UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

XEZAKIA ROUSE, 

 Petitioner - Appellant, 

v. 

STATE OF NEW MEXICO 

CORRECTIONS DEPARTMENT, 

Respondent - Appellee. 

No. 14-2212 

(1:13-CV-01246-JCH-GBW) 

(D. N.M.) 

ORDER DENYING A CERTIFICATE OF APPEALABILITY 

AND DISMISSING THE APPEAL 

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges. 

This appeal grew out of an application for habeas relief by Mr. 

Xezakia Rouse. In the application, Mr. Rouse challenged his underlying 

conviction based on two claims of ineffective assistance of counsel, 

alleging failures to appeal and to urge dismissal of the charges based on 

violation of the Interstate Agreement on Detainers Act. The district court 

dismissed the application without prejudice, holding that the ineffective 

assistance claims had not been exhausted in state court. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 12, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Mr. Rouse requests a certificate of appealability to appeal the denial 

of habeas relief. Because no reasonable jurist would find the claim 

exhausted, we hold that Mr. Rouse is not entitled to a certificate of 

appealability. Thus, we dismiss the appeal. 

I. Standard for a Certificate of Appealability

To appeal, Mr. Rouse needs a certificate of appealability. 28 U.S.C. 

§ 2253(c)(1)(A). For the certificate, Mr. Rouse must show that reasonable 

jurists could find the district court’s ruling on exhaustion debatable or 

wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). 

II. Exhaustion of State Court Remedies

Federal law requires exhaustion of state court remedies. 28 U.S.C. 

§ 2254(b)(1)(A). To exhaust the claims, Mr. Rouse must “fairly present” 

the substance to the state’s highest court, giving it a fair opportunity to 

decide the merits. Baldwin v. Reese, 541 U.S. 27, 29 (2004). 

In a prior habeas case, the district court held that the same two issues 

were unexhausted. Rouse v. Romero, No. 11-cv-405-JCH/SMV (D. N.M. 

June 25, 2013) (Dkt. 157) (unpublished). We dismissed a later appeal, 

holding that the district court’s ruling on exhaustion was not reasonably 

debatable. Rouse v. Romero, 531 F. App’x 907 (10th Cir. 2013) 

(unpublished). 

Since this ruling, Mr. Rouse filed a new habeas petition in the state 

supreme court. But, he did not allege ineffective assistance of counsel 

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based on the attorney’s failure to appeal or to invoke the Interstate 

Agreement on Detainers Act. The New Mexico Supreme Court later denied 

relief, but had no reason to address the ineffectiveness claims involving 

the failure to appeal or invoke the Interstate Agreement on Detainers Act. 

Thus, Mr. Rouse has not presented the ineffective assistance claims to the 

state supreme court since our determination that the claims were 

unexhausted. 

In these circumstances, we again conclude that reasonable jurists 

could not debate the correctness of the district court’s holding on 

exhaustion. Accordingly, we decline to issue a certificate of appealability 

and dismiss the appeal. 

 Entered for the Court 

 Robert E. Bacharach 

 For the Court 

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