UNITED STATES COURT 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 appealability (“COA”) to appeal the district 

court’s denial of his 28 U.S.C. § 2254 petition for habeas relief. We deny a COA and 

dismiss the appeal. 

I 

 Angle pled guilty in Colorado state court to second degree assault. He was 

sentenced to two years of intensive supervised probation and did not appeal. Shortly 

thereafter, the state court found that Angle violated several probation conditions. He 

 * This order is not binding precedent except under the doctrines of law of the 

case, res judicata, and collateral 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’ incarceration. Again, Angle did not file an appeal in state 

court, nor has he filed any state post-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 relief 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 § 2254. Angle complied. In a 

Pre-Answer Response, the government argued that Angle failed to exhaust state 

remedies, as required before a state prisoner can seek relief under § 2254. See 

§ 2254(b)(1). The state noted that Angle has until January 2016 to seek postconviction relief in Colorado state court under Colo. R. Crim. P. 35(c). Angle replied 

that the exhaustion requirement 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 ineffective. 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 claims could not be asserted under § 2255 

because he was not challenging a federal sentence 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 legal resources to pursue state remedies, given that he had been 
-3- 

able to submit federal court filings. Thus, the district court ruled that Angle failed to 

meet his evidentiary burden of proving 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 denial of a constitutional right.” § 2253(c)(2). To satisfy 

this standard, Angle must demonstrate “that reasonable jurists could debate whether 

(or, for that matter, agree that) the petition should have been 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) (quotation omitted). 

If § 2254 relief is denied on procedural grounds, the applicant must additionally show 

“that jurists of reason would find it debatable . . . whether the district court was 

correct in its procedural ruling.” Id. 

We construe Angle’s filings liberally because he is a pro se litigant, but we 

will not act as his advocate. Hall v. Bellmon, 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 remedies 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 prisoner must pursue it through one complete round of the 

State’s established appellate review process, giving the state courts a full and fair 

opportunity to correct alleged constitutional errors.” Id. (quotation omitted). Failure 
-4- 

to exhaust may be excused if “there is an absence of available State corrective 

process” or “circumstances exist that render such process 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 has not met his burden. It is undisputed that he has not 

presented any of his claims to a Colorado state court. Angle 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 correctly dismissed his § 2254 petition 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