* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 4 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT R. SPRINGFIELD, Plaintiff - Appellant, vs. WILLIAM HETTGAR, Warden; and the ATTORNEY GENERAL OF THE STATE OF WYOMING, Defendant - Appellant. No. 99-8034 (D.C. No. 97-CV-167-B) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **

Mr. Springfield, an inmate appearing pro se, seeks to appeal from the denial of his habeas petition, 28 U.S.C. § 2254. M r. Springfield was convicted in Wyoming state court of first degree sexual assault and that conviction was affirmed on appeal. See Springfield v. Wyoming , 860 P.2d 435 (1993). He-2-

claims that he exhausted state post-conviction reme dies, but did not attach any supporting documentation to his petition. The district court denied his federal habeas claims on the merits and without a response from the state. The district court relied upon 28 U.S.C. § 2254(b)(2) which allows a federal habeas court to deny an unexhausted petition that obviously lacks merit. See Hoxsie v. Kerby , 108 F.3d 1239, 1242-43 (10th Cir. 1997). According to the district court, “irre spective of whether Mr. Springfield has exhausted his state remedies, his p etition should be denied for failure to show that he is in custody in violation of the constitution or federal law.” R. doc. 6 at 2. The district court also den ied a certificate of appealability. As a preliminary matter, we question reaching the m erits of Mr. Springfield’s petition without review of any state postconviction proceedings. None of the federal claims now advanced by Mr. Spri ngfield were raised upon direct appeal. While § 2254(b)(2) allows for consi deration of unexhausted claims, Mr. Springfield alleged that he exhausted h is federal claims in state postconviction proceedings. Concerns of comity andfederalism suggest that the state court postconviction proceedings be considere d. Where the petitioner has not included such proceedings, such information maybe provided by the state in
an answer. See R. 5, Rules Governing § 2254 Cases in the United S tates District Courts. It is not possible to apply the current st andard of review to any state-3-

court determinations of federal law, 28 U.S.C. § 22 54(d), when those determinations are not part of the record. Likewis e, it is not possible to determine the extent of exhaustion and whether any of the fed eral claims are procedurally barred. With that concern, we reach the merits. Mr. Spring field raises four issues on appeal. First, Mr. Springfield claims a violati on of his right to confrontation and due process caused by his absence from a DNA suppression hearing. Specifically he alleges that when his attorney told him he need not be present, the effect was to exclude him from the most critical ph ase of the trial and prevent him challenging evidence and testimony that would laterbe presented by videotape at trial. We need not decide whether a defendant’s right to b e present extends to a pretrial suppression hearing. See generally Christopher J. Bello, Annotation, Right of Accused to be Present at Suppression Heari ng or at other Hearing or Conference Between Court and Attorneys Concerning Evidentiary Questions , 23 A.L.R. 4th 955 (1983 & 1998 Supp.). Assuming such a right, we also need not decide whether Mr. Springfield voluntarily waived that right. Mr. Springfield’s claim fails because he cannot identify any specific contribution that his presence might have made. The Supreme Court “has emphasized that this privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a-4-

shadow . . . .’” Kentucky v. Stincer , 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts , 291 U.S. 97, 105-06 (1934)). On direct appeal, t he Wyoming Supreme Court addressed the propriety of including the DNA evidence at great length, see Springfield , 860 P.2d at 439-48, and Mr. Springfield has faile d to show that his presence at the evidentiary hearing w ould have affected the outcome in any manner. For the same reason, Mr. Springfiel d cannot show prejudice to succeed on the related claim that his trial counsel was ineffective in advising him he need not attend the suppression hearing. See Strickland v. Washington , 466 U.S. 668, 687 (1984) (to succeed on an ineffectiven ess claim, defendant must show that deficient performance prejudiced his defe nse). Second, Mr. Springfield challenges the trial judge’ s decision to exclude certain testimony of prosecution witness Shane Sche nderline. According to Mr. Springfield, the testimony tended to show that the witness had been pressured to lie about Mr. Springfield’s presence near the crime scene. He argues that he was denied his right of confrontation to impeach the wi tness. He argues that had this testimony been admitted, it could have been used to attack the chain of custody regarding his voluntarily submitted body samples an d the rape kit evidence. On direct appeal, Mr. Springfield apparently argued that none of Mr. Schenderline’s testimony should have been admitted. In considering this issue, the Wyoming Supreme Court indicated that Mr. Schend erline’s inability to place-5-

Mr. Springfield near the crime scene was brought out, and this “only helped appellant’s case.” Springfield , 860 P.2d at 450. The confrontation right is not absolute; a defendant must be given “an opportunityfor effective crossexamination” of witnesses against him, but that is not synonymous with eliciting all information that might contradict unfavorable testimony. Pennsylvania v. Ritchie , 480 U.S. 39, 53 (1987) (internal quotation marks omitted). Here, the witness did not provide the unfavorable testimony that the state expected, and sufficient information was brought out for the juryto make a “discriminating appraisal” of the presence issue. See Miranda v. Cooper , 967 F.2d 392, 401-403 (10th Cir. 1992). No more was required. Insofar as any evidentiary ruling on this issue, a federal habeas court is not empowered to correct state law evidentiary errors, and Mr. Springfield has not shown that the state district court’s evidentiary d ecision rendered his trial fundamentally unfair. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Maes v. Thomas , 46 F.3d 979, 987 (10th Cir. 1995). Third, Mr. Springfield claims that police investigators lied to him when they told him they wanted body samples for investig ation of an unrelated rape. He alleges that this deception made his consent inv oluntary and tainted a later search warrant based upon the original body samples . Federal habeas review of this Fourth Amendment claim would be barred if the state provided an-6-

opportunity for full and fair litigation of this claim. See Stone v. Powell , 428 U.S. 465, 494 (1976). As this issue does not appear to have been raised at trial or on direct appeal, quite likely it is procedurally b arred. Regardless, we agree with the district court that this claim is far too gener al to support relief given the factual nature of a voluntariness inquiry. See Hawkins v. Hannigan , No. 97-3326, 1999 WL 56893, at *12 (10th Cir. Aug. 4, 1999) (dis missing ineffective counsel claim based on Fourth Amendment for failure to demo nstrate involuntariness). Conspicuously absent from the petition are facts–wh o, what, when and where-- that might support the general allegation. Finally, Mr. Springfield alleges ineffective assist ance of counsel, both at the trial level and on appeal, for failing to raise the three previous challenges. Given our disposition of the claims on the merits, Mr. Springfield cannot establish prejudice, and therefore cannot prevail o n an ineffective assistance claim. See Strickland , 466 U.S. at 697 (court need not address deficient performance if prejudice cannot be established). The application for a certificate of appealability is DENIED and the appeal is DISMISSED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge