FILED

United States Court of Appeals

Tenth Circuit

June 15, 2009

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD ALLEN,
Petitioner - Appellant,

No. 07-1501

v.
ARI ZAVARAS, Executive Director,
DOC, and JOHN SUTHERS, Attorney
General of the State of Colorado,
Respondents - Appellees.

Appeal from the United States District Court

for the District of Colorado
(D.C. No. 07-CV-02052-ZLW)

Robert Seldis Berger of Robert S. Berger, P.C., Denver, Colorado for Petitioner Appellant.
Laurie Booras, First Assistant Attorney General, (John W. Suthers, Attorney
General of the State of Colorado with her on the briefs), Denver, Colorado, for
Respondents - Appellees.

Before LUCERO, ANDERSON and OBRIEN, Circuit Judges.

OBRIEN, Circuit Judge.

Edward Allen appeals from the district courts sua sponte dismissal of his
28 U.S.C. 2254 petition for failure to exhaust state remedies. We grant a
certificate of appealability (COA) on a single, narrow issuewhether the district
court erred in sua sponte dismissing Allens habeas petition without requesting a
response from the government. We affirm.
I. BACKGROUND
Allen was convicted in state court of three counts of sexual assault on a
child by a person in a position of trust and was sentenced to three concurrent
indeterminate terms of ten years to life in prison. His conviction was affirmed by
the Colorado Court of Appeals and the Colorado Supreme Court denied his
petition for writ of certiorari.
In Colorado, a request for post-conviction relief is usually initiated by a
petition for writ of habeas corpus filed with the state district court. See Colo. R.
Crim P. 35(c)(3). Allen, however, filed his pro se petition with the Colorado
Supreme Court. While unusual and seldom productive, doing so is not improper
under Colorado law. See Colo. Rev. Stat. 13-405-101(1) (If any person is
committed or detained for any criminal or supposed criminal matter, it is lawful
for him to apply to the supreme court or district courts for a writ of habeas corpus
. . . .); People ex rel. Wyse v. District Court, 503 P.2d 154, 156 (Colo. 1972) (In
Colorado, [a writ of habeas corpus] may be sought in the Supreme Court or any
district court.). Unlike the state district court, however, the Colorado Supreme
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Court is under no obligation to consider an original habeas petition. 1 See Shore v.

District Court, 258 P.2d 485, 487 (Colo. 1953) (noting the Colorado Constitution
confers original jurisdiction upon the Colorado Supreme Court to issue writs of
habeas corpus, but stating such jurisdiction is discretionary). It will exercise its
original jurisdiction only in cases of great public importance, or in cases where
not to do so would amount to a denial of justice. People v. Martinez, 22 P.3d
915, 921 (Colo. 2001) (en banc). Here, the court elected not to consider the
merits of Allens petition and denied it the day it was filed.
Allen next filed a pro se 28 U.S.C. 2254 petition for writ of habeas
corpus in federal district court, raising five challenges to his conviction.
According to the petition, he raised four of the claims on direct appeal and one in
his state habeas petition. The magistrate judge ordered Allen to show cause why
his petition should not be dismissed for failure to exhaust state remedies,
explaining:
It appears that Mr. Allen has failed to exhaust state court remedies
for all of his claims because the claim he raised in the original
proceeding in the Colorado Supreme Court was not fairly presented
to that court. If 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 a fashion does not, for the relevant
1

By contrast, the state district court is required to promptly review all

petitions for writs of habeas corpus that substantially comply with Form 4,
Petition for Postconviction Relief Pursuant to Crim. P. 35(c). Colo. R. Crim. P.
35(c)(3)(IV). Rule 35 of the Colorado Rules of Criminal Procedure delineates
specific and mandatory actions the court must take in reviewing such petitions.
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purpose, constitute fair presentation.

(R. Vol. I, Doc. 6 at 3 (quotations omitted)). The magistrates show cause order
informed Allen he could proceed on his exhausted claims, but warned that his
unexhausted claim might be foreclosed because of restrictions on subsequent or
successive habeas petitions. Allen chose not to amend his petition. Rather, he
asserted in his response to the order to show cause that he had exhausted all
claims because his habeas petition was properly presented to the Colorado
Supreme Court pursuant to Colo. Rev. Stat. 13-405-101(1). He did not claim
(indeed, he would be hard pressed to claim) the Supreme Court considered the
merits of his petition.
The district court reviewed Allens response and dismissed his petition
without prejudice for failure to exhaust state remedies. The court held:
[B]ecause the Colorado Supreme Court declined to address the merits
of the claims Mr. Allen raised in his original petition for a writ of
habeas corpus, that petition does not constitute fair presentation of
the claims asserted . . . . Even assuming that Mr. Allen properly
exhausted state court remedies for his four other claims in his direct
appeal, the instant action still must be dismissed as a mixed petition
because he failed to exhaust state court remedies for the fifth claim.
(R. Vol. I, Doc. 9 at 4.)
The district court also denied Allens motion for leave to proceed in forma
pauperis (ifp) on appeal and denied a COA. We appointed counsel for Allen and
invited counsel to brief and seek a COA on any issue counsel deemed to have
potential merit, expressing an interest in the impact of Jones v. Bock, 549 U.S.
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199 (2007), in the habeas context. 2 In his supplemental brief, Allen asserts only
one claimthat the district court erred in sua sponte dismissing his petition for
failure to exhaust without requesting a response from the government. 3
II. DISCUSSION
A COA is a jurisdictional prerequisite to our review of a petition for a writ
of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue
a COA only if the applicant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. 2253(c)(2). To make such a showing, an
applicant must demonstrate that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations
omitted).
The claim Allen raises involves thoughtful consideration of Jones v. Bock,
and Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084 (10th Cir. 2008). Though
we ultimately affirm, the issue is one reasonable jurists could debate and thus,
we grant a COA. Because the question presented is purely legal, our review is de
2

The government read our order as impliedly granting a COA. Though this
was not unreasonable given the circumstances, we did not, in fact, grant a COA.
3

We do not consider the issues raised by Allen in his original filing. By

not including those issues in his supplemental brief, Allen has abandoned them.
See United States v. Santistevan, 39 F.3d 250, 256 (10th Cir. 1994) (recognizing a
partys failure to assert an issue in the briefs on appeal ordinarily constitutes a
waiver of the issue, precluding us from reviewing the merits of the claim).
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novo. 4 See Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir. 2003).
In Jones, several prisoners challenged the sua sponte dismissal of their
individual 1983 claims relating to conditions of confinement. The cases were
dismissed pursuant to various court-imposed procedural rules adopted to
implement the Prison Litigation Reform Act of 1995, 110 Stat. 1321-73, as
amended, 42 U.S.C. 1997e et seq. (PLRA or the Act). 5 The heightened

We reject Allens assertion that our review is for abuse of discretion.

Allen relies on Kilgore, but the district court dismissed Kilgores petition because
he failed to comply with two orders of the court, not because the petition was
otherwise barred. 519 F.3d at 1085. By contrast, the district court here dismissed
Allens petition for failure to exhaust, not for failure to comply with a court
order. We review for abuse of discretion a district courts dismissal for failure
to comply with a court order. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.
2003). [T]he question of whether or not a petitioner has exhausted remedies
available in the state court is a question of law . . . . Whiteley v. Meacham, 416
F.2d 36, 39 (10th Cir. 1969), revd on other grounds sub nom. Whiteley v.
Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971).
5

Congress enacted the PLRA to address the glut of non-meritorious

prisoner lawsuits. The Act was intended to reduce the quantity and improve the
quality of prisoner suits. Porter v. Nussle, 534 U.S. 516, 524 (2002). Key
among [the reforms] was the requirement that inmates complaining about prison
conditions exhaust prison grievance remedies before initiating a lawsuit. Jones,
549 U.S. at 204.
The exhaustion provision of the PLRA states:
No action shall be brought with respect to prison conditions under
[42 U.S.C. 1983], or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. 1997e(a). Requiring exhaustion allows prison officials an
opportunity to resolve disputes concerning the exercise of their responsibilities
before being haled into court. Jones, 549 U.S. at 204.
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procedures were arguably justified by the PLRAs new mandatory exhaustion

requirement as well as its use of judicial screening to filter out nonmeritorious
claims prior to requiring a defendants answer. 594 U.S. at 213.
The Court began its discussion by acknowledging exhaustion is mandatory
under the PLRA and . . . unexhausted claims cannot be brought in [federal]
court. Id. at 211. Nevertheless, it decided that requiring prisoners to plead
exhaustion of state remedies and applying the total exhaustion rule (dismissing
an entire suit when unexhausted claims were included) was not authorized or
justified solely by the language of the PLRA.
The Court held that because claims covered by the PLRA are typically
brought under 42 U.S.C. 1983, which does not require exhaustion at all . . . the
usual practice should be followed, and the usual practice under the Federal Rules
is to regard exhaustion as an affirmative defense. Id. at 212. Thus, exhaustion
need not be pled in the complaint, but must be alleged in the answer. Id. at 216.
The Court noted: Although exhaustion was a centerpiece of the PLRA failure
to exhaust was not included in the statutes list of reasons to dismiss a petition.
Id. at 214. 6
The Jones Court also said a court confronted with a mixed complaint

Sua sponte dismissal under the PLRA is warranted if an action is

frivolous, malicious, fails to state a claim, or seeks monetary relief from a
defendant immune from such relief. Jones, 549 U.S. at 214 (citing 28 U.S.C.
1915A(b); 42 U.S.C. 1997e(c)(1)).
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should consider the exhausted claims and dismiss the remainder. Id. at 221. In so
holding, the Court specifically distinguished Rose v. Lundy, 455 U.S. 509, 520
(1982), in which the Court held a federal district court must dismiss habeas
petitions containing both exhausted and unexhausted claims. Rose is not affected
by Jones. 7
Kilgore was a habeas case involving timeliness, not exhaustion. We
considered whether, in light of Jones [ ], a district court can require a state
habeas petitioner to establish in his or her 2254 application that the application
is timely. 519 F.3d at 1085. We recognized Jones did not directly control in the
habeas context, but found its reasoning helpful. We held:
[T]he court may not dismiss [a 2254] petition sua sponte simply
because it lacks sufficient information to determine whether the
application has been timely filed. A petitions untimeliness must
either be pled by the government as an affirmative defense, or be
clear from the face of the petition itself.
Id. at 1089 (emphasis added). We reasoned a heightened pleading requirement
7

In Rhines v. Weber, the Court provided limited options to a district court

faced with a mixed habeas petition. 544 U.S. 269, 275 (2005). A district court
may stay a mixed habeas petition pending exhaustion of unexhausted claims. The
Court cautioned, however, stay and abeyance should be available only . . . when
the district court determines there was good cause for the petitioners failure to
exhaust and where the unexhausted claims are not plainly meritless. Id. at
277. [I]f a petitioner presents a district court with a mixed petition and the court
determines that stay and abeyance is inappropriate, the court should allow the
petitioner to delete the unexhausted claims and to proceed with the exhausted
claims if dismissal of the entire petition would unreasonably impair the
petitioners right to obtain federal relief. Id. at 278. Allen did not amend his
petition and does not challenge the district courts decision to dismiss his mixed
petition instead of to stay and abey.
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would be inconsistent with other aspects of the habeas scheme, which recognize
the practical difficulties petitioners face in bringing their claims. Id. at 1088.
Given this history, Allen asks us to extend Jones and Kilgore by holding a
district court cannot sua sponte dismiss a habeas petition for failure to exhaust
unless the government pleads failure to exhaust as an affirmative defense or
unless the petitioners failure to exhaust is clear from the face of the petition.
There are good reasons to distinguish between exhaustion in the PLRA
context and the habeas context. First, as the Court recognized in Jones, [t]he
PLRA itself is not a source of a prisoners claim; claims covered by the PLRA are
typically brought under 42 U.S.C. 1983, which does not require exhaustion at
all. 594 U.S. at 212 (citation omitted). By contrast, the habeas statute
specifically requires exhaustion. See 28 U.S.C. 2254 (b)(1)(A) (An application
for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that [ ] the
applicant has exhausted the remedies available in the courts of the State . . . .).
Moreover, the PLRA does not list failure to exhaust in its enumeration of
the authorized grounds for dismissal. Jones, 594 U.S. at 214. By contrast, Rule 4
of the Federal Rules of Habeas Corpus expressly requires a habeas petition be
dismissed [i]f it plainly appears from the petition and any attached exhibit that
the petitioner is not entitled to relief in the district court. And notably, 28
U.S.C. 2254(b)(3) establishes a statutory presumption that a state has not and
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will not waive the exhaustion requirement in the habeas context: A State shall
not be deemed to have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through counsel, expressly waives
the requirement.
There are also differences between the exhaustion requirement at issue here
and the timeliness requirement at issue in Kilgore. As Justice Scalia noted in his
dissent in Day v. McDonough, habeas practice included no statute of limitations
until 1996. 547 U.S. 198, 212 (2006) (Scalia, J., dissenting). 8 The exhaustion
requirement, on the other hand, was created by the habeas courts themselves, in
the exercise of their traditional equitable discretion because [it was] seen as
necessary to protect the interests of comity and finality that federal collateral
review of state criminal proceedings necessarily implicates. Id. at 214 (citation
omitted); see also United States v Mitchell, 518 F.3d 740, 746 n.8 (10th Cir.

In Day, the Court considered whether a district court may dismiss a

federal habeas petition as untimely under AEDPA, despite the States failure to
raise the one-year limitation in its answer to the petition or its erroneous
concession of the timeliness issue. 547 U.S. at 205. The Court answered this
question in the affirmative, though noting:
[B]efore acting on its own initiative, a court must accord the parties
fair notice and an opportunity to present their positions. Further, the
court must assure itself that the petitioner is not significantly
prejudiced by the delayed focus on the limitations issue, and
determine whether the interests of justice would be better served by
addressing the merits or by dismissing the petition as time barred.
Id. at 210 (quotations and citations omitted).
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2008) (noting [s]ua sponte consideration of exhaustion of state remedies . . . is

explicitly permitted by Supreme Court precedent) (citing Granberry v. Greer,
481 U.S. 129, 133 (1987); Caspari v. Bohlen, 510 U.S. 383, 389 (1994)).
Despite these considerations, the extension Allen seekslimiting a district
courts discretion to dismiss a habeas petition for failure to exhaust to those
situations where the government pleads failure to exhaust as an affirmative
defense or the petitioners failure to exhaust is clear from the face of the
petitionmay not be unreasonable, see Granberry, 481 U.S. at 131 (exhaustion is
not jurisdictional); 28 U.S.C. 2254(b)(3) (authorizing express waiver by
government), but that does not make it appropriate. We need not decide the
matter, however, because even if we were to so hold, dismissal of Allens petition
would still have been proper because his failure to exhaust was clear from the
face of his petition.
In his petition, Allen averred he filed his state court petition in the
Colorado Supreme Court (as opposed to the state district court) and it was denied
on the same day it was filed. From these facts alone, the district court correctly
determined Allen had not exhausted his state remedies. In Castille v. Peoples, the
United States Supreme Court concluded the petitioner failed to exhaust state
remedies by using a discretionary procedurefiling his habeas petition with the
Pennsylvania Supreme Court. 489 U.S. 346, 351 (1989). The Court held where
the claim has been presented for the first and only time in a procedural context in
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which its merits will not be considered unless there are special and important
reasons therefor, raising the claim in such a fashion does not, for the relevant
purpose, constitute fair presentation. Id. (quotations and citation omitted); see
also Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (applying
Castille and holding petitioners presentation of his claim to the Wyoming
Supreme Court via a petition for writ of certiorari was . . . ineffective to exhaust
his state remedies).
This rule is equally applicable here because the Colorado Supreme Court,
in its discretion, may or may not consider a petition for writ of habeas corpus.
See Shore, 258 P.2d at 487. Discretion is exercised to deal with exceptional, not
routine, matters; it is the functional equivalent of special and important reasons.
See People v. Martinez, 22 P.3d 915, 921 (Colo. 2001) (en banc) (This court has
stated that it will not exercise its original jurisdiction except in cases of great
public importance, or in cases where not to do so would amount to a denial of
justice.). The Colorado Supreme Court elected not to consider the merits of
Allens petition, denying it without comment the day it was filed. Because
Colorado District Courts have no discretion to pass on a properly filed habeas
petition, see supra note 1, use of that forum is required for exhaustion unless the
Colorado Supreme Court actually considers the merits of a habeas petition.
The federal district court did not require Allen to plead exhaustion. It did
give him an opportunity to respond to a problem obvious from the face of his
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pleadings. 9 In doing so, the court abided the Supreme Courts instruction that
before acting on its own initiative, a court must accord the parties fair notice and
an opportunity to present their positions. 10 Day, 547 U.S. at 210. Allowing
Allen to respond eliminated the risk that his habeas petition would be erroneously
dismissed on exhaustion grounds.
Allen contends the court should have required the government to respond to
his petition, thus allowing it to choose whether to waive exhaustion or assert it as
an affirmative defense. He argues: If the state had the opportunity to review this
claim, it may have concluded that the wisest course was to seek a ruling on the
merits rather than dismissal without prejudice . . . . (Appellants Br. at 6.) That
is highly speculative. In any event, regardless of what the State of Colorado
might conceivably have done at an earlier stage in the proceedings, it does not
now waive exhaustion; it requests we affirm the dismissal of Allens petition.
We GRANT Allens request to proceed ifp. We GRANT a COA on the
limited issue presented, and AFFIRM the dismissal of Allens habeas petition.

That the court may have researched Colorado law to arrive at its
conclusion is of no importwhat is prohibited is further inquiry into the facts, at
least where the petitioner does not have access to or knowledge of those facts, not
the law.
10

This would be a different case if the district court had dismissed Allens
petition without providing him with notice and allowing him a chance to present
his position.
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