                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 25 1999
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 VEAR BROOKS,

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

          Respondent-Appellee.


                            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 that (1) his guilty plea was

involuntary because he did not understand the elements of the charges and did not

understand that the state court was not bound by the plea agreement; (2) his



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially 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 without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The 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.
counsel was ineffective; and (3) he was denied the right to review his presentence

investigation report (PSR). The district court dismissed Brooks’ petition as

procedurally barred by independent and adequate state grounds, and denied

Brooks a certificate of appealability (COA). Before this court, Brooks renews his

request for a COA, and applies for in forma pauperis (IFP) status. We deny

Brooks’ application for a COA and IFP status, and accordingly we dismiss the

appeal.

      In October of 1994, pursuant to a plea agreement, Brooks pled guilty in

state district court to two counts of attempted sexual abuse of a child. In

December of 1994, the state court sentenced Brooks, inter alia, to an

indeterminate sentence not to exceed five years for each count, running

concurrently with each other but consecutively to a sentence he was then serving.

Brooks did not appeal the conviction. Thus his conviction became final in

January of 1995.

      In August of 1995, Brooks filed his first state petition for post-conviction

relief in state district court. He filed the petition 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 sentences consecutively. The

court dismissed the petition on the grounds that Brooks’ claims were frivolous

and moot, and that Brooks had failed to exhaust his administrative remedies.


                                         -2-
      In August of 1996, Brooks filed his second state petition for post-

conviction relief in state district court. In that petition, Brooks raised the same

claims he subsequently raised in his § 2254 petition: (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 it was 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-conviction 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 moved for summary reversal in

the Utah Court of Appeals, arguing that his petition was improperly dismissed as

successive and time-barred; that his claim of involuntary plea should be heard on

the merits; and that he was not guilty. The Utah Court of Appeals affirmed on

both procedural grounds. Brooks then sought a writ of certiorari with the Utah

Supreme Court, asserting that his petition was improperly 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 petition in the federal

district court, raising the same three claims in his second state post-conviction

petition. In September of 1998, Brooks filed a motion for summary judgment on


                                         -3-
his petition. On October 30, 1998, the district court 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 procedural default in state court,

but that Brooks did not show cause for his procedural defaults, or show that a

fundamental miscarriage of justice would result from a denial of habeas corpus

review. Accordingly, the court dismissed Brooks’ petition. 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. § 78-35a-

107, the post-conviction relief statute of limitations, 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 second petition for state post-

conviction relief before July 1, 1996, when Rule 65C of the Utah Ann. Code

(governing post-conviction relief proceedings) became effective. Thus, Brooks

implies that his second petition for state post-conviction relief was timely filed.

Substantively, Brooks renews his claims that his plea 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.




                                         -4-
      We will grant a COA only if Brooks has made “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(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 agree with the district court that

Brooks procedurally defaulted his federal claims in state court on independent and

adequate state grounds. As the district court noted, 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 requirements of Utah Code Ann. §

78-35a-106(1)(d) (successive petitions) and § 78-35a-107(1) (one-year statute of

limitations). 1 There is neither intimation from Brooks, nor suggestion from our

review of case law, that these procedural grounds are 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 state law, rather than federal law, as

the basis for the decision. For a state ground to be adequate, it must be strictly


      1
       We look to the Utah Court of Appeals’ decision because it was “the last
reasoned opinion” that “explicitly imposes a procedural default” for Brooks’
federal claims. Ylst v. Nunnemaker, 501 U.S. 797, 803, 805-06 (1991).

                                         -5-
followed and applied evenhandedly to all similar claims.” Id. (quotations and

citations omitted)).

       “On habeas review, this court will not consider issues that have been

defaulted in state court on an independent and adequate 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 procedural 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 relief in Rule 65C until that

provision became effective July 1, 1996; and (2) that the Utah Supreme Court

declared § 78-35a-107(1) unconstitutional in Julian. Without passing on their

merit, we find these contentions insufficient to overcome the procedural bar in

this case. Brooks does not argue, a fortiori he does not demonstrate, cause for his

failure to comply with the prohibition against successive petitions in § 78-35a-

106, which bars any claim which “could have been, but was not, raised in a

previous request for post-conviction relief.” 2 Standing alone, Brooks’ failure to


      2
        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 for state post-conviction relief in
August of 1995. That former Rule 65B(b) was deleted and transferred to Rule
                                                                        (continued...)

                                        -6-
comply with this requirement resulted in a procedural 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 justice 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 from applying a procedural bar to

Brooks’ habeas claims.

      Accordingly, we hold that the district court properly dismissed Brooks’

claims as procedurally barred. Furthermore, because the district court properly

dismissed Brooks’ claims as procedurally barred, there 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




      2
       (...continued)
65C effective July 1, 1996. See Julian, 966 P.2d at 250 n.1.

                                        -7-
