* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or 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 

### JUL 16 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD C. WHITE, Petitioner-Appellant,

v. MARC MCKINNA, Warden; SUPREME COURT, STATE OF COLORADO, Respondents-Appellees. No. 97-1370 (D.C. No. 96-M-2331) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , 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); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 We grant Mr. White’s motion to supplement the recor d on appeal. -2- Richard White filed petition for writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a magistrate judg e who recommended dismissal on the ground that petitioner had filed a “mixed pe tition” containing exhausted and unexhausted claims. The district court issued an order denying the writ and dismissing the action. We agree and affirm. 1 Mr. White was convicted in Denver District Court in1993 of two counts of sexual assault on a child and one count of intimidating a witness, for which he sentenced to a total of ten years in prison. The C olorado Court of Appeals affirmed the conviction and sentence on direct appe al and the Colorado Supreme Court denied certiorari. Mr. White then filed for post-conviction relief in the Denver District Court. When that motion was denied , Mr. White appealed to the Colorado Court of Appeals, which reversed the trial court and remanded for an evidentiary hearing. Mr. White’s motion for post-c onviction relief, for which he has been afforded state-appointed counsel, is still pending in state court and encompasses many of the claims Mr. White is attempt ing to raise in his section 2254 petition. A “mixed petition”, which contains exhausted and un exhausted claims, must be dismissed. See Rose v. Lundy , 455 U.S. 509, 510 (1982); Harris v. Champion , 15 F.3d 1538, 1555 (10th Cir. 1994). Mr. White attempts to avoid this2 Mr. White complains that the Colorado courts have r efused to entertain his

pro se motions while he is represented by counsel . While Mr. White cannot represent himself so long as he has counsel, we fin d nothing in the record indicating that the Colorado courts would deprive M r. White of the opportunity to represent himself if he elected to forego counsel. -3- bar by asserting that his post-conviction relief pr oceeding has been deliberately delayed, thereby excusing him from exhausting his s tate remedies. We have held that “excessive and inexcusable delay” in a state direct appealmay excuse the exhaustion requirement. See Harris , 15 F.3d at 1555. Here the alleged delay is in a state post-conviction proceeding to which Mr. White has no federal constitutional right. See Pennsylvania v. Finley , 481 U.S. 551, 556-57 (1987). Moreover, any delay in the scheduling of Mr. White’ s evidentiary hearing has been caused primarily by a continuance requested by his own counsel, as well as by Mr. White’s differences of opinion with prior co unsel. Mr. White is not entitled to circumvent the exhaustion requirement a s a remedy for his unhappiness with his counsel, especially given the fact that he has no constitutional right to post-conviction counsel at all. See Coleman v. Thompson , 501 U.S. 722, 752 (1991); Pennsylvania v. Finley , 481 U.S. 551, 555-56 (1987); Smith v. Sec’y of New Mexico Dep’t of Corrections , 50 F.3d 801, 821 n.29 (10th Cir. 1995). Mr. White has made no showing that he would not be allo wed to proceed in this matter without counsel if he so chooses. 2 On any application for collateral review, a certifi cate of appealability will-4-

issue only if the “applicant has made a substantial showing of the denial of a constitutional right.” Lennox v. Evans , 87 F.3d 431, 433 (10th Cir. 1996). There has been no unconstitutional delay in the state pos t-conviction proceeding. Not only does Mr. White have an available avenue for re lief in state court, he may also return to federal court upon exhausting those avenues if he fails to obtain the relief he seeks. The certificate of appealability is DENIED and the appeal is DISMISSED
. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge