James Arthur Byrns, Jr. v. State of Utah Jan Graham, Utah Attorney General, 166 F.3d 346, 10th Cir. (1998)

166 F.
3d 346
98 CJ C.A.R. 6298
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
James Arthur BYRNS, Jr., Petitioner--Appellant,

v.
STATE of Utah; Jan Graham, Utah Attorney General,
Respondents--Appellees.
No. 98-4085.
United States Court of Appeals, Tenth Circuit.

Dec. 16, 1998.
I.
Before ANDERSON, McKAY and LUCERO, Circuit Judges.
1ORDER AND JUDGMENT*

2
LUCERO.
Petitioner appeals the district court's 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
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 court's pretrial 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 magistrate's report.
5
Before us, petitioner challenges the district court's 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.
In reviewing the denial of habeas relief we subject the district court's legal
conclusions to de novo review. Davis v. Executive Dir., Dep't of Corrections,
100 F.3d 750, 756 (10th Cir.1996).
Petitioner's waiver argument is linked to his challenge of the magistrate judge's

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 postconviction 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 (10th Cir.1992). We
agree. By applying the exhaustion doctrine, the magistrate correctly
recommended dismissal of the habeas petition.
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.
10
We reject petitioner's 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 judge's 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.
11
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
petitioner is barred by the default rule, there are any reasons to excuse its
application.
II.
12
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
13
On July 13, 1995, the Utah Court of Appeals denied petitioner's 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 judge's 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, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("[I]f 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 find the claims
procedurally barred ... there is a procedural default for purposes of federal
habeas [relief].").
14
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, 97 S.Ct. 2497, 53 L.Ed.2d 594
(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 petitioner's
procedural default, or whether barring his claims would result in a fundamental
miscarriage of justice. See Banks v. Reynolds, 54 F.3d 1508, 1514 (10th
Cir.1995).
15
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, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), test because petitioner fails to show that
counsel's 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 the record we are convinced that
petitioner makes no showing that, but for counsel's 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, 113 S.Ct. 853, 122 L.Ed.2d 203 (1992); Sellers v. Ward,
135 F.3d 1333, 1338 (10th Cir.1998). Petitioner fails to carry that burden.3
16
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 court's denial of evidentiary hearings under an
abuse of discretion standard. Lasiter v. Thomas, 89 F.3d 699, 702 (10th
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 [such] that it would probably produce an acquittal." United
States v. Sutton, 767 F.2d 726, 728 (10th Cir.1985).
17
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 (10th 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 court's factual findings about the witness. We therefore cannot
hold that the district court erred in denying petitioner's request for evidentiary
hearings on the purported newly discovered evidence.
18
The mandate shall issue forthwith.
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
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
The magistrate judge originally dismissed the habeas petition for failure to
exhaust state remedies without prejudice, because Utah state courts did not
consider petitioner's 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 Dep't of Corrections, 50 F.3d 801, 814 n. 22 (10th Cir.1995). The
circumstances here do not warrant consideration of petitioner's double jeopardy
claim
For the same reason, we affirm the district court's conclusion that nothing in the
record suggests that the "interests of justice require [us to] excuse petitioner's
failure to file within the time limitations." Utah Code Ann. 78-35a-107(3)
(1997)

James Arthur Byrns, Jr. v. State of Utah Jan Graham, Utah Attorney General, 166 F.3d 346, 10th Cir. (1998)

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James Arthur Byrns, Jr. v. State of Utah Jan Graham, Utah Attorney General, 166 F.3d 346, 10th Cir. (1998)

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166 F.

James Arthur BYRNS, Jr., Petitioner--Appellant,

United States Court of Appeals, Tenth Circuit.

1ORDER AND JUDGMENT*

Charged in a Utah state court with arranging to distribute methamphetamine and

Petitioner's waiver argument is linked to his challenge of the magistrate judge's

We reject petitioner's argument. The magistrate judge applied the procedural

Section 78-35a-106(1)(e) of the Utah Post-Conviction Remedies Act precludes

The mandate shall issue forthwith.

The case is unanimously ordered submitted without oral argument pursuant to

Section 78-35a-107 of the Utah Post Conviction Statute contains limitations

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