UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ _________________ KENNETH UEDING, Petitioner - Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Res pondents - Appellees. No. 22-1417 (D.C. No. 1:22-CV -02166-LTB-GPG) (D. Colo.)

______________________ _________________ ORDER

______________________ _________________ Before BACHARACH , KELLY , and MORITZ , Circuit Judges.

______________________ _________________ Mr. Kenneth Ueding obta ined a convicti on in state court and asked a federal district court for habeas relie f based on the delay in bringing him to trial. The district c ourt denied habeas relief, and Mr. Ueding seeks a certificate of appealability so th at he can appe al. 28 U.S.C. § 2253(c)(1)(A). We de ny this request. Mr. Ueding based his habeas claim on both state law and the federal constitution. The district court co ncluded that (1) habeas relief is unavailable for violations of state law and (2) th e constitutional claim is procedurally barred. FILED United States Court of Appeals Tenth Circuit 

### March 28, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 12 For the state-law claim, we consid er whether Mr. Ue ding has made “a substantial showing of the deni al of a constitutional right.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). Under this standard, any reasonable jurist would reject the state-law claim because it do esn’t involve a constitutional right. See Estelle v. McGuire , 502 U.S. 62, 67–68 (1991) (stating that habeas relie f does not lie for the viol ation of state law). So the state-law claim doesn’t merit a certificate of appealability. For the constitutional claim, the dist rict court declined to reach the merits based on a procedural default. So here we consider whether a reasonable jurist could debate the a pplicability of a proc edural default. Slack v. McDaniel , 529 U.S. 473, 484 (2000). In our view, the applicability of a procedural default is not reasonably debatable. A procedural default occurs when “a state court dismisses [a] federal habeas claim on the basi s of noncompliance with ad equate and independent state procedural rules.” Banks v. Workman , 692 F.3d 1133, 1144 (10th Cir. 2012). A state procedural ru le is “adequate” if it is “strictly or regularly followed and applied evenhanded ly to all similar claims.” Id. (quoting Thacker v. Workman , 678 F.3d 820, 835 (10th Cir. 2012)). A rule is “independent” “if it relies on state law, rather than federal law, as the basis for the decision.” Simpson v. Carpenter , 912 F.3d 542, 571 (10th Cir. 2018) (quoting Banks v. Workman , 692 F.3d 1133, 1145 (10th Cir. 2012)). Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 23 Here the federal district court concluded that the state court’s application of the plain-error stan dard constituted an adequate and independent defect. For this conclusion, the district court reasoned that the application of the pl ain-error standard

 was adequate because it had been evenhandedly applied and

 independent because it had been based on state law. In seeking a certificate of appeal ability, Mr. Ueding contests the existence of a procedural default, ar guing that application of the plainerror standard was not independent because he had presented a constitutional claim when objecting to joinder. We disagree with Mr. Ueding’s inte rpretation of hi s objection in state court. There he argu ed that joinder would l ead to the admission of unfairly prejudicia l evidence. Here he’s assert ing the denial of a speedy trial. Mr. Ueding did not say anything in his objection to joinder that would alert the state courts to a clai m involving the deni al of a speedy trial. So any reasonable jurist would reject Mr. Ueding’s reliance on his objection to joinde r in state court. See Finlayson v. State , 6 F.4th 1235, 1241 (10th Cir. 2021) (concl uding that when a stat e court recognizes or assumes a constitutional error but deni es relief because the error is not plain, the plain-error standard “serve s as an independent state rule” for purposes of procedural default). Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 34 Given the procedural bar, we could consider the merits of the claim only if Mr. Ueding satisfi es the requirements for one of two exceptions: (1) cause and prejudice or (2) a fundament al miscarriage of justice based on actual innocence. Coleman v. Thompson , 501 U.S. 722, 750 (1991). Mr. Ueding has not invoked either exception. We thus deny Mr. Ueding’s request for a certificate of appealability and dismiss the appeal. 1
Entered for the Court

Robert E. Bacharach Circuit Judge

1 Mr. Ueding also re quests leave to procee d in forma pauperis and release on his own recogn izance pending the app eal. We grant leave to proceed in forma pauperis , but our dismissal moots the request for release pending the appeal. Appellate Case: 22-1417 Document: 010110833833 Date Filed: 03/28/2023 Page: 4