*This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 10/1/96

TENTH CIRCUIT

PATRICK ANTHONY BROWN,

Petitioner - Appellant, No. 96-1123

v. D. Colorado

DONICE NEAL; ATTORNEY

GENERAL FOR THE STATE OF

COLORADO,

Respondents - Appellees.

(D.C. No. 95-S-3277) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

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); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.
- 2 -

Patrick Anthony Brown appeals from an order dismissing his 28 U.S.C. § 2254

petition for a writ of habeas corpus. The district court concluded that Brown had failed to

exhaust his state court remedies and, thus, dismissed the petition without prejudice. We

agree, and dismiss the appeal.

In April of 1990, Brown pled guilty to two counts of burglary in the Superior

Court of Morristown, New Jersey, for which he received a sentence of time served and

three years of probation. In April of 1994, a Colorado jury convicted Brown of

conspiracy to commit first degree murder and reckless endangerment. Colorado law

required the court to sentence Brown to an enhanced sentence because he was on

probation for his New Jersey felony conviction at the time he committed the Colorado

felonies. See Colo. Rev. Stat. § 18-1-105(9)(a)(III) (1986). The court sentenced him to

concurrent terms of sixteen years for conspiracy to commit first degree murder and six

months for reckless endangerment. Brown appealed his conviction to the Colorado Court

of Appeals, but did not challenge his New Jersey conviction or the sentencing court’s use

of the New Jersey conviction to enhance his sentence. The Colorado Court of Appeals

affirmed, see People v. Brown, No. 94CA0891 (Colo. Ct. App. Nov. 16, 1995), but it is

unclear whether Brown sought review in the Colorado Supreme Court. Brown claims

that in March of 1995 he filed a motion in the Superior Court of Morristown, New Jersey,

to withdraw his guilty plea, to correct an illegal sentence, and for a new trial, but that the

clerk of court informed him there is no record of the filing.
- 3 -

In December of 1995, Brown filed this 2254 petition asserting that his New Jersey

conviction resulted from an illegal search and seizure, an illegal arrest and questioning,

ineffective assistance of counsel, a coerced guilty plea, and denial of his right to a speedy

and public trial. Brown contends that because his New Jersey conviction was obtained in

violation of his constitutional rights, the enhanced Colorado sentence based on his New

Jersey probation is also unconstitutional. 

“An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that . . . the

applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (“[a] rigorously

enforced total exhaustion rule will encourage state prisoners to seek full relief first from

the state court, thus giving those courts the first opportunity to review all claims of

constitutional error.”). An applicant has not exhausted his state remedies “if he has the

right under the law of the State to raise, by any available procedure, the question

presented.” 28 U.S.C. § 2254(c). 

Under Colorado law a person “who has been convicted [of a felony] under a

criminal statute of [Colorado] or any other state” must collaterally attack the conviction

within three years of the conviction. See Colo. Rev. Stat. § 16-5-402(1) (1986). 

Although Brown failed to collaterally attack his New Jersey conviction within three years,

he could have done so at his sentencing for the Colorado conviction if he could have
1

 It is not entirely clear under Colorado law whether a defendant is entitled to

collaterally attack a prior conviction at the sentencing hearing in which the prior

conviction and resulting probationary status are used to enhance the defendant’s sentence

as required by 18-1-105(9)(a)(III). The Colorado Supreme Court has recently held that a

discretionary sentencing proceeding, in which a prior conviction is just a factor to be

considered by the judge in his or her discretion, is not an appropriate forum to hold an

evidentiary hearing to attack the prior conviction. People v. Padilla, 907 P.2d 601, 603

(Colo. 1995). Rather, such an attack must be made through a postconviction motion

under Colorado Rules of Criminal Procedure 35(c)(2)(I). Id. at 608. The court did not

decide whether such an attack would be appropriate at a sentencing hearing in which a

prior conviction mandates an enhanced sentence. However, the court did indicate that

mandatory enhancement statutes such as the habitual criminal statute entitle defendants

“to heightened procedural safeguards against infringement of their due process rights

through the use of potentially invalid prior convictions.” Id. at 607. Whether a

defendant subject to mandatory sentencing enhancement due to a prior conviction is

entitled to attack the prior conviction at the sentencing, on appeal, or through a

postconviction motion is a question that only the Colorado courts can decide. In any

event, for the reasons indicated above we conclude that Brown is likely entitled to file a

postconviction motion. 

- 4 -

shown that his failure to collaterally attack his New Jersey conviction during the threeyear time period was the result of “justifiable excuse or excusable neglect.” See Colo.

Rev. Stat. § 16-5-402(2)(d) (1986); see also People v. Wiedemer, 852 P.2d 424, 442-43

(Colo. 1993) (defendant may avoid time bar of 16-5-402 by showing justifiable excuse or

excusable neglect under a balancing test including a number of factors). It is unclear

from the record whether Brown challenged his New Jersey conviction at his sentencing

for the Colorado conviction.1 It is clear, however, that he did not challenge his New

Jersey conviction on direct appeal from his Colorado conviction. Nevertheless, under

Colorado law a “petitioner may raise issues of constitutional error in a postconviction

proceeding ‘although the same issues could have been effectively raised on [appeal.]’” 
2

 It appears that Colorado has abandoned this rule and now applies the rule that a 

court may deny relief if a postconviction petition raises an issue that the defendant

deliberately or inexcusably failed to raise at trial or on direct appeal. See Rodriguez ,

914 P.2d at 253 n.20. However, the court decided not to retroactively apply the rule since

it had not clearly been the “state of the law” before the Rodriguez opinion. Id. at 252,

253 n.20. Likewise, the new rule presumably would not apply to Brown since his direct

appeal was filed and decided before the Rodriguez opinion.

- 5 -

People v. Rodriguez, 914 P.2d 230, 253 (Colo. 1996) (quoting People v. Bradley, 455

P.2d 199, 200 (1969)).2

 Accordingly, we cannot say that Brown is unable to attack his

New Jersey conviction through a postconviction attack of his Colorado conviction

pursuant to Colorado Rules of Criminal Procedure 35(c)(2)(I). 

Because there appears to be an “available procedure” under Colorado law by

which Brown may attempt to show “justifiable excuse or excusable neglect” for not

collaterally attacking his New Jersey conviction within three years and, if successful,

argue the merits of his challenge to the New Jersey conviction, the district court correctly

concluded that he has not exhausted his state court remedies. Accordingly, we DENY the

petition for a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(A), and DISMISS

the appeal. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge