UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREGORY DEAN ALBRIGHT, Petitioner - Appellant,

v. RICK RAEMISCH, Exec. Dir. CDOC; DAVID WALCHER, Arapahoe County Sheriff; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 14-1496 (D.C. No. 1:14 -CV-01505-LTB ) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , LUCERO and McHUGH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this

* This order is not binding precedent, except under th e doctrines of law of the case, res judicata , and collateral est oppel. It may be cite d, 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 

### February 6, 2015

Elisabeth A. Shumaker Clerk of Court-2- appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Gregory Dean Albright , proceeding pro se, 1 filed an applica tion for relief under 28 U.S.C. § 2241 in the United States District C ourt for the District of Colorado, challenging his state parole revocation pr oceedings and incarceration. The district court denied his application and dismissed the action because Mr. Albright fa iled to exhaust his available state court remedies. Mr. Albright now s eeks a certificate of a ppealability (COA) from this court to pursue an appeal challenging the district court’s decision. For the reasons explained below, we deny a COA and dismiss this matter.

BACKGROUND I. Mr. Albright is currently in the cust ody of the Colorado Department of Corrections awaiting resolution of parole revocation proceedings . [ROA 365] While incarcerated, Mr. Albright filed various claims within the Colorado state court system. Specifically, in February 2014 , Mr. Albright filed a petition for a writ of habeas corpus

for unlawful detention in the Washington County District C ourt, claiming that his rights were violated in his parole revocation process. The Washin gton County District Court denied Mr. Albright’s petition, and Mr. Albright appealed the decision to the Colorado

1 Because Mr. Albright appears pro se, we liberally construe his filings. Yang v. Archuleta , 525 F.3d 925, 927 (10th Cir. 2008).-3- Supreme Court. The Colorado Supreme Court affirmed the decision after Mr. Albright failed to timely file an opening brief. [ROA 254–55, 243, 253] In April 2014, Mr. Albright filed a pe tition for post-conviction relief pursuant to Rule 35(c)(2)(VI) of the Colo rado Rules of Criminal Procedure in the Adams County District Court, alleging that his parole revoc ation process violated state and federal law. [ROA 131, 134] The Adams Co unty District Court, citing Rule 35(c)(2)(VII), denied Mr. Albright’s petition on the merits. 2 [ROA 158] Mr. Albright did not appeal this decision. [ROA 372] Later that same month, Mr. Albright filed with the Colorado Supreme Court a

“Petition for Colorado Su preme Court Original Jurisdicti on in the First Instance.” Mr. Albright asked the court to exercise its genera l superintending authority over all courts to correct what Mr. Albright characterized as the Parole Board’s systemic practice of conducting parole revocation pr oceedings in violation of state and federal law. [ROA

2 Rule 35 provides in relevant part, every person convicted of a crime is entitled as a matter of right to make application for postconviction review up on the grounds hereinafter set forth . . . (VI) Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or (VII) That th e sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release. Colo. R. Crim. P. 35(c)(2)(VI)–(VII).-4- 269–71] The court declin ed to accept original jurisdiction to address the merits of Mr. Albright’s claims. [ROA 301] Finally, in June 2014, Mr. Albright file d a petition for writ of habeas corpus for unlawful detention in the Arapahoe County District Court, raising, among other challenges, the constitutionality of his dete ntion and parole revo cation proceedings. [ROA 164–79] After conducting a hearing, th e district court denied Mr. Albright’s petition on the merits. Mr. Albright filed a petition for rehearing, which, at the time of the district court’s order in the instant case, wa s pending with the Arapa hoe District Court. [ROA 373] In May of 2014, while some of these cases were pending in the state court, Mr. Albright filed an application for writ of hab eas corpus in the federal district court, challenging the execution of his sentence under 28 U.S.C. § 2241. 3 [ROA 365] According to Mr. Albright, the parole revoc ation process and detention violated his constitutional rights to due pro cess and equal protection, and violated his rights against excessive bond, cruel and unus ual punishment, and unreasonable seizure. [ROA 36–49] Rather than address the merits, the district court denied Mr. Albrig ht’s application and dismissed the case without prejudice, holding that he had failed to exhaust available state court remedies as required by federal law. [R OA 368–73] In addition, the district court

3 In July 2014, Mr. Albright filed an ame nded application with the district court. [ROA 31]-5- declined to excu se the exhaustion requirem ent in Mr. Albright’s case, reasoning that he

had failed to show that the State’s correc tive process was unavailable or otherwise ineffective to protect his rights. It deni ed Mr. Albright a COA. [ROA 374–75] Mr. Albright now seeks a COA from this court, challenging the district court’s

decision that he failed to exha ust his state court remedies. He has also moved to proceed in forma pauperis and made tw o motions for oral argument. 4 We first address the exhaustion requirement befo re turning to Mr. Albright’s outstanding motions. DISCUSSION II.

A. Standard of Review A state prisoner may appeal from the deni al of federal habeas relief under § 2241 only if he first obtains a COA. See Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000) (recognizing the COA requirement applie s to § 2241 petitions). We will only issue a COA “if the applicant has made a substantia l showing of the deni al of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as h ere, a habeas petitioner seeks to appeal a dismissal based on “procedural grounds without reaching the prisoner’s underlying constitutional claim,” the petitioner seeking a COA must demonstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

4 Additionally, Mr. Albright filed a moti on for release pending his appeal of the court’s dismissal of his § 2241 appli cation, which we previously denied.-6- 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). B. Exhaustion of St ate Court Remedies A habeas petitioner bringi ng an action under § 2241 is required to exhaust available state court remedies prior to filing suit in federal court. Montez , 208 F.3d at 866. This requires Mr. Albright to have “fairl y presented” his claims to the state court. See Castille v. Peoples , 489 U.S. 346, 351 (1989). As a general rule, fair presentment means that the federal issues have been “‘pr operly presented to th e highest state court, either by direct review of the convic tion or in a postconviction attack.’” Brown v. Shanks , 185 F.3d 1122, 1124 ( 10th Cir. 1999) (quoting Dever v. Kan. State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994)). Although the exhaus tion requirement is “strictly enforced,” Hernandez v. Starbuck , 69 F.3d 1089, 1092 (10th Cir. 19 95), we will excuse a habeas corpus applicant from the exhaustion requirement if “there is an absence of available State corrective process . . . or . . . circ umstances exist that render such process ineffective to protect the rights of th e applicant,” 28 U.S.C. § 2254(b)(1)(B). In his request for a COA, Mr. Albright ch allenges the district court’s decision that

he failed to exhaust his administrative remedi es. He claims the court should have excused the exhaustion requirement because State officials kidnapped him, altered his postconviction relief filing from one proceeding under Rule 35(c)(2)(VI) to one proceeding under Rule 35(c)(2)(VII), made false files, deliberately misfiled documents, withheld-7- records, tampered with legal mail, and tr ansferred him between facilities in order to impede his litigation abilities. 5 [Aplt. Request for COA and Opening Brief 16–18] Notwithstanding Mr. Albright ’s unsubstantiated allegati ons of nefarious conduct on the part of the State, there is nothing in th e record to indicate th at the State’s corrective process was unavailable or that any circumstan ces existed that would render this process ineffective. Rather, the record illustrates Mr. Albright simply failed to fairly present his

claims to the Colora do Supreme Court. For example, the Colorado Su preme Court affirmed the denial of Mr. Albright’s petition for a writ of habeas corpus in the Washington County District Court after Mr. Albright failed to timely file an opening brie f. Similarly, after the Adams County District Court denied Mr. Albright’s petition for post -conviction relief, he failed to appeal the

denial. 6 Mr. Albright has pointed to no evidentia ry support in the record that would

5 In addition, Mr. Albright reargues hi s challenges to the c onstitutionality of his parole revocation proceedings and detention. [Aplt. Reques t for COA and Opening Brief 16] He also claims that he was entitled to ba il pending the district court’s habeas review. [Aplt. Request for COA and Opening Brief 19] Because whether or not Mr. Albright should be excused from the exhaustion re quirement is dispositive, and because we conclude the district court correctly determined that Mr. Albright did not exhaust his state court remedies, we limit our discussi on to the exhaustion issue alone.

6 Mr. Albright is correct that his petiti on before the Adams Co unty District Court asserted that he was entitled to post-conv iction relief under Rule 35(c)(2)(VI), which provides that a party may seek relief on an y “grounds otherwise properly the basis for collateral attack upon a crim inal judgment,” but the Adam s County District Court’s opinion cited Rule 35(c)(2)(VII), which provides relief where “the sentence imposed has been fully served or . . . there has been unlawful revoca tion of parole, probation, or Continued . . .-8- excuse his failure to properly appeal these de cisions or illustrate why these appeals might

have been futile or ineffectiv e. And with respect to Mr. Albright’s petition for writ of habeas corpus before the Arapahoe County Dist rict Court, this matte r was still pending in

the state court at the time of the district court’s order dismissing the current § 2241 application. Mr. Albright must complete the pr oper state court procedures with respect to that case before seeking relief on the same claims in federal court. Likewise, Mr. Albright’s request, that the Colorado Supreme Court exercise its original jurisdiction, does not constitu te fair presentment of his claims, see Castille , 489 U.S. at 351 (holding that using a state proced ure that is discretionary and limited in scope is not fair presentation), nor does the Colo rado Supreme Court’s discretionary decision not to exercise its original jurisdiction illustrate that the State’s corrective process was unavailable or that such process would be ineffective. Indeed, the Colorado Supreme Court’s exercise of its original jurisdiction “is extraordinary in nature and . . . shall be granted only when no other adeq uate remedy . . . is available.” Colo. App. R. 21(a)(1). As explained, Mr. Albright presented his claims in the district courts in the Washington, Adams, and Arapahoe counties, and has had th e opportunity to challe nge within the state

conditional release.” Colo. R. Crim. P. 35( c)(2)(VI), (VII). [ROA 138, 158] The precise grounds upon which Mr. Albright sought post-c onviction relief appears to have had no effect on the court’s decision to deny the pe tition on the merits, and we therefore place no significance on the distinction between secti ons (VI) and (VII). [ROA 158] In any event, Mr. Albright did not appeal the Adams County District Court’s decision. Therefore, he cannot establish that the state proceeding was unavailable or that this discrepancy rendered the process ineffective.-9- court system any adverse decisions. Mr. Albright has pointed to nothing in the record that

would establish that these remedies would ha ve been inadequate or that the Colorado Supreme Court abused its discreti on in declining to exercise it s original jurisdiction in his

case. Accordingly, the State’s corrective process was fully available to Mr. Albright and there is nothing to indicate it would have been ineffective if Mr. Albright had properly presented and pursued his claims in the state court. Therefore, we perceive no error in the district court’s decision, and jurists of reas on would not find it debata ble that the district court was correct in dismissing Mr. Albright ’s § 2241 application on the procedural ground that he failed to exhaus t his state court remedies.

C. Motions to Proceed in Forma Pauperis and for Oral Argument We now turn to Mr. Albright’s motions to proceed in forma pauperis and for oral argument. As illustrated by the discussion ab ove, Mr. Albright has failed to present any nonfrivolous grounds for cha llenging the district court’s conclusion that he failed to

exhaust all available state court remedies. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991) (to succeed on a motion to proceed in forma pauperis, “appellant must show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” (citing 28 U.S.C. § 1915(a))). Accord ingly, we deny his motion to proceed in forma pauperis and direct him to remit the fu ll amount of the appellate filing fee. For the-10- same reason, we find that oral argument would not assist in the resolution of this matter. We therefore deny Mr. Albright’s motions for oral argument. CONCLUSION III. We DENY Mr. Albright’s a pplication for a COA and DI SMISS this matter. We also DENY Mr. Albright’s motions to procee d in forma pauperis and for oral argument.

ENTERED FOR THE COURT

Carolyn B. McHugh Circuit Judge