* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The 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. 

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

### JUL 27 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

G. SAM HOUSTON, Petitioner-Appellant,

v. RANDY L. HENDERSON; GALE A. NORTON, Attorney General of the State of Colorado, Respondents-Appellees. No. 99-1066 (D.C. No. 97-WM-835) (D. Colo.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

Mr. G. Sam Houston appeals pro se the denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254 and requests a certificate of appealability. For the reasons set out below, we deny him a certif icate of appealability and dismiss this appeal. In 1991, Mr. Houston was charged with attempted sexual assault on a child while he was in a position of trust. He was senten ced in state court to six years of probation. The following year, he was charged withsexual assault, this time on adults. He entered a guilty plea to two misdemeano rs with respect to the new charges and also admitted to violating his probatio n. The state court sentenced him to eight years based on the probation violation . Mr. Houston then filed for post-conviction relief under Colo.R.Crim.P. 35(a). His motion was denied. He appealed and was appointed counsel on appeal. The Colorado Court of Appeals affirmed the trial court, and the Colorado Supreme Court denied certiorari. On May 2, 1997, while still incarcerated, Mr. Houst on filed a petition for writ of habeas corpus which the district court deni ed on recommendation from the magistrate. Although Mr. Houston has since complet ed his sentence, his release does not terminate federal jurisdiction with respec t to the pending application that was filed while he was still incarcerated. See Carafas v. LaVallee , 391 U.S. 234, 237-38 (1968).1 Other issues Mr. Houston attempts to raise do not go to the voluntariness

of his plea and therefore were waived by his guiltyplea. -3- We review de novo the district court's legal conclu sions in dismissing a petition for a writ of habeas corpus. See Davis v. Executive Dir. of Dep't of
Corrections , 100 F.3d 750, 756 (10th Cir.1996). In Mr. Houston’s motion for post-conviction relief in state court, he challenged the voluntariness of his plea to the fir st offense, an argument the Colorado Court of Appeals addressed and rejected. In his petition for habeas corpus, he again argues he did not know the element s of the crime for which he was charged, particularly the mental state required , and his plea was therefore involuntary. Having pleaded guilty, a defendant's only avenue for challenging his conviction is to claim that he did not voluntarily or intelligently enter his plea. 1 See Mabry v. Johnson , 467 U.S. 504, 508-09 (1984). A review of the rec ord reveals, however, that Mr. Houston was apprised of every element of the offense. The court conducted a thorough Rule 11 inquiry incl uding the elements and the required mental states of the sexual assault. In t his regard, the following exchange took place:

THE COURT: Please look at paragraph 8 [of the Petit ion to Enter a Guilty Plea] which begins on the bottom of page 2 and continues on the top of page 3. Paragraph 8 contai ns the elements of the crime of criminal attempt, sexual assault on a child-position of trust. Do you understand that if you did not pleadguilty to that-4-

charge, the prosecution would be obligated to prove each and every one of these 11 elements beyond a reasonable doubt? THE DEFENDANT: Yes, I do. THE COURT: As to the crime of criminal attempt, el ement number three states that you acted with the culpabl e mental state required for the offense of sexual assault on a chi ld. Do you understand that the words “culpable mental state” m ean knowingly? THE DEFENDANT: Yes, I do. THE COURT: Have you talk[sic] that over with your l awyer? THE DEFENDANT: Yes, I have. THE COURT: Element number four in the elements of the crime of criminal attempt are that you engaged in c onduct constituting a substantial step toward the commissi on of the offense of sexual assault on a child. Have you talked with your lawyer about what the words “substantial step” mean? THE DEFENDANT: Yes, I have. THE COURT: Do you understand that phrase? THE DEFENDANT: Yes, I do. THE COURT: As to the elements of the crime of sexu al assault on a child which are top of page 3 of your petition, element number three states that you did these things knowi ngly; that deals with your state of mind. Do you understand that if you did not plead guilty to this charge, the prosecution also would b e obligated to prove your state of mind beyond a reasonable doubt? THE DEFENDANT: Yes, I understand. State Court Record, vol. II, Guilty Plea Hearing at5-6. Accordingly, Mr. Houston’s argument that he did not know the element s of the crime has no merit. Mr. Houston challenges the determination by the state court that his Colo.R.Crim.P. 35(c) motion could be summarily dism issed without an evidentiary hearing. Alleged violations of state l aw are not cognizable in a federal habeas corpus proceeding. See Pulley v. Harris , 465 U.S. 37, 41 (1984). “In conducting habeas review, a federal court is li mited to deciding whether a-5-

conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire , 502 U.S. 62, 68 (1991). The magistrate judge cor rectly determined that Mr. Houston’s claims of defective s tate proceedings are not within permissible habeas corpus review in federal court. Mr. Houston also argues that he was improperly deni ed appointment of counsel on his post-conviction motion. Again, we a gree with the magistrate judge’s analysis that any challenge to a state defe ct is not proper for habeas corpus review unless it implicates a federal or con stitutional violation. “There is no constitutional right to an attorney in state pos t-conviction proceedings.” See Coleman v. Thompson , 501 U.S. 722, 752 (1991). Nevertheless, Mr. Hous ton was appointed counsel on appeal from the denial of his post-conviction motion. We decline to review his further challenge to state pr ocedures. We will grant a certificate of appealability only i f Mr. Houston has made “a substantial showing of the denial of a constitution al right.” 28 U.S.C. S 2253(c)(2). Because we find no merit to Mr. Housto n’s arguments before this court, much less a “substantial showing of the deni al of a constitutional right,” we
DENY his application, DENY his motion for leave to proceed in forma paueris
and DISMISS his appeal.
ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge