                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 5, 2007
                    UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 JO H N PA U L R IN G ,

       Petitioner-A ppellant,
                                                        No. 06-2363
 v.
                                              (D.C. No. CV-06-545 M CA/LFG)
                                                         (D .N.M .)
 ROBERT ULIBARRI, W arden,

       Respondent-Appellee.



          OR DER DENYING CERTIFICATE O F APPEALABILITY


Before BR ISC OE, EBEL, and M CCO NNELL, Circuit Judges.


      Petitioner-A ppellant John Paul Ring seeks a certificate of appealability

(“COA”) from this court to appeal the dismissal of his petition for habeas corpus

pursuant to 28 U.S.C. § 2254. Because w e conclude he raises no claims that are

exhausted, not procedurally defaulted, and about which reasonable jurists could

disagree, w e D EN Y his request for a COA.

      Ring was convicted in N ew M exico state court of first degree murder,

conspiracy to commit murder, and tampering with evidence. He was sentenced to

a term of life imprisonment. Following the affirmance of his conviction by the

New M exico Supreme Court on direct appeal, Ring filed a petition for writ of

habeas corpus, which the state court denied following an evidentiary hearing.
Ring again sought review by the New M exico Supreme Court, but his petition for

writ of certiorari was denied. Ring then filed a petition for federal habeas corpus

relief under 28 U.S.C. § 2254 in the District of New M exico. Adopting an

exhaustive report on Ring’s petition by a magistrate judge, the district court

dismissed the petition. The district court further denied R ing’s request for a

COA; the instant appeal and request for a COA from this court followed. 1

      Although Ring’s initial § 2254 petition raised a number of issues including

access to the courts, prosecutorial misconduct, and ineffective assistance of

counsel, both his appeal of the district court’s ruling below and his request for a

COA are limited to two issues: first, whether the closure of the law library at the

prison in which Ring was incarcerated during his state-court post-conviction

proceedings impermissibly abridged Ring’s constitutional right to meaningful

access to the courts and consequently constituted cause for his failure to exhaust,

or his procedural default of, several of his claims raised below; 2 and, second,


      1
        Section 2253(c) of Title 28 of the United States Code governs appeals in
federal habeas corpus proceedings. It provides, in relevant part, that “[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals from . . . the final order in a habeas corpus
proceeding in which the detention complained of arises out of process issued by a
State court.” 28 U.S.C. § 2253(c)(1)(A ). Further, “[a] certificate of appealability
may issue under paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right,” and it must “indicate which
specific issue or issues satisfy th[is] showing.” Id. § 2253(c)(2), (3).
      2
      Ring proceeds pro se, and we therefore construe his filings liberally. See
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). Accordingly, it might
                                                                     (continued...)

                                        -2-
whether the district court below incorrectly concluded, on the merits, that the

state habeas court’s determination — that the failure of Ring’s trial counsel to

interview or call as a witness Judy Rhodes, Ring’s mother and co-conspirator and

the wife of the murder victim, did not constitute ineffective assistance of counsel

— was not contrary to, nor an unreasonable application of, clearly established

federal law and was not an unreasonable determination of the facts in light of the

evidence presented, see 28 U.S.C. § 2254(d). W e address each issue briefly to

determine whether a COA should issue.

       As to Ring’s first argument, that closure of his prison’s law library

prevented him from accessing the courts and thus constitutes cause excusing his

procedural default of other substantive claims regarding his conviction, we may

not issue a CO A unless “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . jurists

of reason would find it debatable w hether the district court was correct in its

procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). Such is not

the case here.




       2
        (...continued)
be that Ring’s first claim successfully preserved those underlying, unexhausted or
procedurally defaulted claims he seeks to resuscitate via his access-to-the-courts
claim. However, in light of our disposition of this first claim, we need not reach
the question how to construe Ring’s grounds for appeal nor consider the potential
for legal merit of these underlying claims in determining whether a COA should
issue.

                                           -3-
      Ring has failed to make a showing, either before the district court or in his

request for a COA before this court, supporting his allegation that he was

prevented from accessing the courts. He has vigorously pursued collateral relief

from his conviction, both in state and federal courts, despite the alleged

impediments posed by the closure of the law library. Indeed, many of his

defaulted claims are barred, not because he failed to litigate them at all, but

because of Ring’s administrative oversight in failing to include them in the

petition for certiorari in his state habeas proceedings. The remaining unexhausted

and defaulted claims are likewise barred not because of an abstruse legal

requirement of which Ring could fairly claim to have been unaware, but rather

because he failed completely to raise them in his state habeas corpus petition.

Accordingly, we do not conclude that reasonable jurists “would find it debatable

whether the district court was correct in its procedural ruling,” Slack, 529 U.S. at

484, that Ring failed to show any injury from the law library’s closure and, thus,

failed to demonstrate cause sufficient to surmount the procedural bars to his

several claims.

      Turning to Ring’s second argument, we note that, because the district court

“rejected the constitutional claims on the merits,” R ing need only “demonstrate

that reasonable jurists would find the district court's assessment of the

constitutional claims debatable or w rong” in order to justify issuance of a COA.

Id. W e lack statutory authority to grant a writ of habeas corpus

                                         -4-
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim (1) resulted in a
      decision that was contrary to, or involved an unreasonable application
      of, clearly established Federal law , as determined by the Supreme Court
      of the United States; or (2) resulted in a decision that was based on an
      unreasonable determination of the facts in light of the evidence
      presented in the State court proceeding.

18 U.S.C. § 2254(d). Ring’s claim that his counsel was constitutionally

ineffective under the standards of Strickland v. W ashington, 466 U.S. 668 (1984),

based upon the failure to investigate or call Judy Rhodes as a witness falls under

this heading, as it was presented and properly exhausted in Ring’s state habeas

proceedings. Our review, therefore, is limited to a determination whether

reasonable jurists would find debatable the district court’s determination that the

state court decision did not violate the exceedingly deferential standards of §

2254(d).

      The Supreme Court has set forth a two-prong test to show ineffective

assistance of counsel. First, the counsel’s performance must be shown to be

constitutionally deficient; second, the deficient performance must have prejudiced

the defense to such an extent as to deprive the defendant of a fair trial with a

reliable result. Strickland, 466 U.S. at 687. W hen considering Ring’s instant

ineffective assistance claim, the state habeas court addressed the Strickland

standards at length and applied them to Ring’s claim. The state court made

factual findings that Judy Rhodes had passed a polygraph test about the murder of

her husband, that she did not testify at Ring’s trial, that she had not been charged

                                         -5-
with any involvement in the murder until the day before Ring’s trial began, and

that she subsequently pled no contest to related conspiracy charges. It also found,

however, that Ring’s counsel was well-prepared for trial. W e presume the

correctness of these findings of fact, and Ring has not made the requisite showing

by clear and convincing evidence necessary to rebut this presumption. 28 U.S.C.

§ 2254(e)(1). Although the state court did not directly address Ring’s allegations

of ineffective assistance in light of this factual context, it nonetheless held that

Ring’s trial counsel had provided reasonably effective representation and that any

errors that may have been committed would not have changed the outcome of the

trial. In light of the state court’s application of Strickland, it is clear that its

denial of Ring’s ineffective assistance claim was not “contrary to, or . . . an

unreasonable application of, clearly established Federal law.” 28 U.S.C. §

2254(d)(1). Nor was the state court’s application of Strickland to Ring’s case “an

unreasonable determination of the facts in light of the evidence presented.” Id. §

2254(d)(2). Therefore, we conclude that reasonable jurists would not disagree

with either of these conclusions. See Slack, 529 U.S. at 484.

                                       *    *    *

      The district court resolved against Ring both of the issues presented in this

appeal and request for a COA. Because w e conclude its resolution of neither




                                           -6-
issue to be debatable among reasonable jurists, we D ENY the application for a

certificate of appealability pursuant to 28 U.S.C. § 2253(c).



                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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