* This order and judgment is not binding precedent, except under the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

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, this 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). The case is

therefore ordered submitted without oral argument.

Petitioner Donald Scott Hilgert appeals from the district court’s decision

denying his petition for habeas relief, filed under 28 U.S.C. § 2254. Mr. Hilgert
1 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 concluding that Mr. Hilgert’s

arguments are procedurally barred, and (2) “[t]he State is still doing all it can to

deny due process.” Pet. at 22. We decline to address these arguments because

they are general assertions subsumed in Mr. Hilgert’s other allegations of error.

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now seeks a certificate of appealability (COA) from this court pursuant to

28 U.S.C. § 2253(c)(1). We have jurisdiction under 28 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 thirteen1 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 proceed by grand

jury indictment, it was required to proceed by information.

(4) That the Assistant District Attorney had no standing to bring the

complaint against Mr. Hilgert.

(5) That certain Kansas statutes governing initiation of prosecution

are unconstitutionally vague.

(6) That the state’s amended and second amended complaint were

invalid.

(7) That he was convicted of a crime other than the one for which

he was charged.
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(8) That he was denied his statutory right to a speedy trial.

(9) That he was denied a right to a fair trial because the prosecution

“coached” the victim in his testimony.

(10) That the complaint was not drawn in the language of the

statute.

(11) That the instructions to the jury failed to recite all elements of

the charge.

(12) That Mr. Hilgert received ineffective assistance of counsel.

(13) That his attorney operated under a conflict of 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 court has denied a petition on

the merits, we grant COA only if it is reasonably debatable that the district court

erred in its assessment of the constitutional claims. See Slack, 529 U.S. at 484.

Where the district court has denied habeas relief on 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 reasonably 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 raised any doubt as to the
2

In connection with this argument, Mr. Hilgert has submitted a “Motion for

Leave to File a Supplement to Appellant’s Opening Brief,” 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 best. In any case, because we

decline to grant Mr. Hilgert a certificate of appealability, his motion is denied as

moot.

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correctness of the district court’s conclusion on this point. Rather, he concedes

that many of his arguments are waived, but points to this as evidence that he

received ineffective assistance of counsel. As the district court properly

concluded, however, Mr. Hilgert’s ineffective assistance argument itself was

also waived when he declined to pursue it before the 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 reasoned as follows: The

argument that Mr. Hilgert was denied the right to a speedy 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 will not be examined in federal

habeas proceedings). The argument that Mr. Hilgert was denied a fair trial

because the victim was “coached” in his testimony fails 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 instructions tracked the elements

of the offense exactly. See United States v. Beers , 189 F.3d 1297, 1300-01
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(10th Cir. 1999) (no error if instructions taken as a whole correctly state

governing law). Finally, the argument that Mr. Hilgert’s trial counsel labored

under a conflict of interest fails because Mr. Hilgert 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 conclusions. We do not find it

debatable that the district court erred in its assessment of either the procedurally

barred claims or the claims it considered on the merits.

Therefore, for substantially the same reasons set forth in the district court’s

memorandum and order, we DENY petitioner’s application for a certificate of

appealability, and the appeal is DISMISSED. Petitioner’s “Motion to File a

Supplement to Appellant’s Opening Brief” is DENIED as moot.

Entered for the Court

John C. Porfilio

Circuit Judge