Marchet v. Benzon ( 2021 )


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  •                                                                                      FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                             Tenth Circuit
    FOR THE TENTH CIRCUIT                               May 10, 2021
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    AZLEN ADIEU FARQUOIT MARCHET,
    Petitioner - Appellant,
    v.                                                           No. 20-4134
    (D.C. No. 2:18-CV-00578-TC)
    LARRY BENZON,                                                  (D. Utah)
    Respondent - Appellee.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    _________________________________
    Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
    _________________________________
    Azlen Marchet, a Utah state prisoner appearing pro se,1 seeks a certificate of
    appealability (“COA”) to challenge the district court’s dismissal of his 
    28 U.S.C. § 2254
    application for a writ of habeas corpus. See 
    28 U.S.C. § 2253
    (c)(1)(A). He also seeks
    leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we deny both requests and dismiss this matter.
    *
    This order is not binding precedent except under the doctrines of law of the case,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.
    1
    Because Mr. Marchet is pro se, we construe his filings liberally, but we do not
    act as his advocate. Yang v. Archuleta, 
    525 F.3d 925
    , 927 n.1 (10th Cir. 2008).
    I. BACKGROUND
    In 2009, a Utah district court sentenced Mr. Marchet to five years to life in prison
    on a rape conviction. {ROA at 222.} The Utah Court of Appeals affirmed his
    conviction, and the Utah Supreme Court denied certiorari. State v. Marchet, 
    284 P.3d 668
     (Utah Ct. App. 2012), cert. denied, 
    288 P.3d 1045
     (Utah 2012). Mr. Marchet then
    filed two petitions for post-conviction relief. Both were dismissed on summary
    judgment. The Utah Court of Appeals affirmed those dismissals. {ROA at 779, 830; 
    id. at 329, 378
    .} Mr. Marchet did not seek certiorari from the Utah Supreme Court on either
    petition.
    In 2018, while his second state post-conviction petition was pending, Mr. Marchet
    filed a habeas petition in the federal district court under 
    28 U.S.C. § 2254
    . {Id. at 5.} He
    filed an amended § 2254 petition after the Utah Court of Appeals summarily affirmed the
    dismissal of his second state petition. {Id. at 222.}
    The state moved to dismiss Mr. Marchet’s § 2254 petition, arguing the issues
    raised were unexhausted and procedurally defaulted.2 {Id. at 385.} The district court
    agreed and dismissed the petition. {Id. at 856.}
    2
    The state also argued that Mr. Marchet’s petition was not timely, but the district
    court did not address this alternative ground.
    2
    II. DISCUSSION
    A. Legal Background
    Before we may exercise jurisdiction over Mr. Marchet’s appeal, he must obtain
    COAs for the issues he wishes to raise. See 
    28 U.S.C. § 2253
    (c)(1)(A), (c)(3). Where, as
    here, the district court dismissed the § 2254 application on procedural grounds, we will
    grant a COA only if the applicant can demonstrate both “that jurists of reason would find
    it debatable whether the petition states a valid claim of the denial of a 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).
    A petitioner seeking review of a state conviction under 
    28 U.S.C. § 2254
     must first
    exhaust all available state court remedies. 
    28 U.S.C. § 2254
    (b)(1)(A). To satisfy the
    exhaustion requirement, prisoners must fairly present their claims to the state’s highest
    court—either by direct appeal or in a post-conviction attack—before asserting the claims
    in federal court. Fairchild v. Workman, 
    579 F.3d 1134
    , 1151 (10th Cir. 2009); Brown v.
    Shanks, 
    185 F.3d 1122
    , 1124 (10th Cir. 1999). When a petitioner has failed to exhaust
    his claims and “the relevant state courts would now find those claims procedurally
    barred, there is a procedural default for purposes of federal habeas review.” Grant v.
    Royal, 
    886 F.3d 874
    , 892 (10th Cir. 2018) (quotations omitted).
    B. Analysis
    Mr. Marchet cannot obtain a COA because he failed in his brief to address the
    district court’s grounds for dismissing his petition. Moreover, he not only failed to
    exhaust his claims in state court but those claims are also subject to anticipatory
    3
    procedural bar.
    In its order dismissing Mr. Marchet’s petition, the district court found that none of
    the grounds for relief raised in the petition were exhausted in state court. {Id. at 857-58.}
    Mr. Marchet said he raised these claims in his first petition for state post-conviction
    relief. {Id. at 227-32.} But even if that is so, he did not seek certiorari from the Utah
    Supreme Court on either of his state post-conviction proceedings, and thus failed to
    exhaust these claims.
    The district court further concluded that any attempt to raise these claims in future
    state habeas petitions would be procedurally barred by Utah’s Post-Conviction Remedies
    Act, Utah Code Ann. § 78B-9-106(1). {Id. at 859.} The claims are thus procedurally
    defaulted. Grant, 886 F.3d at 892.
    In his brief to this court, Mr. Marchet does not address the district court’s
    exhaustion and procedural default rulings. He thus waives any challenge to them. See
    Toevs v. Reid, 
    685 F.3d 903
    , 911 (10th Cir. 2012) (The rule that “[a]rguments not clearly
    made in a party’s opening brief are deemed waived” applies “even to prisoners who
    proceed pro se and therefore are entitled to liberal construction of their filings.”). Mr.
    Marchet has not shown that reasonable jurists could debate the correctness of the district
    court’s decision. He therefore is not entitled to a COA.
    4
    III. CONCLUSION
    Mr. Marchet has not made the showing required for a COA. We therefore dismiss
    this matter. We also deny his request to proceed ifp.
    Entered for the Court
    Scott M. Matheson, Jr.
    Circuit Judge
    5
    

Document Info

Docket Number: 20-4134

Filed Date: 5/10/2021

Precedential Status: Non-Precedential

Modified Date: 5/10/2021