* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### AUG 11 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER R. SALEH, Petitioner-Appellant,

v. JUANITA NOVAK; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 99-1093 (District of Colorado) (D.C. No. 99-Z-146)

ORDER AND JUDGMENT *

Before TACHA , McKAY, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 See 28 U.S.C. § 2254(b) (setting forth exhaustion requ irement); Dever v.

Kansas State Penitentiary , 36 F.3d 1531, 1534-35 (10 thCir. 1994) (discussing parameters of exhaustion doctrine). -2- This case is before the court on Christopher R. Sal eh’s pro se application for a certificate of appealability (“COA”) and moti on to proceed on appeal in forma pauperis . Saleh seeks a COA so that he can appeal the dist rict court’s dismissal of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1) (providing that no appeal may be taken from any fin al order in a § 2254 proceeding unless the petitioner first obtains a CO A). Because Saleh has not “made a substantial showing of the denial of a cons titutional right,” this court denies his application for a COA and dismisses the appeal. See id. § 2253(c)(2) (setting forth showing petitioners must make in ord er to obtain a COA). In his § 2254 habeas petition, Saleh alleged that h e was convicted in Colorado state court in 1998 of reckless second deg ree assault and of being a habitual criminal and that he was sentenced to a th irty-two year term of imprisonment. He further alleged that his direct appeal was still pending before the Colorado Court of Appeals. Despite the fact th at Saleh had not exhausted his state remedies, 1 Saleh sought to challenge the constitutionality of Colorado’s Habitual Criminal Act on the ground that it is appl ied more often to eligible male offenders than eligible female offenders. Saleh al leged in his petition that he was not required to exhaust his state remedies because to do so would be futile. In-3-

particular, Saleh asserted that other inmates had p reviously pursued this claim in state courts and that they had all been denied reli ef. In response to the petition, a magistrate judge iss ued an order to show cause why the petition should not be dismissed for failure to exhaust state remedies. Although recognizing the existence of a narrow futility exception to § 2254(b)’s exhaustion requirement, the magistrate ju dge ordered as follows: [Saleh] fails to provide any citation to a recent C olorado Supreme Court decision that addresses and rejects the preci se issue he raises in this action. The court’s own research has not r evealed such a case. Therefore, it appears that the futility exception i s not applicable and that the habeas corpus application should be denied for failure to exhaust state remedies. Mr. Saleh will be given an opportunity to demonstrate that the futility exception is applicab le. In response to the show-cause order, Saleh again pr ovided an unsupported assertion that “[f]ellow prisoners have filed courtactions in the Colorado Court of Appeals and [were] denied relief on this issue.” S aleh further identified one of those fellow inmates by name: Clovis Carl Green, Jr

. After reviewing Saleh’s response to the show-cause order, the district court dismissed Saleh’s petition without prejudice for fa ilure to exhaust. The district court began by noting that “[t]he exhaustion requir ement is not one to be overlooked lightly.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10 thCir. 1995). Against this backdrop, the district court concludedthat Saleh’s generalized claims of futility were simply insufficient. Furthermore, the court noted that it could not-4-

find any cases arising from Colorado involving “Clo vis Carl Green, Jr.” Accordingly, the district court concluded that Sale h had not carried his burden of demonstrating that exhausting this claim in Colorad o state court would constitute a futile act. This court has considered Saleh’s application for aCOA and appellate brief, the district court’s order, and the entire r ecord on appeal. That review demonstrates that the district court’s dismissal of this case without prejudice for failure to exhaust is not reasonably debatable amon g jurists of reason, subject to a different resolution on appeal, or deserving of further proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). Accordingly, Sal eh has not made a substantial showing of the denial of a constitution al right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(2). Saleh’s application for a COA and motion to proceed on appeal in forma pauperis are both DENIED . This appeal is hereby DISMISSED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge