Marchet v. Benzon

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 10, 2021
• Docket: 20-4134
• Status: Unpublished

Opinion

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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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