Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KATHLEEN GORMLEY,
Petitioner - Appellant,
v. No. 24-1270 (D.C. No. 1:24-CV-00389-LTB-SBP) ANDRE STANCIL; PHIL WEISER, The (D. Colo.) Attorney General of the State of Colorado,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________
Appearing pro se, Kathleen Gormley seeks a certificate of appealability (“COA”)
to challenge the district court’s dismissal of her 28 U.S.C. § 2254 habeas petition.1 The
district court dismissed the petition after concluding Ms. Gormley had not exhausted all
available state court remedies. Because this conclusion is not reasonably debatable, we
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Ms. Gormley is proceeding pro se, we construe her filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, we may not advocate on her behalf. Id. Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 2
deny the request for a COA and dismiss this matter. We also deny Ms. Gormley’s motion
to proceed in forma pauperis (IFP) and her Motion for Clarification.
I. BACKGROUND
After a jury found Ms. Gormley guilty of stalking, the state court imposed a three-
year prison term. Ms. Gormley is currently serving her sentence in the custody of the
Colorado Department of Corrections. After her conviction, Ms. Gormley filed several
post-trial motions in the state district court, including motions to dismiss and motions to
declare a mistrial. The state district court denied these motions, as well as a petition for a
writ of habeas corpus that Ms. Gormley later filed.
Ms. Gormley also filed a notice of appeal in the Colorado Court of Appeals. There
is no record before this court of Ms. Gormley having filed an opening brief or the appeal
being dismissed, so it appears this appeal is pending. After initiating the direct appeal,
Ms. Gormley filed two petitions for habeas corpus in the Colorado Supreme Court. The
Colorado Supreme Court summarily denied both petitions.
Unsuccessful in state court, Ms. Gormley applied for a writ of habeas corpus in
federal district court. In her application, Ms. Gormley challenges the validity of her
stalking conviction and asserts violations of her Fourth, Fifth, Sixth, Eighth, Ninth, and
Fourteenth Amendment rights. In a Pre-Answer Response, Respondents argued that
Ms. Gormley had failed to exhaust all available state court remedies. A magistrate judge
agreed and recommended that the federal district court dismiss Ms. Gormley’s
application on exhaustion grounds. The district court, after conducting a de novo review,
adopted the magistrate judge’s Report and Recommendation and dismissed
2 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 3
Ms. Gormley’s § 2254 application without prejudice for failure to exhaust state court
remedies.
Ms. Gormley timely appealed, and we remanded for the district court to consider
whether to issue a COA. The district court declined to issue a COA, concluding that its
exhaustion ruling was not subject to reasonable debate. Ms. Gormley now seeks a COA
from this court.
II. DISCUSSION
Ms. Gormley must obtain a COA before she can appeal. 28 U.S.C.
§ 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “that a
state prisoner must obtain a COA to appeal the denial of a habeas petition . . . filed
pursuant to § 2254”). To obtain a COA, Ms. Gormley must show “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)
(emphasis added). Ms. Gormley has failed to meet her burden because she has not
demonstrated that the district court’s exhaustion ruling is reasonably debatable.
“Before a federal court may grant habeas relief to a state prisoner, the prisoner
must exhaust [her] remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); see also 28 U.S.C. § 2254(b)(1)(A). State prisoners exhaust available state court
remedies “by invoking one complete round of the State’s established appellate review
process.” O’Sullivan, 526 U.S. at 845. But “it is not sufficient merely that the [prisoner]
has been through the state courts”—the federal claims must have been “fairly presented
3 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 4
to the state courts.” Picard v. Connor, 404 U.S. 270, 275–76 (1971). The burden is on the
prisoner to demonstrate exhaustion. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.
1992).
The record before us indicates only that Ms. Gormley has an appeal pending
before the Colorado Court of Appeals. A pending appeal does not demonstrate that
claims were “fairly presented” to the state court. Picard, 404 U.S. at 275; see also Ray v.
Crow, 809 F. App’x 549, 550 (10th Cir. 2020) (unpublished) (holding state remedies
were not exhausted when direct appeal was pending).2
Nor is it sufficient that Ms. Gormley filed habeas petitions in the Colorado
Supreme Court. When a “claim has been presented for the first and only time in a
procedural context in which its merits [ordinarily] will not be considered,” the claim has
not been fairly presented to the state court. Castille v. Peoples, 489 U.S. 346, 351 (1989).
In Colorado, habeas petitions are subject to Colorado Rule of Appellate Procedure 21,
under which relief is “extraordinary in nature,” “wholly within the discretion of the
supreme court,” and “granted only when no other adequate remedy is available, including
relief available by appeal.” Colo. App. R. 21(a)(2)–(3). Given the pending direct appeal,
it appears Ms. Gormley presented her habeas petitions to the Colorado Supreme Court in
a context in which the merits ordinarily “will not be considered.” Castille, 489 U.S. at
351.
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KATHLEEN GORMLEY,
Petitioner - Appellant,
v. No. 24-1270 (D.C. No. 1:24-CV-00389-LTB-SBP) ANDRE STANCIL; PHIL WEISER, The (D. Colo.) Attorney General of the State of Colorado,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________
Appearing pro se, Kathleen Gormley seeks a certificate of appealability (“COA”)
to challenge the district court’s dismissal of her 28 U.S.C. § 2254 habeas petition.1 The
district court dismissed the petition after concluding Ms. Gormley had not exhausted all
available state court remedies. Because this conclusion is not reasonably debatable, we
* 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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Ms. Gormley is proceeding pro se, we construe her filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, we may not advocate on her behalf. Id. Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 2
deny the request for a COA and dismiss this matter. We also deny Ms. Gormley’s motion
to proceed in forma pauperis (IFP) and her Motion for Clarification.
I. BACKGROUND
After a jury found Ms. Gormley guilty of stalking, the state court imposed a three-
year prison term. Ms. Gormley is currently serving her sentence in the custody of the
Colorado Department of Corrections. After her conviction, Ms. Gormley filed several
post-trial motions in the state district court, including motions to dismiss and motions to
declare a mistrial. The state district court denied these motions, as well as a petition for a
writ of habeas corpus that Ms. Gormley later filed.
Ms. Gormley also filed a notice of appeal in the Colorado Court of Appeals. There
is no record before this court of Ms. Gormley having filed an opening brief or the appeal
being dismissed, so it appears this appeal is pending. After initiating the direct appeal,
Ms. Gormley filed two petitions for habeas corpus in the Colorado Supreme Court. The
Colorado Supreme Court summarily denied both petitions.
Unsuccessful in state court, Ms. Gormley applied for a writ of habeas corpus in
federal district court. In her application, Ms. Gormley challenges the validity of her
stalking conviction and asserts violations of her Fourth, Fifth, Sixth, Eighth, Ninth, and
Fourteenth Amendment rights. In a Pre-Answer Response, Respondents argued that
Ms. Gormley had failed to exhaust all available state court remedies. A magistrate judge
agreed and recommended that the federal district court dismiss Ms. Gormley’s
application on exhaustion grounds. The district court, after conducting a de novo review,
adopted the magistrate judge’s Report and Recommendation and dismissed
2 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 3
Ms. Gormley’s § 2254 application without prejudice for failure to exhaust state court
remedies.
Ms. Gormley timely appealed, and we remanded for the district court to consider
whether to issue a COA. The district court declined to issue a COA, concluding that its
exhaustion ruling was not subject to reasonable debate. Ms. Gormley now seeks a COA
from this court.
II. DISCUSSION
Ms. Gormley must obtain a COA before she can appeal. 28 U.S.C.
§ 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “that a
state prisoner must obtain a COA to appeal the denial of a habeas petition . . . filed
pursuant to § 2254”). To obtain a COA, Ms. Gormley must show “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)
(emphasis added). Ms. Gormley has failed to meet her burden because she has not
demonstrated that the district court’s exhaustion ruling is reasonably debatable.
“Before a federal court may grant habeas relief to a state prisoner, the prisoner
must exhaust [her] remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); see also 28 U.S.C. § 2254(b)(1)(A). State prisoners exhaust available state court
remedies “by invoking one complete round of the State’s established appellate review
process.” O’Sullivan, 526 U.S. at 845. But “it is not sufficient merely that the [prisoner]
has been through the state courts”—the federal claims must have been “fairly presented
3 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 4
to the state courts.” Picard v. Connor, 404 U.S. 270, 275–76 (1971). The burden is on the
prisoner to demonstrate exhaustion. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.
1992).
The record before us indicates only that Ms. Gormley has an appeal pending
before the Colorado Court of Appeals. A pending appeal does not demonstrate that
claims were “fairly presented” to the state court. Picard, 404 U.S. at 275; see also Ray v.
Crow, 809 F. App’x 549, 550 (10th Cir. 2020) (unpublished) (holding state remedies
were not exhausted when direct appeal was pending).2
Nor is it sufficient that Ms. Gormley filed habeas petitions in the Colorado
Supreme Court. When a “claim has been presented for the first and only time in a
procedural context in which its merits [ordinarily] will not be considered,” the claim has
not been fairly presented to the state court. Castille v. Peoples, 489 U.S. 346, 351 (1989).
In Colorado, habeas petitions are subject to Colorado Rule of Appellate Procedure 21,
under which relief is “extraordinary in nature,” “wholly within the discretion of the
supreme court,” and “granted only when no other adequate remedy is available, including
relief available by appeal.” Colo. App. R. 21(a)(2)–(3). Given the pending direct appeal,
it appears Ms. Gormley presented her habeas petitions to the Colorado Supreme Court in
a context in which the merits ordinarily “will not be considered.” Castille, 489 U.S. at
351. The Colorado Supreme Court’s summary denials further indicate it did not consider
the merits of Ms. Gormley’s petitions. See Glaser v. Everett, 536 F. App’x 817, 818, 820
2 We cite unpublished decisions for their persuasive value only and do not treat them as binding precedent. 10th Cir. R. 32.1(A). 4 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 5
(10th Cir. 2013) (unpublished) (denying COA on exhaustion grounds when prisoner had
pending direct appeal in the Colorado Court of Appeals and had petitioned for an
extraordinary writ in the Colorado Supreme Court); see also Ex parte Hawk, 321 U.S.
114, 116 (1944) (per curiam) (holding prisoner’s claims were not exhausted when they
were “presented to the state courts only in an application for habeas corpus filed in the
Nebraska Supreme Court, which it denied without opinion”). For these reasons, the
habeas petitions do not demonstrate the federal claims were “fairly presented to the state
courts.” Picard, 404 U.S. at 275.
Before this court, Ms. Gormley does not try to demonstrate she exhausted all
available state court remedies. Instead, she asserts that she “never initiated” the direct
appeal to the Colorado Court of Appeals. Appellant’s Br. at 8. Assuming this is true, we
are only more persuaded that reasonable jurists would agree Ms. Gormley failed to
exhaust available state court remedies. Ms. Gormley also argues that she exhausted all
administrative remedies and points out that the federal district court stated it was
dismissing her habeas petition for failing to exhaust “administrative remedies.” ROA at
197. But the district court adopted the magistrate judge’s recommendation, which was to
dismiss for failure to exhaust state court remedies, so the reference to “administrative
remedies” was inadvertent.
Considering the record before us, reasonable jurists would not disagree with the
district court’s exhaustion ruling. We thus decline to issue a COA.
We also deny Ms. Gormley’s motion to proceed IFP because she failed to show
“the existence of a reasoned, nonfrivolous argument on the law and facts in support of the
5 Appellate Case: 24-1270 Document: 010111097211 Date Filed: 08/20/2024 Page: 6
issues raised.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Additionally, because we dismiss this case, we deny as moot Ms. Gormley’s Motion for
Clarification, which asks us to clarify whether Respondents’ attorneys have a conflict of
interest.
III. CONCLUSION
We DENY Ms. Gormley’s request for a COA and DISMISS this matter. We also
DENY Ms. Gormley’s motion to proceed IFP and her Motion for Clarification.
Entered for the Court
Carolyn B. McHugh Circuit Judge