                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 6, 2014
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                  TENTH CIRCUIT


 CARL ALTON WINFIELD, JR.,

          Petitioner-Appellant,

 v.
                                                        No. 13-4149
                                                (D.C. No. 2:10-CV-00938-TC)
 STATE OF UTAH,
                                                          (D. Utah)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


      After his state court conviction for robbing a Sonic Drive-In, Carl Winfield

first appealed and then pursued a collateral attack on his conviction, all in Utah

state courts. When none of that proved successful, he turned his attention to

federal court, filing a petition for habeas corpus under 28 U.S.C. § 2254.

Displeased by the pace at which that latest proceeding proceeded, as well as some

unfavorable rulings, Mr. Winfield decided to file a motion asking the district

court judge to recuse herself. The district court denied the motion, however, and



      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
also denied the habeas petition on the ground that the issues it raised were

procedurally barred under Utah law. Now Mr. Winfield asks us to undo both

these rulings, something we find we cannot lawfully do.

      To pursue an appeal in this court, Mr. Winfield must first obtain a

certificate of appealability by making “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(1)-(2). To satisfy that standard, Mr.

Winfield must persuade the court that reasonable jurists could debate (or agree

on) a different resolution of the habeas petition or see the merit of further

proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Mr. Winfield makes three arguments in his effort to justify further habeas

proceedings. First, he notes that he proceeded pro se at trial and he claims his

ability to move freely around the courtroom was restricted in a way the

prosecutor’s was not — and this, he argues, unfavorably colored the jury’s

impression of his defense. Second, he accuses the counsel he obtained after trial

for his appeal and a portion of his state collateral proceedings of rendering

ineffective assistance because counsel failed to explain (at least to Mr. Winfield’s

satisfaction) why these movement restrictions deprived him of a fair trial. Third,

he says various witnesses against him provided perjured testimony.

      The difficulty is that the district court found these claims procedurally

barred and we can see no room to debate that conclusion. In habeas proceedings,

federal courts usually can’t consider issues defaulted in state court on

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independent and adequate state procedural grounds — that is, procedural grounds

unrelated to the merits of the federal claim and strictly or regularly invoked by

state courts in similar circumstances. Cole v. Trammell, 735 F.3d 1194, 1210-11

(10th Cir. 2013); Gutierrez v. Moriarty, 922 F.2d 1464, 1469 (10th Cir. 1991).

As the Supreme Court has explained, this rule lets states that have convicted

criminal defendants also have the first chance to remedy any violations of those

defendants’ federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).

And “a habeas petitioner who has failed to meet the State’s procedural

requirements for presenting his federal claims has deprived the state courts of an

opportunity to address those claims in the first instance.” Id. at 732. Federal

courts disregard a default arising from the failure to abide independent and

adequate state procedural requirements only if the habeas petitioner can

demonstrate cause for the default and prejudice from the underlying constitutional

violation, or if he can show that a fundamental miscarriage of justice will result if

the court doesn’t consider the claims on their merits. Cole, 735 F.3d at 1210.

       Mr. Winfield hasn’t persuaded us the district court was debatably wrong to

treat his claims as procedurally barred. In Mr. Winfield’s appeal contesting the

denial of his state petition for collateral relief, he failed to articulate particular

reasons for thinking the state trial court erred in addressing the issues he now

seeks to pursue in federal court. Because of that, the state court of appeals held

these issues defaulted under state law, citing Utah appellate rules requiring

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appellants to identify specific errors in the decisions they appeal. Winfield v.

State, 2009 UT App 323U (per curiam). This requirement stands fully

independent from the federal law that governs Mr. Winfield’s constitutional

claims, and we see no reason to doubt Utah’s appellate courts apply this rule

evenhandedly and often. See, e.g., Allen v. Friel, 194 P.3d 903, 909 (Utah 2008);

Schwenke v. State, 295 P.3d 716, 716 (Utah Ct. App. 2013) (per curiam); Webster

v. JP Morgan Chase Bank, NA, 290 P.3d 930, 938 (Utah Ct. App. 2012). Neither

can we find any debatable cause and prejudice or threat of a miscarriage of justice

that would prompt us to ignore Utah’s independent and adequate procedural rules.

      To be sure, Mr. Winfield tries to avoid the procedural bar by accusing his

counsel of not pursuing winning arguments on his behalf. But whatever other

problems attend this argument, the procedural default the district court recognized

occurred after Mr. Winfield’s attorneys were out of the picture. Utah’s court of

appeals found Mr. Winfield’s claims barred as a result of inadequate briefing

while he was attempting to exhaust his state post-conviction remedies pro se,

after his attorneys were dismissed.

      Lastly, we see no more merit in Mr. Winfield’s recusal motion than the

district court did. The gist of his complaint seems to be that the district court

judge showed bias by rejecting arguments Mr. Winfield finds overwhelmingly

persuasive. But adverse “judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555

                                         -4-
(1994). This case offers no exception to that rule. The record contains no

indication of anything other than fair treatment of Mr. Winfield’s claims. Neither

were there notable signs of delay or neglect of Mr. Winfield’s case, let alone

enough to warrant a finding of bias. Cf. Kennedy v. Meacham, 540 F.2d 1057,

1060 (10th Cir. 1976) (rejecting “averments of delays or omissions by the Judge”

as grounds for recusal). All told, the district court issued nearly a dozen orders in

response to the parties’ many motions in this case — including orders allowing

Mr. Winfield extended time to cure deficiencies in his original petition.

      Mr. Winfield’s request for a certificate of appealability is denied, as are his

requests for appointed counsel, for a subpoena of his prison account statement,

and for leave to proceed in forma pauperis. This appeal is dismissed.



                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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