* This order and judgment is not binding precedent, except under the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

** Honorable William F. Downes, District Judge, United States District Court

for the District of Wyoming, sitting by designation. 

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 17 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HAROLD GRAHAM,

Petitioner-Appellant,

v.

ARISTEDES ZAVARAS, Executive

Director DOC; MARK MCKINNA,

Warden CTCF,

Respondents-Appellees.

No. 96-1494

(D.C. No. 95-N-2742)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY and HENRY, Circuit Judges, and DOWNES,** District Judge.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 The Supreme Court recently held that the new provisions of Chapter 153 of

Title 28 of the United States Code, which includes § 2253(c) requiring certificates

of appealability, added by the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) are generally not applicable to cases filed before AEDPA’s

effective date, April 24, 1996. See Lindh v. Murphy, 117 S. Ct. 2059, 2068

(1997). Thus, Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996), cert. denied, 117

S. Ct. 746 (1997), has been overruled to the extent that Lennox held that

§ 2253(c) applied to habeas petitions filed prior to AEDPA’s effective date. See

United States v. Kunzman, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir.

Oct. 1, 1997) (en banc). Because the habeas petition in this case was filed prior

to that date, petitioner is not subject to AEDPA, but he is subject to § 2253's

previous requirement that he obtain a certificate of probable cause to appeal. 

Regardless of which label applies, petitioner’s substantive burden is the same. As

we held in Lennox, both certificates of probable cause and of appealability

require that a petitioner “make a substantial showing of the denial of a federal

constitutional right.” 87 F.3d at 434. 

-2-

This matter is before the court on petitioner’s application for a certificate

of appealability, which we construe as an application for a certificate of probable

cause,1 to appeal from the denial of his habeas corpus petition filed under 28

U.S.C. § 2254. Accepting the recommendation of the magistrate judge, the

district court found that petitioner’s claims were procedurally barred. The court

also declined to consider issues petitioner raised in his objection to the magistrate

judge’s recommendation but had not raised in his petition. We conclude that

petitioner has failed to make a substantial showing of a denial of a federal

constitutional right. We therefore deny his request for a certificate of probable

cause and dismiss the appeal. 
2 Section 405(2)(c) has since been recodified as § 405(2)(d). 

-3-

Petitioner was originally convicted of aggravated incest and sexual assault

on a child as part of a pattern of abuse. Because of inconsistent testimony by the

victim’s mother in a separate case regarding whether she was married to

petitioner, the trial court granted petitioner’s motion for judgment of acquittal

with respect to his aggravated incest conviction. His sexual assault conviction

was obtained under Colo. Rev. Stat. § 18-3-405(2)(c).2

 Sexual assault on a child

under § 405(1) is a class 4 felony, see § 405(2), but § 405(2)(c) enhances it to a

class 3 felony when the offense is committed as part of a pattern of sexual abuse. 

The pattern of sexual abuse that the state alleged against petitioner included

incidents occurring both before and after the effective date of the enhancement

portion of the statute. Because “[t]he jury was not instructed that defendant’s

conviction of the predicate offense had to be based on an act which occurred after

the passage of this portion of the statute,” the Colorado Court of Appeals reversed

the enhancement under § 405(2)(c) on ex post facto grounds but affirmed the

conviction under § 405(1). See People v. Graham, 876 P.2d 68, 72, 73 (Colo. Ct.

App. 1994). Petitioner is serving an eight-year sentence in a Colorado

penitentiary for the sexual assault on a child conviction. 

Petitioner has filed a variety of documents both in this court and the district

court raising an assortment of issues in varying levels of clarity and consistency. 
3 Petitioner also contends that his appellate counsel was ineffective and that

he was denied his right to self-representation on appeal, but we understand these

contentions to apply only to his claim that other issues should not be considered

procedurally defaulted.

-4-

Because he is proceeding pro se, we construe these documents liberally. He

raises the following substantive issues on appeal in addition to his contention that

the district court erred in finding his claims procedurally barred: (1) that the state

trial court lacked jurisdiction and venue over the charged offenses; (2) that the

jury was improperly instructed and was tainted because it considered incidents

occurring outside the court’s jurisdiction; (3) that sexual assault and incest are the

same offenses for double jeopardy purposes; (4) that his trial counsel was

ineffective for failing to investigate; (5) that the state interfered with his legal

representation by the public defender by limiting the amount of time counsel had

available for his defense; (6) that the prosecution knowingly used perjured

testimony and that the jury heard perjured testimony; (7) that the trial judge was

biased due to his personal relationship with the prosecutor; and (8) that the

prosecution was guilty of misconduct for presenting evidence of uncharged

conduct and perjured testimony.3

Where as in this case, the district court refers the matter to the magistrate

judge for a recommendation, a party must present timely and specific objections

to the magistrate judge’s recommendation to preserve issues for appellate review. 
-5-

See United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th

Cir.), cert. denied, 117 S. Ct. 271 (1996). Petitioner did file a timely objection to

the magistrate judge’s recommendation, but he did not mention, much less argue

that he did not procedurally default, the third, seventh and eighth issues. We

therefore will not consider those issues on appeal. 

Petitioner’s claim that the jury was improperly instructed and was tainted

by improper evidence is actually part of his claim that the trial court did not have

jurisdiction or venue over the offense. Petitioner was tried in Jefferson County,

but some of the alleged incidents of sexual abuse occurred in Park County. Both

counties are in Colorado. Petitioner contends that under the Colorado

Constitution, Jefferson County did not have jurisdiction or venue over the acts

that occurred in Park County. He also contends that the jury was not instructed to

find that the incidents of sexual abuse had to have occurred in Jefferson County. 

However, a violation of the Colorado Constitution’s jurisdictional mandates does

not raise a federal constitutional issue for which habeas relief may be obtained. 

See Caudill v. Scott, 857 F.2d 344, 345-46 (6th Cir. 1988); Cook v. Morrill, 783

F.2d 593, 595-96 (5th Cir. 1986). Thus, there is no merit to claims one and two.

Petitioner’s claims that his counsel was ineffective (1) for failing to

perform an adequate pretrial investigation, and (2) because of the workload of the

public defender’s office, fail because he has not shown what evidence an
-6-

adequate investigation would have disclosed nor how he has been prejudiced. See

Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995), cert. denied, 116 S. Ct.

1881 (1996). His fourth and fifth claims thus fail.

Petitioner contends that the jury was tainted by a witness’s perjury and that

the prosection knowingly used perjured testimony. Mere perjury itself does not

merit habeas relief, but the prosecution’s knowing use perjured testimony may. 

See Smith v. Roberts, 115 F.3d 818, 820 n.2 (10th Cir. 1997). The only

indication of possible false or “perjured” testimony admitted at his trial is the

victim’s mother’s testimony that she was petitioner’s common law wife that was

inconsistent with her statement in a separate case. This testimony was relevant

only to the aggravated incest charge, and as noted earlier, he has already obtained

relief on this matter. Moreover, in all of the various documents petitioner has

filed in this court and the district court, he has failed to allege more than his bare

conclusion that the prosecution knew the testimony was perjured. His sixth issue

also fails.
-7-

Petitioner’s request for a certificate of probable cause is DENIED, and the

appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

William F. Downes

District Judge