Vos v. Turley, 090712 FED10, 12-4084

Docket Nº:12-4084
Opinion Judge:Scott M. Matheson, Jr. Circuit Judge
Party Name:ISIAH BO'CAGE VOS, Petitioner - Appellant, v. STEVEN TURLEY, Respondent - Appellee.
Judge Panel:Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
Case Date:September 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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ISIAH BO'CAGE VOS, Petitioner - Appellant,

v.

STEVEN TURLEY, Respondent - Appellee.

No. 12-4084

United States Court of Appeals, Tenth Circuit

September 7, 2012

(D.C. No. 2:08-CV-00869 CW) (D. Utah)

Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY [*]

Scott M. Matheson, Jr. Circuit Judge

Isiah Bo'Cage Vos, a Utah prisoner proceeding pro se, 1 seeks a certificate of appealability ("COA") to challenge the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We deny his request for a COA and dismiss this matter.

I. BACKGROUND

Mr. Vos was convicted in Utah state district court of one count of first-degree felony murder with a firearm enhancement. He was sentenced to a term of five years to life, with an additional year to be served consecutively.

Mr. Vos appealed his conviction to the Utah Court of Appeals. He argued that his trial counsel had provided ineffective assistance and that the district court had erred in concluding that a statement he made to the police did not violate Miranda v. Arizona, 384 U.S. 436 (1966). See State v. Vos, 164 P.3d 1258, 1260 (Utah Ct. App. 2007). The court of appeals affirmed the district court.

Mr. Vos next filed a certiorari petition to the Utah Supreme Court, asserting only one challenge:

Did the Court of Appeals err in concluding a defendant's unwarned statement is admissible at trial because the defendant was represented by counsel during custodial interrogation, where the defendant was not given Miranda warnings, was not otherwise informed of his Fifth Amendment rights against self-incrimination, and did not voluntarily waive those rights?

Vos v. Turley, 2:08-CV-869 CW, 2012 WL 1564590, at *1 (D. Utah May 2, 2012). The Utah Supreme Court summarily denied his petition. State v. Vos, 186 P.3d 347 (Utah 2007).

Mr. Vos then filed a § 2254 habeas petition in the United States District Court for the District of Utah. The district court identified six issues in Mr. Vos's briefs: that (1) counsel "inadequately investigated the situation before advising Petitioner to talk to the police;" (2) counsel "inappropriately locked [him] into an 'imperfect self defense' defense, excluding other possible defenses;" (3) counsel "failed to require police to give [him] a Miranda warning;" (4) counsel "coerced [him] into giving" a statement to the police; (5) counsel "posed a conflict of interest when he talked, unauthorized, to a detective about [his] case, implicating [him];" and (6) the state courts mishandled his Miranda issue. Vos, 2012 WL 1564590 at *1.

The district court denied the petition. It concluded that (1) the ineffective assistance claims had not been exhausted in the state courts, (2) these claims would now be barred by state procedural law, and (3) Mr. Vos had not demonstrated any of the circumstances that would excuse this procedural default. It denied the Miranda claim because the Utah Court of Appeals did not err under the deferential lens of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

II. DISCUSSION

Mr. Vos now argues that the federal district court (1) should have addressed his ineffective assistance claims regarding his appellate counsel's failure to present his ineffective assistance of trial counsel claims to the Utah Supreme Court; (2) should have granted him a stay so that he could exhaust his ineffective assistance of trial counsel claims before the Utah Supreme Court; (3) erred in ruling that his trial was not prejudiced when he was not read his Miranda rights; and (4) should have ruled that the Utah Court of Appeals incorrectly applied Miranda.

We may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Mr. Vos must show that the district court's resolution of any constitutional claims was either "debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When a district court dismisses a 28 U.S.C. § 2254 application on procedural grounds without reaching the underlying constitutional claim, the...

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