* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, and law of the case. 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 

### FEB 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANIEL DAVID COLE,

Petitioner - Appellant,

v. STATE OF NEW MEXICO; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; ERASMO BRAVO, Warden, Guadalupe County Correctional Facility, Respondents - Appellees. No. 02-2195 D.C. No. CIV-01-980 LH/LCS (D. New Mexico)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C). The case is therefore submitted without oral argument.1 The murder victim was Mr. Cole’s wife and the int ended victims of the

attempted murders were his three minor children. -2- Daniel David Cole seeks to appeal the district court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we DENY Mr. Cole’s motion for a certi ficate of appealability and DISMISS this appeal.

I. BACKGROUND Following a bench trial, the District Court of Oter o County, New Mexico, found Mr. Cole guilty but mentally ill of one countof first-degree murder, in violation of N.M. Stat. Ann. § 30-2-1(A)(1), and th ree counts of attempted firstdegree murder, in violation of N.M. Stat. Ann. §§ 30-28-1(A) and 30-2-1(A)(1). 1 Mr. Cole received a sentence of life imprisonment o n the murder conviction and nine years’ imprisonment for each of the attempted murders. The state court ruled that the sentences for the attempted murders would be served concurrently with each other and consecutive to the life sentence on the first-degree murder conviction. Mr. Cole appealed his convictions to t he New Mexico Supreme Court. That court affirmed Mr. Cole’s convictions. See Rec. doc. 13, ex. G (Supreme Court of New Mexico’s Decision, case no. 25,643, fi led Aug. 8, 2000).2 In particular, Mr. Cole alleged that (1) the tria l court erred in allowing a

psychologist to testify about Mr. Cole’s prior bad acts, based on information obtained during a sanity evaluation; (2) the trial court erred in admitting statements not preceded by a Mirandawarning; (3) the court did not apply the correct elements of first-degree murder; (4) the co urt erred in admitting improper character evidence; (5) the court erred in admitted hearsay testimony; (6) the court erred in not allowing him to present mitigati ng evidence; (7) the sentence imposed violated double jeopardy principles; (8) th e court erred in disallowing certain defenses; (9) the court violated his right to be free from self-incrimination by admitting a psychological evaluation; (10) the c ourt erred in declining to reduce the charge to second-degree murder based upo n his psychological state; (11) the court erred in allowing the prosecution to pursue the first-degree murder charge when he had asserted the insanity defense; ( 12) the court erred in refusing to reduce the murder charge to voluntary manslaught er based upon provocation; (13) the court erred in refusing to consider his co ntention that he acted in selfdefense; (14) the court erred in declining to find him guilty of manslaughter rather than first-degree murder; (15) he received i neffective assistance of counsel because his trial lawyer failed to investigate the case and prepare an adequate defense. See Rec. vol. I, doc. 1 (Petition for a Writ of Habeas Corpus, filed August 28, 2001). -3- On August 28, 2001, Mr. Cole filed the instant habe as petition in the federal district court, asserting fifteen grounds for relief. 2 Subsequently, on September 10, 2001, Mr. Cole filed a pro se petition for a wr it of habeas corpus in New Mexico state district court asserting the same claims for relief. See Rec. doc. 13, ex. I (Petition for Writ of Habeas Corpus, filed Se pt. 10, 2001). On November 8, 2001, the Otero County District Court issued an ord er summarily dismissing Mr. Cole’s state habeas petition. The parties agree that Mr. Cole did not file a peti tion for a writ of certiorari with the New Mexico Supreme Court within thirty day s of the filing of this3 This August 28, 2001 certiorari petition is not i n the record before us. It

appears that Mr. Cole and his counsel may be confus ed about that date: August 28, 2001 is the date that Mr. Cole filed his petiti on for a writ of habeas corpus in the federal district court. Because Mr. Cole did n ot file his state habeas petition in the Otero County court until September 10, 2001, it is unclear why he would have filed a certiorari petition in the New Mexico Supreme Court prior to that date. In any event, given Mr. Cole’s acknowledged failure to file a timely certiorari petition afterthe Otero County court’s ruling of November 8, 200 1, we need not determine whether Mr. Cole actually filed a certiorari petition in the New Mexico Supreme Court on August 28, 2001. -4- summary dismissal, as required by Rule 12-201(A) of the New Mexico Rules of Appellate Procedure. However, according to Mr. Col e, he submitted a certiorari petition prematurely—on August 28, 2001 (prior to the district court’s ruling of summary dismissal). According to Mr. Cole, after t his premature filing, he received a letter from the New Mexico Supreme Courtinforming him that he was required to file an endorsed copy of the state dist rict court’s order denying habeas relief. 3 Subsequently, Mr. Cole asserts, he prepared a letter to the New Mexico Supreme Court clerk’s office and attached a copy of the dismissal order. However, Mr. Cole reports, he was unable to obtain notarization of his signature until December 11, 2001, because his caseworker was unavailable. On that date, he mailed the letter to the clerk’s office. The cl erk’s office received the letter on December 13, 2001. However, the clerk’s office inf ormed Mr. Cole that it could not file his certiorari petition because the deadline had passed. See Rec. doc. 20, at 6-7 (Mr. Cole’s objections to the magistrate’s r eport, filed May 3, 2002).-5-

In the federal district court case, the magistrate judge issued proposed findings and a recommended disposition on April 23, 2002. See Rec. vol. I, doc. 19. The magistrate judge concluded that Mr. Cole’s petition was procedurally barred because he had not timely filed a certiorari petition in the New Mexico Supreme Court. The magistrate judge also considere d the merits of Mr. Cole’s ineffective assistance of counsel claim, concluding that Mr. Cole had failed to demonstrate that he was prejudiced by his counsel’s alleged errors. The district court adopted the magistrate’s report and recommend ation and dismissed Mr. Cole’s petition.

II. DISCUSSION Mr. Cole seeks a certificate of appea lability (COA) in order to pursue this appeal. Because the district court ruled on p rocedural grounds, Mr. Cole may obtain a COA if he “shows, at least, that jurists o f reason would find it debatable whether the petition states a valid claim of the de nial of a constitutional right and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In this appeal, Mr. Cole first contends that the di strict court erred in dismissing his petition without first reviewing a c omplete record of the state court proceedings, including a transcript of the trial. Mr. Cole also advances-6-

substantive challenges to the district court’s conc lusion that his claims are procedurally barred: He maintains that he has made a sufficient showing of cause and prejudice excusing his procedural default and t hat a failure to consider his claims would result in a fundamental miscarriage of justice.

A. Alleged Inadequacy of the Record Mr. Cole observes that “neither the transcript of [ the state court] proceedings nor the record proper from state court have been filed in this case.” Aplt’s Br. at 3. He contends that “[w]ithout a state court record proper and transcript of proceedings, appointed counsel is una ble to begin to assemble the needed proof of an ineffective assistance of counsel claim.” Id. at 11. Mr. Cole further maintains that the district court’s analysi s of his procedural default is deficient because it is based on an incomplete reco rd. We are not persuaded by Mr. Cole’s contentions about the inadequacy of the record. In response to Mr. Cole’s petition, the re spondent filed a motion to dismiss and a supporting memorandum in which he arg ued that Mr. Cole’s claims were procedurally barred. See Rec. vol. I doc. 11-12 (Motion to Dismiss and Memorandum in Support, filed December 20, 2001). T he respondent noted that Mr. Cole had failed to file a timely certiorari pet ition in the New Mexico Supreme Court. Rec. vol. I, doc. 12, at 4-5. Additionally , the respondent stated that “[t]he4 In that regard, we note that Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts enables a district court to order a summary dismissal of a petition “[i]f it plainly ap pears from the face of the petition and any exhibits annexed to it that the pe titioner is not entitled to relief in the district court.” That provision indicates thatit may be proper for a district court to rule on issues of procedural bar without r eviewing the entire trial transcript. -7- New Mexico Supreme Court’s Decision [in Mr. Cole’s direct appeal] pointed to specific evidence in the record from which a factfi nder could have found [Mr. Cole] guilty of first degree murder and three count s of attempted first degree murder.” Rec. vol. I. doc. 12 at 6. The responden t also submitted copies of the judgment and sentence, the briefs in the state court direct appeal, the New Mexico Supreme Court’s decision, Mr. Cole’s state court habeas petition, and the state district court’s summary dismissal. See Rec. vol. I, doc. 13. (Answer to Petition for a Writ of Habeas Corpus, filed Dec. 20, 2001). These documents provided the district court with sufficient information to deter mine whether Mr. Cole’s petition was procedurally barred and whether either of the e stablished exceptions (cause and prejudice or a fundamental miscarriage of justice) would excuse his default. 4

B. Cause and Prejudice Before filing a federal habeas corpus petition, an inmate must exhaust the available state remedies. See 28 U.S.C. § 2254(b)(1). “A state prisoner is ordinarily not able to obtain federal habeas corpus relief unless it appears that the-8-

applicant has exhausted the remedies available in t he courts of the State.” Dever v. Kan. State Penitentiary , 36 F.3d 1531, 1534 (10th Cir. 1994) (quotation ma rks omitted). If state remedies are still available, the appropri ate disposition is to dismiss a federal habeas petition without prejudice so thatthe petitioner may pursue those remedies. See Coleman v. Thompson , 501 U.S. 722, 731 (1991). However, where state remedies are no longer available, a dismissal for failure to exhaust is not appropriate. Instead, we must deny the petition un less the petitioner can show cause for the default and actual prejudice resultin g from the alleged federal law violation, or that a fundamental miscarriage of jus tice will occur if the claims are not considered. See id . at 750; Klein v. Neal , 45 F.3d 1395, 1400 (10th Cir. 1995). As noted above, Mr. Cole failed to file a certiorar i petition in the New Mexico Supreme Court within thirty days of the deni al of his state habeas petition, as required by Rule 12-201(A) of the New Mexico Rul es of Appellate Procedure. Accordingly, we may not reach the merits of Mr. Col e’s federal habeas petition unless he can establish cause for his procedural de fault and resulting prejudice or5 We note that Mr. Cole does not contend here that the premature filing of

his certiorari petition somehow rendered his subseq uent petition timely. Instead, he concedes that there was a default and argues that the cause and prejudice exception excuses it. Aplt’s Br. at 4. -9- that a fundamental miscarriage of justice would res ult if we do not hear the merits of his claim. See Coleman , 501 U.S. at 750. 5 As to cause and prejudice, Mr. Cole asserts that t he unavailability of his caseworker constitutes cause for his failure to fil e a timely certiorari petition in the New Mexico Supreme Court. Mr. Cole did not raise t his argument until he filed objections to the magistrate’s report and recommend ation. As a result, the district court did not consider this contention. See Rec. vol. I, doc. 21 (District Court Order Adopting Magistrate Judge’s Proposed Findings and Recommended Disposition, filed June 26, 2002) (stating that Mr. Cole raised a new claim in his objections and deeming that claim waived). We conclude that, by failing to raise the issue in his initial response to the respondent’s motion to dismiss, Mr. Cole has waivedthe argument that the unavailability of his caseworker constituted cause for his failure to file a certiorari petition. “[A]llowing parties to litigate fully th eir case before the magistrate and, if unsuccessful, to change their strategy and prese nt a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs. , 863 F.2d 633, 638 (9th Cir. 1988), overruled on-10-

other grounds by , United States v. Hardesty , 977 F.2d 1347, 1348 (9th Cir. 1992). In explaining the delay, Mr. Cole’s attorney states that he did not mention the contention about the unavailability of the casework er in his initial response because “counsel first learned of this fact April 2 9, 2002” [after the filing of the magistrate’s proposed findings and recommendation o n April 23, 2002]. Aplt’s Br. at 7 n.6. This cursory explanation does not es tablish the kind of exceptional circumstances necessary to excuse the failure to ra ise the issue before the magistrate judge. See Greenhow , 863 F.2d at 638-39 (finding no exceptional circumstances). Moreover, even if Mr. Cole had timely raised the argument as to the unavailability of his caseworker, we conclude that his assertions fail to establish cause for his procedural default. The mere asserti on that a particular caseworker was not available does not demonstrate that there w ere no other means available to Mr. Cole to file a timely certiorari petition. In the absence of sufficient cause for Mr. Cole’s default, we need not address his asserti ons of prejudice.

C. Fundamental Miscarriage of Justice Mr. Cole also contends that a fundamental miscarria ge of justice would result if the merits of his claim are not addressed . He contends that the evidence is insufficient to establish his guilt as to the fi rst-degree murder charge, because6 The Supreme Court rejected Mr. Cole’s argument th at because he

abandoned an attempt to asphyxiate his wife, his su bsequent stabbing of her did not establish an intent to kill. The court stated By engaging in successive attempts on Ms. Cole’s li fe, Mr. Cole evinced that his original deliberate intent to kill her survived his failed attempt to asphyxiate her . . . . [W]ithout evidence of abandonment or any other interruption of his intent[Mr. Cole’s] attempts to asphyxiate, strangle, and set Ms. Cole’ s clothes on fire (continued...) -11- his homicidal intent at the moment of his attempt t o asphyxiate his wife did not continue to his subsequent, allegedly spontaneous d ecision to stab her. See Aplt’s
Br at 23. We conclude that Mr. Cole has failed to establish afundamental miscarriage of justice warranting an exception to procedural ba r. The fundamental miscarriage of justice exception applies only in extraordinary instances in which a constitutional violation probably caused the convic tion of an innocent person. See Murray v. Carrier , 477 U.S. 478, 479-80 (1986). In order to establi sh a fundamental miscarriage of justice, Mr. Cole must s upport his allegations of innocence with “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or criti cal physical evidence—that was not presented at trial.” Schlup v. Delo , 513 U.S. 298, 324 (1995). Here, Mr. Cole points to no such evidence. Moreover, the New Mexi co Supreme Court’s decision affirming Mr. Cole’s conviction sets forth substant ial evidence supporting his convictions. 66 (...continued)

clearly provided sufficient evidence to lead [the t rial judge] to find, beyond a reasonable doubt that [Mr. Cole] stabbed M s. Cole with the deliberate intent to kill her. Rec. vol. I, doc. 13, ex. G, at 4. -12- III. CONCLUSION Accordingly, we DENY Mr. Cole’s application for a c ertificate of appealability and DISMISS this appeal.

Entered for the Court
Robert H. Henry Circuit Judge