*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ PAUL SANWICK, Petitioner-Appellant,

v. SCOTT CARVER, Warden, Utah State Prison, Respondent-Appellee. No. 99-4075 (D. Utah) (D.Ct. No. 94-518-B)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , 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.1 Mr. Sanwick, who originally filed his petition May 20, 1994, and prior to

enactment of the Anti-Terrorism Effective Death Penalty Act of 1996, did not request a certificate of probable cause, and the district court made no ruling thereon. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of probable cause within thirty days after filing the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir. 1997), overruled on other grounds, United States v. Kunzman , 125 F.3d 1363 (10th Cir. 1997). Accordingly, we construe the appeal as Mr. Sanwick’s request to this Court for a certificate of probable cause. Id. -2- Appellant Paul Sanwick appeals the district court’s decision dismissing his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, as procedurally barred. We deny Mr. Sanwick a certificate of probable cause 1 and dismiss his appeal.

The State of Utah charged Mr. Sanwick with ten coun ts of rape and sexual abuse of his two minor daughters. Mr. Sanwick ente red a plea of guilty to one count of first degree felony rape in exchange for d ismissal of the remaining
counts. See State v. Sanwick, 713 P.2d 707, 708 (Utah 1986). The state trial court sentenced him to five years to life. Id. Mr. Sanwick filed a direct appeal claiming the trial court improperly relied on hears ay statements and precluded him from confronting his two daughters at sentencin g. Id. The Utah Supreme Court affirmed his sentence. Id. at 709.

Mr. Sanwick next filed a “Motion for Court to Refus e Unlawful Plea” with the trial court, renewing his argument that the cou rt improperly relied on2Utah Rule of Appellate Procedure 10(e) states:

The court, upon its own motion, and on such notice as it directs, may dismiss an appeal or petition for review if the court lacks jurisdiction; or may summarily affirm the judgment or order which is the subject of review, if it plainly appears that no substantial question is presented; or may summarily reverse in cases of manifest error.

3 Mr. Sanwick admitted as much in his petition: “All issues presented herein were presented in first [state] appeal and/or Motion for Court to Refuse Unlawful Plea.”

-3- inaccurate information, and precluded him from conf ronting his daughters at sentencing. He also alleged his guilty plea was co erced, involuntary and uninformed, and his conviction should have been forsecond, rather than first, degree rape. The trial court denied the motion, ho lding Mr. Sanwick either raised these claims, or should have raised them, on directappeal. The Utah Supreme Court summarily affirmed the trial court ruling, st ating simply “[t]he court ... affirms the trial court judgment on its own motion, inasmuch as it plainly appears that no substantial question is presented” (citing Utah Rule of Appellate Procedure 10(e)). 2

Thereafter, Mr. Sanwick filed an amended § 2254 pet ition, renewing essentially the same claims raised in the state cou rts. 3 As to his first degree rape conviction, he claimed: (1) the state court lacked jurisdiction because the state repealed the first degree rape statute under which he received his conviction; (2)-4-

he was indicted and pled guilty to second degree fe lony rape – not first degree felony rape; and (3) the court applied the first de gree felony rape statute ex post facto and unconstitutionally because the state only char ged him with second degree felony rape. Likewise, he reiterated his ar gument the court unconstitutionally sentenced him based on inaccurat e testimony and without allowing him to examine his daughters at sentencing . He also renewed his argument stating his guilty plea was unknowing, inv oluntary and induced while under the influence of psychotropic drugs. Lastly, Mr. Sanwick requested an evidentiary hearing on his petition.

The district court referred Mr. Sanwick’s petition to a federal magistrate judge who recommended dismissing the petition. The magistrate judge noted the state court determined his claims were procedurally barred as either previously litigated on direct appeal or because they should h ave been raised on direct appeal. The magistrate judge further found Mr. San wick failed to show “cause and prejudice” for his procedural default, or a mis carriage of justice enabling the court to review his petition. Finally, the magistr ate judge recommended denying Mr. Sanwick’s request for an evidentiary hearing, s tating he failed to proffer specific facts supporting a finding the requisite e xceptions of “cause and prejudice” or miscarriage of justice existed. The district court adopted the-5-

magistrate judge’s report and recommendation, grant ed the government’s motion to dismiss, and denied the petition.

Mr. Sanwick now appeals the district court’s decisi on. Because Mr. Sanwick filed his habeas petition before enactment of the Anti-Terrorism Effective Death Penalty Act, we apply pre-amendmentstandards of review. Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). We review the legal basis for the districtcourt’s dismissal of Mr. Sanwick’s petition de novo

. Id. In so doing, we afford deference to the state court’s construction of state law. Id.

Mr. Sanwick begins his appeal by asserting the district court erred in determining the state trial court dismissed his mot ion as procedurally barred. Instead, Mr. Sanwick contends the Utah Supreme Court – the last state court rendering a judgment in his case – dismissed it on its merits and not on procedural default. Mr. Sanwick premises this contention on t he Utah Supreme Court’s decision which, citing Rule 10(e), determined he “f ailed to present a substantial question for review.” He relies on a Utah Supreme Court case, Hernandez v. Hayward, 764 P.2d 993, 996 (Utah Ct. App. 1988), which states “[s]ummary affirmance under Rule 10 is a determination of the appeal on its merits.” Because-6-

the last state court decided his case on the merits , he contends his claims are not procedurally.

The federal magistrate judge addressed this issue, relying on Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991), and finding that “where , as here, the last reasoned opinion explicitly imposes a procedural default, this court presumes that the later summary decision by the Utah Supreme Court did not silently disregard that procedural bar and consider the claims on the merits.” (Emphasis added.) Under Ylst , the Utah Supreme Court’s unexplained denial of a habeas petition is not sufficient to lift an explicit procedural bar i nvoked by the trial court – the last reasoned state opinion on his claims. 501 U.S. at 803-04. Therefore, we agree Mr. Sanwick failed to overcome the presumption of t he procedural bar because he failed to carry his “burden of adducing strong evid ence” the Utah Supreme Court reached the merits of his federal claims. Id. at 806. Accordingly, Mr. Sanwick’s claims are barred unless he can establish “cause an d prejudice” for the default or show a “miscarriage of justice” will occur if his c laims are not considered. Id. ; Coleman v. Thompson , 501 U.S. 722, 750 (1991).

In order to establish “cause and prejudice,” Mr. Sa nwick must show “some objective factor external to the defense impeded [h is] efforts to comply with the-7-

State’s procedural rule.” Murray v. Carrier , 477 U.S. 478, 488 (1986). Examples under this standard include a showing the factual o r legal basis for a claim was not reasonably available to him or some interferenc e by officials made compliance impracticable. Id. Mr. Sanwick laments he met the “cause and prejudice” requirement by showing the state arbitra rily transformed his “Motion for Court to Refuse Unlawful Plea” into a motion to withdraw his plea. He claims this caused him prejudice by not allowing him to in voke numerous constitutional rights “entangled” in the plea arrangement. We fin d Mr. Sanwick’s contention strained as it merely invokes the semantics of how he titled his motion and does not focus on how the state’s mere assessment of his motion could in any way impede his efforts to comply with state procedural requirements.

Mr. Sanwick also claims he established “cause” beca use the prosecution improperly sought conviction for first degree rape instead of second degree rape, as pled in his guilty plea. He claims this “prosec utorial misconduct,” external to his defense, impeded his efforts. However, Mr. San wick fails to show how any external force impeded him from raising the alleged error during sentencing. On appeal, he summarily states he “was never informed as to what specific crime he was charged with or the elements necessary to estab lish the crime,” but we find nothing in the record to help us evaluate whether t he state court advised him of-8-

the charge for which he received his conviction and sentence. When an appellant, such as Mr. Sanwick, asserts his sentence should be reversed because of a particular error, and the record does not permit us to evaluate it, we will generally refuse to consider it. See United States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993). In this case, where Mr. Sanwick is collater ally attacking the voluntariness of his guilty plea, we find his conclusory statemen t he lacked information on the crime charged, without more, insufficient to meet h is burden of establishing “cause” for his procedural default.

As to the “miscarriage of justice” exception for pr ocedural default, Mr. Sanwick does not make a claim of innocence, nor pre sent a colorable showing of innocence as required to succeed on a “miscarriage of justice” claim. See Herrera v. Collins , 506 U.S. 390, 404 (1993). Finally, Mr. Sanwick c ontends he is entitled to an evidentiary hearing because the a llegations in the petition, if proved, entitle him to relief. However, it is well -established that where, as here, state procedural default is at issue, Mr. Sanwick m ust develop evidence in the state court showing “cause and prejudice” in order to succeed on a request for an evidentiary hearing on a § 2254 petition. Keeney v. Tamayo-Reyes , 504 U.S. 1, 11 (1992). Mr. Sanwick fails to show he developed such evidence or that a fundamental miscarriage of justice would result fro m a failure to hold a federal-9-

evidentiary hearing. Id.

In order to obtain a certificate of probable cause, Mr. Sanwick must make a substantial showing of a denial of a federal right. Barefoot v. Estelle , 463 U.S. 880, 893 (1983). He fails to do so.

For these reasons, we deny Mr. Sanwick’s request fo r a certificate of probable cause and DISMISS his appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge