* After examining appellant’s brief and the appellate 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 This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel.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 

### MAY 25 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VEAR BROOKS, Petitioner-Appellant, v. STATE OF UTAH, Respondent-Appellee. No. 98-4218 (D.C. No. 98-CV-466-W) (District of Utah)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Proceeding pro se , Vear Brooks filed a § 2254 petition for a Writ of Habeas Corpus in the district court, challenging his state conviction for two counts of attempted sexual abuse of a child. Brooks argued t hat (1) his guilty plea was involuntary because he did not understand the eleme nts of the charges and did not understand that the state court was not bound by th e plea agreement; (2) his- 2 -

counsel was ineffective; and (3) he was denied the right to review his presentence investigation report (PSR). The district court dis missed Brooks’ petition as procedurally barred by independent and adequate state grounds, and denied Brooks a certificate of appealability (COA). Befor e this court, Brooks renews his request for a COA, and applies for in formapauperis (IFP) status. We deny Brooks’ application for a COA and IFP status, and a ccordingly we dismiss the appeal. In October of 1994, pursuant to a plea agreement, B rooks pled guilty in state district court to two counts of attempted sex ual abuse of a child. In December of 1994, the state court sentenced Brooks, interalia , to an indeterminate sentence not to exceed five years for each count, running concurrently with each other but consecutively to asentence he was then serving. Brooks did not appeal the conviction. Thus his con viction became final in January of 1995. In August of 1995, Brooks filed his first state pet ition for post-conviction relief in state district court. He filed the petit ion under Rule 65B of the Utah Rules of Civil Procedure (“Extraordinary relief”), alleging that the Board of Pardons was wrongfully running all three of his sen tences consecutively. The court dismissed the petition on the grounds that Br ooks’ claims were frivolous and moot, and that Brooks had failed to exhaust his administrative remedies.- 3 -

In August of 1996, Brooks filed his second state pe tition for postconviction relief in state district court. In that petition, Brooks raised the same claims he subsequently raised in his § 2254 petitio n: (1) involuntary plea; (2) ineffective assistance of counsel; and (3) no opportunity to review his PSR. The court dismissed the petition on the grounds that itwas successive under Utah Code Ann. § 78-35a-106(1)(d) (barring any claim that “could have been, but was not, raised in a previous request for post-convicti on relief”), and time-barred under Utah Code Ann. § 78-35a-107(1) (imposing one- year statute of limitations for requests for post-conviction relief). Brooks m oved for summary reversal in the Utah Court of Appeals, arguing that his petitio n was improperly dismissed as successive and time-barred; that his claim of invol untary plea should be heard on the merits; and that he was not guilty. The Utah C ourt of Appeals affirmed on both procedural grounds. Brooks then sought a writof certiorari with the Utah Supreme Court, asserting that his petition was impr operly dismissed as successive and time-barred; that the district court improperly refused to grant him an evidentiary hearing; and that he was not guilty of the crime to which he pled. The Utah Supreme Court summarily denied the petition on June 28, 1998. On July 1, 1998, Brooks filed his habeas corpus pet ition in the federal district court, raising the same three claims in hi s second state post-conviction petition. In September of 1998, Brooks filed a mot ion for summary judgment on- 4 -

his petition. On October 30, 1998, the district co urt denied Brooks’ motion for summary judgment and held that his habeas petition was procedurally barred. Relying on Coleman v. Thompson , 501 U.S. 723 (1991), the court found that Brooks had exhausted his claims by reason of proced ural default in state court, but that Brooks did not show cause for his procedur al defaults, or show that a fundamental miscarriage of justice would result fro m a denial of habeas corpus review. Accordingly, the court dismissed Brooks’ p etition. The court declined to grant Brooks a COA. Brooks appeals to this court, requesting both a COA and IFP status. Regarding his procedural default, Brooks argues that Utah Code Ann. § 78-35a107, the post-conviction relief statute of limitati ons, was declared unconstitutional in Julian v. Utah , 966 P.2d 249 (Utah 1998). Brooks also argues that he could not have raised the claims in his sec ond petition for state postconviction relief before July 1, 1996, when Rule 65 C of the Utah Ann. Code (governing post-conviction relief proceedings) beca me effective. Thus, Brooks implies that his second petition for state post-con viction relief was timely filed. Substantively, Brooks renews his claims that his pl ea was involuntary and that he received ineffective assistance of counsel. Brooks additionally contends that he should have received an evidentiary hearing in the district court.1 We look to the Utah Court of Appeals’ decision beca use it was “the last

reasoned opinion” that “explicitly imposes a proced ural default” for Brooks’ federal claims. Ylst v. Nunnemaker , 501 U.S. 797, 803, 805-06 (1991). - 5 - We will grant a COA only if Brooks has made “a subs tantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). Because Brooks is proceeding pro se , we construe his pleadings liberally. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991.) Even under a liberal construction, we find no merit to Brooks’ arguments before this court, much less a “substantial showing of the denial of a constitutional right.” As an initial matter, we ag ree with the district court that Brooks procedurally defaulted his federal claims in state court on independent and adequate state grounds. As the district court note d, the Utah Court of Appeals rejected Brooks’ claims regarding involuntary plea, ineffective assistance of counsel, and lack of opportunity to review his PSR, on the grounds that his petition failed to comply with the procedural requi rements of Utah Code Ann. § 78-35a-106(1)(d) (successive petitions) and § 78-35 a-107(1) (one-year statute of limitations). 1 There is neither intimation from Brooks, nor sugg estion from our review of case law, that these procedural grounds a re less than independent and adequate. See Hickman v. Spears , 160 F.3d 1269, 1271 (10th Cir. 1998) ( “A state procedure is independent if it relies on stat e law, rather than federal law, as the basis for the decision. For a state ground to be adequate, it must be strictly2 We note that Brooks could have brought his federal claims in his first

petition under the former version of Rule 65B(b) of the Utah Court Rules, which he in part invoked to pursue his first petition forstate post-conviction relief in August of 1995. That former Rule 65B(b) was deleted and transferred to Rule (continued...) - 6 - followed and applied evenhandedly to all similar cl aims.” Id. (quotations and citations omitted)). “On habeas review, this court will not consider is sues that have been defaulted in state court on an independent and adeq uate state ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Id. 160 F.3d at 1271 (citing Coleman , 501 U.S. at 749-50). We find no such demonstration on Brooks’ part. Brooks apparently attempts to show cause for his pr ocedural default of the statute of limitation in § 78-35a-107(1) by arguing (1) that he could not avail himself of the procedures for post-conviction relie f in Rule 65C until that provision became effective July 1, 1996; and (2) th at the Utah Supreme Court declared § 78-35a-107(1) unconstitutional in Julian . Without passing on their merit, we find these contentions insufficient to ov ercome the procedural bar in this case. Brooks does not argue, afortiori he does not demonstrate, cause for his failure to comply with the prohibition against succ essive petitions in § 78-35a106, which bars any claim which “could have been, b ut was not, raised in a previous request for post-conviction relief.” 2 Standing alone, Brooks’ failure to2 (...continued)

65C effective July 1, 1996. See Julian , 966 P.2d at 250 n.1. - 7 - comply with this requirement resulted in a procedur al default, and his failure to show of cause for the default, bars federal habeas review of Brooks’ claims unless he demonstrates that a fundamental miscarriage of j ustice would result from such preclusion. Brooks has not made that demonstration . Nothing Brooks raises in his briefs, and nothing from our own review of the record, persuades us that a fundamental miscarriage of justice would result fro m applying a procedural bar to Brooks’ habeas claims. Accordingly, we hold that the district court proper ly dismissed Brooks’ claims as procedurally barred. Furthermore, becaus e the district court properly dismissed Brooks’ claims as procedurally barred, th ere was no need for the district court to conduct an evidentiary hearing on those claims. We therefore DENY Brooks’ requests for a COA and IFP status, and we DISMISS his appeal. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge