* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 6 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALBERT L. BRINKMAN, Petitioner - Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections; ATTORNEY GENERAL OF THE STATE OF KANSAS, Defendants - Appellees. No. 01-3359 (D.C. No. 01-CV-3247-DES) (D. Kansas)

ORDER AND JUDGMENT *

Before McKAY , KELLY , and MURPHY , Circuit Judges. **
Albert L. Brinkman, a inmate appearing pro se and i n forma pauperis, seeks to appeal from the district court’s dismissal of hi s habeas petition, 28 U.S.C. § 2254. To obtain a certificate of appealability ( “COA”), 28 U.S.C. § 2253(c)(2), Mr. Brinkman must demonstrate that the district court’s dismissal on procedural- 2 -

grounds was debatable or incorrect. Slack v. McDan iel , 529 U.S. 473, 485 (2000). Mr. Brinkman was convicted of aggravated indecent l iberties with a child, two counts of sexual exploitation of a child and tw o counts of aggravated sodomy and was sentenced to 136 months, 130 months, and three terms of 15 years to life, all to be served consecutively. His conviction was affirmed on direct appeal by the Kansas Court of Appeals (“KCOA”) in a thorough opinion. I R. Doc. 5, Ex. 2 (State v. Brinkman , No. 81,825 (Kan. Ct. App. Nov. 12, 1999)). Accor ding to his petition, he was notified of the KCOA decision on N ovember 22, 1999, but no petition for review by the Kansas Supreme Court was ever filed by his appellate counsel or by other counsel. I R. Doc. 1 at “b;” I R. Doc. 5, Ex. 3. More than a year later, he sought leave to file a delayed petit ion for review with the Kansas Supreme Court; his documents were returned unfiled as the case had been closed. I R. Doc. Ex. 4 (last page). In his federal habeas petition, Mr. Brinkman raises numerous claims, many of which are the same as those raised on direct app eal. The district court correctly concluded that he had procedurally defaul ted these claims by failing to appeal the KCOA decision to the Kansas Supreme Court, see O’Sullivan v. Boerckel , 526 U.S. 838, 848 (1999), and that he had not dem onstrated cause and prejudice, or a fundamental miscarriage of justice that would excuse such default.- 3 -

Coleman v. Thompson , 501 U.S. 722, 749-50 (1991). Moreover, although attorney ineffectiveness on appeal might constitute cause, an ineffective assistance of appellate counsel claim was never fai rly presented to the state courts, let alone in his federal habeas petition. An ineffective assistance of counsel claim supplying cause for other procedurally defaulted claims can be procedurally defaulted in its own right–that is the case here. See Edwards v. Carpenter , 529 U.S. 446, 453 (2000). Mr. Brinkman argues th at his request for leave to file a delayed petition for review with th e Kansas Supreme Court constitutes an adequate attempt to present the clai m to the Kansas courts and that any further attempt would be futile. We disagree; an unfiled request with no formal disposition by that court is in stark contra st to an effort to secure postconviction relief via Kan. Stat. Ann. § 60-1507 in state district court. We DENY a COA and DISMISS the appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge