*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**After examining the briefs and appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, ordered submitted without o ral argument. 

### F I L E D United States Court of Appeals Tenth Circuit JAN 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STANLEY BROWN-BEY,

Petitioner-Appellant, No. 00-1253

v. D. Colo. STATE OF COLORADO, ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees. (D.C. No. 99-M-1273)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **-2-

Mr. Brown-Bey, appearing pro se, appeals from the d ismissal of his petition for a writ of habeas corpus under 28 U.S.C . § 2254 and requests a certificate of appealability. Mr. Brown-Bey is currently serving a life sentence upon a conviction of aggravated robbery an d sentencing as a habitual criminal under Colorado law. In his habea s petition, he raised five issues, three of which the district court dete rmined were unexhausted claims. He does not contest that three of his clai ms raised below were unexhausted. On appeal, Mr. Brown-Bey limits his p etition to the two exhausted issues: (1) waiver of his right to coun sel without adequate warning of his rights and the consequences; and (2) a due process violation for testimony elicited after Mr. Brown-Be y exercised his Fifth Amendment privilege against self-incrimination. We review the district court’s legal determinations with regard to the denial of a habeas corpus petition de novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999). We construe the pleadings and papers of a pro se appellant liberally. See Haines v. Kerner , 404 U.S. 519, 520- 21 (1972) (per curiam). Under the principles of fe deral-state comity, a federal court should dismiss a state prisoner’s fed eral habeas petition if the petitioner has not exhausted available state court remedies. See id. ;-3-

Coleman v. Thompson , 501 U.S. 722, 731 (1991). A claim is exhausted i f a state appellate court has had the opportunity to rule on the claim, or if the petitioner has no available state avenue of redress. See Miranda v. Cooper , 967 F.2d 392, 398 (10th Cir. 1992). “If a federal court . . . is faced with a mixed pe tition [and] determines that the petitioner’s unexhausted claims would now be procedurally barred in state court, ‘there is a pro cedural default for purposes of federal habeas.’” Harris v. Champion , 48 F.3d 1127, 1131 n.3 (quoting Coleman , 501 U.S. at 735 n.1). Here, the petitioner did n ot respond to the state’s claims the unexhausted claim s were procedurally barred under Colorado law, and the district court s ubsequently denied Mr. Brown-Bey’s petition. Mr. Brown-Bey may resubmit his petition and include only the exhausted claims, or he may seek to exhaust the rem aining claims in state court. See Rose , 455 U.S. at 510 (“Those prisoners who . . . submi t mixed petitions nevertheless are entitled to resubmit a p etition with only exhausted claims or to exhaust the remainder of their claims.”). We note that “[a] petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims i s to be-4-

treated as ‘any other first petition’ and is not a second or successive petition.” Slack v. McDaniel , 120 S. Ct. 1595, 1605 (2000) (quoting Stewart v. Martinez-Villareal , 523 U.S. 637, 644 (1998)). Accordingly, we GRANT Mr. Brown-Bey’s motion to pro ceed in forma pauperis, DENY his request for a certificate of appealability, and DISMISS the appeal.

Entered for the Court,

Robert H. Henry Circuit Judge