* After examining appellant’s brief and the appellat e record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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. 

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

### JAN 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE V. GARZA, Petitioner-Appellant, v. STATE OF UTAH, Respondent-Appellee. No. 00-4155 (D.C. No. 00-CV-360) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.

Petitioner Jose V. Garza (“Petitioner”) filed a Pet ition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. §2254, in which he requested relief from his sentence of 5-to-99 years on a state conviction of aggravated sexual assault. Petitioner asserted that he was convicted on charges contained in an Information which the court at his preliminary hearing had1 The phrase in §76-5-405(2) imposing “a minimum mandatory term of 5,

10, or 15 years and which may be for life” was amen ded in 1996 to read “an indeterminate term of not less than 6, 10, or 15 ye ars and which may be for life” - 2 - ordered amended due to a lack of probable cause, bu t which the prosecution failed to amend before trial. Petitioner was charged with, and convicted of, aggr avated sexual assault. The statute under which Petitioner was convicted in cluded the following relevant language: (1) A person commits aggravated sexual assault if i n the course of a rape or attempted rape, object rape or attempted object rape, forcible sodomy or attempted forcible sodomy, or forcible se xual abuse or attempted forcible sexual abuse the actor: (a) causes bodily injury to the victim;

. . . (2) Aggravated sexual assault is a first-degree fel ony punishable by imprisonment for a term which is a minimum mandatory term of 5, 10, or 15 years and which may be for life.
See Utah Code Ann. §76-5-405. 1 In Utah, a charge of aggravated sexual assault may therefore be predicated on any one of a number of underlying sexual crimes including rape or attempted rape, and forcible sexu al abuse or attempted forcible sexual abuse. See Utah Code Ann. §76-5-405(1). It appears that in P etitioner’s case, the State initially charged him with both rap e or attempted rape and forcible sexual abuse or attempted forcible sexual abuse as underlying, predicate offenses for a charge of aggravated sexual assault. At the preliminary hearing, the court determined that probable cause did not exist on the underlying offense of rape or- 3 -

attempted rape, but that probable cause did exist o n the underlying offense of forcible sexual abuse. The court ordered that the prosecution amend the Information to reflect its ruling that probable cau se existed only on the underlying, predicate offense of forcible sexual ab use to support a charge of aggravated sexual assault, and bound Petitioner ove r for trial on the amended charge. Petitioner asserts that the prosecution did not ame nd the Information as instructed and that on March 7, 1988, he was convic ted of aggravated sexual assault based upon the underlying, predicate offens e of rape or attempted rape rather than forcible sexual abuse. Petitioner argu es that, because of the mistake regarding which underlying, predicate offense suppo rted his conviction of aggravated sexual assault, his sentence for aggravated sexual assault was increased from 1-to-15 years (the penalty range forthe second-degree felony of forcible sexual abuse, see Utah Code Ann. §76-3-203(2)) to 5-to-99 years (the penalty range for the first-degree felony of rape o r attempted rape, see Utah Code Ann. §76-3-203(1)). Petitioner filed a direct appeal of his conviction in the Supreme Court of Utah, but his conviction was affirmed by that courton December 6, 1989. Petitioner apparently later filed a motion to modif y or vacate his sentence in the Third District Court of Utah, which denied the moti on on November 17, 1999.- 4 -

Petitioner appealed that decision to the Supreme Co urt of Utah, which rejected his claim because the motion to modify or vacate his se ntence was not filed within 30 days of the final order in Petitioner’s criminal ca se. Petitioner then filed this habeas petition in feder al court pursuant to 28 U.S.C. §2254 on April 25, 2000. With Petitioner’s consent, the case was assigned to United States Magistrate Judge Samuel Alba on May 5, 2000. See Garza v. Utah , No. 2:00-CV-00360 (D. Utah May 5, 2000) (order tr ansferring case to U.S. Magistrate). The Magistrate Judge issued an order denying the Petition on June 26, 2000. See Garza v. Utah , No. 2:00-CV-00360, slip op. at 1 (D. Utah June 26 , 2000). The Magistrate Judge found that Petitioner h ad not exhausted his state remedies as required by 28 U.S.C. §2254(b)-(c), bec ause he had not presented the issues on which he sought relief to the Supreme Cou rt of Utah. The Petitioner filed a Motion for Reconsideration. In response, t he Magistrate Judge issued a second order in which he acknowledged that Petition er may have “exhausted his state remedies,” but held that the petition must ne vertheless “be dismissed based upon procedural default.” See Garza v. Utah , No. 2:00-CV-00360, slip op. at 1 (D. Utah Aug. 16, 2000). The court noted that Peti tioner’s second appeal to the Supreme Court of Utah was dismissed for lack of jur isdiction because his motion to modify or vacate his sentence was filed more tha n 30 days after the entry of the final order. See id. at 2. The court further noted that Petitioner had not alleged2 Because this habeas petition was filed after Apri l 24, 1996, the effective

date of the Antiterrorism and Effective Death Penal ty Act (“AEDPA”), AEDPA’s provisions apply to this case. See, e.g. , Rogers v. Gibson , 173 F.3d 1278 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). - 5 - cause for his untimely presentation of the claims r aised in his habeas petition because his only stated explanation, that he was “n ot allowed law books so [he had] to go through a contract attorney contracted b y the prison,” was not an “objective factor external to the defense [that] impeded his counsel or his efforts to comply with the state procedural requirements.” See id. at 3 (quoting Coleman v. Thompson , 501 U.S. 722, 750 (1991)). The district court th us denied Petitioner’s motion for reconsideration. See id. at 4. Petitioner then filed an Application for a Certific ate of Appealability (“COA”) with this court. 2 This court may issue a COA “only if the applicanthas made a substantial showing of a denial of a constit utional right.” See 28 U.S.C. §2253(c)(3). Petitioner has not made such a showin g. In regard to the procedural bar, attached to Petiti oner’s Application for COA are three pages of what appears to be his brief on direct appeal to the Supreme Court of Utah. In that brief, Petitioner’s counsel identifies as one point of error the fact that the prosecution did not amen d the Information as instructed by the court following Petitioner’s preliminary hea ring and that the prosecutor subsequently argued to the jury charges not include d in the Information. It3 If the claim was not raised on direct appeal and was not otherwise

presented to the state courts in a timely manner, t hen it is procedurally barred unless Petitioner can show cause for his failure to develop his claims in state court and actual prejudice resulting from the error s of which he complains. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 6-10 (1992). Under our obligation to construe pro se pleadings liberally, see Haines v. Kerner , 404 U.S. 519, 520-19 (1972), it appears that Petitioner may be asserting ineffective assistance of appellate counsel to show cause for any asserted pr ocedural default. See Garza v. Utah , No. 2:00-CV-00360, slip op. at 3 (D. Utah Aug. 16 , 2000) (quoting Petitioner as stating that he is “not allowed law b ooks so [he has] to go through a contract attorney contracted by the prison”). It t herefore appears that Petitioner may be alleging cause for any potential procedural default. He has not, however, either expanded upon this argument or attempted to demonstrate actual prejudice. - 6 - therefore appears that Petitioner’s counsel may hav e adequately raised on direct appeal the issue of which Petitioner currently comp lains. If that is the case, then the issue may not be procedurally barred as determi ned by the district court. 3 We need not conclusively decide whether Petitioner’ s claims are procedurally barred to resolve this case, however, because Petitioner’s claims are clearly not meritorious. See 28 U.S. §2254(b)(2) (stating “an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust”); see also Rogers v. Gibson , 173 F.3d 1278, 1287 n.7 (10th Cir. 1999) (noting that, regardless of habeas petitioner’s failure to exhaust state court remedies, a federal court may deny habe as relief on meritless claims). Petitioner argues that the prosecution’s failure to amend the Information resulted in his being sentenced on the charge of rape or attempted rape, for which probable cause was not found at the preliminary hea ring, rather than on the charge- 7 -

of forcible sexual abuse, for which probable cause was found at the preliminary hearing. We believe Petitioner may be confused abo ut what charge formed the basis of the court’s sentencing decision. At all t imes, the criminal offense with which Petitioner was charged was aggravated sexual assault; the offenses of forcible sexual abuse, and rape or attempted rape, were merely underlying, predicate offenses to the crime of aggravated sexua l assault. Indeed, Petitioner himself conceded in his habeas petition that he was convicted not of either of those lesser charges, but of aggravated sexual assault. Accordingly, despite what Petitioner now contends, he was never eligible for the 1-to-15 year sentence that would have been imposed had he been convicted only of forcible sexual abuse, because he was neither charged nor convicted of that offense. Instead, he was always charged with, and convicted and sentenced fo r, aggravated sexual assault. Under Utah law, aggravated sexual assault is a firs t-degree felony which, at the time of Petitioner’s sentencing, carried a sent encing range of “a minimum mandatory term of 5, 10, or 15 years and which may be for life.” See Utah Code Ann. §76-5-405 (1953) (amended in 1996 to read “an indeterminate term of not less than 6, 10, or 15 years and which may be for l ife”). Petitioner’s sentence of 5-to-99 years is thus the appropriate sentencing ra nge for the crime of aggravated sexual assault regardless of whether the aggravatedsexual assault is based upon the underlying, predicate offense of rape or attemp ted rape, or the underlying,4 Utah law also provides that where “the statute un der which the defendant

was convicted mandates that one of three stated min imum terms shall be imposed, the court shall order imposition of the term of mid dle severity unless there are circumstances in aggravation or mitigation of the c rime.” See Utah Code Ann. §76-3-201(6)(a). It appears that Petitioner’s crim e must have involved mitigating circumstances which caused the court in this case t o deviate from the “term of middle severity” (10 years) in order to give Petiti oner the lowest minimum sentence possible. - 8 - predicate offense of forcible sexual abuse. Indeed , in receiving a sentence of 5- to-99 years, Petitioner received the lowest mandato ry minimum sentence allowed by statute (5 years) for a conviction of aggravated sexual assault. 4 For the foregoing reasons, we find that Petitioner has not demonstrated that he was injured by the actions of which he complains , and thus has not made a “substantial showing of a denial of a constitutiona l right.” The requested certificate of appealability must be denied and thi s appeal is DISMISSED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge