* This order and judgment is not binding precedent, e xcept under the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

### APR 27 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LYNN S. PRIEST, Petitioner-Appellant,

v. RICHARD MARR and the ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 97-1394 (D.C. No. 96-B-216) (District of Colorado)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and HENRY , Circuit Judges.

In 1987, a jury convicted Mr. Priest of murder in the first degree and a crime of violence, for which he was sentenced to li fe in prison. Mr. Priest has filed numerous petitions in Colorado state courts f or post-conviction relief. The instant appeal stems from Mr. Priest’s federal habeas petition filed in2

United States District Court pursuant to 28 U.S.C. § 2254. The district court denied habeas relief. We exercise jurisdiction pur suant to 28 U.S.C. § 2253. As Mr. Priest petitioned for habeas relief before Apri l 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 19 96 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), do not apply. See Lindh v. Murphy , 117 S.Ct. 2059, 2068 (1997). We affirm.

DISCUSSION

Mr. Priest argues that he is entitled to habeas rel ief because he was denied effective assistance of counsel in violation of the Sixth Amendment. He specifically finds error in his trial counsel’s dec ision not to pursue a voluntary intoxication defense, and in his trial counsel’s fa ilure to object to certain statements by the prosecutor in closing argument. He also argues that, in light of evidence regarding the voluntary intoxication defen se that was not presented to the state courts, his ineffective assistance of cou nsel claim is partly unexhausted. In light of these arguments, Mr. Priest seeks three alternative forms of relief. He first argues that this court should hol d his case in abeyance, pending final resolution of a second post-conviction motion in the Colorado state courts.3

We need not address this first requested form of re lief. The Colorado Supreme Court has recently denied Mr. Priest’s petition forcertiorari in that second state post-conviction proceeding, and, as a result, his r equest that we hold this case in abeyance is now moot. See Priest v. People No. 98 SC365 (Order filed Dec. 8, 1998). Alternatively, Mr. Priest argues that this court should remand the case to the district court, where he “would get to elect be tween deleting the unexhausted claim and proceeding with just the exhausted claims , or allowing dismissal of the entire petition without prejudice.” Aplt’s Br. at 2 0. Thirdly, in the event that this court decides to reach the merits of his claim, Mr. Priest argues that we should conclude that he received ineffective assistance of counsel and reverse the district court’s decision. We begin by addressing Mr. Priest’s exhaustion argu ment. Because we conclude that Mr. Priest has exhausted his claim, w e then proceed to the merits.

I. Exhaustion In support of his argument that his ineffective ass istance of counsel claim is partially unexhausted, Mr Priest invokes our de cision in Demarest v. Price , 130 F.3d 922 (10th Cir. 1997). In that case, we ap plied the requirement that a state prisoner must “‘fairly present’ his or her cl aims to the state courts before a federal court will examine them.” Id. at 932 (quoting Picard v. Connor , 404 U.S.4

270, 275 (1971)). The fair presentation requiremen t means that the substance of a habeas claim must first be raised in the state co urts. “[A]lthough a habeas petitioner will be allowed to present bits of evide nce to a federal court that were not presented to the state court that first conside red his claim, evidence that places the claims in a significantly different lega l posture must first be presented to the state courts.” Id. (internal citations and quotations omitted). In Demarest , we concluded that a habeas petitioner had not fai rly presented an ineffective assistance of counsel claim to the s tate courts. In a federal court hearing, the habeas petitioner presented important evidence that had not been submitted to the state courts: testimony from two key fact witnesses changing their account of certain events surrounding the cri me and new expert opinion that substantially weakened the state’s case. The new t estimony rendered the claim unexhausted. In this case, Mr. Priest argues that an affidavit that he submitted to the district court is analogous to the new evidence pre sented at the federal evidentiary hearing in Demarest . The affidavit in question is signed by Dr. Gary G. Forrest, a psychologist and an expert on intoxic ation. In the affidavit, Dr. Forrest states that, on the night of the murder, Mr . Priest was impaired by alcohol and that, when Mr. Priest shot the victim, there wa s “an appreciable chance” that “he was acting on an impulse and not as the result of deliberation.” See Rec.5

doc. 35 Att. I at ¶ 8. Mr. Priest argues that Dr. Forrest’s affidavit demonstrates the importance of the voluntary intoxication defens e as well as trial counsel’s ineffectiveness in failing to adequately investigat e the defense and pursue it at Mr. Priest’s state court murder trial. In our view, Dr. Forrest’s affidavit is distinguish able from the new evidence offered in the federal court evidentiary h earing in Demarestin that the affidavit does not place Mr. Priest’s ineffective a ssistance of counsel claim “in a significantly different and stronger posture than i t was when the state courts considered it.” Jones v. Hess , 681 F.2d 688, 694 (10th Cir. 1982). At the state court evidentiary hearing on Mr. Priest’s post-conv iction motion, Mr. Priest’s trial counsel testified as to the strategic reasons for declining to present a voluntary intoxication defense to the jury and for arguing instead that Mr. Priest acted in self-defense. Dr Forrest’s affidavit does not undermine that strategic assessment and therefore, unlike the new evidence i n Demarest , it does not render Mr. Priest’s ineffective assistance of counsel clai m unexhausted. Accordingly, because Mr. Priest has fairly presente d his claim to the Colorado state courts, we proceed to the merits.

II. The Merits Mr. Priest first alleges that he was denied effect ive assistance of counsel, in6

violation of the Sixth Amendment. To prevail in th is claim, he must show that counsel’s performance was deficient. This req uires showing that counsel made errors so serious that counsel was notfunctioning as the ‘counsel’ guaranteed the defendant by the SixthAmendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fa ir trial, a trial whose result is reliable. Strickland v. Washington , 466 U.S. 668, 687 (1984). As we have noted, the district court found that the defense counsel had testified at the post-conviction hearings in state court that he was aware of the voluntary intoxication defense and that he made a s trategically defensible decision to pursue the self-defense theory instead. See Rec. vol. I, doc. 42, at 9- 11. Mr. Priest has presented nothing that would br ing doubt to these findings. Therefore, we affirm the district court’s finding that Mr. Priest failed both to show that his counsel’s assistance was deficient, and that he was prejudiced by the actions of his counsel. Mr. Priest also contends that his counsel was ineff ective because he failed to object to the prosecutor’s characterization of M r. Priest as a liar in closing arguments. As the district court noted, Mr. Priest ’s trial counsel testified in the state post-conviction proceedings that he was conce rned that an objection would only draw more attention to the prosecutor’s statements. See Rec. vol. I, doc. 42, at 13. Attention to the prosecutor’s statement was undesirable, as during trial the7

defense had conceded Mr. Priest had in fact lied at one time. See id. We find ourselves in agreement with the district court: “this Court does not find that [trial counsel’s] actions fell outside the range of reason able professional assistance that must be shown under Strickland .” Id.

CONCLUSION Mr. Priest has fairly presented his ineffective ass istance of counsel claim to the Colorado state courts. Accordingly, we proceedto the merits of his claim and AFFIRM the district court’s denial of his Sixth Ame ndment claim for ineffective assistance of counsel. ENTERED FOR THE COURT Robert H. Henry Circuit Judge