F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           June 6, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 CHARLIE GRIFFIN,

               Petitioner - Appellant,                   No. 05-1073
          v.                                        (D.C. No. 04-Z-2297)
 JOE ORTIZ, Director of D.O.C.;                         (D. Colorado)
 JAMES ABBOTT, Warden of CTCF;
 JOHN SUTHERS *, Attorney General
 of the State of Colorado,

               Respondents - Appellees.


                                         ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Applicant Charlie Gibson is in the custody of the State of Colorado serving

a sentence for second-degree assault. On October 27, 2004, he filed in the

United States District Court for the District of Colorado a pro se application for a

writ of habeas corpus under 28 U.S.C. § 2254 and a motion to proceed in forma

pauperis (IFP) under 28 U.S.C. § 1915. The application alleged that his sentence

was illegal and that he was being confined beyond the term of his sentence. All

the application said regarding exhaustion was: “I am not attorney at law and I do


      *
       Pursuant to Fed. R. App. P. Rule 43(c)(2), John Suthers is substituted for
Ken Salazar as Colorado Attorney General.
not know about exhausted any kind of state remedies, all I did was to notified the

state court what was going on with me, and let them know that’s I am being held

in illegal in prison.” R. Doc. 3 at 5.

      A magistrate judge granted the motion to proceed IFP but ordered

Applicant to file an amended application clarifying (1) the specific claims

asserted and the factual basis for the claims and (2) the specific steps taken to

exhaust the claims in state court. Responding to the order’s requirement that he

explain how his claims had been exhausted in state court, Applicant’s new

application, this time under 28 U.S.C. § 2241, stated: “I have been to all the state

court the district court and the court of appeal, and the state supreme court in

Colorado.” R. Doc. 9 at 3.

      The district court dismissed the action for failure to exhaust state remedies.

Applicant filed a notice of appeal. The district court denied his motion to proceed

IFP on appeal and sua sponte denied a certificate of appealability (COA), see 28

U.S.C. § 2253(c)(1)(B), for the reasons stated in its dismissal order.

      Applicant then applied to this court for a COA and filed a motion to

proceed IFP. He once again alleges both that his sentence was illegal and that he

is being unlawfully confined past the expiration of his sentence. Regarding

exhaustion of state remedies, Applicant writes, “I do not know if I exhaust all of

my state remedies, since the court has totally disregard my habeas-corpus and did


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not give me attorney like I ask them in my habeas-corpus I did the best that I

could do.” Application for COA at 4.

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim, 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, 

, 484

(2000). “Where a plain procedural bar is present and the district court is correct

to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” 

that in determining whether to

issue a COA, a “full consideration of the factual or legal bases adduced in support

of the claims” is not required. Miller-El v. Cockrell, 

, 336 (2003).

Instead, the decision must be based on “an overview of the claims in the habeas

petition and a general assessment of their merits.” 

jurists would not disagree with the district court’s

disposition, we deny the application and dismiss the appeal. The Antiterrorism


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and Effective Death Penalty Act of 1996 (AEDPA) requires an applicant to

exhaust his claims in state court before raising them in federal habeas

proceedings. 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, an

applicant “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.” O’Sullivan v. Boerckel, 

, 845 (1999).

The applicant bears the burden of establishing proper exhaustion. Olson v.

McKune, 

(10th Cir. 1993).

      Applicant has not carried his burden. He does not even attempt to show

exhaustion in his COA application to this court; rather, he alleges that he could

not be expected to do so because he was denied counsel for his habeas

proceedings in district court. But Applicant is not automatically entitled to

counsel in habeas proceedings, see Engberg v. Wyoming, 

, 1122

(10th Cir. 2001), and he did not ask the district court to appoint counsel. The

only document in the record supporting his cursory statements that he presented

his claims in state court is a single-page order from the Colorado Supreme Court

affirming the district court. It says nothing regarding the claims presented and

ruled on by the state courts.

      No reasonable jurist would disagree with the district court’s holding that

Applicant failed to establish exhaustion of his claims in state court. We therefore


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DENY the application for a COA and DISMISS the appeal. Applicant’s motion

to proceed IFP is DENIED. See 28 U.S.C. § 1915(a)(3).

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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