Rouse v. New Mexico Corrections Department , 597 F. App'x 1010 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 12, 2015
Elisabeth A. Shumaker
Clerk of Court
XEZAKIA ROUSE,
Petitioner - Appellant,
No. 14-2212
v.
(1:13-CV-01246-JCH-GBW)
(D. N.M.)
STATE OF NEW MEXICO
CORRECTIONS DEPARTMENT,
Respondent - Appellee.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
AND DISMISSING THE APPEAL
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
This appeal grew out of an application for habeas relief by Mr.
Xezakia Rouse. In the application, Mr. Rouse challenged his underlying
conviction based on two claims of ineffective assistance of counsel,
alleging failures to appeal and to urge dismissal of the charges based on
violation of the Interstate Agreement on Detainers Act. The district court
dismissed the application without prejudice, holding that the ineffective
assistance claims had not been exhausted in state court.
Mr. Rouse requests a certificate of appealability to appeal the denial
of habeas relief. Because no reasonable jurist would find the claim
exhausted, we hold that Mr. Rouse is not entitled to a certificate of
appealability. Thus, we dismiss the appeal.
I. Standard for a Certificate of Appealability
To appeal, Mr. Rouse needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A). For the certificate, Mr. Rouse must show that reasonable
jurists could find the district court’s ruling on exhaustion debatable or
wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).
II. Exhaustion of State Court Remedies
Federal law requires exhaustion of state court remedies. 28 U.S.C.
§ 2254(b)(1)(A). To exhaust the claims, Mr. Rouse must “fairly present”
the substance to the state’s highest court, giving it a fair opportunity to
decide the merits. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
In a prior habeas case, the district court held that the same two issues
were unexhausted. Rouse v. Romero, No. 11-cv-405-JCH/SMV (D. N.M.
June 25, 2013) (Dkt. 157) (unpublished). We dismissed a later appeal,
holding that the district court’s ruling on exhaustion was not reasonably
debatable. Rouse v. Romero, 531 F. App’x 907 (10th Cir. 2013)
(unpublished).
Since this ruling, Mr. Rouse filed a new habeas petition in the state
supreme court. But, he did not allege ineffective assistance of counsel
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based on the attorney’s failure to appeal or to invoke the Interstate
Agreement on Detainers Act. The New Mexico Supreme Court later denied
relief, but had no reason to address the ineffectiveness claims involving
the failure to appeal or invoke the Interstate Agreement on Detainers Act.
Thus, Mr. Rouse has not presented the ineffective assistance claims to the
state supreme court since our determination that the claims were
unexhausted.
In these circumstances, we again conclude that reasonable jurists
could not debate the correctness of the district court’s holding on
exhaustion. Accordingly, we decline to issue a certificate of appealability
and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
For the Court
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