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

### OCT 12 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VERNON JOSEPH TURLEY, Petitioner-Appellant,

v. GARY WATKINS; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 04-1111 (District of Colorado) (D.C. No. 00-N-2519 (BNB))

ORDER

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
Proceeding pro se , Vernon Joseph Turley seeks a certificate of appealability (“COA”) so he can appeal the districtcourt’s dismissal of the habeas petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a final order disposing of a § 2254 petition unless the petitioner first obtains a COA)

. After two separate jury trials, Turley was convicte d, inter alia , of three counts of first-degree sexual assault, three counts of second-degree kidnapping, and one count of robbery. The Colorado Court of Ap peals affirmed all of-2-

Turley’s convictions in unpublished opinions. On M ay 13, 1994, Turley filed a motion in Colorado state court pursuant to Rule 35( c) of the Colorado Rules of Criminal Procedure seeking post-conviction relief. Shortly thereafter, counsel was appointed to represent Turley in his state post -conviction proceedings. The state trial court granted counsel’s motion to withd raw on December 16, 1998 and new counsel was appointed. On December 20, 2000, Turley filed a pro se § 2254 habeas corpus petition in the United States District Court for the Distric t of Colorado. Deficiencies in the petition were corrected by Turley on March 21, 2001. In his petition, Turley alleged that he received ineffective assistance of counsel during pretrial proceedings, at trial, and at the sentencing hearin g. He also alleged that his appellate attorney and the attorney who representedhim in his state postconviction proceedings were both ineffective. At the time Turley filed his § 2254 petition, his state post-conviction proceedings wer e still pending in Colorado state
court. In response to an order to show cause entered by th e federal district court, Respondents argued that Turley’s § 2254 petition sh ould be dismissed because he failed to exhaust his state remedies. Specifically , Respondents alleged that resolution of the three claims raised in Turley’s § 2254 petition was still pending in Colorado state court. The matter was referred t o a United States magistrate-3-

judge who prepared a comprehensive report and recommendation which recommended dismissing Turley’s habeas petition bec ause Turley failed to exhaust his state remedies. Acknowledging that Tur ley’s state post-conviction motion was filed in 1994 and further noting that Tu rley’s appeal from the denial of post-conviction relief had been pending in the C olorado Court of Appeals since November 6, 2002, the magistrate judge nevertheless concluded that Turley and his counsel were responsible for the delay in adjud icating Turley’s state postconviction motion. The district court adopted the magistrate judge’s recommendation, and refused to excuse the exhaustio n requirement. The court consequently dismissed Turley’s § 2254 petition without prejudice. To be entitled to a COA, Turley must show “that jur ists of reason would find it debatable whether the district court was co rrect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 474, 484-85 (2000) (holding that when a district court dismisses a habeas petition on procedural gro unds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and debatable whether the district court’s procedural ruling was correct). Our review of the record demonstrates that the district court’s dismissal of Turley’s § 2254 petition is not deserving of further proceedings or subject to a di fferent resolution on appeal.-4-

Accordingly, we deny Turley’s request for a COA, deny his motion to proceed in forma pauperis on appeal, and dismiss this appeal. Entered for the Court PATRICK FISHER, Clerk of Court

By: Deputy Clerk