* After examining the brief and appellate record, thi s 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. 

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

### September 27, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES HENRY MAXWELL, JR.,

Petitioner - Appellant, No. 05-1149

v. (D. Colorado) DENVER SHERIFF’S DEPARTMENT; JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents - Appellees. (D.C. Civ. No. 05-Z-71)

ORDER *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
James Henry Maxwell pleaded guilty to one count of assault in Denver County Court and received a suspended sentence of 2 40 days on August 23, 2004. On January 7, 2005, he filed a pro se application under 28 U.S.C. § 2254 in the United States District Court for the District of Co lorado, alleging that (1) the state court had not honored his plea agreement or informe d him that it would not do so, and (2) he had not received effective assistance of counsel in challenging his-2-

sentence. He had not filed a direct appeal of his conviction, and explained in his application that he would have completed his senten ce by the time he had exhausted state remedies. The magistrate judge ordered Mr. Maxwell to show cause why his application should not be denied for failure to exh aust state remedies as required by 28 U.S.C. § 2254(b)(1). In response Mr. Maxwell filed a “Motion to Show Cause” and a “Motion to Amend.” The District Courtconsidered those pleadings together as his response to the show-cause order. In addition to renewing the substantive claims, the pleadings argued that his application should not be dismissed because he had not been given access to court records and transcripts related to his case, and he had been prevented from exhausting state-court remedies because the sheriffthreatened him with “lockdown” if he attempted to contact the court. The di strict court denied his application and dismissed the action for failure to exhaust state remedies. It later denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring COA), based on “the record which conclusively shows that petitioner is entitled to no relief.” R. Doc. 20 at 1. Mr. Maxwell now seek s a COA from this court. We deny the application for a COA. “A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right.” 28 U.S.C.-3-

§ 2253(c)(2). “When the district court denies a ha beas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner 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.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present a nd the district court is correct to invoke it to dispose of the case, a reasonable j urist could not conclude either that the district court erred in dismissing the pet ition or that the petitioner should be allowed to proceed further.” Id

. In his application to this court, Mr. Maxwell reite rates his substantive claim and asserts that he attempted to exhaust state-court remedies by filing a claim in “Denver district court” that was apparently lost. Aplt. Br. at 4. To satisfy the exhaustion requirement under 28 U.S.C. § 2254(b)(1) (A), however, an applicant “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.” O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). This includes discretionary review by the state supreme court. Id . We construe Mr. Maxwell’s application liberally because he is a pro se litigant. See Haines v. Kerner , 404 U.S. 519, 520–21 (1972). Even so, his statement is , at most, that he proceeded-4-

only as far as the state district court. Absent hi s seeking relief up to the Colorado Supreme Court, the exhaustion requirement is not satisfied. This failure to exhaust state-law remedies constitutes a complete p rocedural bar to Mr. Maxwell’s application. Therefore, we cannot co nclude that the district court’s ruling would be debatable by reasonable jur ists. Because we find the procedural ruling of the distri ct court not debatable, we need not reach the question whether Mr. Maxwell’ s substantive constitutional claim was itself debatable. We DENY his applicatio n for a certificate of appealability. We also DENY his motion to proceed in forma pauperis

. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge