* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata , and collateral estoppel. This 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. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

UNITED STATES COURT OF APPEALS Filed 12/19/96 TENTH CIRCUIT

PHILLIP RAY MOORE, Petitioner-Appellant, v. WALLIS PARMENTER, Warden, San Carlos Correctional Facility, Pueblo, Colorado; and ATTORNEY GENERAL OF COLORADO, Respondents-Appellees. No. 96-1170 (D.C. No. 95-B-3228) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges. **

Phillip Ray Moore was convicted by a Jefferson County, Colorado jury of eight felony counts stemming from a violent sexual assault against his wife and1 The Colorado Court of Appeals reversed six of the c ounts, People v.

Moore , 860 P.2d 549, 550 (Colo. Ct. App. 1993), rev’d , 877 P.2d 840 (Colo. 1994), but the Colorado Supreme Court reinstated al l eight convictions and the entire 72 year sentence. People v. Moore , 877 P.2d 840, 841 (Colo. 1994) (en banc). - 2 - daughter. He was sentenced to 72 years. 1 After his conviction and sentence were affirmed by the Colorado Supreme Court, Moore filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a), 2254 (1994) (amended April 24, 1996). The district court denied his petition, but granted Moore a certificate of probable cause (“CPC”) to appeal the denial. Mo ore appealed. We affirm the district court’s denial of Moore’s petition.

Jurisdiction On December 27, 1995, the district court granted Mo ore leave to proceed in forma pauperis under the former 28 U.S.C. § 1915(a) (1994) (amend ed April 26, 1996). Moore’s notice of appeal was filed April 22 , 1996, four days before the enactment of the Prison Litigation Reform Act of 19 95 (“PLRA”), Pub. L. No. 104-134, Title VIII, 110 Stat. 1321, 1321-66 to 132 1-77 (1996). We have not yet decided whether the filing fee provisions of PLRA § 804 apply to habeas corpus actions. See Deas v. Wyoming Dep’t of Corrections , 99 F.3d 1149, 1996 WL 606369, at *2 n.1 (10th Cir. Oct. 23, 1996) (table, text in WESTLAW). However, we have held that the amendments to 28 U.S.C. § 191 5 contained in PLRA § 8042 AEDPA § 103, however, amends Fed. R. App. P. 22(b) to allow the

appeal to proceed if a COA is issued by a district orcircuit judge. - 3 - do not apply to anycase in which the prisoner-appellant filed his not ice of appeal before April 26, 1996. White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied , 65 U.S.L.W. 3399 (U.S. 1996). Thus, we allow Moo re to proceed without complying with PLRA’s amendments to 28 U.S.C. § 191 5. On April 24, 1996, the district court entered a certificate of probable cause (“CPC”) dated April 23, 1996, allowing Moore to app eal the denial of his habeas petition. On the same day, Congress enacted the Ha beas Corpus Reform provisions of the Antiterrorism and Effective Death Penalty Act of 1995 (“AEDPA”), Pub. L. No. 104-132, Title I, 110 Stat. 1214, 1217-26 (1996). Under AEDPA § 102, 28 U.S.C.A. § 2253(c) (as amende d April 24, 1996), a certificate of appealability (“COA”) must be issu ed by a circuit judge in order for a prisoner to appeal the denial of a habeas pet ition. 2 We have held, however, that a CPC issued by the district court is equivale nt to a COA. See Lennox v.
Evans , 87 F.3d 431, 434 (10th Cir. 1996). We thus conve rt the district court’s
CPC to a COA. By virtue of his present incarceration, Moore meets the jurisdictional requirement of 28 U.S.C. § 2241(c)(3) (1994). Thus , we exercise jurisdiction.- 4 - Standard of Review We will reverse the denial of a habeas petition bro ught under 28 U.S.C. § 2254 only where the petitioner makes “a substanti al showing of the denial of a federal right.” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (punctuation marks omitted). As in all appeals, we review questions o f law de novo . However, we presume findings of fact made by the state courts t o be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e) (1) (as amended April 24, 1996).

Pending Motions After filing and briefing the present appeal, Moore filed a motion for leave to proceed in state court, or, in the alternative, to dismiss the appeal without prejudice. Moore brought these motions after reali zing that he had not exhausted --or even alleged--his ineffective assistance of ap pellate counsel claim in state court. Parmenter opposed Moore’s motion, arguing that it would facilitate an abuse of process. Alternatively, should we grant M oore’s motion to dismiss the present appeal, Parmenter asks that we dismiss it w ith prejudice. A federal district court has “substantial discretio n” in deciding whether or not to grant a motion for leave to proceed in state court. SEC v. Wencke , 622 F.2d 1363, 1374 (9th Cir. 1980). We think that ourdiscretion to grant or deny- 5 -

such a motion filed before us is equally substantia l. Exercising this discretion, we deny Moore’s motion for leave to proceed in state c ourt. Technically, Moore does not need any such leave. H e is free to bring any post-conviction proceedings authorized by Colorado law in state court. We note, however, that, should Moore subsequently attempt to relitigate his claim of ineffective assistance of appellate counsel in federalcourt, he will need to meet the “cause and prejudice” requirements associated w ith subsequent or abusive habeas petitions. See generallyMcCleskey v. Zant , 499 U.S. 467 (1991). In the meantime, we choose not to stay or delay the presen t proceeding. Moore alternatively moved to dismiss the present ap peal without prejudice. A prisoner’s motion to dismiss his habeas petition without prejudice should be granted if denying it would abridge “the petitioner 's ability to present claims of constitutional violations . . . merely because the petitioner has unwittingly fallen into a procedural trap created by the intricacies o f habeas corpus law.” Clark v. Tansy , 13 F.3d 1407, 1409 (10th Cir. 1993). Here, grantingMoore’s motion would pose such a trap. Were we to dismiss the pre sent appeal, the district court’s order denying Moore’s petition and holding that Moore’s constitutional claims are now procedurally barred would become fin al. Any future federal habeas petition would then be considered subsequentor abusive. Zant , 499 U.S.- 6 -

at 489. In essence, such a dismissal would be “wit h prejudice,” because the district court ruling would become final. Such a result could not possibly benefit Moore. No t only would any subsequent effort to litigate his ineffective assis tance of appellate counsel claim in the federal courts face the hurdle of being an a buse of the writ, Moore would also lose the benefit of appellate review of the ma ny underlying substantive claims which he brought in district court and which were all denied. We do not believe that Moore intended this result. We thus d eny Moore’s motion to dismiss this appeal.

Moore’s Constitutional Claims Moore alleges that the Colorado state court proceed ings violated his Fourteenth Amendment right to Due Process of Law, b oth generally and also as that Amendment “incorporates” the Sixth Amendment’s guarantees of an impartial jury, the (effective) Assistance of (appe llate) Counsel, and Confrontation of (adverse) Witnesses, the Fifth Ame ndment’s bar against Double Jeopardy, and the Eighth Amendment’s bar against Cr uel and Unusual Punishment. Although several of these claims were stated only in terms of state3 The district court adopted the magistrate judge’s finding that Moore

failed to exhaust anyof these claims because “a federal constitutional claim will not be deemed exhausted unless it has first been po stured as a constitutional claim in a state’s highest court” and that Moore’s claims are procedurally barred under the “anticipatory denial rule.” (Magistrate’s Reco mmendation at 4) (citing Qureshi v. Diesslin , 654 F. Supp. 555, 557 (D. Colo. 1987)). We do no t agree that Moore did not posture any of his claims as fed eral claims. See e.g. Moore , 877 P.2d at 843-44 (referring to Moore’s double jeo pardy claim in federal terms). However, we need not delve into which of Moore’s fe deral claims were exhausted. Under AEDPA § 104(1), “[a]n applicationfor a writ of habeas corpus may be denied on the merits, notwithstanding the fa ilure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2) (as amended April 24, 1996). - 7 - law before the Colorado courts, all but the ineffec tive assistance of appellate counsel claim were raised there substantively. 3 Moore’s general Due Process claim and his Sixth Ame ndment jury claim both derive from jury instructions which he charact erizes as erroneous. The Colorado Supreme Court held that the legal theory o f complicity articulated in the jury instructions was proper. See Moore , 877 P.2d at 846-47. We find no constitutional error in this ruling. Moore’s Sixth Amendment Confrontation Clause claim arises from the admission of videotaped depositions recorded by hi s minor children shortly after the sexual assault. The Colorado Court of Appeals found no error, under the circumstances of the case, in the admission of thes e materials. Moore , 860 P.2d4 The Colorado Supreme Court denied Moore’s petitionfor writ of

certiorari on this issue. (See Magistrate’s Recomm endation at 2). - 8 - at 555. 4 Under Maryland v. Craig , 497 U.S. 836, 852-53 (1990), this result is clearly sound under federal law. Moore’s Double Jeopardy claim stems from the overlapping elements of some of the counts under which he was charged and c onvicted. The Colorado Supreme Court correctly analyzed this claim under t he “same elements” test of Blockburger v. United States , 284 U.S. 299, 304 (1932). See Moore , 877 P.2d at
843-44. Under both the former and current (post-AEDPA) vers ions of 28 U.S.C. § 2254(b), the federal court may not grant habeas r elief pursuant to any claim not exhausted in state court. Clark v. Tansy , 13 F.3d 1407, 1409 (10th Cir. 1993). Moore’s Eighth Amendment claim appears not to have been advanced in state court, nor does Moore pursue it in this appeal. Th us, it is forfeited. In addition, we decline to consider Moore’s ineffective assistan ce of appellate counsel claim, which was never raised before the present appeal an d thus has not been exhausted.- 9 - CONCLUSION Moore’s motion for leave to proceed in state court is denied. His motion to withdraw this appeal without prejudice is also deni ed. We affirm the district court’s denial of his petition for writ of habeas c orpus.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge