UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DIRK BROWN, 

 Petitioner - Appellant, 

v. 

JASON LENGERICH, BVCC Warden; 

THE ATTORNEY GENERAL OF THE 

STATE OF COLORADO, 

 Respondents - Appellees. 

No. 16-1110 

(D.C. No. 1:15-CV-01748-PAB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges. 

_________________________________ 

 Dirk Brown was convicted in Colorado state court of kidnapping, aggravated 

robbery, conspiracy, and theft. He was adjudicated a habitual offender and sentenced 

to an aggregate term of 256 years in prison. His direct appeal failed to afford him 

relief and the state supreme court denied certiorari. While his direct appeal was 

pending, he filed several motions in state court alleging newly discovered evidence 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 3, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

asserting the detective who testified at his trial gave false testimony. After his state 

appellate remedies failed he did not seek any other relief from the state courts to 

challenge his conviction.1

 Instead, he filed this 28 U.S.C. § 2254 habeas petition. 

The district judge granted him leave to proceed without prepayment of fees, but 

denied habeas relief and denied a certificate of appealability (COA). Proceeding 

pro se, as he did in the district court, Brown now seeks a COA from this court. We 

deny the request and dismiss this matter. 

I. BACKGROUND 

 Brown’s convictions resulted from the robbery of a pawn shop. As soon as the 

shop opened, two robbers walked in, both wearing disguises and carrying guns. One 

robber held the two shop employees and a customer at gunpoint. The other robber 

smashed a jewelry case with a crowbar and put the jewelry from the case into a duffel 

bag. He then took a bottle of detergent from the duffel, poured detergent on the 

jewelry case, and dropped the bottle on the floor. After taking personal possessions 

from the store employees and the customer, the robbers fled. They were in the shop 

for under three minutes. One of the store employees had pressed a panic button, so 

police soon arrived. A responding detective noticed bright red smears on the handle 

of the detergent bottle, which she took for blood. 

 

1

 Brown refers to a related civil case and appeal he filed against the police 

department in state court. See Brown v. Sheridan Police Dep’t, No. 15CA0801, 

2016 WL 3130975 (Colo. Ct. App. June 2, 2016) (unpublished). Claims made in the 

civil case cannot support his habeas claims. 
3 

 The three smears on the bottle were tested for blood; two were blood, one was 

not. The blood smears matched Brown’s DNA. That evidence was the only direct 

link between him and the robbery. He suggested the detergent bottle was taken from 

a public laundromat prior to the robbery. 

 A jury convicted him in 2010. The Colorado Court of Appeals (CCA) 

affirmed his conviction and sentence in 2014, and the Colorado Supreme Court 

denied certiorari in 2015. 

II. DISCUSSION

A. Applicable Law

 A COA is required for a state prisoner to appeal from a denial of federal 

habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). “Where a district 

[judge] has rejected the constitutional claims on the merits, the showing required to 

satisfy [28 U.S.C.] § 2253(c) is straightforward: The petitioner must demonstrate 

that reasonable jurists would find the district [judge’s] assessment of the 

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). In contrast, where the district judge decided the petitioner was not entitled to 

habeas relief based on a procedural default, a COA will not issue unless the petitioner 

“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.” Id. 
4 

Because the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA) applies here, we keep in mind that when a state court previously 

adjudicated the merits of a claim, a federal court may grant habeas relief 

only if that state court decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined 

by the Supreme Court of the United States,” 28 U.S.C. 2254(d)(1), or “was 

based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding,” id. § 2254(d)(2). 

Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015), cert. denied, 136 S. Ct. 

1524 (2016). 

 We have liberally construed Brown’s pro se filings. See Garrett v. Selby 

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, 

“take on the responsibility of serving as the litigant’s attorney in constructing 

arguments and searching the record.” Id. Moreover, “pro se parties [must] follow 

the same rules of procedure that govern other litigants.” Id. (internal quotation marks 

omitted). 

B. Sufficiency of the Evidence 

According to Brown the detective’s testimony about fresh blood smears on the 

detergent bottle was incredible because of the time lapse between the robbers’ exit 

and the police officers’ arrival a few minutes after the robbers left. From that 

dubious hypothesis he claims the evidence was insufficient to convict him.2

 The 

CCA addressed and rejected his claim on direct appeal. 

 

2

 Brown now advances a claim of newly discovered evidence based on the 

surveillance videotape of the robbery. He says the tape shown to the jury was 

doctored to reflect the police officers’ arrival one minute after the robbers departed, 

while the alleged newly discovered tape shows the officers’ actual arrival five and 

(continued) 
5 

The district judge concluded the CCA reasonably applied the clearly 

established Supreme Court standard for evidence sufficiency announced in Jackson v. 

Virginia, 443 U.S. 307, 319 (1979) (“[W]hether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.”). He also, correctly, 

refused to re-determine witness credibility in a federal habeas proceedings. 

See Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Finally, he concluded, Brown 

failed to make the necessary showing to establish a due process violation with respect 

to the allegations of perjury on the part of the detective. See Napue v. Illinois, 

360 U.S. 264, 269 (1959) (stating prosecutor who knowingly presents false evidence 

violates due process); United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 

2002) (“In order to establish a due process violation, the [defendant] must show that 

(1) [the witness’s] testimony was in fact false, (2) the prosecution knew it to be false, 

and (3) the testimony was material.”). The propriety of those decisions is not 

debatable. 

 

 

one-half minutes later. Brown briefly mentioned this theory in his post-judgment 

motion for a COA in the district court (with respect to the detective’s alleged 

perjury), but, critically, he did not raise it in his habeas petition or otherwise bring it 

to the attention of the judge. Consequently, the claim was not addressed and we 

deem it waived. Cf. Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) 

(“Because the argument was not raised in his habeas petition, it is waived on 

appeal.”), cert. denied, 136 S. Ct. 1180 (2016). 
6 

C. Destruction of Evidence 

Brown asserted the lab employees committed a Fourteenth Amendment due 

process violation when they destroyed exculpatory evidence in testing the blood 

smears on the detergent bottle and in dusting the bottle for fingerprints. The CCA 

rejected this claim. The law is clear: “unless a criminal defendant can show bad faith 

on the part of the [lab employees], failure to preserve potentially useful evidence 

does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 

51, 58 (1988). Brown made no bad-faith showing. 

D. Fourth Amendment Violation 

 In state court Brown asserted the warrant for his arrest was invalid and his 

arrest was illegal because the warrant described the person sought as six feet, four 

inches tall and weighing 465 pounds, while he is six feet tall and weighs 160 pounds. 

 The state trial judge found no evidence of the wrong person being arrested. 

The federal district judge also considered the claim and determined the state-court 

proceedings afforded Brown an opportunity for full and fair litigation of his Fourth 

Amendment claim, so review in federal court was barred. See Stone v. Powell, 

428 U.S. 465, 494 (1976) (“[W]here the State has provided an opportunity for full 

and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted 

federal habeas corpus relief on the ground that evidence obtained in an 

unconstitutional search or seizure was introduced at his trial.” (footnote omitted)). 

 
7 

E. Alleged Newly Discovered Evidence/Brady Claim 

Brown appears to make two claims based on the alleged newly discovered 

evidence he speculates is in an Internal Affairs Investigation Report prepared by the 

police department. He claimed the investigation was in response to his complaint 

asserting the investigating detective committed perjury when she testified the blood 

stains on the detergent bottle were fresh. The state court record indicates, however, 

the report was not released due to confidentiality rules. Nevertheless, based on this 

speculation, Brown made two related claims: (1) the newly discovered evidence 

rendered his conviction unconstitutional, and (2) the newly discovered evidence 

formed the basis of a Brady due process claim.3

 

In the federal habeas proceedings, Brown requested discovery of the Internal 

Affairs Investigation Report and the detective’s employment file to show she 

engaged in misconduct in his case. A habeas petitioner must show “good cause” to 

be entitled to discovery. See Rules Governing Section 2254 Cases, Rule 6(a); 

see also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (stating good cause requires 

“specific allegations” showing “reason to believe” the petitioner may “be able to 

demonstrate that he is entitled to relief.” (ellipsis and internal quotation marks 

omitted)). Acknowledging clear law, the district judge denied Brown’s discovery 

request because he failed to show good cause. Brown’s speculation about the 

 

3

 “Under Brady [v. Maryland, 373 U.S. 83 (1963)], the prosecution has a duty to 

disclose material impeachment evidence that is favorable to the defense.” 

McCormick v. Parker, 821 F.3d 1240, 1246 (10th Cir. 2016). 
8 

contents of the files, the judge concluded, did not constitute a specific allegation 

indicating entitlement to habeas relief and, further, the allegation was insufficient to 

support Brown’s conclusory claim about the detective having given false testimony at 

his trial. We find no abuse of discretion in the decision to deny Brown’s discovery 

request. See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir. 1999) (reviewing 

district judge’s decision on good cause for abuse of discretion). 

 Turning to the substance, Brown did not exhaust either claim in the state 

courts. Although he filed various motions in the state trial court asserting the newly 

discovered investigation report showed the detective had testified falsely at his trial, 

he did not appeal the orders denying his motions to the CCA. And Brown’s state trial 

court motions did not raise a Brady claim. 

 The district judge did not consider the merits of either claim because Brown 

failed to exhaust them in the state courts. See 28 U.S.C. § 2254(b)(1) (precluding 

habeas review unless the applicant has exhausted state-court remedies, no state 

remedy is available, or the available process is “ineffective to protect the rights of the 

applicant”); accord O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate 

prisoners 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.”). 

 “Generally, a federal court should dismiss unexhausted claims without 

prejudice so that the petitioner can pursue available state-court remedies.” Bland v. 

Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006). But Brown cannot now appeal the 
9 

state trial court’s orders entered in 2012, 2013, and 2014 denying his postconviction 

motions claiming newly discovered evidence. See Colo. App. R. 4(b) (requiring 

notice of appeal in criminal case to be filed within 49 days after entry of the order 

appealed from).4

 As for the Brady claim, Brown could theoretically return to state district court 

to exhaust this claim. If he did so, however, the state courts would decline to 

consider the claim because it could have been presented earlier. See

Colo. R. Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that could have 

been presented in an appeal previously brought or postconviction proceeding 

previously brought . . . .”). In addition, a motion collaterally attacking his 2010 

conviction is now time-barred. See Colo. Rev. Stat. § 16-5-402(1) (requiring 

collateral attack on conviction to be filed within three years for felonies such as 

Brown’s). 

 Thus, these claims were subject to an “anticipatory procedural bar.” 

See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“‘Anticipatory 

procedural bar’ occurs when the federal courts apply procedural bar to an 

unexhausted claim that would be procedurally barred under state law if the petitioner 

returned to state court to exhaust it.” (internal quotation marks omitted)). To avoid 

 4

 Rule 26(b) of the Colorado Rules of Appellate procedure provides “[t]he 

appellate court for good cause shown may upon motion enlarge the time prescribed 

by these rules or by its order for doing any act, or may permit an act to be done after 

the expiration of such time . . . .” Brown’s case suggests no factors favoring a late 

appeal for good cause. See People v. Baker, 104 P.3d 893, 897-98 (Colo. 2005) 

(discussing factors relevant to allowing appeal to be reinstated under Rule 26(b)).
10 

the anticipatory procedural bar, Brown would need to show either (1) “cause” for 

failing to present the claims in earlier proceedings and resulting “prejudice” or (2) a 

fundamental miscarriage of justice based on a credible showing of actual innocence. 

Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). 

 In the federal habeas proceedings Brown made a cursory claim of actual 

innocence but made no claim of cause for not exhausting or presenting his claims 

earlier. After noting the state of the law, the federal district judge held Brown’s 

claims were subject to anticipatory procedural default and he failed to demonstrate 

cause for the procedural default. The court further held Brown’s conclusory 

assertion of actual innocence was inadequate to excuse the procedural bar. 

See Schlup v. Delo, 513 U.S. 298, 324 (1995) (holding to state a credible claim that 

constitutional error caused the conviction of an innocent person “requires petitioner 

to support his allegations of constitutional error with new reliable evidence—whether 

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 

physical evidence—that was not presented at trial”). Any attempt to exhaust at this 

late date, the district judge concluded, would be time-barred and Colorado’s 

procedural bar on successive petitions was an independent and adequate state 

procedural ground. The district judge found no applicable exceptions to the 

exhaustion requirement and Brown has not shown how the judge’s analysis is 

reasonably debatable. 

 Brown requested the federal habeas time bar be tolled. But the district judge 

did not dismiss any of Brown’s claims as filed outside the habeas time bar, so no 
11 

tolling of the time bar was necessary. See 28 U.S.C. § 2244(d)(1) (establishing a 

one-year statute of limitations to file motions under 28 U.S.C. § 2254). Brown did 

not demonstrate a basis in the district court for an evidentiary hearing, so we find no 

abuse of discretion in the decision to deny such a hearing. See Hooks v. Workman, 

606 F.3d 715, 731 (10th Cir. 2010) (reviewing denial of an evidentiary hearing for 

abuse of discretion). 

III. CONCLUSION 

 The rulings of the district judge were, in all respects, well considered and 

proper. More important, they are not even debatably incorrect. We deny a COA and 

dismiss this matter. 

 That leaves only the matter of filing and docketing fees. Brown was initially 

permitted to proceed in forma pauperis (ifp) in the district court. After the district 

judge denied his habeas petition, denied him a COA, and denied a flurry of his 

post-decision motions, Brown filed a notice of appeal. At that point the district judge 

could and should have reviewed Brown’s ifp status to determine whether his appeal 

could be taken in good faith. Fed. R. App. P. 24(a)(3)(A). Unfortunately, that did 

not happen so his ifp status automatically continued, Fed. R. App. P. 24(a)(3), and he 

was permitted to proceed on appeal without prepayment of filing and docketing fees. 

But that does not end the matter. Only prepayment of fees is excused, not the fees 

themselves. 28 U.S.C. § 1915(a)(1). Brown is responsible for the full amount of the 

 
12 

filing and docketing fees ($505.00). Payment is to be made to the Clerk of the 

District Court. 

Entered for the Court 

Terrence L. O’Brien 

Circuit Judge