*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral 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 not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is, therefore, ordered submitted without oral 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. **
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Mr. Brown-Bey, appearing pro se, appeals from the dismissal 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 and sentencing as a

habitual criminal under Colorado law. In his habeas petition, he raised

five issues, three of which the district court determined were unexhausted

claims. He does not contest that three of his claims raised below were

unexhausted. On appeal, Mr. Brown-Bey limits his petition to the two

exhausted issues: (1) waiver of his right to counsel without adequate

warning of his rights and the consequences; and (2) a due process

violation for testimony elicited after Mr. Brown-Bey 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 federal-state comity, a

federal court should dismiss a state prisoner’s federal habeas petition if

the petitioner has not exhausted available state court remedies. See id.;
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Coleman v. Thompson , 501 U.S. 722, 731 (1991). A claim is exhausted if

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 petition [and]

determines that the petitioner’s unexhausted claims would now be

procedurally barred in state court, ‘there is a procedural 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 not

respond to the state’s claims the unexhausted claims were procedurally

barred under Colorado law, and the district court subsequently 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 remaining claims in state

court. See Rose , 455 U.S. at 510 (“Those prisoners who . . . submit mixed

petitions nevertheless are entitled to resubmit a petition 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 is to be
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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 proceed in

forma pauperis, DENY his request for a certificate of appealability, and

DISMISS the appeal.

Entered for the Court,

Robert H. Henry

Circuit Judge