* This order and judgment is not binding precedent, e xcept under the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

### OCT 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOSHUA YOUNG RICHARDSON,

Petitioner-Appellant,

v. DEPARTMENT OF CORRECTIONS; ARISTEDES W. ZAVARAS; GALE A. NORTON, Attorney General,

Respondents-Appellees. No. 99-1108 (D.C. No. 98-Z-2150) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Joshua Young Richardson, appearing pro s e, appeals the district court’s denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The district court determined that because Richards on failed to exhaust his available state court remedies, his habeas issues w ere procedurally barred. We have jurisdiction pursuant to 28 U.S.C. § 1291, andwe affirm. In reviewing the denial of a petition for a writ of habeas corpus, we accept the district court’s findings of fact unless clearl y erroneous and we review the court’s conclusions of law de novo. Hill v. Reynolds , 942 F.2d 1494, 1495 (10th Cir. 1991). We construe Richardson’s pro se pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972). Applying this liberal construction to Richardson’s appellate brief, we discern his appell ate arguments as alleging that the district court erred in denying his habeas corp us petition because (1) there were special circumstances which should have excuse d Richardson from his failure to exhaust state court remedies, and (2) Ri chardson established cause for his procedural default. Richardson was sentenced to sixteen years’ imprison ment plus up to five years of supervised release for aggravated robbery and eight years’ imprisonment plus up to five years of supervised release for the ft. These sentences were to run concurrently. Since his initial incarceration, Ric hardson has twice been paroled and has twice been returned to prison on parole vio lations. In his habeas corpus1 Colo. Const. art. VI, § 3 grants the Colorado Supre me Court the power to

issue original writs of habeas corpus. See Colo. App. R. 21. The exercise of this original jurisdiction is discretionary, see McConnell v. District Court , 680 P.2d 528, 530 (Colo. 1984), and will not be exercised “w hen the question may be properly submitted and determined and the rights of the petitioner fully protected and enforced, in the lower court,” Rogers v. Best , 171 P.2d 769, 770 (Colo. 1946) (en banc). The state appellate court’s denial of a n original petition under Rule 21 does not indicate consideration of the merits. See Bell v. Simpson , 918 P.2d 1123, 1125 n.3 (Colo. 1996) (en banc). -3- petition, he claimed that his parole revocation was illegal, the computation of his sentence following his parole revocation was incorr ect, that he had served more prison time than his original sentence, and that he should be released immediately from prison. Richardson has raised these issues in several state court actions. In 1997, the Colorado Supreme Court denied Richardson’s orig inal petition for writ of habeas corpus without reaching the merits. 1 On November 10, 1997, Richardson filed a petition for writ of habeas corpus in state district court, Arapahoe County, Colorado. He moved to dismiss this petition six we eks later on January 29, 1998, claiming that the court had refused to take action on his petition. Richardson then filed his petition in state district court in Crowl ey County, Colorado. On March 25, 1998, the Crowley County District Court denied the petition on the merits. While his petition in Crowley County District Courtwas still pending, in February 1998, Richardson filed a Colo. R. Civ. P. 106 claim in the district court for the City and County of Denver. Denver DistrictCourt denied the claim on-4-

May 26, 1998, for failure to state a claim upon whi ch relief could be granted. A copy of this order, mailed to Richardson, was returned to the court as undeliverable because Richardson had been transferr ed to another prison. On August 31, 1998, after Richardson had sought leave to file an amended complaint, the court mailed a copy of its order to Richardson at his current prison address. Richardson then filed a petition for writ of mandam us with the Colorado Supreme Court requesting relief from the order issu ed by the Denver District Court. The court denied the mandamus petition with out consideration of the merits of Richardson’s claims. At this point, Rich ardson filed his § 2254 petition in federal district court. The district court issued an order directing Richar dson to show cause as to why his petition should not be dismissed for fai lure to exhaust state court remedies. In his response, Richardson did not chal lenge the allegation that he had not exhausted his state court remedies, but insteadargued that deliberate delay in the state courts constituted cause for his failure to seek available avenues of state court relief. In addition, Richardson contended th at the prison’s failure to forward his mail when he was transferred prevented him from appealing the Denver District Court’s dismissal of his Rule 106 a ction. In dismissing Richardson’s federal habeas corpus petition, the di strict court concluded that the issues raised were procedurally defaulted and that Richardson failed to show the-5-

requisite cause and prejudice, or fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). A state prisoner cannot petition for federal habeas corpus relief “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “The exhaustion requirement is satisfied if the federal issue has been properly pr esented to the highest state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994). Generally, when a petitioner fails to exhaust his s tate court remedies, his federal habeas petition should be dismissed so thatthe petitioner can return to state court to pursue those remedies. See Demarest v. Price , 130 F.3d 922, 939 (10th Cir. 1997). In Coleman , however, the Supreme Court, held that if “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,” petitioner’s claims are procedurally defaulted for purposes of federal habeas corpus “regardless of the decision of the last state court to which petit ioner actually presented his claims.” 501 U.S. at 735 n.1; see also Dulin v. Cook , 957 F.2d 758, 759 (10th Cir. 1992) (holding that a petitioner’s failu re to properly present his claims in state court for exhaustion purposes constitutes “procedural default for the-6-

purposes of federal habeas review”). Here, Richard son’s failure to seek timely review by the Colorado appellate court constituted failure to exhaust his available state remedies. However, because it is clear that a return to state court at this point would be futile, his claims are procedurally defaulted for purposes of federal habeas corpus review. See Coleman , 501 U.S. at 735 n.1. Federal habeas corpus review of procedurally barredissues is precluded “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law , or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750. Initially, Richardson attempts to establish cause f or his default by alleging that the state courts deliberately delayed action o n his petitions. It appears that Richardson had unreasonable expectations as to the expediency of the courts. He filed various state court petitions only to requestdismissal after only a few weeks, or in the alternative, to file another action in a different jurisdiction before his pending action was resolved. While his impatience is unfortunate, it does not establish cause for his failure to exhaust his stat e court remedies. Next, Richardson contends that the prison’s failure to forward his mail to him in a timely manner following his transfer precl uded him from filing a timely appeal of Denver District Court’s denial of his Rul e 106 action. In order to-7-

satisfy the “cause” prong of the standard, Richards on must establish that “some objective factor external to the defense” preventedhim from complying with the state court’s procedural rules. McCleskey v. Zant , 499 U.S. 467, 493 (1991) (quotation omitted). We agree with the district co urt, that it was Richardson’s duty to keep the court informed as to his current a ddress. Moreover, we note that Richardson did not even attempt to appeal the state court’s denial of his Rule 106 action once he received the order. Instead, as hadbeen his pattern, he filed a new action in a different jurisdiction. Therefore, his argument that the prison prevented him from complying with state procedural rules is unavailing. Because Richardson failed in the district court andfails on appeal to demonstrate cause for his procedural default, we do not need to address the issue of prejudice. See Steele v. Young , 11 F.3d 1518, 1522 n.7 (10th Cir. 1993). We may, however, address his claims if a fundamental m iscarriage of justice would result if we failed to consider them. See Coleman , 501 U.S. at 750. The fundamental miscarriage of justice exception applie s only when a petitioner “‘supplements his constitutional claim with a color able showing of factual innocence.’” Herrera v. Collins , 506 U.S. 390, 404 (1993) (quoting Kuhlmann v. Wilson , 477 U.S. 436, 454 (1986)). Here, Richardson does not supplement his claim with any allegation of actual innocence. The refore, the district court-8-

properly held that federal review of the issues in his habeas petition was procedurally barred, and Richardson’s claims cannotbe considered on the merits. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith. Entered for the Court
Mary Beck Briscoe Circuit Judge