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 hab itual offender and sentenced to an aggregate term of 256 years in prison. His direct appeal fa iled to afford him relief and the state supreme court denied certiorari. Wh ile his direct appeal was pending, he filed several motions in stat e court alleging newl y discovered evidence

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 asserting the detective who tes tified 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 cert ificate of appealability (COA). Proceeding pro se, as he did in the dist rict court, Brown now seeks a COA from this court. We deny the request and di smiss this matter.
I. BACKGROUND Brown’s convictions resulted from the robbery of a pa wn shop. As soon as the shop opened, two robbers walked in, both w earing 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 detergen t from the duffel, poured detergent on the jewelry case, and dro pped the bottle on the floor. Af ter taking personal possessions from the store employees and th e 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 res ponding 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. A pp. June 2, 2016) (unpublished). Claims made in the civil case cannot support his habeas claims.3 The three smears on the bottle were test ed 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 sugge sted the detergent bottle was taken from a public laundromat prior to the robbery. A jury convicted him in 2010. Th e 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 consti tutional 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 de batable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In contrast, where th e district judge decided the petitioner was not entitled to habeas relief based on a procedural defaul t, a COA will not issue unless the petitioner “shows, at least, that juri sts of reason would find it de batable whether the petition states a valid claim of the denial of a c onstitutional right and th at jurists of reason would find it debatable whether the distri ct court was correct in its procedural ruling.” Id.4 Because the Antiterrorism and Effec tive 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 “w as contrary to, or involved an unreasonable application of, clearly esta blished Federal law, as determined by the Supreme Court of the United Stat es,” 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 construe d 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 th at govern other litigants.” Id. (internal quotation marks omitted).
B. Sufficiency of the Evidence According to Brown the detective’s te stimony about fresh blood smears on the detergent bottle was incredible because of the time laps e between the robbers’ exit and the police officers’ arrival a few minut es after the robbers left. From that dubious hypothesis he clai ms the evidence was insuff icient 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 th e 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 discove red tape shows the officers’ actual arrival five and (continued)5 The district judge concluded the CCA reasonably applied the clearly established Supreme Court standard fo r 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 w itness credibility in a fede ral habeas proceedings.
See Marshall v. Lonberger , 459 U.S. 422, 434 (1983). Fi nally, he conc luded, Brown failed to make the necessary showing to es tablish 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) (s tating 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 [defenda nt] must show that (1) [the witness’s] testimony wa s in fact false, (2) the prosecution knew it to be false, and (3) the testimony was material.”). Th e propriety of those decisions is not debatable.

one-half minutes later. Brown briefly me ntioned this theory in his post-judgment motion for a COA in the district court (w ith respect to the detective’s alleged perjury), but, critically, he di d not raise it in his habeas petition or otherwise bring it to the attention of the judge. Conseque ntly, 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 co mmitted a Fourteenth Amendment due process violation when they destroyed ex culpatory evidence in testing the blood smears on the detergent bottle and in dusti ng the bottle for fingerprints. The CCA rejected this claim. The law is clear: “unless a crimin al 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 warr ant 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 po unds, while he is si x feet tall and wei ghs 160 pounds. The state trial judge found no eviden ce of the wrong person being arrested. The federal district judge al so 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 St ate 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 se izure 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 Investig ation Report prepared by the police department. He clai med the investigation was in response to his complaint asserting the investigating detective commi tted 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 confidentia lity rules. Nevert heless, based on this speculation, Brown made two related clai ms: (1) the newly discovered evidence rendered his conviction unc onstitutional, and (2) the newly discovered evidence formed the basis of a Brady due process claim. 3 In the federal habeas proceedings, Brow n requested discovery of the Internal Affairs Investigation Report and the dete ctive’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 petitione r may “be able to demonstrate that he is entit led to relief.” (e llipsis and internal quotation marks omitted)). Acknowledging clear law, the district judge denied Brown’s discovery request because he failed to show go od cause. Brown’s speculation about the

3 “Under Brady [ v. Maryland , 373 U.S. 83 (1963)], th e prosecution has a duty to disclose material impeachme nt evidence that is favor able to the defense.” McCormick v. Parker , 821 F.3d 1240, 1246 (10th Cir. 2016).8 contents of the files, the judge concluded, did not cons titute a specific allegation indicating entitlement to habeas relief and, further, the al legation was insufficient to support Brown’s conclusory claim about th e detective having given false testimony at his trial. We find no abus e 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 va rious motions in the state tr ial court asserting the newly discovered investigation report showed the detective had tes tified 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 th e 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-cour t remedies, no state remedy is available, or the av ailable 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 stat e courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s establishe d appellate review process.”). “Generally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursu e available state-court remedies.” Bland v.
Sirmons , 459 F.3d 999, 1012 (10th Cir. 2006). But Brown cannot now appeal the9 state trial court’s orders en tered in 2012, 2013, and 20 14 denying his postconviction motions claiming newly discovered evidence. See Colo. App. R. 4(b) (requiring notice of appeal in criminal case to be f iled 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 stat e courts would decline to consider the claim becau se it could have been presented earlier. See Colo. R. Crim. P. 35(c)(3)(V II) (“The court shall deny a ny claim that could have been presented in an appeal previous ly brought or postconviction proceeding previously brought . . . .”). In addition, a motion co llaterally 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 fo r felonies such as Brown’s). Thus, these claims were subject to an “anticipat ory procedural bar.”
See Anderson v. Sirmons , 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“‘Anticipatory procedural bar’ occurs when the federa l courts apply procedural bar to an unexhausted claim that would be procedura lly barred under state la w if the petitioner returned to state court to exhaust it.” (int ernal quotation marks om itted)). 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 th e 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 . . . .” Brow n’s case suggests no fa ctors 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 wo uld need to show e ither (1) “cause” for failing to present the claims in earlier pr oceedings and resulting “prejudice” or (2) a fundamental miscarriage of ju stice based on a credible s howing 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 procedur al default and he failed to demonstrate cause for the procedural de fault. The court further held Brown’s conclusory assertion of actual innocen ce was inadequate to excuse the procedural bar. See Schlup v. Delo , 513 U.S. 298, 324 (1995) (holding to state a credib le claim that constitutional error caused the conviction of an innocent person “requires petitioner to support his allegations of constitutional error with new reliabl e evidence—whether it be exculpatory scientific evidence, trustworthy eyewitn ess accounts, or critical physical evidence—that was not presented at trial”). Any attempt to exhaust at this late date, the district j udge concluded, would be time-barred and Colorado’s procedural bar on successive petitions wa s an independent and adequate state procedural ground. The di strict judge found no app licable 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 habe as time bar, so no11 tolling of the time ba r 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 cour t for an evidentiary hearing, so we find no abuse of discretion in the deci sion 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 a ppeal. At that point the district judge could and should have reviewed Brown’s ifp status to de termine whether his appeal could be taken in good faith. Fed. R. A pp. 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 prep ayment of fees is excused, not the fees themselves. 28 U.S.C. § 1915(a)(1). Brown is responsible for the full amount of the12 filing and docketing fees ($505. 00). Payment is to be ma de to the Clerk of the District Court.

Entered for the Court

Terrence L. O’Brien Circuit Judge