline to address these
arguments.”); People v. Gallagos, — P.3d —, 2010 WL 725448, at *11 (Colo.
App. 2010) (“We will not address an argument raised for the first time in
Gallagos’s petition for rehearing.”). Thus, even if Mr. Welch did raise this claim
in these filings, we are still compelled to deem it unexhausted. See, e.g., Scott v.
Franklin, 122 F. App’x 980, 983 (10th Cir. 2005) (finding unexhausted for
purposes of § 2254 claims raised for the first time in a petition for rehearing).
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35 motions, absent certain enumerated exceptions that are not applicable here.
See Colo. R. Crim. P. 35(c)(3)(VI)–(VII); see also People v. Scheer, 518 P.2d
833, 835 (Colo. 1974) (“Where a post-conviction application is filed, it should
contain all factual and legal contentions of which the applicant knew at the time
of filing, and failure to do so will, unless special circumstances exist, ordinarily
result in a second application containing such grounds being summarily denied.”).
Thus, Mr. Welch has procedurally defaulted his claim, and we may only address it
now upon a showing of cause and prejudice, or a miscarriage of justice. See
Coleman, 501 U.S. at 750; Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir. 2002)
(“Because the claim is unexhausted and would be procedurally barred under
Oklahoma law if Hain now attempted to present it to the OCCA, we need not
address it as no cause and prejudice has been alleged, and Hain cannot establish
that a fundamental miscarriage of justice would occur if the claim is not
addressed.” (citation omitted)); see also Hertz & Liebman, supra, § 26.1, at 1410
n.25 (noting that “[i]f a failure to exhaust a state remedy or remedies is deemed a
procedural default, the defaulted claim(s) may be subject to dismissal with
prejudice”). Mr. Welch, however, does not suggest any impediments that would
have prevented him from raising this claim in his state post-conviction filings, nor
does he present an intelligible miscarriage-of-justice argument. Consequently, his
claim is procedurally defaulted. In sum, Mr. Welch has failed to show that
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reasonable jurists could disagree with the district court’s resolution of this matter.
Therefore, we deny him a COA on this claim.
CONCLUSION
For the foregoing reasons, we DENY Mr. Welch’s application for a COA
and DISMISS his appeal. Further, as Mr. Welch has failed to present a reasoned,
nonfrivolous argument on appeal, we also DENY his motion for leave to proceed
in forma pauperis. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812
(10th Cir. 1997).
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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