F I LED

United States Court of Appeals

Tenth Circuit

August 11, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRED F. FRANZONE,

Petitioner - Appellant,

v.

BILL OWENS, Governor, et al.;

JOHN SUTHERS, the Attorney

General of the State of Colorado,

Respondents - Appellees.

No. 06-1122

(D.C. No. 05-CV-02633-ZLW)

(D. Colo.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Fred F. Franzone, a state inmate proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s dismissal of his petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and subsequent denial

of a COA. The district court concluded that Mr. Franzone had failed to exhaust

his state remedies. 28 U.S.C. § 2254(b)(1)(A). 

Mr. Franzone was convicted, following a jury trial, on August 30, 1998, of

(1) endangering public transportation, and (2) menacing. R. Doc. 3, attach. He

was sentenced to a five years on count 1 and two years on count 2, to run

concurrently with count 1, “plus any terms of parole authorized by CRS 18-1-
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105(1)(A)(V).” He served four years in prison, was paroled, and then was

returned to prison after a parole violation. In his habeas petition, Mr. Franzone

challenges the mandatory parole term on several grounds. On appeal, he raises

several more issues.

It appears that Mr. Franzone had a state direct appeal, with certiorari denied

on December 20, 1999. He also sought relief under Colo. R. App. P. 21, and

those resulted in denials on July 6, 2003 and August 24, 2005. He also lists three

post-conviction proceedings under Colo. R. Crim. P. 35. R. Doc. 3 at 4.

To obtain a COA, Mr. Franzone must make a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 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).

After reviewing the record on appeal, we conclude that Mr. Franzone has

failed to establish that the district court’s ruling concerning exhaustion of the

claims made in the petition is reasonably debatable. We agree with the district

court that Mr. Franzone’s efforts to utilize the original jurisdiction of the

Colorado Supreme Court does not constitute “fair presentation” of his claims for
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purposes of exhaustion. See Castille v. Peoples, 489 U.S. 346, 351 (1989). 

Although Mr. Franzone also argues that he filed three Rule 35 motions in 2000,

his petition does not indicate that this claim was included, but regardless, he

would not have complete exhaustion having failed to appeal. He provides no

rationale as to why exhaustion might not apply. Although we construe pro se

petitions liberally, the pro se petitioner has the burden of providing the relevant

facts, particularly where the district court raised the exhaustion issue. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

We DENY the COA, DENY leave to proceed IFP, and DISMISS the

appeal. 

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge