* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral 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 

### JUN 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES MELVIN TORRENCE, Petitioner-Appellant,

v. ROBERT D. HANNIGAN; CARLA J. STOVALL, Respondents-Appellees. No. 99-3087 (D.C. No. 96-3249-DES) (D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th e panel has determined oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th erefore, the case is ordered submitted without oral argument. Charles M. Torrence, a state prisoner appearing pro se, seeks a certificate of appealability to appeal the district court’s dis missal of his 28 U.S.C. § 2254-2-

habeas petition. As Torrence has failed to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2), we deny a certificate of appealability and dismiss the appeal.
I. Torrence pleaded guilty in state court to one countof aggravated robbery, in violation of Kan. Stat. Ann. § 21-3427, and he w as sentenced to a term of five to twenty years’ imprisonment. His “motion to amen d, or alter or modify judgment of conviction and sentence” pursuant to Kan. Stat. Ann. § 60-259(f) was denied, and his subsequent appeal to the Kansas Cou rt of Appeals was dismissed because it was untimely filed. He did not seek rev iew with the Kansas Supreme
Court. Torrence filed a habeas petition in state court pur suant to Kan. Stat. Ann. § 60-1507, asserting both facial and “as applied” c hallenges to the constitutionality of the statute under which he was convicted. The issues were identical to the claims he attempted to raise on di rect appeal. The court denied relief and the Kansas Court of Appeals affirmed the denial, holding Torrence’s failure to raise the issues in a timely direct appe al precluded him from obtaining relief in a habeas petition. He sought review with the Kansas Supreme Court, which was denied. Torrence filed the instant federal habeas petition asserting the same1 Although the state did not explicitly raise this point before the district

court, the issue was not waived. Indeed, following enactment of the Antiterrorism and Effective Death Penalty Act of 19 96, “[a] State shall not be deemed to have waived the exhaustion requirement orbe estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis add ed). -3- grounds as in his state habeas petition. The feder al district court denied the petition on the merits
II. We need not reach the merits of Torrence’s petition to uphold the district court’s ruling. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court deci sion on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.”). A state prisoner ha s no right to federal habeas relief unless he “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Torrence did not exhaust his available remedies. 1 “The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct revie w of the conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994) (emphasis added). Although Torren ce appealed his conviction and sentence to the Kansas Court of Appeals, he fil ed his notice of appeal beyond the jurisdictional time limit set forth in Kan. Stat. Ann. § 22-3608. An untimely-4-

appeal that is rejected by the state appellate court on that basis is not considered to have been “properly presented.” See Hoggro v. Boone , 150 F.3d 1223, 1227 n.4 (10th Cir. 1998). In his state habeas petition, Torrence reiterated t he arguments he had raised in his untimely direct appeal. Both the Kansas Cou rt of Appeals and the Kansas Supreme Court refused to consider his claims on the merits based on his failure to assert the arguments in a timely direct appeal. Th e Kansas Court of Appeals noted a prisoner cannot use § 60-1507 as a substitute for direct appeal of constitutional errors unless exceptional circumstan ces justify the failure to raise such matters on direct appeal, citing Kan. Sup. Ct. R. 183(c)(3). Torrence did not demonstrate or claim any such exceptional circumstances in state court. Generally, when a petitioner fails to exhaust his s tate court remedies, his federal habeas petition will be dismissed without p rejudice to provide an opportunity to return to state court to pursue those remedies. Demarest v. Price , 130 F.3d 922, 939 (10th Cir. 1997). This rule does not apply, however, if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds. Coleman v. Thompson , 501 U.S. 722, 735 & n.1 (1991). Torrence’s failure to seek timely revi ew of his federal claims in state court constitutes a failure to exhaust available st ate court remedies. His claims are thus procedurally defaulted for purposes of fed eral habeas review.-5-

The Supreme Court has recognized one narrow excepti on to the procedural default rule for petitioners who can establish “cau se for the default and actual prejudice as a result of the alleged violation of f ederal law, or demonstrate that failure to consider the claims will result in a fun damental miscarriage of justice.” Id. at 750. The miscarriage of justice prong is expli citly tied to the petitioner’s actual innocence. Schlup v. Delo , 513 U.S. 298, 321 (1995). Torrence has not alleged or demonstrated cause and prejudice for his default. Nor has he articulated any facts suggesting he actually may be innocent. Torrence’s application for a certificate of appeala bility is DENIED and his appeal is DISMISSED. The mandate shall issue forthwith. Submitted for the Court Mary Beck Briscoe Circuit Judge