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    Byrns v. State of Utah, 10th Cir. (1998)

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    3 the record supports petitioner's claim of actual innocence so as to warrant application of the fundamental miscarriage of justice exception to the procedural default rule. -7- and not merely cumulative or impeaching.” United States v. Velarde, 485 F.2d 553, 561 (10 th Cir. 1973). Petitioner’s “newly discovered evidence” consists of an affidavit from a witness who claims he was available to testify at trial but the state failed to disclose him. The magistrate judge found this evidence was not material because the witness’s testimony would have been merely cumulative or impeaching. We agree. The district court did

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    Byrns v. State of Utah, 10th Cir. (1998)

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    3 the record supports petitioner's claim of actual innocence so as to warrant application of the fundamental miscarriage of justice exception to the procedural default rule. -7- and not merely cumulative or impeaching.” United States v. Velarde, 485 F.2d 553, 561 (10 th Cir. 1973). Petitioner’s “newly discovered evidence” consists of an affidavit from a witness who claims he was available to testify at trial but the state failed to disclose him. The magistrate judge found this evidence was not material because the witness’s testimony would have been merely cumulative or impeaching. We agree. The district court did

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    Filed: 1998-12-16 Precedential Status: Non-Precedential Docket: 98-4085

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    3 the record supports petitioner's claim of actual innocence so as to warrant application of the fundamental miscarriage of justice exception to the procedural default rule. -7- and not merely cumulative or impeaching.” United States v. Velarde, 485 F.2d 553, 561 (10 th Cir. 1973). Petitioner’s “newly discovered evidence” consists of an affidavit from a witness who claims he was available to testify at trial but the state failed to disclose him. The magistrate judge found this evidence was not material because the witness’s testimony would have been merely cumulative or impeaching. We agree. The district court did

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    Byrns v. State of Utah, 10th Cir. (1998)

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    3 the record supports petitioner's claim of actual innocence so as to warrant application of the fundamental miscarriage of justice exception to the procedural default rule. -7- and not merely cumulative or impeaching.” United States v. Velarde, 485 F.2d 553, 561 (10 th Cir. 1973). Petitioner’s “newly discovered evidence” consists of an affidavit from a witness who claims he was available to testify at trial but the state failed to disclose him. The magistrate judge found this evidence was not material because the witness’s testimony would have been merely cumulative or impeaching. We agree. The district court did

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    of 8

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    DEC 16 1998

    PATRICK FISHER
    Clerk

    JAMES ARTHUR BYRNS, JR.,


    Petitioner - Appellant,

    v.

    STATE OF UTAH; JAN GRAHAM,


    Utah Attorney General,

    No. 98-4085
    (D.C. No. 95-CV-1028-K)
    (District of Utah)

    Respondents - Appellees.
    ORDER AND JUDGMENT *
    Before ANDERSON, McKAY and LUCERO, Circuit Judges.

    Petitioner appeals the district courts denial of his habeas petition, filed
    under 28 U.S.C. 2254. We have jurisdiction pursuant to 28 U.S.C. 1291, and
    because we find the claims asserted in his petition procedurally barred, we affirm.
    Charged in a Utah state court with arranging to distribute methamphetamine
    and with possession of listed chemicals, petitioner conditionally pled no contest

    The case is unanimously ordered submitted without oral argument pursuant to


    Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. The court generally disfavors the citation of orders and judgments;
    nevertheless, an order and judgment may be cited under the terms and conditions of 10th
    Cir. R. 36.3.
    *

    while preserving his right to appeal the denial of several pre-trial motions. On
    direct appeal, the Utah Court of Appeals affirmed the lower state courts pre-trial
    rulings. Petitioner, without seeking certiorari review or post-conviction relief in
    Utah state courts, filed a habeas corpus petition in the United States District Court
    for the District of Utah, claiming that the state violated his due process and
    double jeopardy rights. Also asserting a Brady v. Maryland, 373 U.S. 83 (1963),
    violation, petitioner claimed that the state failed to disclose a witness who, he
    alleges, would have provided exculpatory testimony. A magistrate judge
    recommended finding that petitioner procedurally defaulted his claims. The
    district court adopted the magistrates report.
    Before us, petitioner challenges the district courts procedural default
    ruling, contending that the state waived its right to assert a procedural bar
    defense. He also continues to press his underlying substantive claims.
    Additionally, he contends that the district court erred when it refused to hold
    evidentiary hearings on what he argues is newly discovered evidence that supports
    his Brady claim.

    I.

    -2-

    In reviewing the denial of habeas relief we subject the district courts legal
    conclusions to de novo review. Davis v. Executive Dir., Dept of Corrections,
    100 F.3d 750, 756 (10 th Cir. 1996).
    Petitioners waiver argument is linked to his challenge of the magistrate
    judges initial ruling on the issue of exhaustion. When this matter first came
    before the magistrate, he ordered the state to address the issues of: (1) whether
    petitioner exhausted his state remedies; and (2) whether he procedurally defaulted
    any or all of his claims. Without addressing the procedural default issue, the state
    moved to dismiss, arguing that petitioner failed to exhaust state remedies because
    he sought neither certiorari review of his conviction nor state post-conviction
    relief. Petitioner argued that the exhaustion doctrine applies only to appeals as of
    right, noting that certiorari review by the Utah Supreme Court is solely
    discretionary; and because he unsuccessfully sought direct appeal, he exhausted
    state remedies.
    The magistrate judge found that the rule in this circuit is that as a
    prerequisite for seeking federal habeas review, a Utah petitioner must first seek
    certiorari review in the Utah Supreme Court under Rule 48(a) of the Utah Rules
    of Appellate Procedure. Dulin v. Cook, 957 F.2d 758, 759 (10 th Cir. 1992). We
    agree. By applying the exhaustion doctrine, the magistrate correctly
    recommended dismissal of the habeas petition.
    -3-

    After reviewing this recommendation and arguments by the parties, the


    district court remanded the matter to the magistrate judge to determine the
    applicability of the procedural bar rule. This time, the state successfully argued
    that to the extent petitioner could not obtain relief in Utah state courts, he had
    procedurally defaulted his claims. Petitioner argued that as the state did not
    address the procedural bar issue when the case first came before the magistrate
    judge, it had waived its procedural default defense.
    We reject petitioners argument. The magistrate judge applied the

    procedural bar rule because he found that the Utah Post-Conviction Remedies
    Act, Utah Code Ann. 78-35a-101 to 78-35a-110 (1997), made petitioner
    ineligible for any state relief. This act became effective on April 26, 1996.
    Therefore, on January 30, 1996, when the state responded to the magistrate
    judges initial order to address the procedural default and exhaustion issues, it
    could not assert a procedural bar defense. By August 20, 1996, however, when
    the district court remanded the matter to the magistrate judge to determine the
    applicability of the procedural bar rule, the Act was in effect, and the state could,
    and did, assert a procedural default defense.
    We therefore agree with the magistrate judge and the district court that the
    state properly raised its procedural bar defense. As such, the issue is not whether
    the state waived its procedural default defense. Instead, the issue is whether if
    -4-

    petitioner is barred by the default rule, there are any reasons to excuse its
    application.
    II.
    Section 78-35a-106(1)(e) of the Utah Post-Conviction Remedies Act
    precludes relief to any person that is barred by the limitation period established
    in Section 78-35a-107. Section 78-35a-107 provides, in turn, that a person
    seeking certiorari review is entitled to relief only if the petition is filed within
    one year as of the last day for filing . . . in the Utah Supreme Court. Utah
    Code Ann. 78-35a-107(1) and (2)(c) (1997). 1
    On July 13, 1995, the Utah Court of Appeals denied petitioners direct
    appeal. Between June 30, 1997, when the state asserted its procedural bar defense
    before the magistrate judge, and February 4, 1998, when the district court adopted
    the magistrate judges recommendation that the petitioner had procedurally
    defaulted his claims, more than one year from the last day for petitioner to file a
    writ of certiorari in the Utah Supreme Court had elapsed. Therefore, the
    petitioner was procedurally barred from seeking relief in Utah state courts and, as
    a consequence, had procedurally defaulted for purposes of federal habeas relief.
    See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) ([I]f the petitioner

    Section 78-35a-107 of the Utah Post Conviction Statute contains limitations periods for
    other forms of post-conviction relief. Petitioner does not fall within any of these limitations
    periods.
    1

    -5-

    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
    find the claims procedurally barred . . . there is a procedural default for purposes
    of federal habeas [relief].).
    Petitioner argues that even if the procedural bar rule otherwise applies here,
    he may still seek habeas relief because he did not deliberately bypass available
    state remedies. This argument is without merit. The Supreme Court in
    Wainwright v. Sykes, 433 U.S. 72, 87-88 (1972), rejected the deliberate bypass
    standard and adopted the cause and prejudice standard. Hence, the issue we
    decide here is whether under Wainwright and its progeny, there is cause and
    prejudice to excuse petitioners procedural default, or whether barring his claims
    would result in a fundamental miscarriage of justice. See Banks v. Reynolds, 54
    F.3d 1508, 1514 (10 th Cir. 1995).
    Petitioner faults his counsel for failing to seek timely certiorari review in
    the Utah Supreme Court. This amounts to an ineffective assistance of counsel
    claim that cannot survive the Strickland v. Washington, 466 U.S. 668, 695 (1984),
    test because petitioner fails to show that counsels performance so prejudiced his
    case as to produce an unjust result. Petitioner also puts forward substantive
    claims of entrapment, prosecutorial delay, and Brady violations. 2 Upon review of
    2

    The magistrate judge originally dismissed the habeas petition for failure to

    (continued...)

    -6-

    the record we are convinced that petitioner makes no showing that, but for
    counsels ineffectiveness, the outcome of his case would have been different. Id.
    We also find the fundamental miscarriage of justice exception inapplicable. To
    come within this exception one must make a proper showing of factual innocence.
    See Herrera v. Collins, 506 U.S. 390, 404 (1992); Sellers v. Ward, 135 F.3d 1333,
    1338 (10 th Cir. 1998). Petitioner fails to carry that burden. 3
    Finally, petitioner argues that the district court erred in not holding full
    evidentiary hearings on his claim that newly discovered evidence proved the state
    intentionally withheld a witness who would have provided exculpatory testimony.
    We review a district courts denial of evidentiary hearings under an abuse of
    discretion standard. Lasiter v. Thomas, 89 F.3d 699, 702 (10 th Cir. 1996). In
    considering motions for hearings on newly discovered evidence, the trial court
    must determine whether the new evidence is material to the issues involved

    (...continued)

    exhaust state remedies without prejudice, because Utah state courts did not consider
    petitioners double jeopardy claim. However, petitioner subsequently dropped that claim.
    Petitioner is, therefore, raising the double jeopardy claim for the first time before us, and
    absent extraordinary circumstances we do not consider issues not raised before the district
    court. Smith v. Secretary of New Mexico Dept of Corrections, 50 F.3d 801, 814 n.22
    (10th Cir. 1995). The circumstances here do not warrant consideration of petitioners
    double jeopardy claim.
    For the same reason, we affirm the district courts conclusion that nothing in the
    record suggests that the interests of justice require [us to] excuse petitioners failure to
    file within the time limitations. Utah Code Ann. 78-35a-107(3) (1997).
    3

    -7-

    [such] that it would probably produce an acquittal. United States v. Sutton, 767
    F.2d 726, 728 (10 th Cir.1985).
    Petitioner alleges that the witness at issue was, among other things, a
    confidential government informant paid to provide incriminating information
    about petitioner. Therefore, petitioner argues, the witness is material to his case.
    After a hearing, a Utah state court found that petitioner made no factual showing
    to support these allegations. In habeas proceedings, a presumption of correctness
    attaches to the factual findings of a state court, Nguyen v. Reynolds, 131 F.3d
    1340, 1359 (10 th Cir. 1997), and can be rebutted only by clear and convincing
    evidence. 28 U.S.C. 2254(e)(1). Petitioner presents no evidence to rebut the
    state courts factual findings about the witness. We therefore cannot hold that the
    district court erred in denying petitioners request for evidentiary hearings on the
    purported newly discovered evidence.
    The mandate shall issue forthwith.
    ENTERED FOR THE COURT

    Carlos F. Lucero
    Circuit Judge

    -8-

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