F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         August 6, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 W ILLIA M R . B ER G,

               Petitioner-A ppellant,                    No. 05-1126
          v.                                             (D. Colorado)
 PH IL FO STER , Warden, IC IO ;                (D.C. No. 02-M K-1971 (BNB))
 CO LOR AD O A TTORNEY
 GEN ERA L,

               Respondents-Appellees.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, M U RPH Y, and GORSUCH, Circuit Judges.




I. Introduction

      After pleading guilty to aggravated robbery in Colorado state court,

W illiam B erg filed a motion for postconviction relief, which was denied by the

state trial court. Berg appealed the denial of his motion to the Colorado Court of

Appeals and then filed a petition for certiorari with the Colorado Supreme Court.

The Colorado Court of Appeals affirmed the trial court’s denial of the motion and


      *
        This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the Colorado Supreme Court denied certiorari review. Berg then filed a petition

for habeas relief pursuant to 28 U.S.C. § 2254, in which he asserted, inter alia,

that his plea was entered in violation of due process because he was suffering

from a mental disorder and was under the influence of medication. The district

court concluded these claims had not been exhausted in the state appellate courts

and dismissed the claims. In doing so, the district court rejected the State’s

concession that Berg had exhausted his state court remedies.

      This court granted B erg’s request for a certificate of appealability on two

interrelated issues: (1) whether the State’s concession that a habeas petitioner has

exhausted his state court remedies comports with 28 U.S.C. § 2254(b)(3), which

requires that the State expressly waive the exhaustion requirement; and (2) if it

does not, whether Berg’s claims regarding the voluntariness of his plea w ere

exhausted in the Colorado state courts. Exercising jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253, this court reverses the dismissal of claims one and tw o

of Berg’s habeas petition and remands the matter to the district court for further

proceedings not inconsistent with this opinion.

II. Background

      Berg pleaded guilty in Colorado state court to one count of aggravated

robbery and was sentenced to thirty-two years in prison. Berg challenged his

sentence on direct appeal and the sentence was affirmed by the Colorado Court of

Appeals. Berg then filed a motion for postconviction relief in state court,

                                         -2-
pursuant to Colorado Rule of Criminal Procedure 35(c). In his motion, he argued,

inter alia, that his guilty plea was not entered voluntarily and intelligently

because, at the time of the plea, he was suffering from a mental disorder and was

under the influence of psychotropic drugs. He argued his guilty plea was

therefore accepted in violation of his constitutional rights to due process and

equal protection. The trial court denied the motion without a hearing, finding

Berg’s claims regarding the voluntariness of his plea had been raised and decided

on direct appeal.

      Berg appealed the order denying postconviction relief. In his brief to the

Colorado Court of Appeals, he argued the trial court erred in (1) concluding the

issues raised in his motion for postconviction relief had been previously raised on

direct appeal and (2) ruling on his motion without an evidentiary hearing. In the

facts section of his brief, he characterized his underlying claim as an argument

“that at the time he entered his guilty plea, he w as suffering from mental illness,

was heavily medicated, and that his plea was therefore not knowingly and

voluntarily entered.” Berg also stated in the body of his brief that the allegations

contained in his postconviction motion involved “matters of his mental state and

condition at the time of entering his plea.” In response, the State conceded the

trial court erred in finding Berg had challenged the validity of his plea on direct

appeal. The State nevertheless argued it was proper for the trial court to decide

the claim without a hearing because there was no support in the record for Berg’s

                                          -3-
claim that his plea was constitutionally invalid. The Colorado Court of Appeals

affirmed the denial of the postconviction motion without an evidentiary hearing.

The court concluded no hearing was necessary on Berg’s claim that his guilty plea

was invalid “[b]ecause [Berg’s] allegations in his motion were conclusory at best,

and because the record of the providency hearing demonstrates that [Berg] was

lucid and understood the proceedings.”

      Berg then filed a petition for certiorari with the Colorado Supreme Court.

In the petition, Berg argued the Colorado Court of Appeals erred in affirming the

trial court’s dismissal of his motion for postconviction relief without a hearing

because the motion and record did not clearly establish that his claims regarding

the involuntariness of his plea were without merit. The petition used language

identical to that used in the brief to the Colorado Court of Appeals to characterize

the underlying claims. Specifically, he explained the allegations “involved

matters of his mental state and condition at the time of entering his plea,”

including a claim “that at the time he entered his guilty plea, he was suffering

from mental illness, was heavily medicated, and that his plea was therefore not

knowingly and voluntarily entered.” The Colorado Supreme Court denied the

petition for certiorari review without issuing an opinion.

      After the denial of certiorari review, Berg filed an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for

the District of Colorado. In the habeas petition, Berg asserted ten claims for

                                         -4-
relief, of which only two are at issue in this appeal. In claim one, Berg asserted

his guilty plea was accepted in violation of his constitutional rights to due process

and equal protection because he was suffering from a mental disorder which

rendered him unable to enter a voluntary and intelligent plea. In claim two, Berg

asserted the acceptance of his guilty plea violated his due process and equal

protection rights because he was under the influence of psychotropic medication

and was not lucid at the time the plea was entered. In its amended answer to the

habeas petition, the State expressly stated these two claims had been presented to

the state trial court, the Colorado Court of Appeals, and the Colorado Supreme

Court, and were exhausted. It then addressed the merits of the claims. 1

      The magistrate judge recommended the denial of Berg’s habeas petition on

all ten claims. As to claims one and two, the m agistrate judge rejected the State’s

assertion that the claims had been exhausted in the Colorado state courts and

concluded the substance of these claims had not been raised in either the

Colorado Court of A ppeals or the C olorado Supreme Court. The district court

adopted the recommendation of the magistrate judge and concluded Berg had not

exhausted his state court remedies as to claims one and two. In doing so, it

concluded the State’s concession of exhaustion did not constitute an express



      1
       The State also argued the habeas petition should be dismissed as time-
barred pursuant to 28 U.S.C. § 2244(d)(1). The magistrate judge and district
court concluded the petition was timely filed, however, and this conclusion is not
challenged on appeal.

                                         -5-
waiver under § 2254(b)(3) and was not binding on the State. It then concluded

the claims were procedurally defaulted because the state statute of limitation

would bar the assertion of the claims in a new postconviction motion in the state

courts. See Colo. Rev. Stat. § 16-5-402(1). 2

III. Analysis

      A. Jurisdiction

      Before addressing the merits of this appeal, this court must first determine

whether w e have jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 

, 94 (1998) (“W ithout jurisdiction the court cannot proceed at all in any

cause.” (quotation omitted)). “The filing of a timely notice of appeal is an

absolute prerequisite to our jurisdiction.” Parker v. Bd. of Pub. Utils., 

, 1290 (10th Cir. 1996). Here, the deadline for the filing of the notice of

appeal was M arch 10, 2005, thirty days after the district court’s February 8, 2005,

order denying the habeas petition. See Fed. R. App. P. 4(a)(1)(A). The notice of

appeal was not filed, however, until M arch 11, 2005. 3


      2
       The district court also dismissed Berg’s other eight claims, concluding six
were unexhausted and procedurally defaulted and the remaining two did not
warrant relief on the merits. See Harris v. Champion, 

, 1131 n.3
(10th Cir. 1995) (explaining that if unexhausted claims w ould be procedurally
barred in state court, “the court can deem the unexhausted claims procedurally
barred and address the properly exhausted claims”). On appeal, Berg challenges
only the dismissal of claims one and two.
      3
       Although Berg mistakenly filed the notice of appeal in this court rather
than in the district court as required by Federal Rule of Appellate Procedure
                                                                       (continued...)

                                         -6-
      Pursuant to the prisoner mailbox rule, an inmate’s notice of appeal is

deemed timely “if it is deposited in the institution’s internal mail system on or

before the last day for filing.” Fed. R. App. P. 4(c)(1). The rule provides that

“[t]imely filing may be shown by a declaration in compliance with 28 U.S.C.

§ 1746 or by a notarized statement, either of which must set forth the date of

deposit and state that first-class postage has been prepaid.” 

also

states “[i]f an institution has a system designed for legal mail, the inmate must

use that system to receive the benefit of this rule.” 

submitted

a prison mail log indicating he sent a piece of mail to the Clerk of the Tenth

Circuit Court of Appeals on M arch 8, 2005, he did not initially submit a 28

U.S.C. § 1746 declaration or a notarized statement including the date of deposit

and a statement that first-class postage had been paid. This court ordered the

parties to address whether Berg would nevertheless be entitled to the benefit of

the prisoner mailbox rule because he used the prison’s legal mail system to file

the notice of appeal. Because Berg subsequently submitted a declaration and

notarized statement complying with Federal Rule of Appellate Procedure 4(c)(1), 4




      3
       (...continued)
4(a)(1), a notice of appeal is considered filed in the district court on the date it is
received by the court of appeals. Fed. R. App. P. 4(d).


      4
      This court grants Berg’s M otion to Submit § 1746 Declaration and M otion
to Submit Notarized Statement Pursuant to Rule 4(c)(1).

                                           -7-
this court need not decide whether the use of a legal mail system is alone

sufficient.

      Even where an appellant’s notice of appeal does not initially comport with

the provisions of Rule 4(c)(1), this court has jurisdiction if the appellant “has

subsequently filed a declaration or notarized statement that does.” United States

v. Ceballos-M artinez, 

, 1143 (10th Cir. 2004). This court has

stated only that such attestation must be filed before the case is resolved. 

n.4. In this case, Berg has submitted a declaration under penalty of perjury

pursuant to 28 U.S.C. § 1746 and a notarized statement, each of which states the

notice of appeal was deposited in the prison’s internal mail system designed for

legal mail on M arch 8, 2005, and that first-class postage w as prepaid. Thus, Berg

has complied with Rule 4(c)(1) and his notice of appeal is timely. This court

therefore has jurisdiction over the appeal.

      B. Exhaustion

      “In an appeal of the dismissal of a federal habeas corpus petition, we

review a district court's findings of fact for clear error and its conclusions of law

de novo.” Burger v. Scott, 

, 1137 (10th Cir. 2003). The question of

whether a habeas petitioner has exhausted available state court remedies is a

question of law subject to de novo review. Wilder v. Cockrell, 

, 259

(5th Cir. 2001); Whiteley v. M eacham, 

, 39 (10th Cir. 1969), rev’d on

other grounds sub nom . Whiteley v. Warden, 

(1971).

                                          -8-
      Berg presents two separate arguments in support of his assertion that the

district court erred in dismissing his habeas petition. Berg first argues the State’s

express statement in its brief that Berg had exhausted the claims in state court

was a binding waiver and the district court abused its discretion in failing to give

effect to this waiver. Alternatively, Berg contends that even if the State’s

statement regarding exhaustion was not a binding waiver, Berg did in fact exhaust

his claims by presenting them to the Colorado appellate courts. The State argues

its concession should not be treated as a binding waiver because it was based on

the erroneous legal premise that fair presentation of a claim in the trial court was

sufficient to satisfy the exhaustion requirement. See Day v. M cDonough, 

, 1684-85 (2006) (allowing district court to sua sponte consider

timeliness where State’s concession was based on an “inadvertent error”). The

Supreme Court has recently clarified that “ordinarily a state prisoner does not

‘fairly present’ a claim to a state court if that court must read beyond a petition or

a brief” filed in that court to be made aware of the federal claim. Baldwin v.

Reese, 

, 32 (2004). Because Berg actually exhausted his claims in

state court, it is unnecessary to determine w hether the concession qualified as a

waiver under 28 U.S.C. § 2254(b)(3) and whether this purported waiver precludes

the application of the exhaustion defense.

      A state prisoner generally must exhaust all available state court remedies

before seeking a w rit of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1);

                                          -9-
O’Sullivan v. Boerckel, 

, 842 (1999). The exhaustion requirement is

satisfied when a federal claim has been “fairly presented to the state courts,” such

that the State has had “an initial opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Picard v. Connor, 

, 275

(1971) (quotation omitted). The petitioner must have invoked “one complete

round of the State’s established appellate review process,” including a petition for

discretionary review to the state’s highest court when such review is available.

. Although fair presentation does not require the

petitioner to “cite book and verse on the federal constitution,” the petitioner must

raise the substance of the federal claim in state court. Bland v. Sirmons, 

, 1011 (10th Cir. 2006) (quotation omitted). In other words, state courts must

be “alerted to the fact that the prisoner[] [is] asserting claims under the United

States Constitution.” Duncan v. Henry, 

, 365-66 (1995).

      Even assuming the State did not waive the exhaustion requirement in this

case, Berg’s amended opening brief in the Colorado Court of Appeals and his

petition for certiorari review to the Colorado Supreme Court indicate his federal

due process claims regarding the voluntariness of his plea were fairly presented at

each level of the state court system. 5 In his brief to the Colorado Court of

Appeals, Berg summarized the claims he had presented to the trial court in



      5
        The State concedes claims one and two of Berg’s habeas petition were
fairly presented to the state trial court in his postconviction motion.

                                         -10-
support of postconviction relief, including the argument “that at the time he

entered his guilty plea, he was suffering from mental illness, was heavily

medicated, and that his plea was therefore not knowingly and voluntarily

entered.” In the argument section of the brief, Berg repeated this language to

characterize his underlying claim and further asserted his postconviction motion

included allegations involving “matters of his mental state and condition at the

time of entering his plea.” The State addressed the merits of Berg’s claims in

response, arguing the record refuted his claim that his plea was constitutionally

invalid.

      Further, it is readily apparent from the opinion of the Colorado Court of

Appeals that the court fully understood Berg to be asserting a claim that his plea

was involuntary. The court expressly recognized Berg’s underlying claim as an

“allegation that his guilty plea had not been entered knowingly and voluntarily.”

It then discussed the record of the plea proceeding, noting the trial court’s

questions as to whether Berg was under the influence of medication and Berg’s

response that the medication would not affect his understanding. The court

ultimately affirmed the denial of the postconviction motion based on its

conclusion that Berg adequately understood the proceedings and that the

allegations in Berg’s motion were inadequate to support a claim. Thus, this is not

a case in which it is necessary to look beyond the brief filed in the court of

appeals to identify the federal claim asserted by Berg. See Baldwin, 541 U.S. at

                                         -11-
32. Rather, it is evident from the appellate brief itself, as well as from the

opinion issued by the Colorado Court of Appeals, that Berg’s claims relating to

the validity of his plea were fairly presented in his appeal. 6

      W hile Berg did not explicitly label his claims as federal due process claims

in his appellate brief, his failure to do so is not determinative. See Nichols v.

Sullivan, 

, 1252 (10th Cir. 1989) (“[A] failure to invoke talism anic

language . . . should not be the basis for a finding of nonexhaustion.”). A ll that is

required is that the state court is alerted to the federal nature of the claim.

Duncan, 513 U .S. at 365-66. Where the claims are asserted “in terms so

particular as to call to mind a specific right protected by the Constitution,” the

state court has been sufficiently alerted. M cCandless v. Vaughn, 

,

261 (3d Cir. 1999) (quotation omitted); see also Bowser v. Boggs, 

,

1063 (10th Cir. 1994) (concluding claims were exhausted where “[t]he federal

quality of the rights asserted was sufficiently discernible,” despite the petitioner’s

failure to label the claims as “federal” in state court). In this case, Berg’s

assertion that his plea was not knowingly and voluntarily entered is properly read

      6
        The Colorado Court of A ppeals only specifically referenced Berg’s
allegation that his plea w as rendered involuntary by his medication. In B erg’s
brief, however, the assertion that he was heavily medicated appeared in the same
sentence as the assertion that he was suffering from mental illness. Thus, if the
Colorado Court of A ppeals was aware of his claim relating to medication, it must
also have been aware of the claim relating to mental illness. Further, while not
specifically referencing Berg’s allegations as to mental illness, the Colorado
Court of Appeals’ opinion mentions Berg’s “mental situation” and “mental
illness” in discussing the adequacy of the plea proceeding.

                                          -12-
as a claim that his federal due process rights had been violated. M iles v. Dorsey,

, 1465-66 (10th Cir. 1995) (“The general voluntary-intelligent

standard for plea taking is rooted in the due process clauses of the Constitution

and is therefore applicable in both state and federal courts.” (quotation omitted)).

      In determining Berg did not raise the substance of his claims in his brief to

the Colorado Court of Appeals, the magistrate judge characterized his arguments

as procedural, noting the primary issues raised were (1) w hether the district court

erred in finding the claims had already been raised and decided on direct appeal

and (2) whether the district court erred in summarily denying the postconviction

motion without a hearing. Under Colorado Rule of Criminal Procedure 35(c)(3),

however, a petitioner is entitled to an evidentiary hearing “unless the motion, the

files, and the record of the case clearly establish that the allegations presented in

the defendant's motion are without merit and do not warrant postconviction

relief.” White v. Denver D ist. Court, 

, 634 (Colo. 1988) (quotation

omitted). Therefore, to conclude Berg was not entitled to an evidentiary hearing,

it was necessary for the court to first consider the merits of Berg’s federal

constitutional claims and determine the claims were without merit. Although the

list of issues presented in Berg’s brief to the Colorado Court of Appeals frames

his arguments in procedural terms, the body of the brief fairly “raised the

‘substance’ of the federal claim.” 

. Indeed, because the

state trial court had summarily denied his motion without an evidentiary hearing,

                                          -13-
Berg could have done no more to present the substance of his claims than to

restate the allegations and argue these allegations entitled him to an evidentiary

hearing on the matter.

      The State argues that even if Berg’s brief to the Colorado Court of Appeals

fairly presented a federal claim, that claim was different than the claim presented

to the state trial court and raised in Berg’s federal habeas petition. 

(“[P]etitioner cannot assert entirely different arguments from those

raised before the state court.”); M iranda v. Cooper, 

, 398 (10th Cir.

1992) (explaining “a state appellate court [must have] the opportunity to rule on

the same claim presented in federal court”). The State contends Berg’s habeas

petition asserts the claim that he was legally incompetent to enter a valid plea,

while his brief to the Colorado Court of Appeals asserted only that his plea was

involuntary as a matter of fact. This court sees no basis for this distinction.

Claims one and two of Berg’s habeas petition assert the following: (1) “[t]he

defendant suffers from a debilitating M ental Disorder and was at the time

incompetant [sic] to plea [sic] in a [sic] intellegent [sic] or voluntary manner”;

and (2) “the defendant was under the influence of an extremely large amount of

pschycotropic [sic] tranquilizing medication and was not lucid at the time he

entered his plea.” Each of the claims, when read in context, is fairly understood

as a claim that the plea was constitutionally invalid because it was not knowingly

and voluntarily entered. See Godinez v. M oran, 

, 400 (1993) (“In

                                         -14-
addition to determining that a defendant who seeks to plead guilty . . . is

competent, a trial court must satisfy itself that the waiver of his constitutional

rights is knowing and voluntary.”). Such claims are identical to those raised

before the Colorado Court of A ppeals.

      To properly exhaust a claim, a prisoner must not only present the claim to

the state court of appeals, but must also present the claim to the state’s highest

court if review from that court is available. 

.

Colorado Appellate Rule 51.1(a) provides:

      In all appeals from criminal convictions or post-conviction relief
      matters from or after July 1, 1974, a litigant shall not be required to
      petition for rehearing and certiorari following an adverse decision of
      the Court of Appeals in order to be deemed to have exhausted all
      available state remedies respecting a claim of error. Rather, when a
      claim has been presented to the Court of Appeals or Supreme Court,
      and relief has been denied, the litigant shall be deemed to have
      exhausted all available state remedies.

Berg argues this rule renders review from the C olorado Supreme Court

unavailable such that presentation of his claims to the Colorado Supreme Court

was not necessary to satisfy the exhaustion requirement. Relying on Justice

Souter’s concurrence in 

(Souter, J., concurring),

four circuits have concluded similar state court rules have such an effect. See

Lambert v. Blackwell, 

, 233 (3d Cir. 2004); Adams v. Holland, 

, 401-03 (6th Cir. 2003); Randolph v. Kemna, 

, 404-05 (8th

Cir. 2002); Swoopes v. Sublett, 

, 1009-10 (9th Cir. 1999). This



                                          -15-
court need not address the validity and effect of Rule 51.1(a) in this case,

however, because even in the absence of the rule, Berg’s claims w ere adequately

presented to the Colorado Supreme Court in his petition for certiorari review.

      Like Berg’s brief to the Colorado Court of Appeals, his petition for writ of

certiorari filed in the Colorado Supreme Court set forth the substance of his

federal claims that his plea was entered in violation of his due process rights.

W hile Berg again framed the issue for review in terms of whether it was error to

deny his motion for postconviction relief without a hearing, the body of the brief

contained language identical to that included in the brief to the Colorado Court of

Appeals. In the petition for certiorari, Berg explained the allegations in his

postconviction motion “involved matters of his mental state and condition at the

time of entering his plea.” He also asserted the postconviction motion had

alleged “with the requisite detail . . . that at the time he entered his guilty plea, he

was suffering from mental illness, was heavily medicated, and that his plea was

therefore not knowingly and voluntarily entered.” For the same reasons this

language was sufficient to alert the Colorado Court of Appeals to the merits of

Berg’s federal claim, it was sufficient to fairly present the federal claims to the

Colorado Supreme Court. Contrary to the State’s contention that the Colorado

Supreme Court would have been aware of the federal claim only by looking to the

postconviction motion filed in the trial court, the substance of the federal claim

was set forth on the face of the petition to the Colorado Supreme Court itself.

                                           -16-
      Accordingly, the state courts w ere given a full and fair opportunity to

resolve B erg’s constitutional claims in the first instance and his claims are

therefore exhausted. See 

. The district court erred in

concluding Berg had failed to exhaust state court remedies as to claims one and

two of the habeas petition. Because claims one and two were exhausted in the

state courts, the procedural bar applied by the district court is inapplicable to

these claims and the claims must be addressed on the merits.

IV. Conclusion

      For the foregoing reasons, this court reverses the district court’s dismissal

of claims one and two of Berg’s petition for habeas relief. The case is remanded

for further proceedings not inconsistent with this opinion.

                                        ENTERED FOR THE COURT



                                        M ichael R. M urphy
                                        Circuit Judge




                                          -17-