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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

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

### DEC 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES ARTHUR BYRNS, JR., Petitioner - Appellant, v. STATE OF UTAH; JAN GRAHAM, Utah Attorney General, Respondents - Appellees. No. 98-4085 (D.C. No. 95-CV-1028-K) (District of Utah)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY and LUCERO , Circuit Judges.

Petitioner appeals the district court’s denial of h is habeas petition, filed under 28 U.S.C. § 2254. We have jurisdiction pursu ant 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 dis tribute methamphetamine and with possession of listed chemicals, petitioner conditionally pled no contest- 2 -

while preserving his right to appeal the denial of several pre-trial motions. On direct appeal, the Utah Court of Appeals affirmed t he lower state court’s pre-trial rulings. Petitioner, without seeking certiorari re view or post-conviction relief in Utah state courts, filed a habeas corpus petition i n the United States District Court for the District of Utah, claiming that the state v iolated 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 de faulted his claims. The district court adopted the magistrate’s report. 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 e rred when it refused to hold evidentiary hearings on what he argues is newly dis covered evidence that supports his Brady claim.

I.- 3 -

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 (10 thCir. 1996). Petitioner’s waiver argument is linked to his chall enge 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 addr ess the issues of: (1) whether petitioner exhausted his state remedies; and (2) wh ether he procedurally defaulted any or all of his claims. Without addressing the p rocedural default issue, the state moved to dismiss, arguing that petitioner failed to exhaust state remedies because he sought neither certiorari review of his convicti on nor state post-conviction relief. Petitioner argued that the exhaustion doct rine applies only to appeals as of right, noting that certiorari review by the Utah Su preme Court is solely discretionary; and because he unsuccessfully sought direct appeal, he exhausted state remedies. The magistrate judge found that the rule in this ci rcuit is that as a prerequisite for seeking federal habeas review, a U tah petitioner must first seek certiorari review in the Utah Supreme Court under R ule 48(a) of the Utah Rules of Appellate Procedure. Dulin v. Cook , 957 F.2d 758, 759 (10 thCir. 1992). We agree. By applying the exhaustion doctrine, the ma gistrate correctly recommended dismissal of the habeas petition.- 4 -

After reviewing this recommendation and arguments b y the parties, the district court remanded the matter to the magistrat e judge to determine the applicability of the procedural bar rule. This tim e, the state successfully argued that to the extent petitioner could not obtain reli ef in Utah state courts, he had procedurally defaulted his claims. Petitioner argu ed that as the state did not address the procedural bar issue when the case firs t came before the magistrate judge, it had waived its procedural default defense

. 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 (19 97), made petitioner ineligible for any state relief. This act became e ffective on April 26, 1996. Therefore, on January 30, 1996, when the state resp onded to the magistrate judge’s initial order to address the procedural def ault and exhaustion issues, it could not assert a procedural bar defense. By Augu st 20, 1996, however, when the district court remanded the matter to the magis trate judge to determine the applicability of the procedural bar rule, the Act w as in effect, and the state could, and did, assert a procedural default defense. We therefore agree with the magistrate judge and th e 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. I nstead, the issue is whether if1 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. - 5 - 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-Convictio n Remedies Act precludes relief to any person that “is barred by t he 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 on ly if the petition is filed within one year” as of “the last day for filing . . . in t he 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 petitioner’s direct appeal. Between June 30, 1997, when the state asse rted its procedural bar defense before the magistrate judge, and February 4, 1998, when the district court adopted the magistrate judge’s recommendation that the peti tioner had procedurally defaulted his claims, more than one year from the l ast day for petitioner to file a writ of certiorari in the Utah Supreme Court had el apsed. Therefore, the petitioner was procedurally barred from seeking rel ief in Utah state courts and, as a consequence, had procedurally defaulted for purpo ses of federal habeas relief.
See Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991) (“[I]f the petitione r2The magistrate judge originally dismissed the habeas petition for failure to (continued...) - 6 - failed to exhaust state remedies and the court to w hich the petitioner would be required to present his claims in order to meet th e 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 r ule otherwise applies here, he may still seek habeas relief because he did not deliberately bypass available state remedies. This argument is without merit. T he Supreme Court in Wainwright v. Sykes , 433 U.S. 72, 87-88 (1972), rejected the “delibera te bypass” standard and adopted the “cause and prejudice” stan dard. 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 justic e. See Banks v. Reynolds , 54 F.3d 1508, 1514 (10 thCir. 1995). Petitioner faults his counsel for failing to seek t imely certiorari review in the Utah Supreme Court. This amounts to an ineffec tive assistance of counsel claim that cannot survive the Strickland v. Washing ton , 466 U.S. 668, 695 (1984), test because petitioner fails to show that counsel’ s performance so prejudiced his case as to produce an unjust result. Petitioner al so puts forward substantive claims of entrapment, prosecutorial delay, and Brad y violations. 2 Upon review of2 (...continued)

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 (10 thCir. 1995). The circumstances here do not warrant consideration of petitioner’s double jeopardy claim.

3 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). - 7 - the record we are convinced that petitioner makes n o 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 s howing of factual innocence.
See Herrera v. Collins , 506 U.S. 390, 404 (1992); Sellers v. Ward , 135 F.3d 1333, 1338 (10 thCir. 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 discov ered evidence proved the state intentionally withheld a witness who would have pro vided 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 (10 thCir. 1996). In considering motions for hearings on newly discovere d evidence, the trial court must determine whether the new evidence is “materia l to the issues involved- 8 -

[such] that it would probably produce an acquittal. ” United States v. Sutton , 767 F.2d 726, 728 (10 thCir.1985). Petitioner alleges that the witness at issue was, a mong other things, a confidential government informant paid to provide i ncriminating information about petitioner. Therefore, petitioner argues, th e witness is material to his case. After a hearing, a Utah state court found that peti tioner made no factual showing to support these allegations. In habeas proceeding s, a presumption of correctness attaches to the factual findings of a state court, Nguyen v. Reynolds , 131 F.3d 1340, 1359 (10 thCir. 1997), and can be rebutted only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner pre sents 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 reques t for evidentiary hearings on the purported newly discovered evidence. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge