Vos v. Turley
Decision Date | 07 September 2012 |
Docket Number | No. 12-4084,12-4084 |
Parties | ISIAH BO'CAGE VOS, Petitioner - Appellant, v. STEVEN TURLEY, Respondent - Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
(D. Utah)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
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.
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 thepolice;" (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").
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 thedenial 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 applicant must show that it is debatable whether there is "a valid claim of the denial of a constitutional right and that . . . it [is] debatable whether the district court was correct in its procedural ruling." Id.
In determining whether the COA applicant has made the required showing, we must account for AEDPA. It provides that if a state court adjudicated the merits of a claim, a federal court cannot grant habeas relief unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[,]" 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). "Therefore, for those of [Mr. Vos's] claims that were adjudicated on the merits in state court, AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of his request for COA." Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir.2007) (quotations omitted).
With this framework in mind, we will address Mr. Vos's arguments.
Mr. Vos argues that the district court should have addressed the ineffective assistance of his appellate counsel in preparing his certiorari petition to the Utah Supreme Court.
The closest Mr. Vos came to raising the issue in the district court was in his reply to the Government's response to his § 2254 petition. He wrote, "I am not knowledgable [sic] about the law & so this mistake was due to my counsel at the time's actions, & also me not knowing enough about the law to catch when something is wrong." ROA at 565. Mr. Vos did not adequately raise and argue the issue, and the district court therefore did not err in not addressing it. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). Any claims not raised in the district court are waived on appeal. Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).
Even if Mr. Vos had not waived this claim, there was no error. Mr. Vos's filing to the Utah Supreme Court was a certiorari petition, and he "had no absolute right to appeal his convictions to the" Utah Supreme Court. Wainwright v. Torna, 455 U.S. 586, 587 (1982); see also Utah Code Ann. § 78A-3-102 (). There is no "constitutional right to counsel to pursue discretionary state appeals or applications for review." Wainwright, 455 U.S. at 587. "Since [Mr. Vos] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his . . . counsel's failure to" preserve all his claims at the Utah Supreme Court.Id. at 587-88.
The district court did not err in not addressing Mr. Vos's claim about ineffective assistance of appellate counsel regarding his writ of certiorari. We deny Mr. Vos's request for a COA on this issue.
Mr. Vos argues that the district court should have granted him a stay to exhaust his ineffective assistance of trial counsel claims before the Utah Supreme Court.
The district court dismissed Mr. Vos's ineffective assistance claims as procedurally barred. It found that Mr. Vos had failed to "properly present to the highest available Utah court the federal constitutional issues on which he seeks relief" and that Mr. Vos would now be ineligible to exhaust them. Vos, 2012 WL 1564590 at *1.
A federal court generally may not review a claim for federal habeas relief unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "A claim has been exhausted when it has been 'fairly presented' to the state court." Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009). Id. (quotations omitted).
Even if a claim has not been fairly presented in state court, it will be "considered exhausted and procedurally defaulted for purposes of federal habeas relief" if there is ananticipatory procedural bar. Cannon v. Gibson, 259 F.3d 1253, 1266 n.11 (10th Cir. 2001); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) . An "[a]nticipatory procedural bar occurs when the federal courts apply [a] procedural bar to . . . [a] claim [not fairly presented to the state court] that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (quotations omitted).
The district court concluded that Mr. Vos could have presented his ineffective assistance of trial counsel claims in his certiorari petition to the Utah Supreme Court and that, because he did not, the claims would not be allowed now as a matter of Utah procedural law. See Utah Code Ann. § 78B-9-106(1) (2012) (). Mr. Vos has not challenged the district court's conclusion that if he tried to bring his claims now in state court, they would be defaulted on an independent and adequate state procedural ground. Mr. Vos therefore faces an "anticipatory procedural bar" of the ineffective assistance claims that the district court found were not exhausted in state court. Those claims are thus...
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