UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MAURICE SABBA SCOTT, Petitioner - Appellant,

v. STATE OF KANSAS; DEREK SCHMIDT, Attorney General of the State of Kansas, Respondents - Appellees. No. 16-3037 (D.C. No. 5:15-CV -03270-SAC-DJW) (D. Kan.)

________________ _________________ ORDER DENYINY A CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ After a Kansas state-court jury convicte d Maurice Sabba Scott of possession of methamphetamine, marijuana, cocaine, and dr ug paraphernalia, he was sentenced to 20 months’ imprisonment. He appealed his co nviction to the Kansas Court of Appeals, see State v. Scott , 356 P.3d 436 (Kan. 2015), but did not seek review with the Kansas Supreme Court. He then filed a pro se a pplication under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas alleging prosecutorial misconduct, the denial of a fair trial, a violation of his Fifth Amendment privilege against selfincrimination, and cumulative erro r. He indicated in his application that he did not file a

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2016 Elisabeth A. Shumaker Clerk of Court2 petition for review in the Kans as Supreme Court because his appellate attorney failed to do so, in violation of Kansas ethical rules. The magistrate judge ordered Mr. Scott to show cause why his application should not be denied for failure to e xhaust state remedies as required by 28 U.S.C. § 2254(b)(1). To satisfy the exhaustion requirement, the app licant “must give the state courts one full opportunity to resolve any constitutional i ssues 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 seeking discretionary review by the state’s highest court. See id. at 845–846. Mr. Scott responded that he had satisfied the exhaustion requirement by presenting his claims to the Kansas Court of Appeals a nd also argued that his procedural default could be overcome because he had shown a miscarriage of justice. The district court denied his application and di smissed the action for failure to exhaust administrative remedies. Mr. Scott now seeks a certificat e of appealability (COA) from this court. See 28 U.S.C. § 2253 (c)(1)(A) (requiring COA to a ppeal denial of § 2254 relief). We deny the application for a COA and dismiss the appeal. “A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a c onstitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court deni es a habeas petition on proce dural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issu e when the prisoner shows, at least, that jurists of reason woul d find it debatable whethe r the petition states a3 valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court wa s 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 dis pose of the case, a reasonable jurist could not conclude either that the district court erre d in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. In his brief to this court, Mr. Scott reitera tes his substantive claims and asserts that his procedural default should be excused be cause his appellate counsel was ineffective for failing to seek review with the Kansas Supreme Court. This argument fails on two grounds. First, Mr. Scott did not raise the ineffec tiveness claim in response to the district court’s order to show cause. We could refuse to consider the argument on that ground alone. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (issue not raised in district court in § 2254 proceeding is waived). Second, although “counsel’s ineffectiven ess in failing properly to preserve the claim for review in state c ourt will suffice” as cause to excuse procedural default, “principles of comity and federalism that unde rlie our longstanding exhaustion doctrine . . . . require [an ineffective-counsel claim], like others, to be first raised in state court.” Edwards v. Carpenter , 529 U.S. 446, 451–52 (2000). But Mr. Scott has failed to raise in Kansas court his claim of ineffective appellate counsel. Nor has he argued that there was cause for his failure or that he could still raise the issue in state court. Therefore, the4 ineffectiveness claim is procedurally barred. See Gray v. Netherland , 518 U.S. 152, 162 (1996). We conclude that the district court’s ru ling would not be deba table by reasonable jurists. We DENY the application for a COA and DISMISS the appeal.

Entered for the Court

Harris L Hartz Circuit Judge