*After examining the brief 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)(2); 10th Cir. R. 34.1(G). The 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 240 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 Colorado, alleging that (1) the state

court had not honored his plea agreement or informed him that it would not do so,

and (2) he had not received effective assistance of counsel in challenging his
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sentence. He had not filed a direct appeal of his conviction, and explained in his

application that he would have completed his sentence 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 exhaust 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 Court considered 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 sheriff threatened him with “lockdown” if he attempted to contact the court. The district 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 seeks a COA from this court. We

deny the application for a COA. 

“A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(2). “When the district court denies a habeas 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 and the district court is correct

to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” Id.

In his application to this court, Mr. Maxwell reiterates 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
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only as far as the state district court. Absent his seeking relief up to the Colorado

Supreme Court, the exhaustion requirement is not satisfied. This failure to

exhaust state-law remedies constitutes a complete procedural bar to

Mr. Maxwell’s application. Therefore, we cannot conclude that the district

court’s ruling would be debatable by reasonable jurists.

Because we find the procedural ruling of the district court not debatable,

we need not reach the question whether Mr. Maxwell’s substantive constitutional

claim was itself debatable. We DENY his application for a certificate of

appealability. We also DENY his motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge