* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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. 

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

### JAN 22 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DONALD SCOTT HILGERT,

Petitioner-Appellant,

v. GARY STOTTS and THE KANSAS PAROLE BOARD,

Respondents-Appellees. No. 01-3100 (D.C. No. 97-CV-3097-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Donald Scott Hilgert appeals from the di strict court’s decision denying his petition for habeas relief, filed under28 U.S.C. § 2254. Mr. Hilgert1 These arguments are identical to those made before the district court. In

addition, Mr. Hilgert makes general assertions that(1) it is unfair to permit the prosecution to commit procedural errors while concl uding that Mr. Hilgert’s arguments are procedurally barred, and (2) “[t]he S tate is still doing all it can to deny due process.” Pet. at 22. We decline to addr ess these arguments because they are general assertions subsumed in Mr. Hilgert ’s other allegations of error. -2- now seeks a certificate of appealability (COA) from this court pursuant to 28 U.S.C. § 2253(c)(1). We have jurisdiction under28 U.S.C. §§ 1291 and 2253, and dismiss the appeal. Mr. Hilgert was convicted in Kansas state court of aggravated incest, and his conviction was affirmed on direct appeal. Mr. Hilgert makes thirteen 1 distinct arguments in his petition for COA: (1) That he was denied the right to counsel due to interference by his mother in his representation. (2) That the prosecution was required to indict Mr . Hilgert by grand jury. (3) That if the prosecution was not required to pr oceed by grand jury indictment, it was required to proceed by info rmation. (4) That the Assistant District Attorney had no st anding to bring the complaint against Mr. Hilgert. (5) That certain Kansas statutes governing initiat ion of prosecution are unconstitutionally vague. (6) That the state’s amended and second amended co mplaint were invalid. (7) That he was convicted of a crime other than th e one for which he was charged.-3-

(8) That he was denied his statutory right to a sp eedy trial. (9) That he was denied a right to a fair trial bec ause the prosecution “coached” the victim in his testimony. (10) That the complaint was not drawn in the langu age of the statute. (11) That the instructions to the jury failed to r ecite all elements of the charge. (12) That Mr. Hilgert received ineffective assistance of counsel. (13) That his attorney operated under a conflict o f interest. We grant COA only if an appellant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c)(2); Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Where the district co urt has denied a petition on the merits, we grant COA only if it is reasonably d ebatable that the district court erred in its assessment of the constitutional claim s. See Slack, 529 U.S. at 484. Where the district court has denied habeas relief o n procedural grounds, we grant COA only if (1) it is reasonably debatable that the petition states a valid claim of denial of a constitutional right, and (2) it is rea sonably debatable that the district court erred in its procedural ruling. See id. Of Mr. Hilgert’s thirteen allegations of error, the district court concluded that nine were procedurally barred. See Coleman v. Thompson , 501 U.S. 722, 729-30 (1991) (federal habeas petition barred where petitioner failed to meet state procedural requirements). Mr. Hilgert has not rais ed any doubt as to the2 In connection with this argument, Mr. Hilgert has s ubmitted a “Motion for

Leave to File a Supplement to Appellant’s Opening B rief,” in which he purports to offer newly discovered evidence that his son was coached in his testimony. Contrary to Mr. Hilgert’s assertions, this evidence --in the form of a psychological evaluation of Mr. Hilgert’s son--is ambiguous at be st. In any case, because we decline to grant Mr. Hilgert a certificate of appea lability, his motion is denied as moot. -4- correctness of the district court’s conclusion on t his point. Rather, he concedes that many of his arguments are waived, but points t o this as evidence that he received ineffective assistance of counsel. As the district court properly concluded, however, Mr. Hilgert’s ineffective assis tance argument itself was also waived when he declined to pursue it before th e Kansas Court of Appeals.
See 28 U.S.C. §§ 2254(b), (c) (requiring petitioner to fully exhaust avenues of relief in state court). On the four remaining issues, the district court re asoned as follows: The argument that Mr. Hilgert was denied the right to aspeedy trial fails because it is a question of state law. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991) (state-court determinations of state-law claims wil l not be examined in federal habeas proceedings). The argument that Mr. Hilgertwas denied a fair trial because the victim was “coached” in his testimony f ails because Mr. Hilgert’s allegation is utterly unsupported by any evidence. 2 The argument that the trial court erred in its instructions fails because the i nstructions tracked the elements of the offense exactly. See United States v. Beers , 189 F.3d 1297, 1300-01-5-

(10th Cir. 1999) (no error if instructions taken as a whole correctly state governing law). Finally, the argument that Mr. Hil gert’s trial counsel labored under a conflict of interest fails because Mr. Hilg ert failed to allege any specific instance in which his attorney was forced “to make choices advancing other interests to the detriment of his client.” United States v. Alvarez , 137 F.3d 1249, 1252 (10th Cir. 1998). Nothing in Mr. Hilgert’s briefing nor the record on appeal calls into question the soundness of the district court’s conc lusions. We do not find it debatable that the district court erred in its asse ssment of either the procedurally barred claims or the claims it considered on the me rits. Therefore, for substantially the same reasons set f orth in the district court’s memorandum and order, we DENY petitioner’s applicat ion for a certificate of appealability, and the appeal is DISMISSED. Petiti oner’s “Motion to File a Supplement to Appellant’s Opening Brief” is DENIED as moot. Entered for the Court

John C. Porfilio Circuit Judge