UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ STEVEN MICHAEL FAIRCHILD, Petitioner - Appellant,

v. SHANE NELSON, Respondent - Appellee. No. 19-4141 (D.C. No. 2:17-CV-01317-DN) (D. Utah)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Steven Fairchild, a Utah prisoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal the district court’s deni al of his 28 U.S.C. § 2254 petition. For the reasons discussed below, we deny Fairchild’s request and dismiss this matter. Utah charged Fairchild with ten feloni es, including one count of aggravated robbery and four counts of possession of a firearm by a restricted person. State v. Fairchild , 385 P.3d 696, 699 (Utah Ct. App. 2016). Prior to trial, the government

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Fairchild’s pro se filings. But we will not act as his advocate or excuse his failure to follow procedural rules. See Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### February 5, 2020 Christopher M. Wolpert Clerk of Court2 moved to admit evidence that Fairchild was previously convicted of bank robbery. Id. The trial court denied the motion, determin ing that neither evidence of Fairchild’s prior convictions nor his status as a paro lee were admissible under the Utah Rules of Evidence. Id. But at trial, the jury heard that Fa irchild was a parol ee on at least three occasions: during opening stat ements, direct examinati on of Fairchild’s parole officer, and closing statements. Id. at 700. Fairchild’s trial counsel did not object to the opening or closing statements but did object to the parole officer’s testimony. Id. Fairchild’s counsel also moved for a mistrial after the parole officer’s testimony, but the trial court denied the motion. Id. The jury convicted Fairchild on all counts, and the trial court imposed consecutive sentences. Id. Fairchild then moved for a new trial, “arguing that the statements during trial that he was on parole violated th e pretrial order and unfairly prejudiced him.” Id. The trial court denied th e motion for a new trial. Id. Fairchild appealed to the Utah Court of Appeals (U CA), arguing that (1) the trial court erred in denying his motion for a new trial because “the multiple references to his status as a parolee violated the trial c ourt’s pretrial order and his rights to due process, the presumption of innocence, and a fair trial”; (2) his trial counsel provided ineffective assistance of counsel (IAC) by “failing to object to” various references to his pa rolee status; and (3) his sent ence violated Utah law and the Eighth Amendment. Id. at 701, 702 n.6. Regarding his first and second claims, Fairchild argued in his reply brief that “t he State bears the burden of demonstrating that the improperly elicited testimony was harmless beyond a reasonable doubt.” R.3 272 (quoting State v. Morrison , 937 P.2d 1293, 1296 (U tah Ct. App. 1997)); see also Chapman v. California , 386 U.S. 18, 24, 26 (1967) (hol ding that to be harmless, constitutional errors must be harmless beyond reasonable doub t; placing burden of proving such harmlessness on state). The UCA determined that the trial c ourt erred in permitting the elicited testimony. Fairchild , 385 P.3d at 701. But it found th at the error was harmless because it was “sufficiently inconsequential [such th at] there is no reasonable likelihood that the error affected the outcome of the proceedings.” Id. (quoting State v. Verde , 770 P.2d 116, 120 (Utah 1989)). Thus , the UCA implicitly declined to apply the Chapman harmless-error standard that Fairchild advanced in his reply brief. And because it found the error to be harm less under the standard it did apply, the UCA also found that (1) the trial court did not abuse its discretion in denying Fairchild’s motion for a new trial and (2) his trial counsel was not ineffective in failing to object to references to Fairchild’s parolee status. Id. at 702 n.6, 703. Fairchild filed a petition fo r certiorari to the Utah Supreme Court, arguing that the UCA erred in refusing to apply the Chapman harmless-error standard and that, under the correct standard, the trial court’s error wa s not harmless. The Utah Supreme Court denied his petition. State v. Fairchild , 390 P.3d 724 (Utah 2017). Fairchild then filed a petition for habeas re lief in federal dist rict court, arguing that (1) the UCA violated his state and fe deral constitutional rights to due process, a fair trial, and the presumpti on of innocence by not applying the Chapman harmlesserror standard ( Chapman claim); (2) the trial cour t committed plain error by4 permitting introduction of evidence of his pa rolee status (evide nce claim); (3) his trial counsel was ineffective in failing to object to the references to his parolee status (IAC claim); and (4) the trial court violat ed Utah law and the Eighth Amendment by improperly imposing an unduly harsh sentence (sentencing claim). The district court dismissed all four claims. First, it found that the entirety of the evidence claim a nd the Utah constitutional and statutory portions of the Chapman and sentencing claims were state-law claims that cannot be a ddressed in federal habeas review. See Lewis v. Jeffers , 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of st ate law.”). Next, it found that Fairchild procedurally defaulted “every asserted gr ound for relief” including, presumably, the federal portion of his sentencing and Chapman claims, as well as his IAC claim. R. 441. Finally, the district court determined that Fairch ild demonstrated neither the cause and prejudice nor fundame ntal miscarriage of jus tice necessary to overcome this procedural default. See English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). Fairchild now seeks to appeal the distri ct court’s denial of his petition, arguing only that the district court erred in finding the federal portion of his Chapman claim and his IAC claim procedurally defaulted. 2 But before he can appeal, he must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). When a district court de nies claims in a § 2254 petition on procedural grounds, as the district court did here, we will issue a COA

2 Because Fairchild does not argue that the district court improperly dismissed the remainder of his claims, we do not cons ider the district c ourt’s disposition of those claims.5 only if “the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a va lid claim of the denial of a constitutional right and that jurists of reason would find it debatable whet her the district cour t was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). For the reasons discussed below, we conclude that reasonable jurists coul d not debate “whether the district court was correct in its procedural ruling” and thus deny Fairchild’s request for a COA. Id. On appeal, Fairchild argues that he can overcome his procedural default because he can show cause and prejudice. See English , 146 F.3d at 1259 (noting that habeas petitioner can overcome procedural default by showing cause and prejudice). Specifically, he argues that his appella te counsel was ine ffective by failing to preserve his trial IAC claim and his federal Chapman claim and that this appellate ineffectiveness caused the pro cedural default of those claims . It is true that “attorney error” can be “an objective ex ternal factor providing cause for excusing a procedural default.” Davila v. Davis , 137 S. Ct. 2058, 2065 (2017) . But Fairchild failed to advance an appellate IAC claim in his hab eas petition. Indeed, the district court determined that the only cause-and-prejudi ce ground Fairchild “possibly argue[d]” is that his lack of legal resources caused hi s procedural default. R. 443. And “[w]e do not generally consider issues th at were not raised before th e district court as part of the habeas petition.” See Stouffer v. Trammell , 738 F.3d 1205, 1221 n.13 (10th Cir. 2013). Thus, we decline to consider whet her Fairchild’s newly advanced appellate6 IAC claim serves as cause to excuse his procedural default. 3 Because reasonable jurists could not debate “whether the di strict court was correct in” finding that Fairchild could not show cause and prejudice to overcome his procedural default, we deny Fairchild’s request for a COA. Slack , 529 U.S. at 484. As a final matter, we grant Fairchild’s motion to proceed in forma pauperis.

Entered for the Court
Nancy L. Moritz Circuit Judge

3 For the same reason, we also dec line to consider any argument stemming from Fairchild’s allegation that he had th e same counsel at trial and on appeal. See Cannon v. Mullin , 383 F.3d 1152, 1172–75 (10th Ci r. 2004) (noting that to be “adequate” as procedural bar, state proced ural rule must, in part, “allow[] petitioner an opportunity to consult w ith separate counsel on app eal in order to obtain an objective assessment of trial c ounsel’s performance” (quoting English , 146 F.3d at 1259, 1263)), abrogated in part on ot her grounds by Simpson v. Carpenter , 912 F.3d 542 (10th Cir. 2018). On its fa ce, this allegation appears to be untrue: the name of Fairchild’s appellate counsel is different than his tria l counsel’s na me, and although each one listed the same street address, they also listed di fferent suite numbers at that address. But more importantly , Fairchild did not include any such allegation in his habeas petition below. We therefor e decline to consider it here. See Stouffer , 738 F.3d at 1221 n.3.