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 CERTIFICATE 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 denial 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 felonies, 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 * This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral estoppel. But it may be cited 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 Court
2 

moved to admit evidence that Fairchild was previously convicted of bank robbery. Id.

The trial court denied the motion, determining that neither evidence of Fairchild’s 

prior convictions nor his status as a parolee were admissible under the Utah Rules of 

Evidence. Id. But at trial, the jury heard that Fairchild was a parolee on at least three 

occasions: during opening statements, direct examination 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 the pretrial order and unfairly 

prejudiced him.” Id. The trial court denied the motion for a new trial. Id.

Fairchild appealed to the Utah Court of Appeals (UCA), 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 court’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 parolee status; and (3) his sentence 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 “the 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 (Utah Ct. App. 1997)); see also 

Chapman v. California, 386 U.S. 18, 24, 26 (1967) (holding that to be harmless, 

constitutional errors must be harmless beyond reasonable doubt; placing burden of 

proving such harmlessness on state). 

The UCA determined that the trial court erred in permitting the elicited 

testimony. Fairchild, 385 P.3d at 701. But it found that the error was harmless 

because it was “sufficiently inconsequential [such that] 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 harmless 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 for 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 was 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 relief in federal district court, arguing 

that (1) the UCA violated his state and federal constitutional rights to due process, a 

fair trial, and the presumption of innocence by not applying the Chapman harmlesserror standard (Chapman claim); (2) the trial court committed plain error by 
4 

permitting introduction of evidence of his parolee status (evidence 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 violated 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 and the Utah constitutional and statutory portions of the Chapman

and sentencing claims were state-law claims that cannot be addressed 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 state law.”). Next, it found that Fairchild 

procedurally defaulted “every asserted ground 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 Fairchild demonstrated neither the 

cause and prejudice nor fundamental miscarriage of justice necessary to overcome 

this procedural default. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). 

Fairchild now seeks to appeal the district 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 denies 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 consider the district court’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 valid claim of the denial of a constitutional right and that 

jurists of reason would find it debatable whether the district court 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 could 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 appellate counsel was ineffective by failing to 

preserve his trial IAC claim and his federal Chapman claim and that this appellate 

ineffectiveness caused the procedural default of those claims. It is true that “attorney 

error” can be “an objective external 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 habeas petition. Indeed, the district court 

determined that the only cause-and-prejudice ground Fairchild “possibly argue[d]” is 

that his lack of legal resources caused his procedural default. R. 443. And “[w]e do 

not generally consider issues that were not raised before the 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 whether Fairchild’s newly advanced appellate 
6 

IAC claim serves as cause to excuse his procedural default.3

 Because reasonable 

jurists could not debate “whether the district 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 decline to consider any argument stemming 

from Fairchild’s allegation that he had the same counsel at trial and on appeal. See

Cannon v. Mullin, 383 F.3d 1152, 1172–75 (10th Cir. 2004) (noting that to be 

“adequate” as procedural bar, state procedural rule must, in part, “allow[] petitioner 

an opportunity to consult with separate counsel on appeal in order to obtain an 

objective assessment of trial counsel’s performance” (quoting English, 146 F.3d at 

1259, 1263)), abrogated in part on other grounds by Simpson v. Carpenter, 912 F.3d 

542 (10th Cir. 2018). On its face, this allegation appears to be untrue: the name of 

Fairchild’s appellate counsel is different than his trial counsel’s name, and although 

each one listed the same street address, they also listed different suite numbers at that 

address. But more importantly, Fairchild did not include any such allegation in his 

habeas petition below. We therefore decline to consider it here. See Stouffer, 738 

F.3d at 1221 n.3.