UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CHAD ANGLE, Petitioner - Appellant,

v. LAURIE TAFOYA; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 14-1139 (D.C. No. 1:13-CV-03424-LTB) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and MORITZ , Circuit Judges.
Chad Angle seeks a certificate of appeal ability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 pe tition for habeas relief . We deny a COA and dismiss the appeal.
I Angle pled guilty in Colorado state c ourt to second degree assault. He was sentenced to two years of intensive superv ised probation and did not appeal. Shortly thereafter, the state court found that Angl e violated several pr obation conditions. He

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### December 3, 2014
Elisabeth A. Shumaker Clerk of Court-2- was sentenced to six years’ inca rceration. Again, Angle did not file an appeal in state court, nor has he filed any state pos t-conviction motions for relief. On December 18, 2013, Angle filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. But habeas relief is available to state prisoners under § 2254, not § 2255, which affords habeas re lief to federal prisoners. See Stanko v. Davis, 617 F.3d 1262, 1266-67 (10th Cir. 2010). A magistrate judge directed Angle to cure this deficiency by filing under § 22 54. Angle complied. In a Pre-Answer Response, the government argue d that Angle failed to exhaust state remedies, as required before a state pris oner can seek relief under § 2254. See § 2254(b)(1). The state noted that A ngle has until January 2016 to seek postconviction relief in Colorado state court under Colo. R. Crim. P. 35(c). Angle replied that the exhaustion requireme nt should be excused because his state public defender prevented him from exhausting, he lacked the legal resources to pursue state claims, and state remedies would be unusable or ineffect ive. He also insisted that the district court address his § 2255 motion. The district court dismissed Angle’s § 2254 petition for failure to exhaust state remedies. It explained that Angle’s cl aims could not be as serted under § 2255 because he was not challenging a federal se ntence and was not in federal custody. See § 2255(a). And the court ruled that a Colorado Rule 35( c) post-conviction motion provided an available state corrective process. It also noted that Angle had sufficient access to le gal resources to pursue state reme dies, given that he had been-3- able to submit federal court fi lings. Thus, the district cour t ruled that Angle failed to meet his evidentiary burden of pr oving that exhaustion was futile.
II Angle may not appeal the denial of a § 2254 petition without a COA. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA only if “the applicant has made a substantial showing of the deni al of a constitutional right.” § 2253(c)(2). To satisfy this standard, Angle must demonstrate “tha t reasonable jurists could debate whether (or, for that matter, agree that) the petition should have b een resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quot ation omitted). If § 2254 relief is denied on procedural groun ds, the applicant must additionally show “that jurists of reason would find it debata ble . . . whether the district court was correct in its procedur al ruling.” Id. We construe Angle’s filings liberally b ecause he is a pro se litigant, but we will not act as his advocate. Hall v. Be llmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “A state prisoner generally may not raise a claim for federal habeas corpus relief unless he ‘has exhausted the reme dies available in the courts of the State.’” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting § 2254(b)(1)(A)). “To exhaust a claim, a state pris oner must pursue it through one complete round of the State’s established appellate review process, giving the st ate courts a full and fair opportunity to correct alleged constitutional errors.” Id. (quotat ion omitted). Failure-4- to exhaust may be excused if “there is an absence of available State corrective process” or “circumstances exist that render such proces s ineffective to protect the rights of the applicant.” § 2254(b)(1)(B)(i), (ii). “The state prisoner bears the burden of proving that he exhausted state court remedies or that exhaustion would have been futile.” Selsor, 644 F.3d at 1026 (citation omitted). Angle ha s not met his burden. It is undisputed that he has not presented any of his claims to a Colorado state court. A ngle contends that he cannot obtain a fair and impartial ruling in state court, but advances only implausible and unsupported allegations in support of that theory. No reasonable jurist would debate that the district court corr ectly dismissed his § 2254 petit ion for failure to exhaust state remedies.
III
We DENY Angle’s application for a COA, DENY his motion to proceed in forma pauperis, and DISMISS this appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge